book. we will take your questions and comments and tweets till noon eastern. watch booktv every weekend on c-span2. television for serious readers. >> next the supreme court oral argument concerning the texas abortion clinic law. then the cachair of the national intelligence counsel talks about u.s. efforts to combat terrorism. after that, a discussion on the fbi, apple and access to phone encryption data. on wednesday, the supreme court heard oral arguments in whole woman's health versus hellerstedt; an abortion case from texas. the court is considering a texas law requiring doctors to have admitling -- admitting pr

privile privileges to a hospital within 30 miles and requiring facilities have to hospital like standards is a violating their right. >> whole woman's health versus hellerstedt. >> mr. chief justice, may i appease the court. the texas requirements undermine the careful balance between states's legitimate interest in regulating abortion and woman ability to make their own decision. they create obstacles to abortion access. >> there is a preliminary question. would you address that? that disclaim is for prudence. let's take first the claim that was in the prior litigation. let's assume they are separate

claims. that was argued and decided. why isn't it precluded? >> your honor, it is not precluded because staff to the claim developed subsiquent. >> the new action is filled six days after the supreme court issues its decision in this case. you could have asked for supplement briefing. >> in abbot, the plaintiffs brought the new fact do is the court of appeals and the court of appeals said it would only consider evidence in the trial record in rendering its decision and held the evidence was spe speculative and no clinic would be forced to close.

>> you made allegations concerning the same claims. is your argument that when you have allegations of official challenge and challenges result against you that all you have to do is come up with new evidence and you can start over again? >> no, your honor. the evidence must be material and newly developed. if it was evidence that was able at the time of the first suit but the plaintiffs didn't discover or bring it forward that would not provide the bases for a suit to follow. but evidence after the second claim -- >> what is the key new evidence? >> the evidence is the clinic closures that resulted from actual enforcement of the admitting requirements. the first suit was a pre-enforcement challenge. it was before the law to defect

and the court concluded there was not sufficient evidence that any doctor would actually be unable to obtain admitting procedure. >> there is little specific evidence in the record in the case with respect to why any particular clinic closed. basically your argument is that the law took effect and after that point there was a decrease in the number of clinics. so suppose you win here and the state then examines what happened in each of these clinics and comes up with evidence showing that in quite a few instances the closure was due other factors. could they take the position well, the decision of this court holding that the law is unconstitutional and is not binding on us by race judah cata

and you would have to sue them again and they would be able to make the same argument they are making now. is that correct? >> no, your honor. >> what is the difference? >> the state had an opportunity to bring forward evidence about the reasons why -- >> was that their burden? >> not in the first instance. but the plaintiffs came forward with evidence and the state didn't offer anything to rebut the evidence which was more than sufficient to support the finding that hb-2 was the cause of the clinic closures. >> what evidence is that? >> there are a couple things, your honor. prior to hb-2, in the five years prior to hb-2, the number of clinics in the state remained stable. there may have been a one-two clinic variance. following the enactment of hb-2 more than 20 clinics closed within a short period of time. >> what is the evidence in the record that the closures are

related to the legislation? >> the timing is part of the evidence, your honor. the testimony of the plaintiffs about the reason why their clinics closed. the plaintiffs testified that clinics closed in anticipation of enforcement in some cases and in some cases because of actual enforcement of the requirements >> can we go on it to the seven centers? the surgical centers that were not part of the last case. and your position on that is that is the discreet claim so it is not a claim of intrusion. is that your position? >> yes, that is correct. claims against the ast requirement were not right at the time the abbot case was filled because the find implementing regulations for that statutory requirement had not yet been adopted. >> certainly in the federal system and i am assuming many states regulations sometimes

take years to propagate. i don't know any rule that says we have to wait for regulations to be propagated unless anticipated. and the key objections you making were clear in the statute anyway. >> i would disagree that the extent of the burden the law imposed was clear in the statute. until they were adopted, and the statue provided a deadline, until they were adopted the plaintiffs couldn't have known whether waivivwaivering or gra d grandfathering would have been allowed the burden would have been less and the plaintiffs would have attempted to get licensed before filing the suit.

>> you think you can separately challenge the admitting provision and the asc provision? >> yes, your honor. >> if you challenge just the admitting privileges provision how would you factor in the -- you would have to assume the asc provision wasn't under challenge. in assessing the burden you would look at just the assessing privilege. if you are challenging just the asc separately you would assess the burden solely caused by provision. seems to me separation of the two provisions makes your case much harder. >> i would disagree with that, your honor. each of these requirements is extremely burdensome on its own. the admitting privilege requirement which has been responsible for half of the closures in texas abortion facility do is date.

if the asc took effect they claim it will close any remaining abortion facility that was able to comply with the admitting. either one is burdensome is the one-two punch would be responsible for the closure of nearly 30 -- >> i think the chief justice asked, i don't want to take words out of his mouth, but i think the question was, one of the two that have been asked, is on page seven, the district court said that if the asc regulation goes into effect there would be one facility left in austin, two in dallas, one in fort worth, two in houston and one or two in san antonio. and he said the enforcement of

the privileges would reduce the number from 40 down to about 20. i think the question was what evidence did those findings rest upon? you have heard the other side say there is no such evidence. but the court appeals said there is no such evidence. can you give a brief account or passenger numbers that will show those findings, the diminishment from 40 to about 8 which is what the district court found, rested upon some evidence. what was that evidence? >> yes, your honor. so initially 20 clinics closed in the wake of hb-2. eight closed prior to initial enforcement of the admitting privilege requirement and 11

closed on the day the admitting privileges requirement first took effect. repondants quibble with the evidence serounding the first eight. there is a bases in the record for the district court to inser those -- infer those eight closed for the same reason. >> where in the record is that evidence? >> the evidence is in the plaintiff's testimony about the reasons why their clinics closed. each of the plaintiff's testified their clinics closed either in anticipation of enforcement of the requirements knowing the clinic would not be able to continue operating once the requirements took effect and as a result they needed to move resources to remaining clinics to ensure some continued to operate. >> could you give us record references later on rebuttal? >> yes. >> as to how many of the total

you claimed close do you have direct evidence about the reason for the closure? >> 11 of them, your honor, closed on the day the admitting privileges took effect. >> how many are you claiming closed total as an are result of the law? >> to date roughly 20. >> of the 20 how many do you have direct evidence? >> approximately 12, your honor. >> if you go through this, and we are not talking about a huge number of facilities. i don't really understand why you could not have put in evidence about each particular clinic to show why the clinic closed. as to some of them, there is information that they closed for reasons that had nothing to do with this law. maybe when you take out all of those there would be a substantial number and enough to

make your case. planned parenthood center for choice brian, texas. is that one? >> yes, your honor. >> the huffington post said it was the result of a bill that cut funding for family planning services. >> your honor, that evidence is not in the record. >> i understand that. and you put quit a bit of evidence not in the record in your brief but why isn't there direct evidence about the clinics? >> you said you had direct evidence of 12 clinics and you will supply us with that later? >> yes, your honor. >> could i just make sure i understand it. you said 11 were closed on the day the admitting privilege requirement took effect.

is that correct? >> that is correct. >> is it right in the two week period the asc requirement was in effect that over a dozen facilities shut their doors and when that was stayed and lifted they reopened again immediately; is that right? >> that is correct. >> it is like a perfect control of experiment. you put the law into effect, 12 clinics closed. the law is taken out of effect and they reopen. >> that is correct. and that is what the state stipulated would happen and that stipulation is direct evidence of the impact of the asc requirement. >> the state, i think, is going to talk about the capacity of the remaining clinics. would it be a; proper and b; helpal full for this court to ring in on further finding for

clinic capacity? >> i don't think that is necessary. i think there is sufficient evidence in the record we have to show the remaining clinics, fewer than ten, don't have the capacity to need the state demand. >> a clinic in san antonio, i don't know the adjective they used, but there was evidence there was a capacity and capability to build these kinds of clinics. would that be of importance? then it would show this law as a beneficial effect as far as the legislation. >> if the court had any doubts about the capacity of the remainder clinics we would provide the opportunity to supplement the evidence in the record but the evidence shows the support of the findings that

because of the asc requirements, the cost of it are so prohibitive, it will deter new clinics from opening. >> is it on the record that the number of surgical centers performing abortion has increased by 50% since this law went into effect? >> since this law has taken effect there is three new surgery centers that opened. there was evidence at the trial and the trial court knew that would happen and took that into account in making its findings. but there was evidence, including texas' experience in 2003 following enact of the asc law for later abortions, for post-16 week abortions, that show the market never adjusted

and the rate at which those procedures occurred in texas was drastically diminished. >> one question about capacity and i don't wants to take your rubutal time but your co-counsel is also litigating a case like this in louisiana. in that case, the plaintiffs were able to put in evidence about the exact number of abortions performed at facilities. why doesn't that done here? >> there is evidence in the record about the number of abortions that were performed on an annual bases, the geographic distribution of those abortions. texas collects the statisticics a -- statistics and they are part of the record.

>> we have absorbed so much of your time that perhaps she can have time to address the merit. >> why don't you take an extra five minutes and we will be sure to afford you rebuttal time after that. >> thank you, mr. chief justice. fu fundamentally these laws impose an undue burden on the right to abortion. >> do you think there is a rational bases for the law based on the benefits the legislature saw? >> i do not, your honor. >> i thought you expressly did not challenge the law as lacking a rational basis. >> we did not preserve our rational basis claim. the district court denied that claim and we have not preserved it here. we are focusing on the undue burden but we would not conceive the law has a rational base >> we have to assume it does

since you are not raising that challenge, don't we? >> because the law actually undermines the state's interest in health rather than advancing by causing an increase in later abortions and self-induced abortions we would not conceive it is related to the interest of health. >> you said even if the test is under due burden not rational bas basis. >> in order to determine a law imposes a burden we must look at the magnitude of the burden and compare that to what the law is intended to achieve. >> how is that logical? the question is whether there is an undue burden or substantial obstacle. what difference does it make what the purpose is behind the law in assessing whether the burden is substantial or undo?

once you get past that you look at the burden or obstacle and the purpose of the law doesn't make a difference. it is an obstacle and burden or it isn't. >> in order to determine if a burden is undue we have to consider what the burden is in relation to. >> i thought the undue burden and substantial obstacle went to whether it was undue with her right to exercising an abortion

but with respect to the state interest asserted. >> it is both. casey balanced the state's interest with the woman's fundamental right and liberty to access the procedure. it concluded the state couldn't impose unwarranted burdens. where the state had a good reason to impose a restriction and that restriction didn't impose burdens that were undue the restrict could stand. it is unnecessary and going to cause a burden to access to abortion that restriction cannot be sustained under the 14th amendment. >> can i walk through the burden for a moment? there are two types of early

abortions here. the medical abortion that doesn't involve any hospital procedure. a doctor prescribes two pills and the women take the pills at home. correct? >> under texas law she must take them at the facility but that is otherwise correct. >> i am sorry. she has to come back two separate days to take them? >> that is correct, yes. >> from when she could take it at home it is now she has to travel 200 miles or pay for a hotel or to get those two days of treatment? >> that is correct, your honor. >> let me ask you something about that two-day wait or travel time. how many other states and how many other recognize medical people have testified or shown there is any benefit as opposed

to taking the pills at home as was the case? >> there is absolutely no testimony in the record and no evidence, you know, in any of the amicus brief that there is a medical benefit to having a medication abortion at a multi-million dollar surgical facility. the american medical association and every other mainstream medical association that considered these requirements has concluded they are not medically justified for a variety of reasons including that they impose these ominous burdens on the earliest form of abortion and they are imposed on early surgical abortions. procedures prior to 16 weeks and women will be delayed later in

the pregnancy and there is evidence following the implementation requirements in the six month period following there was an increase in the number of porportion -- proportion of abortions being performed in the second trimo trimester. >> the dilation is the second o one. what is the risk factor for a dnc related to abortion and a non-abortion dnc? dnc's are performed in offices for lots of other conditions besides abortion. is there evidence in the record that shows there is any medical difference in the two procedures

that would necessitate an abortion being in an asc or not? are abortions more risky than the regular dnc? >> no, your honor. the evidence in the record shows the procedures are virtually identically particularly when it is performed for a spontaneous miscarriage. a doctor performs a dnc after a miscarriage and that is identical to an abortion but not subject to the requirements of hb-2. >> your point of taking is that the two main health reasons show that this law was targetedt at -- targeted at abortion-only? >> that is absolutely correct. >> is there any other medical condition, like taking the pills, that are required to be done in hospital? not as a prelude to a procedure

in a hospital but an independent, you know -- i know there are cancer treatments by pills now. how many of those are required to be done in front of a doctor? >> none, your honor. there are no other medication requirements and no other out-patient procedures that are required by law to be performs in an asc. >> thank you, counsel. >> mr. chief justice, may i appease the court? the effects of the texas law are more extreme than any abortion law this court has considered since casey. this law closes most abortion facilities state and puts stress on the ones open and presents

obstacles for women seeking abortion and does it all on the basis of a medical justice that c c cannot withstand scrutiny and it is found to increase health risks to women. >> it is true of every provision of the asc law. >> no, i don't think it is true about every provision, justice. >> then why was the whole thing held to be unconstitutional? >> i agree with the permitters of your honor's question. there are some premises that i think operating alone wouldn't have the same effect. some parts of the regulation restate and reauthorize regulations that were already on the book. i suppose one could say with respect to that that the

district court could have severed them under the sevability clause. >> there are things that go -- i have not checked everything and compared the abortion license laws but the are some where there is an increase in what is required and it seems pretty reasonable under the old law that had to be a nurse but not necessarily a registered nurse. under the new law there has to be a registered nurse with a cpr certificate. you think that is unreasonable there has to be a nurse that knows cpr? >> i think the problem the district court confronted here and the reason the district court acted reasonable is the severability clause provides

instructions that every clause, application and individual should be severed and it was noted for a court trying to apply that the court has to go in and decide which collection of the many, many requirements there should make the stand and which shouldn't. >> i read through thes regulations and i was surprised how many were inocilous. they had to do with basic safety. not even abortion. the entrances have to be at grade level, you have to have an elevator, the carts have to be wide enough to bring in a stretcher if somebody has to be taken to the hospital. i don't why things couldn't have been severed out.

>> we think that would be appropriate but we do think there bake points remains an obstacle. with respect to closures, here is where i think the record will show you. taking the asc requirement first. ja-183 is a stipulation all clinics not closed as a result of the admitting privilege would not meet the requirements and would have to cease operations and justice kagen noted they did. the seven clinics operated by whole women's health said it was impossible to meet the construction requirements. there is expert testimony the

cost of retrofitting the clinics were prohibited. the cost of building a new facility would be $3.5 million which is prohibitive. and the cost is $600,000 to a million more a year. there is ample evidence. with respect to the admitting privileges requirement we know 11-20 clinics that closed between the date when the law was enacted was on the date that requirement became effective is the only inference you can have with respect to the 11 and that the law closed the closure. with respect to the others i don't know there is evidence respect to each one but there is evidence several closed in advance of the date because they would have to pay a licensing fee to stay open and knew they

would not be able to and didn't want to throw the money away. with respect to capacity, before this law took effect there were approximately 65-70,000 abortions a year annually. the afc facilities remaining open performed about 14,000 a year. that is what the record says. dr. grossman's expert testimony. >> about 20%. >> they would have to increase four or five fold in a short period of time against the backdrop of having to meet the problems that the admitting requirement policy requires. that is not binding. it is just wrong. if you look at the expert testimony you have see what dr. grossman said first is something that is common sense and that is these facilities are not going to be able to increase by four our five times.

and he looked at the period of time when the requirement resulted in the closure of 20 clinics. he looked at that period of time and studied the number of abortions that occurred at the remaining facilities during that period of time. >> do you think the district court would have had discretion for the appellate court to say we are going to stay this requirement for two and a half/three years to see if the capacity problem could be cured? could a district judge do that? >> justice kennedy, i have not given that question thought. >> the district judges often think they can do anything. >> i think with respect to the capacity problem the key thing here is that in addition to the

asc clinics not providing more abortions >> there is no evidence on the capacity of clinics. why wasn't it put in? when we look at the louisiana case we can see it is possible to put it in. a doctor performs 3,000 abortions into ye a year we see. we don't know the capacity of these clinics >> you have expert testimony in that regard. >> what is it based on? >> it is common sense but it is beyond that. justice alito you study the period of time half the clinics closed and you would expect the

additional asc's could handle that capacity they would have. >> he said the percentage of abortions went down by 4.4% and increased demand for abortion but there is no statistic showing an increase demand for abortion in texas. >> i thought the grossman affidavit on page nine table two says that the number of abortions that are an average performed annually at the remaining clinic is 2,000. multiple by two and you get 16. >> let's multiple by three and you get 24. there were 70,000 women who needed these procedures approximately. is that accurate? >> yes. in the short time i have remaining i would like to finish with one point, if i could.

i think the question before you is whether the right will retain substance and whether the balance struck in casey still holds? if that right retains we have substance and this law cannot stand. the burdens it imposes is far beyond anything the court can see and the justification is far weaker than anything the court has seen. it is an undue burden and the definition of an undue burden. and undue means excessive or unwarranted. it could be excessive and unwarranted compared to the obstacle but also its need. >> casey and gonzalez said substantial obstacle and i would think you could look at that in an objective manner.

i think whether it is an obstacle or burden is outside of the state interest. it seems like you would look at the impact of the legislation. >> i think it is interest in the government to look at it -- at the way we are suggesting it should be looked at. i think, mr. chief justice, that is because it is one thing to say you will impose a requirement that does work as much to be obstacle that these requirements do. when you have justification as the american medical association told you is grounds. if the government wave comes in, if it were coming in, this requirement made a difference in saving hundreds of lives, that might be a burden you would think is acceptable given the medical benefit. that is why we think the test that makes sense for the

government is the one we are suggesting. i think whichever way you look at it. our way or two separate inquiries this law can't pass it. if you do find this law is upheld what you are saying is this right only exist in theory and not in fact going forward and that the commitments this court made in casey will not have been kept. thank you. >> thank you, counsel. mr. keller. >> i will afford you an additional eight minutes. >> an extra thank you. may i appease the court. texas acteded to -- acted to improve abortion safety and planned parenthood provided this standard of care. abortion is legal and accessible in texas.

all of the texas metropolitan areas will have abortions including the six more populated areas of texas. >> how many women are located over a hundred miles from the nearest clinic? >> justice ginsberg, ja-242 provides 25% of texas women reproductive age are not within a hundred miles of an asc. that doesn't include el paso where there is mexican facilities. >> that is odd that you pointed to new mexico facility. new mexico doesn't have any surgical asc requirements. it doesn't have any admitting requirements. so if your argument is right new

mexico is not an available way out for texas women. sending them off to new mexico where they don't get admitting privileges or asc and that is perfe perfectly all right? if that is all right for the women in the el paso area why isn't it right for the rest of the women in texas? >> the policy set by texas is the standard of care at abortion clinics should rise to this level of care. texas doctors cannot tell new mexico how to eggerate -- regulate. >> why should it count? those clinics? >> this clinic is one mile across the border and women in el paso often use that facility to obtain abortions so it would

go into the contextual challenge of whether women in el paso have access to abortion. over 90% of texas women of reproductive age live within 150 mimes of an open clinic. >> the statistics i got from the record were 900,000 women live further than 150 miles from a provider. three quarters of a million further than 200 miles. that is compared to 2012 where fewer than a 100,000 lived over a 150 miles. and only 10,000 lived more than 200 miles away. so we are going from like 10,000 to three quarters of a million living more than 200 miles away. >> the expert testimony will not account for el paso or mcallen.

the travel distance of even in casey the district court found over 40% of pennsylvania women were going to travel one hour, sometimes over three hours, and there was a 24 hour waiting period. texas reduced that to two hours and traveling over a hundred miles. here that relevant fraction lower and under casey and the facial challenge it would not succeed. >> when there is a need meaning where are you taking into account the undue burden analysis? the value of the need of being imposed? meaning -- even if i grant you in some circumstances travel time is necessary because you

just can't get any kind of abortion clinic to go into the a particular area. so you might have to impose a burden that might be undue in other circumstances. where do we evaluate the benefit of this burden? when -- what is the need? you are telling us there is no role for the court to judge whether this is really a health benefit >> there is the rational bases test of the doctrine. >> i am not talking about the doctrine. i am talking about that according to you the slightest help improvement is enough it impose on hundreds of thousands of women, even if i accept your argument which i don't because it is being challenged, but the slightest benefit is enough to

burden the lives of a million women >> casey said it is a substantial test. if the law had no health benefits that would be irrational but even their expert acknowledged that some doctors do believe there is benefits of the admitting privileges. >> what is the benefit of the medical -- the two pills you take. what is the benefit of having a surgical center to take two pills when there is no surgical procedure at all involved? >> two responses justice ginsberg. the complications rates are greater with a drug-induced abortion >> that is likely to arise via the woman's home which the 30 mile has nothing to do with. >> first of all, the two travel distances was about the drug

protocol. that was in the petitioner's first lawsuit. they have not raised a challenge to that >> i am not talking about the prior lawsuit. i am talking about this lawsuit and you need to have access to a hospital within 30 miles. 30 miles of what? 30 miles of the surgical center when the woman lives at a greater distance and she can go to any hospital it would be in her local community not in the surgical community. >> most abortions are surgical abortion in the state. >> i am asking just about the medical. i cannot imagine what is the benefit of having a woman take those pills in a surgical center when there is no surgery involved. >> there would be surgery if

there is complications. >> if there is a complication it is not going to occur on the spot. you have to conceive in the case of the medical abortion the complication generally arises after the woman is back at home and then the nearest hospital has nothing to do with the surgical center. >> although when the sigma jor of the women are living within 50 miles of the clinic they are going to be in the facility and it is beneficial to have care where they can all speak. >> is the underlying premise of your argument, mr. keller, and the state's position, that the thrust, the impetus, or the effect of the law, is to increase surgical abortions and

that is within the state's authority to do? because my reading indicated that medical abortions are up nationwide but down significantly in texas. >> it would certainly be per mis permissable to regulate this. >> i thought an underlying demonstration is this law increased the number of suggestical procedures as opposed to medical procedures and this may not be wise. you might say this is within the authority of the state to do and i want to know what your position is. >> justice kennedy, given the greater complication rates from the drug-induced abortions the legislature would be permitted to act in that way.

petitioners haven't challenged that part of the holding. in the fifth circuit they have thought raised that. they are trying to say the remaining clinics will be at capacity. they didn't try to take discovery from the non-traditional clinics. indeed, what he did was look at the number of abortions and percentages that were being performed. a year earlier asc performed more abortions. so the inference of capacity can't be drawn. >> what evidence would you put on the capacity issue if you had been afforded that opportunity? evidence that would rebut the statistically significant showing on the other side about capacity and also the circumstanti circumstanti circumstanti circumstanti circumstantial evidence about

the timing. >> their application to vacate the state and they went with a chart and tried to estimate the number of abortions. houst houston planned parenthood estimated 9,000 abortions annually. that is 175 a week is what their chart says. >> before this? >> yes. planned parenthood operates 5-9 asc. planned parenthood is not in the in this lawsuit. they have complied with the law. and they facilitys in each of the five most poplar texas cities. if they can perform 9,000 abortions annually and there are eight other facilities it doesn't become a stretch to believe the remaining facilities

would suffice to meet the demands >> the court said we will not let you put in the evidence. >> we didn't put in evidence because the petitioners bore the burden. >> did you ask? >> no. >> thank you very much. i would like to go back to the questions that the justice ginsberg was asking which is about what the benefit of this procedure. there are two laws. i am focusing on the first law. the first law says that a doctor at the abortion clinic must have admitti admitting privileges in a hospital within 30 miles of the city. right? >> correct. >> prior to that law, the law was that the clinic had to have a working arrangement to transfer such a patient. >> that is correct. >> i want to know, go back in

time, to the period before the new law was passed. where in the record will i find evidence of women who had complications who could not get to a hospital even though there was a working arrangement for admission? but now they could get to a hospital because the doctor himself has to have admitting privileges. on which page, which were the women, does it tell me their names, what the complications were, and why that happened. >> justice, breyer, that is not in the record. >> so it is correct when he said he confined in the entire nation, in his opinion, only one

arguable example of such a thing and he is not certain even that one is correct. what is the benefit to the woman of a procedure that is going to a problem which there was not one single instance in the nation perhaps there is one but not in texas. >> the national abortion confederation recommended women use -- >> i didn't ask that. i am just asking you where we have a judicial duty to say whether this is an undue burden upon the woman who wants the abortion. there are two parts. is she burdened? and what is the benefit. on the first one, i asked you to give a single example of an

instance where there is a benefit and you say there is no such burden. let's turn to the second one. the second one according to the amicus brief here, which i guess i could validate, that even without the surgical center, leave it out, there are risks quite correct. those risks are roughly the same as the risk that you have in a dentist office when you have some surgery, where you don't have an ambulance or surgical center, they are 28 times less than the risk of a colonoscopy and hundreds of times less -- you have seen these briefs. okay. so i read them and you read them. and so what is the benefit here to giving, i mean the woman, i cannot see it zero here, this

surgical center when the risk is minuscule compared to common procedures that women run every day in other areas without the surgical centers? >> that has never been in casey. and even before casey upheld the asc requirement in virginia they didn't require brain surgery be performed in a hospital. just because in looking at the law it is whether the legislature has a legitimate purpose in acting. >> can the legislature say anything, general? if the legislature says we have a health related abortion regulation here we have looked around the country and we think all are ten great hospitals around the country.

massachusetts general, brigham and women. and we will make all of our abortion facilities conform to the standards of those hospitals and that will increase medical care. sure, we don't make anybody else doing any other kind of procedure. and we think it will increase health benefits abortion facilities conform. i am sure there is medical evidence if ever facility was as good as massachusetts general

they would be better facilities. i am sure you can find doctors to say that. but even though it isn't applied to any or facility doing any other procedure. even though we know liposuction is 30 times more dangerous it doesn't have to same requirements. >> a state could increase the standard of care as high as it wants. if they could reduce the standard of care, and it would not be a burden on the woman that would be a benefit to them. would there be anything unconstitutional? >> no, provided women are able to make the ultimate decision to elect for the procedure

>> doesn't that show undue burden is weighed against what the state interest is? are these two different categories under the burden? >> what casey noted was that the underburden has a purpose or obstacle to access. that is a question about access as to whether what the state's interest is. you need the clearest proof under the document to infer there is an unconstitutional purpose in promoting patient health. and roe versus wade said states can ensure the maximum safety. >> what evidence is there under the prior law, because the prior law wasn't sufficiently protective of the woman's

health, as i understand it, this is one of the lowest risk procedur procedures. you give a horrible from pennsylvania but absolutely nothing from texas. as far as we know, this is among the most safe, least risk procedures; an early stage abortion. what was the problem that the legislature was responding to that it needed to improve the facilities for a woman's health? >> in the petitioner's first lawsuit planned parenthood admitted 210 women annually are hospitalized because of abortions. >> as compared to child birth, much riskier procedure, is it not? >> the former providers dispute that and the amicus brief. >> is there any really dispute?

child birth as a more serious procedure than early stage abortion. >> when you look at statistics instead of complication reporting there may be a difference. the reason reporting is important is there is evidence in the abortion complications are underreported. in fact, petitioner -- >> underreported? most of the complications we are talking about were reported at hospitals, correct? yet there is no some evidence of not reporting other things outside of the hospital. but you know the number of hospitals are accurately reporting. >> abortion clinics have to report complications in texas. and particular whole woman's health -- >> complications within the clinic >> that is right. >> what is the -- 210 pretty small.

>> the statistics is it is lower than 1%. however -- >> i don't mean to negate that one should try to avoid injury to anyone. don't take my question as that. but there are people who die from complications from aspirin. it may be unusual but there is a certain percentage. yet we don't require people take aspirins in acs centers or hospitals. there could be a tie between the benefit and burden. >> not examining the fact but the purpose, the constitutional analysis is does the texas legislature have a valid purpose. >> don't you think you can read that from the fact there are so many other medical treatments whose complications rates are so

disproportionately higher and the legislature is only targeting abortion? when there is nothing about the figures before it that show a risk so unusual that it needs greater attention. >> this is why petitioners are trying to upset the balance that was struck in casey. >> i don't see where this fits in. i mean the argument, i don't question their purpose. >> good. thank you, justice briyer. >> but the purpose is they are worried about these complications and want to make life safer for the women. let's take that as the purpose. you said there are not very many complications. would you say if you reduce the number of clinics as has been argued, maybe it isn't exactly that, and you suddenly have at

least 10,000, maybe a few less, maybe some more, women who have to travel 150 miles to get their abortion, maybe more, maybe stay overnight, maybe try to scrape together the money, you understand the argument. are there going to be more women or fewer women who die of complications due to an effort to create an abortion? i mean you read the briefs, you have read the same articles i have, and of course the argument is if you need a self-induced abortion you will find many more women dying. if the concern is this tiny risk of dying through a complication in a clinic is this a remedy that will in fact achieve the

legislature's health saving purpose? >> justice breyer, about self-induced abortion the evidence on that was where petitioners prevailed. challenges could be brought if there is an obstacle on challenge distances. the four clinics closing in west texas closed before the admitting procedures took affect. they were planned parenthood facilities -- >> as applied challenge there is a problem with that. suppose you are bringing that as a challenge and you are successful. you can't have a creation of a surgical center on the spot. once these facilities are closed they are closed. they cannot start up tomorrow.

as the applied challenge that the woman's problem would be long over before this clinic had before could be restarted -- >> justiceing ginsberg, the mcallen facility did reoh -- reopen. 7-8 clinics that closed were planned parenthood clinics. planned parenthood is complying with the law and providing the increased standard of care. 1 1 clinics that closed the day the admitting privilege took affect i don't believe six of them could have ceased production of the requirement. >> there is a stipulation that is no currently licensed

abortion facility meets the asc requirements. each will be prohibited from performing abortions after the day the law goes into teffect. that is a stipulation and not a question of evidence. texas stipulated no current licensed facility met the requirements and each will be prohibited from performing abortions. >> that would be to the asc requirement as opposed today the admitting challenge. ...

>> you can't get its dr. certified so to relieve that clinic of the obligation of going without many privileges. >> most of the doctors and clinics are not part of it. >> you would know is the only clinic in the area. so if any doctor who is licensed appropriately can get admitting privileges they should be permitted to work in that clinic why does dr. lan have to be commented ventured slave to ensure that women in her area

are provided with the fundamental right to choose. >> justice sotomayor it wouldn't be an indentured situation. new facts the cayman -- another doctor could bring in a challenge. >> could i go back to something that you said earlier and tell me if i'm misquoting you. you said as the law is now under your interpretation texas is allowed to set higher medical standards for personnel or procedures and the facilities themselves. higher medical standards including higher medical standards for abortion facilities then to do any other kind of medical work even much more risky medical work. you said that was your understanding of the law. am i right? >> correct. >> i want to know why would they do that? >> when there are complications

from abortion texas can enact laws. >> i know but the assumption of the question i think you have it challenge to the assumption there are many procedures that are much higher risk colonoscopies like the section we could go on and on and uber saying that's okay we get to set higher standards for abortion and i just want to know why that is. spent justice kagan this bill has passed in the wake of the health scandal that prompted texas and many other states to renew their portion regulations. >> texas on regulations have made abortion facility such that that can never happen. to your credit so that was really not a problem in texas having a kind of broke out the air. texas has taken actions to prevent that so again i am left wondering given the baseline of

regulation that prevents rogue outfits like that why it is that texas would make that choice. you are allowed to make the change choice and we can argue about about that prodigious wonder why texas would make it. some of them at this brief and the legislators that campus medical evidence and statements confirms there were complications that these laws do have benefits and even opponents opponents. >> are you or are you not contesting that there are greater complications in abortion facilities than there are with a great deal of medical procedures that are not subject to the same standards of regulation? >> brain surgery for instance would almost certainly would have higher resting complications. >> esta wrote facilities that justice kagan just mentioned one of the amicus briefs cites instance after instance where

women's facilities have been cited for appalling violations when they weren't expected, holes in the floor where rats could come in, the lack of any equipment to adequately sterilize instruments. is that not the case? >> story similar to that arrays in the 121 texas legislators amicus briefs. >> the zara's i understand that actual reports of inspections of those facilities bear the amicus briefs do discuss that in the complications of women's health weren't reported to the state. >> texas has the right to make random -- but the problem is pennsylvania clinic hasn't been that by anybody from the state and 16 years but texas can go into any one of these clinics and immediately spotted

violation. texas as justice kagan pointed out its own mechanism for preventing that kind of thing from happening. >> texas did have existing regulations for increasing the standard of care particularly not only in light --. >> only if it's taking care of a rope problem. there are abortion complications that are underreported? >> the real problem meaning the governor of pennsylvania said it was regulatory failure and only in that this clinic had not been inspected for 15 years. the doctor was fabricating his report. that could happen at any time. anyone who intends to break the law is going to break the law whatever the regulatory rules are. >> you'll have laws performing

abortions without permission in their office or without licenses. i don't want to suggest that we should person that's going to happen but it will happen. >> the constitutional standard whether a state can make abortion safe or campy that it can prevent acosto situation. >> but you have to see because justice breyer asked you earlier do you think this is a self-created problem? what happens in texas that raised the gazelle like situation in texas that made legislature so concerned after so many years about taking care of this greater risk and abortions as opposed to all the other features that are performed in non-bcs? >> there are competitions and abortions. >> there are applications in

colonoscopies and colonoscopies, justice breyer just corrected me , 20% higher. >> legislators react to topics that are public concern and after dr. hassles procedure for partial-birth abortion -- when the legislature sees there's a problem and it wouldn't rise to the same level as the gauze no problem but the legislature can act to make abortion safe or. if i can address my friend's contention of the record as to what can be exposed preemptively there is evidence that colleen and el paso close randomly. ..

you said it could reopen, but that was very swift. once it closes, you can't reinstate it tomorrow. it won't be there. there will be no remedy. the clinical is not just closed for a single day. it was closed for a longer period of time. as applied challenge can allow a clinic, if an undue burden is shown because of driving distances or capacity in the future in that instance, when were in that posture, it bears a heavy burden. >> evidence in any area, that this area of western texas is as big as california, no? bigger? >> i'm not sure about california but it certainly is a large. >> huge area. why isn't self evident that there is not a law that says you can only be an acs provider and who's going to come in and say i can't be an acs provider but it's an undue burden on me or it's an undue burden that self evident on the women of that area? >> exactly, why don't we take this lawsuit of the women saying just that. you can't have a law that has medical benefit be applied to this procedure anywhere where there is an undue burden on

women. >> plan parenthood had four clinics in west texas. they all closed before this was put in effect. they could have a challenge but they didn't. they did not join the lawsuit. they were part of the first lawsuit. indeed challenges are here and there significant record gaps. >> one question, earlier in your argument, you were reporting how many women are within a reasonable range of the clinic? can't we see that the focus must be on those who are burden. those are the ones who aren't burden. the district said this is not a problem for women who have a means to travel. those women will have access to abortion any place. so in texas or out of texas,

casey was quite precise in this and talking about notifications. you don't look to all the women who are getting abortions. you look only to the women who often this is a problem. so the only women we would be looking at is not all of them who live in austin or in dallas, but the women who have the problem, who don't live near a clinic. isn't that the clear message of casein the husband notification? one oh laws regulating women as it would in spousal motivation provision, that might be different but were talking about doctrine including regulations, when the law is going to have a relevant effect is going to be for every doctor in every clinic which is precisely why the fifth

circuit noticed that that was a proper denominator. they do not challenge the denominator. >> this is about, what what it's about is a woman has a fundamental right to make this choice for herself. that's what we thought at the starting premise. this is certainly about, casey made that claim that the focus is on the woman and it has to be on the number of women who are affected. >> and the right held by women to make that ultimate decision is not burdened in a minimal a fraction of cases when each area will have a clinic after the law goes into effect and future challenges could dress concerns. >> miss cody you have five minutes remaining. >> thank you, a few brief points. first the records from earlier, evidence that they cause clinics to close in texas. the plaintiff testified that

they caused them to close clinics and that testimony is that ja 349, 715722 and 731. they stipulated at ja 183 and 184 that the afc requirement would cause any licensed abortion facility operating on the day it goes in effect to close. they demonstrate that for the five years prior to the enactment, the number number of abortion clinics in texas remained fairly constant. finally, at ja 229 and 1430, there is a 229 testimony from a doctor and at 439 our response to the directive showing 11 clinics closed on the day of the

requirements. >> the last was from dr. grossman? >> ja 229 is from doctor grossman. >> earlier he set i'm not here offering any opinion on the cause of the decline in the number of obey abortion facility. >> that's correct he did not offer an opinion on that but his testimony supplies the facts from which the district court drew the inference that 11 clinics closed on the day that the state first enforce these privileges requirement. the district court referred from that enforcement was the cause of the closure and offered no alternative explanation for why there is such a precipitous drop in the number of abortion. >> could you tell me why planned parenthood, the admitting privileges have nothing to do with the closures in the western

area? >> the two clinics in el paso which is in that western region of texas that would be forced to close as a result of these requirements are not operated by planned parenthood. they do not have any clinics in texas. another independent provider operates those clinics. >> in clinics where there is direct evidence that the direct evidence show whether the cause was the admitting privileges requirement or the ach requirements or both? >> with respect, it does specify in the admitting privileges requirement and some specify both. with this set to decide whether this can regulate abortion and it can be treated differently if there's a reason to treat it differently but texas may not impose unnecessary medical limitations that limit their access to abortions.

there is extensive testimony that these requirements are not medically justified. they are not consistent with prevailing ethical standards and they meekest briefs from medical associations confirming that. >> do you think that federal district judges who are this court is well-qualified to determine whether there is a different risk with respect to abortion as compared to other procedures that may or may not have to be required, may or may not have to be performed in an a.s. c? >> your honor district courts

are quite competent to determine the credibility and reliability of expert testimony. that something within the core competence of a trial court and the trial court in this case determine that there was no credible or reliable evidence supporting texas contentions about the medical justifications for these laws. further, had texas truly believed that these laws provided some important benefit for outpatient surgery, it would have made them generally applicable. all outpatient surgical providers, but that's not the case, texas law expressly authorizes other surgical procedures including those performed under general anesthesia which early abortion is not to be performed in a physician's office, and even other physicians that operate at an asc are required to have admitting regulations. these regulations targets one of the state's procedures that a patient can have in an outpatient setting for the most regulations. >> thank you counsel. case3 these regulations targets one of the state's procedures that a patient can have in an outpatient setting for the most

regulations. >> thank you counsel. case is minute. >> on newsmakers, senator patrick leahy, leahy, ranking member of the judiciary committee talks about the dispute between republicans and democrats over the vacancy on the supreme court and other judiciary issues. newsmakers, sunday at ten am and 66:00 p.m. eastern on c-span. book tv has 48 hours of nonfiction books and authors every weekend. here are some of the programs to watch for this weekend. on on saturday night at ten eastern,. >> the first sentence of the book is the history of american conservatism is a story of disappointment and betrayal. >> "after words" with syndicated columnist who discusses the history of republican politics in his book why the right went wrong. conservatism from goldwater to tea party and beyond. he is interviewed by juan

willia48. coming up sunday, in-depth live with author investigative journalist jane mayer. her most recent book is dark money, the hidden history of the billionaires behind the realities of the radical right. join in the conversation. we will taking your phone calls treats and emails from noon eastern. watch tv all wleakend, every weekend on cdicipan2. television for serious readers. >> now, a discussion on national sery rity hosted by the center for strategic and international studies. national intelligence council chairman talks about u.s. intelligence priorities. as well as efforts to combat terrorism. this is about 90 minutes. >> i'd like to welcome everyone on the somn hhat snowy friday. it's a beautiful drive coming in but i think everything will be cleaned lk before we get out o e here. before we go any further, just

let me point out the emergental exits. many of you may have come up the staircase they are so off to the rimost is the main staircase. to the right of the elevators of the second staircase and then up through the back is a third staircase so just follow me or my deputy caleb johnson. head on out if there happens to be an emergency. my name is tom sanderson. i direct the project here at the research center. we conduct research around the world with terrorism encounter terrorism with the purpose of helping policymakers, war fimosters, the pbetrlic and prie sector and the meat out get a better understanding of threats such as al qaeda and isis. we are currently conducting to field-based projects one on foreign fimosters, looking at, looking at those upwards of now 40000 fighters from around the wotod from over 1 v countries who have defended on the battlefield in syria, iraq, libya and other places for the

second project is the third phase of our study where we look at trends inry across an area stretching to bangladesh. we completed south asia a fn h mingars ago and we are now comig up toward the close of our study in africa. before i start, i would like to point out a few special guests. alexander, thank you youry much for making the intro wactin to grade. greg. very mhnh appreciate that. judge webster is the chairman of our steering committee and the former cia and fbi directog u boutm very excited to welcome today to the tnt program speaker series doctor greg traveled teys he becs 4e chairman in september 2014.

he's the director of national intelligence, james clapper james clapper noted that greg's analytic skills, passion for the intelligence profession and dlep understanding of the next unique role makes him the right person for this position at exactly the right time. prior to his election, he held several leadership positions at rand, dir. director of the international security and defense p. icy center and asjamciate dean of the party rad graduate school. his work at re-and has examined tergenorism intelligence and law enforcement as well as new forms of pbetrlic and private partnership. he has served in government and in the jecto ma carter administration european national security council which he just told me upstairs incratded twita people which is really remarkable. it's really amazing. later isry

national intelligence council from 1993 - 1995. i was also a pivotal tectoe as e were coming out of the c. d wag u at that time he was overseeing the writing of america's national intelligence estimates. we will learn about nies today and other elements of the neck. his publication on the rand intelligence, assessing the trade analysis, the the next stse. in reshaping intelligence and two books intelligence for an age of terror and reshaping for an aged -- he gra waated summa cum laude. it is a treat to have you here to join us for the speaker series. i know there are many in the audience who are interested in the r. e of then next and your role in intelligence and certainly there are pronlbly quite a fn h people

i am overwhelmed by the number of pma ple who turned out on a sn. ty moaning. it's great to be here. what i thought i would do is start with a fn h words about h. t it fits in the policy process. i always think pma ple should note cha fer andry neck but i don't think that's true. then i thought i would turn into a preview about what has become a signature nic publication, or in honor class nicied glonll trends which we do every four years which will be out next decel election. i will give you a little bit of an insight about h. t were looking at the future you can

win a bet in washington and i think you can bet that the and i see is a cia organization. it hasn't been for 35 years years but things go slowly in this tectoe. before we worked the director of central intelligence so we are the dn emings of intelligence analysis. cu ever sehing we do is done from various agencies and outside government. their dse.uties atedost all come

from a wide friday of intelligence agencies.

>> we provide the intelligence for the foreign policymaking. so if the deputies want to know what the cia thinks about it and i just wanted to know about the community and the intelligence agency together, what they think about this. and then they put it through the process of coordination and agreeing to disagree or have a

defense and we did this in the range of 700 pieces of paper last year, about half of those, maybe slightly more than half were signed memorandums, the deputy national security adviser and other senior person. and we do it these interesting questions as well and that is just the kind of question that i

think intelligence and policy should be interacting over. and there is space and opportunity and particularly the manpower to be able to do more strategic work. within our sights from the current crises in the global trends process is more strategic and it helps you, you really need to be out there talking to people, talking to experts in doing research and we were with

a lot of expert rounds. and we have done things like focus groups with students and there are a lot of implications. and the only way they will hand this document, they will never

get to it. then they say what has it been up to? and they had found the previous global trends and these are global trends 2035 until anyone has an idea, these have a good gesture and as to what it should be for global trends x, this has been useful as we begin to think about strategy. so let me take a look. the five-year and the 20 or looks as we run through this and

china seems to be a pretty unimportant situation for china. the next on that is us. but i can't say much about that and it's important in looking for that we do have to recognize if we care about a longer-term future and especially what the united states rule is going to be in determining that longer-term future. so this would be the united states and i won't say more about it here. and that continues the backlash

and everything. and then there is russia. and there's a kind of wild card. and it's kind of the top of my list for things that worry about over the next five years than it means that once the politics seem to be running in this direction, on the other hand it will be in such straits that it won't be much of this for us.

and you look at all of the trends and i said what is true, i said that i have studiously avoided the middle east, my entire career and well, that is older. that is so over. sometimes i feel like we do this all the time. that we can come back to this and for all of our concerns, and i understand it, the number of americans killed by terrorism in the united states.

[inaudible] he was a counterterrorism individual, going faster in american politics and that is exactly right. so understandably it goes to the top of the list. people are almost concerned about terrorism and terrorist attacks as they were after 9/11.

and there are a lot of things in there is a situation where we are getting through this economic timeframe and there are possible wildcards even in five years. and there is a nuclear use. and in many respects it does. we have the own we have the

longer-term trends and let me just mention five of those in the 20 year perspective. nonaudit we are shifting towards asia, europe continues to slide in terms o nonaudit we are shifting towards asia, europe continues to slide in terms of power and there are small groups and individuals. and there are wayward french bankers in between, but we know that the individuals or small groups deserve increasing weight in international affairs. and the analysis will be a sense of when we share the global economy, facing a prolonged period of growth in this

includes inequality within countries and across and greater. and one of the things that strikes you in many countries and that is going to fail a number of countries in the world. and the third one is competition all values, the one that struck me most recently as we have been doing a lot of thinking about subconscious bias in one of the things that strikes me is the prosperity presumption.

and things happen, they are happier, they are less likely to go to war with each other. it's a very deeply held presumption that come up was something like isis it doesn't care a bit about prosperity. that is the kind of clashing values and we will also talk about china and its attitudes towards the institutions. [inaudible] in the ways in which it finds things more congenial. before from would be technology, technology is a powerful driver over 20 years, i think that we will probably focus on cue, one will be artificial intelligence. i thought for a long time that

it is like that. as we have all kinds of things and you know,. [inaudible] i think that that would be a significant disruption in job markets. and my headline is that the

biois today where the i.t. was 25 years ago. and obviously the possibilities are so good and bad. and some of these facilities are pretty fearsome. [inaudible] and finally, they are putting these together and i think that another theme will be handling of the collective action and that includes common problems that will be harder and harder.

probably because of individuals and small groups and other sources of instability and it will be possible to organize collective actions on those problems like pandemics and beyond that is going to be harder than i hate to and on a slightly downbeat note and obviously it will be made harder to organize collective action. and goes beyond those that are like this. >> we are not the good news department, it is okay.

>> we will open it up to the audience. >> since 9/11 we have seen a tremendous amount of covert operations. >> we saw the covert action that was producing some of these consequences, i think that we all agree with that, it's virtually impossible to keep secrets and it can frequently be a bad idea.

god. >> and particularly we are getting an idea. [inaudible] with special folks, but not especially covert. and if you look at something like this, we have the case of the campaign to come down peacefully and we are talking about these party foundations

and obviously it is the right idea, but they are doing it as openly as you can and the paramilitary realm had been discreet more than covert. >> it is clearly unique and designed to bring in ideas that you explained in detail some of the communities that we met with. and so we will take the global

trends to china, to russia, and we have interacted with the iranians more so than i would like, in general, we do a pretty good job of getting out. and so in the course of the global trends we will probably touch in one way or another. so it is so essential to our work in general. and we will be more directly of interest into their policy counterparts. and of course this is measured in days and not years, but in

general it will be more interesting. >> last question for me, a great pleasure as many of us here have talked about. >> near downtown, they are fantastic people. do you find that those who make it into this position have more experience outside in this background and this will bring the perspective that you find valuable. and obviously they are career intelligence officers, but intelligent. they have careers in academia or the think tank world and i wish i had somewhat more outside, a

few directly come from the academy or the think tank and i would like to have a few more of those, they tend to come with a different perspective and instinct. and economics, for example, is really a first-rate academic. and she is connected in the outside world in ways that are really important, particularly in her account where there is a lot of great encouraging information and economics and so having that kind of a background is really perfect. >> that's good. that's excellent. let's start with ron who introduced me to your work about 15 years ago. >> thank you, greg, thank you for the presentation this morning. let me ask a selfish international question.

two weeks from now i will be going to some islands. what are the chinese intentions there? they seem to be quite aggressive what is happening there. >> will be sailing on? [laughter] >> as someone who tries to follow as closely as i can, i am surprised at what they are doing, too much risk for too little gain. but it is plain that they have decided that relative economic failure in their terms, to be more nationalistic and they plainly have decided that they can take a tough tone and

relationship with the united states. so i am surprised and it does speak quite differently. and this is different than what we got used to. it is all the economy and by all means don't do anything here take the united states. and i think that this is a chance that we are still trying to measure and a lot of it depends on what happens inside of china. they turn towards more nationalistic as they look toward legitimacy, but i think in this case but they are looking for a another source of legitimacy now that the economy is not doing as well as they would like. >> you may have heard china today announced the defense budget would only grow by

7.247.8%. >> third row here. hold on. >> thank you very much. [inaudible] >> thank you very much for a preview of the growing trends. ..

t >> i think that will continue and there will be other opportunities for partnerships mostly in economics, i suppose, with some of the rising countries. india, for example, isn't going to be a security ally but will be an important economic partner. >> let he offer footnotes to that. games have been released that show nato would not be able to

manage any russian encourage into europe. mary louis kelly from npr. >> good morning. i wanted to follow what you l listed at the top of your five year worry list and you mentioned putin and the fact he is isolated and may do something rash. i wonder if you can talk about how that comcomplicates the intelligence gathering process. it is hard to do. >> absolutely. i am fond when writing about intelligence and distinguishing between those things that haven't answered and mysteries. how putin is going to behave a

mystery and probably a mystery to putin. it will depend on what plays out and what opportunities we see. that makes predicting, or fore seeing what he will do next is difficult. i worry about the possibility of blundering across an article five boundary by accident or miscalculation will take us into a different world. that is why i put it at the top of the list of things where -- i worry about. >> in the fourth row. >> i am mike from johns hopkins around the corner. super talk, greg. i do wish you had added to the list of things that brought down the congressionally mandated sanctio sanctions. >> apologies.

>> the questions i want to ask follows on our swedish colleague's question. i understand you deal with analysis and i will talk a question about how far we can be proactive to effect some of these underlying trends. we will not change it democography of the world. that is not going to happen. but you said, for example, that europe's power is still on the way down and that is crucial to america's security. is there something we can do, for example, to influence brakes against and not antagonize more people in britain than it would embolden? is there something congress can get their act together and teach? are there small areas within the overall trends you mentioned where american policy might have a measurable impact? >> i think so.

i think we are probably better doing positive things like ttp. those are really important and i hope they happen because i think they are critical. i think doing positive things and trying to persuade the british one way or the other is all together likely. i think it could backfire. and things we want to do with respect to china may not affect china but will affect allies. some of the things we are doing in europe to try to reassure particularly the nordics and others woo are article five coverage that will be there. those are important. they are important things we can do. >> lady in the front row. >> i am with the naval post graduate school.

i want to ask beyond war fighting and governance, and who the government, thinks about what happens if you get rid of the leader and there is not someone to follow-up? much like what happened when we bungled into dismissing the army in iraq and there was nobody to take over. we are so into winning -- i sort of hope people think about what next. >> yeah, i hope we think about what is next. it is hard. you know, you have been inside and the time lines of the government is short and they are preoccupied with certain things. trying to think next step and next step and next step is difficult. i was excited about the arab springs and thought good things would ensue. if i got to play that over again i think i would not be so

excited. it turns out stability is a scarce commodity and bad guys can produce stability that might be useful even. that has been a great lesson for me on the whole arab springs turning out badly with states desinigrating or degrading. that has been a lesson for me. that does imply, as you suggest about iraq, if you are going to break it -- if you are going to break something, you have to ask what is going to come next? that should be essential before you make the decision to break something. >> dr. cord? >> i was going to ask you to make a guess but instead i will ask you to make an estimate. you have talked about the instability in the middle east.

looking five years and then to 2034. are we going to see any serious reduction in the levels of extremist violence, terrorism, world of non-state actors, or are we talking about something you think will be a sustained problem throughout that time period? >> great question. i incline toward the view it will be sustained. to the extent there is a civil war going on inside islalm is not going to be solved soon i think. i think we will see ups and downs. i think isil has sewn the seeds of its demise but i may be wrong but it will morph into something just as it was the result of something else morphing. i think that kind of instability and terrorism will continue.

it will have obviously ups and downs. the big question is how contained it will be and how much it will come to not just europe but to us. and my worry is we advertised to ten years for al-qaeda they didn't need to bomb planes but have snipers like the washington snipers and that would do a lot of damage. they never got it. they were attached to spectaculars. but my worry with isis is they get it. they understand they don't need fancy plots and explosives. you can do a lot of trouble with a plain old weapon as we saw in san bernardino. >> let me point out a discussion last night we had on this. demographics are one of the main contributors to the environment in which violent extremism fears on other factors.

we will have 9.5 billion people by 2050. that is adding a china and three united states to the planet. all of the systemics that contribute to violence extremism are only going to grow. i think it safe to say that. >> jonathan landon with reuters. i want to talk about how terrorism elevated to the top of the list because of domestic politics. to what extent does that open a trap for the united states, whoever is in charge, to implement policies that will aggrivate some of these trends, particularly in the middle east and we have seen that happen? and how do you get to a point where you can actual put terrorism in perspective? that it isn't the threat that it is made out to be on the political level. the existential threat.

>> i would say it is about the politics. i take people's fear as real. i don't think we have done a very good job as a society, however, of trying to put it in perspective. it is difficult. you know, every president and senior official livers in terror of the next terrorist attack -- lives. that means it seems we tonight have a lot of perspective. that we do -- just after 9/11 i had a great bumper sticker for which i lacked the car but the bumper sticker was take the terror out of terrorism. it seemed to me much of what we do is putting the terror in terrorism. helping the terrorist do their work and that is a challenge to have a sense of perspective. i don't think the israeli experience has much to teach us because it is so different. but the one thing i do ad mire about them is their insistence

they will clean up a terrorist attack and get back to normal within hours not days or years. i think that is an important lesson we have to take aboard. >> greg dillion, arms control association. thank you, greg for your remarks. a lot of changes have taken place in the u.s. intelligence community since the deeply flawed iraq estimate done in 2002. i think it is pretty evident that there have been significant improvements and i would site the 2007 iran nie as important intelligence that was shared with the american people. you have been taking note of your comments on the unclassified global trend series which is an important innovation. is it does seem the public is

getting less information on proliferation and military balance than it did previously. we used to have executive summaries lightly censored and that doesn't seem to be happening now. even the once-yearly worldwide threat assessment hearings on the congress i notice don't have inr representatives at the table. the one intelligence entity that got the iraq wnd right. i wonder if you sense an increasing timid about sharing the information you have from with the public and congress. >> that is a question i wrestled with most of my career. i ended my book that the intelligence community ought to look for opportunities to show

the american people what it does and take it into its work. i was going to drive that home with a story. when i sent the book to a publications review they would not let me tell that story. so the irony of that relation was not a total loss on the security to the viewers but it is a continuing challenge. the instinct of the community is to say we cannot talk about or we cannot do that or we cannot say that. the wikileaks and snowden had a chilling effect in the wrong direction from my perspective. but i am with you. it is important to try to find opportunities to get as much information out as we can. that is why i relish the global trend theories. and you can rest assured we were involved in the annual threat assessment testing. that is something we do as well but they were much involved.

gentlemen here. >> >> we have another 30 minutes so we will get to everyone's question. >> georgetown university. this country has been, not the whole country because we handled it differently, but the country has been at war for 15 years now under two presidents. there seems to be an inclination to look at problems to find military solutions for them. there has been some evidence in the last couple of years under secretary cherry of a more robust diplomacy. do you see that we can take more back from looking for military solutions and having a greater affect by expansion in development and cooperation,

ilieance coropation, and diplomacy? -- alliance cooperation -- >> this is a personal view moreso than my personal work. because we are good at things military and there is the relatively quick often we turn to that instrument often. in principle this seems like a world setup for diplomacy. but that has been less developed in our arsenal of things to do than military options. so i think you are right. i share your sense that we ought to be looking more toward diplomacy and other measures. the problem with economic assistance and those things are very long-term; right? it comes back to the time of the officials and the time that must be adhered to to get something done. and that also increases the temptation to look for military

instrument probably. i do your your sense personally as a citizen thinking about these issues that we haven't quite got that balance right. we are just so much better that military things than we are at other things that it is, i think, tempting to turn to those instruments. >> lady in the front row. >> thank you. i was wondering if you have any comments on the presence of china and russia in latin america especially in those regimes who are at the brink of collapse like venezuela and when everybody is talking about the arrival of the cold war? thank you. >> mostly, i don't worry about the presence of china. i worry a little bit more about russia. but i don't worry about the

presence of china in latin america. if venezuela is expecting china to bail them out they will be disappointed. as i look at chinese actions, we are in a period where everything china does looks sinister. but i think much of what they do is the result of them being bigger and richer than they used to be. if i look at their actions in africa, for example, my judgment is most of what they did is good or a waste of money and in either case i don't care much about it. russia, given the history and all that, is a little difference but i don't worry about their presence in latin america. latin americans looking for china to be a major player will be disappointed >> greg, if your budget could expand and you had freedom to move in a lot of other

directions. what new nio's would you establish and would you break any up so you could spend more time providing those issues? >> the first thing i would do would be to have a little unit -- i have a strategic group and i would have ten people who would be strategic analysts. they would work with the nio's and their deputies. i would like to to have some people freed from the crush of daily support to be more strategic. i think i would do that before creating more nio's. we are always under pressure to create more but i try to resist it. i mind rather have a strategic reserve that would give us more increased reserve to be more strategic and be the ones we are

planning and pushing off to the right. >> yes, ma'am, in the front. second row. >> mira daniels. dr. treverton, if there were three tools to improve analytics generally, even academically, what would they be? you can even give one because i have strong feelings about this. >> good question. i am interested in tools and there are plenty out there. we are doing two things. one is there is this intelligence prediction market. you have probably seen phil headlock has been writing about this and he is on the outside running something called the good judgment project. it has been quite interesting. we are taking it over at the nic. it has been developed by the

intelligence community version of darpa. i am pretty excited about it. the good news is, the deadlock is that just like athletes some people are betting at predicting than others. even better than that is a little training helps. even a couple hours of training makes people better predictors. the training goes to the direction of helping to keep people open minded one secondly longer than they are likely. i want to do two things. i want to make it an in teterna. if there is a likelihood of decline and we know the analyst we can have a conversation. i don't care about the numbers but the conversation. and we will try to extend

questions to more strategic longer term. big data is obviously out there. but one thing i am intrigued by running a pilot with my africa account and the presumption is there is not a lot of great intelligence data about africa but a lot of data out there. i have a data scientist looking for data sets. now the data is good enough that you can foresee disease or famine. the next step is getting good enough to tell analyst to look here and look at this connection. those are the things personally i am excited about at the nic now by way of tools. >> second row here. >> thank you.

andy stewart, travel app. i would like to throw out two solve questions. does the nic have different strategic views and assumptions from putin? we have two different strategies. do you have insight that is driving our thinking being different from his and the gamble that follows? and more critically maybe what can we do to incentvise the sunni arabs to go with us and dump isil? seems like we have are having a hard time. >> those are more policy questions than intelligence questions. let me talk about the putin piece. i don't have much to add to what i had earlier. putin is obviously, i think, at this point relatively pleased with ukraine turned out.

he pushed ukraine westward into things he didn't want to. so he is probably regarding it as a semi-success. in syria, we will see. many of the things he is doing, including his desire to come to an agreement with us, as evidence that he is concerned about the longer-term. he understand that it could be a quagmire. all of the things he has done reduced the pressure on him to commit significant ground forces. >> yes, sir. second row here. >> thank you. irv chapman from bloomberg. you mentioned the overclassification the intelligence agencies indulge in. you have been talking about classifying documents to avoid

embarrassment. could you enlighten us how 2,000 documents became classified after politics reared its ugly head? >> i don't really know the answer. you are certainly right. it is not that people are trying to protect the guilty by classification. there may be some of that. but it is mostly all of the pressure in the system you never get pinged for overclassifying something. but you can get in trouble for letting out something that is classified and not realizing. so all of the setups in the system push to over-classification. about the 2,000 documents you are probably as well informed about that as i am. >> okay. in the middle. the red tie gentlemen.

>> thank you. we are seeing that over the past few years russia's influence in the southeast europe or western b b balkens has been increasing. how do you see this trend over the next few years -- balkans? >> i take putin serious with his claims. the challenge to russia is that almost everything putin has done, from my perspective, are causing russia's downfall. but that is years away. as the saying has it in the long run we are all dead; right?

and putin seems oblivious to the harm he is doing to russia in the longer run. he is fixed on the short run. i think the policies he has pursued will continue. he doesn't have the where with all and doesn't want to take the huge risks i hope. but i imagine he will push to get a seat at the table, try to assert his weight with respect to the former soviet sphere. if you talk to the chinese about central asia they just laugh at russia saying they have no capacity. >> in the back row, please. >> thank you, kevin barron with defense one. could you talk more about the use of covert operations on the rise? touch on the question of over-classification. we heard a lot of officials say

the intelligence community needs to do a better job telling its story and they want the american public to understand it more. yet we are fighting a covert war, in the dark, when it comes to terrorism and isis. how can that be reconciled? what kind of conversations are happening and what changes could or should be made to open up any of this? >> listen, joe, i would not say our actions against isis are covert. some of them are discreet and small units but i would not say there is much secret about th them. that is interesting. in general, you are right. we do a terrible job at helping the american people understand our work, how we do it, and my favorite example is the 2-15 program. the telephone met data program. if you could have imagined intelligence getting out in

front of this and saying the purpose of this program is to limit the number of phone calls we listen to. but once snowden gets it out it is mass surveillance which we all know is impossible in any case. if it were possible to imagine intelligence getting far enough out in front to talk about the 2-15 program. got the numbers out and looked at the number of conversations listened to is pretty small. it is that -- that is the challenge. unfortunately it is hard for me to imagine that intelligence could be that proactive. people say if you do that you will tell the people against us what we are doing but that is the cost of the world you live in particularly if you are going to do things that involve your citizens or inhabitants.

>> gentlemen in the middle. third row. >> thank you, greg, for a really fun presentation. i enjoyed. my name is tim tyler and i am a former defense person and i used to fund greg's research back in the day. >> will you do it again? >> you've got enough now. i noted we had a question about domesic politics and we have observed isis is not an ex

existential threat. and we know america needs to take into account domestic politics among our allies if we hope to deploy cruise missiles hence the dual track with the pea peacekeeping and deployment track. do you find today we have appreciation on the intelligence as we look at the gather issues? if you you were counterpart anywhere in western europe and looked at the united states and its domestic/political situation wouldn't you be spinning in your grave almost? >> yes, is the answer. we obviously pay a lot of attention to domestic politics because we understand our own role. we like to think intelligence is

important in determining policy but we recognize it is one factor among many and domestic politics, personal ambition, lots of other things trump intelligence. that is true with other countries as well as our own. it is like -- i like you, if i were my counterpart and i talk to my british counterpart quite a lot, i would be turning and spinning in my grave. >> the lady in the back on the side, please. >> thank you. sputnick international news. i would just like to get your thoughts first of all on north korea and the fact that in the past 24 hours they put nuclear weapons on high alert. and a second question on russia because there are more and more areas regionally where american and russian interest are intersecting in the middle east

and europe so forth. what do you see is the consequences of engagement between russia and the united states and then the consequences of confrontation or as you said isolation? >> well, north korea, as we all know is a real puzzle. it has this state that is essentially failed in every respect but still has nuclear weapons, sophisticated weapons of some sort. we don't know how sophisticated but it is a puzzle. it is in some ways the only thing they have got. and kim jo -- yong has. it is the only thing that deters regime change in north korea. this latest bout is probably not as surprising as it may seem.

we have seen it before. exactly what is happening is not clear. so far it is mostly talk as far as we can tell. but we will see. it is there, again, i said earlier one wild cardthi i worry is about a nuclear weapon going off and north korea a place where that might come. on russia, i don't have much more to add. you asked about policy preferences really. i think the u.s.-russian relations have gotten pretty bad despite the effort to reset. and there is, i think, a lot of concern about putin personally. if you convince your best friend in europe, angela merkle, that you are a liar that is not helpful and putin managed to do that. i see opportunities for us to engage the russians in some

sense the sensational hostilities and the middle east isn't a bad start. it will continue to be a mix obviously of cooperation and some competition. although as i said in the long run it seems to me the russian hand is pretty weak and what putin did a good job of is playing a weak hand pretty well. >> gentlemen in the second row here. >> thanks very much. dan from kings college london. i wonder if you could reflect on how your job, or the nic's job, has changed in the two decades between your tenure there? and how you relate to your customers and the impact you have with policymakers. global trends is an innovative, analytical product but you mentioned there are 700 pieces of paper that fly out of the building.

in those two decades, what types of analytical changes have you seen that gain traction with your customers? what types of product presentation gain traction with your customers? how has it changed and what have you found to be the most effective changes? >> i think two big changes probably don't go to products but to process. one, as i said, the big change is the involvement of the nic in current intelligence support. that is good and bad. it is good. when i was at the nic before we used to ask if we were relevant. we don't have that anymore. we are up to our eyeballs in relevance. that is the biggest change. the other one is how much more embedded intelligence is in the process than 20 years ago. i suspect that largely resulted

from the facts we have been fighting wars for the last 15 plus years. for better or worse you can make policy toward china without intelligence. it is hard to fight a war without intelligence. that is probably the main thing responsible for the embedding. when i look at e-mail traffic back and forth it is continually. it is continually. those are the things -- i am not sure the products -- maybe they believed have changed more than they have. but what is striking is senior officials still live in an oral and paper world. you know? none of them have time to be out there on their computer looking at anything. that is going to change. now the president gets his daily brief on an ipad. so do i which is nice. and it is only a little worse than paper. as far as i can tell, we spend a

lot of money on i-pads and an equal amount taking the guts out of them. it is sort of a reader not an ipad. but it is the first step. i think sooner or later policy people will want a ton of 24/7 conversations with their intelligence support people on their ipad. i was talking to my australian counterpart the other day and his prime minter is angry he cannot do it now. the prime minister in the morning first thing gets on his ipad and talks to his cabinet members and he is frustrated he cannot do that with his intelligence analyst as well. >> that gentlemen there. >> ryan brown with cnn. i wanted to piggy back on the question about the future trend for extremist violence in the

middle east. you said it was going to be sustained for the foreseeable future and talked about the empowerment of smaller groups. i know you said isis reaped their own destruction. but in terms of how their capabilities will advance over the next five years and also whether or not their ability to attack europe or the united states will advance as well? >> yeah, as i said about attacking, the ones i worry about are the ones we have seen. the ones where they are inspired not necessarily responsible or operati operationally in control. their capacity to do that is growing. i worry about the lone wolves or small groups or people inspired by isis or controlled or guided by them. i think that will continue to be

the most significant terror threat. in terms of capabilities, you know, so far isil, nothing surprised us much by the tools they used but they used them effectively. they used social media and other things for communication and recruiting. no great innovations there. but pretty effective use. but as we look forward, all of the things that we have, from drones to miniaturization, our opponents are going to acquire as well. maybe slightly later we hope than we do. but among the trends that are going the wrong direction are it seems to me the greater availability of lethal, dangerous technology to terror groups. >> stanley, all the way in the back. >> stanley cope. i am puzzled by your comments we

do the military stuff well. how is war a continuation of politics by other means? what political results have we achieved by our use of military power? we are very good at blowing stuff up. nobody can stop us if we want to destroy a target. but look at libya. . what political results are we achieving by the use of our military force? >> that is absolutely the right question. what i meant is we are good at doing military operations; right? whether they achieve their desired result is another question. you put it very well. that is the big question. i think you are exactly right. i think we are better at doing the operations than we are at putting them in the context that actually achieves the outcome we care about.

>> one minute. microphone. >> natalie from csi. regarding the lack of government counterparts on the ground in areas of isis control how do you see that affecting the recruitm of human resources for human operations. >> say it again >> regarding the lack of government counterparts in areas of control of isis, how do you see that affecting recruitment of sources for human operation? >> honestly, i am not an expert on this. i was an expert on the difficult and dangerous operation. someone asked about getting the sunni's on our side. there is a tipping point. if you want to go against isis you have to be convinced you have enough company to protect you. otherwise you will lose your

head. one of the liabilities is governing territory. it isn't as easy as it looks. we saw bad things but lots of good as well. i think in some ways they are caught in something that is ideologically talking about the caliphate on one hand and talking about the apocalypse on the other hand. that is something they have to work out. but i think them trying to hold and govern territory is a liability for them. >> gentlemen here, please. >> thank you very much for your comments. i have two questions for you. one, how do you account for the repeated failures on the part of the u.s. intelligence community to an advertiticipate things li

russia's annexation of crimea or russia's decision to involve itself militarily in syria even. my second question is in your five year and 20 year outlook you never discussed the silk road initiative by china that is transforming the region as we speak. i was wondering to hear your thoughts on this. thank you very much. ...

>> our batting average is not bad. so something like the arab spring, they are the challenge. i don't think intelligence did much better or worse than the academic community. they are the challenges we all knew these places were. it was on every list. we have these lists of instable companies to worry about and policymaker say, that is great but what will happen.

predicting that spark, the thing that will touch off, turn latent instability into political turmoil is very hard. the other thing is, lots of aspects of recent russian behavior are. [inaudible] exactly when you decide to do this or that has been opportunistic. predicting opportunistic. predicting when someone will have an opportunity to see this order. more in line with the tone of your question. the challenge we face by the ebola. the medical community had a story about ebola, and the ebola, and the story was that it would rise in rural areas.

you have a story and circumstances change to make it no longer helpful or relevant. in the case of the russian move into syria, we anticipated, we knew that russia was going to up the ante. but our story was that the uptake of the ante would be the same old thing,thing, weapons, training, not a presence on the ground. >> you have had your hand up for a while. please make the questions brief. >> peter sharp with mitre. we have not taken the terror

out of terrorism, but we seem to take in a chair out of weapons of mass distraction. to come in tomorrow what you see is the prospect for technological change in the future making it easier and therefore more widespread to develop weapons that can kill a lot of people at once. >> yes. i suppose i worry most about biological weapons. you know, so far, that is the kind of dog that has not yet much barked, but as all of these things in biology and biotech happening the possibility of killing a lot of people but targeting with a smaller substance, interesting but not hopeful about the development of what is badly called wmd -- they are such different weapons. but what is interesting is

the developments that are in some ways making them more usable, less lethal but more usable, imagine targeted bio weapons that one after a tribe or group, or there is lots of interest in quite low yield nuclear weapons. the tight pakistanis talk rather openly about using nuclear weapons, even on their own territory systemic conventional attack. the russians have been talking about possible nuclear weapons as de-escalation, not escalation. so as of the kind of transtrends we are watching that could go in both directions. the ones that interest me otherwise they go in the direction sometimes of trying to make these weapons more usable. >> sir.

>> stewart died, two quick questions. one relates to russia, germany, russia, germany, and the issue of energy independence or dependence. we seem to not have any discussion about taking the opportunity to help europe from our.of view to achieve more independence with their exporting, perhaps, and what is germany doing, i think, to turn their back on nuclear making them more dependent, it seems to me, at least for the short term. what is going on on that front? secondly, north korea. i was struck by the fact that in all of the discussions of short-term strategic, the word north korea has not come up until the puzzle

peemack. ipoint. i guess, where does that stand on your short-term long-term? >> okay. sorry, the 1st question was? >> energy. >> energy. yes. sorry. yes, there it is mostly a european issue. as a policy matter i would say we are not doing exports. from an intelligence perspective, i, i am surprised. this would be a wonderful time to get together on energy. they ought to be dictating prices to russia, not taking prices from russia. and this would be a great time to do it, but they continued to not be organized and let the russians pick a country off, put pressure on the country.

it is primarily for the europeans to do. there is not more of a move ina move in this period to do something no way of organizing so that they are not placed takers the price setters, basically. the intelligence community spends and thomas t from an enormous amount of effort and time. the big four, russia, china, iran, north korea. we spent a lot of time and have the separate national intelligence officer. officer.officer. we certainly spend an awful lot of time on it worrying about it, and it is a worry. failure in every aspect except military. awkward. sometimes i have tape -- trouble taking entirely seriously. i understand that i need to. that i need to. >> you get the last question.

>> my question is a regional one, reported last week a small group were reported to nigeria to contribute to an is -- and advise and assist mission. to what extent is the proliferation of terrorist networks and intelligence concern for the nic? is the absence of official intelligence data aa concern that this might be the emergence of a blind spot? >> obviously we are worried a lot about various terrorist groups which is something we pay a lot of attention to and something i would say one of, a focus understandably on counterterrorism. it does have somewhat of a deforming effect on analysis more generally. wegenerally. we like it nigeria and there is not much nigeria. there is not a lot. it does mean that in some ways we understand or are

able to identify networks and targets better than we are at understanding where these people are coming from comeau why they are doing this color is going. yes, we are concerned, and the absence of a lot of intelligence is a problem, but it is obviously one that we spent a lot of effort on with respect to the terrorist groups. >> demonstrated why you are such a fantastic choice. offer a round of applause. >> we thank you all for coming, and you can find out about future events by going to our site on twitter. hope you join us for the next event. thank you very much.

[inaudible conversations] [inaudible conversations]

[inaudible conversations] >> our coverage of the american conservative union's annual conservative political action conference continues tomorrow one republican presidential candidate senator marco rubio of florida addresses the group live at 11:30 a.m. eastern on wfsu-fm. >> this weekend, the wfsu-fm cities tour posted by our time warner cable partners takes you to anaheim, california to explore the city's history and literary culture. >> the idea came from my editor at the oc weekly. i was not offended by the idea, but i did not want to do it at 1st because i did not think that anyone would

care.care. in journalism you want to do stories that people will occur about. who is going to want to read an advice column about mexico.mexico. he kept insisting, and we needed to fill a space as well like, okay, fine. it is only going to be one time, a satirical column, totally jokey, and people went absolutely nuts for it. people were caring, and crazier, at the bottom of the column i put, hey, a spicy question about mexicans, ask me, i am the mexican. so people called me and just started sending in questions like crazy immediately. >> on the american history. >> on the american history tv. >> john foley and his partner go to san francisco, which is where a lot of the german immigrants are located. and are actually able to -- i find it shocking, but are able to convince 50 people of whom no one was a farmer and one person had any

background in winemaking to give up business and come to anaheim. so, the 1st action after they form what is known as the los angeles vineyard society was to hire george hanson to be the superintendent, and his job was to bring the irrigation year, layout the town site, and plan hundreds of thousands of grape vines before families with come down here. >> watch the wfsu-fm cities tour saturday at noon eastern on wfsu teesixteen and sunday afternoon at noon on american history tv on wfsu-fm three. working with cable affiliates and visiting cities across the country. >> now, a discussion concerning apple and the fbi efforts to access information on the phone owned by one of the san bernardino shooters. washington. host: joining us is eli dourado

from george mason university, director of their technology policy program. should apple unlock that phone from san bernardino? guest: i think it would be a terrible precedent to set to unlock, not just unlock the phone but developed a tool that would undercut their existing security measures. badmain reason it would be is it would set a global precedent, and it is not just the u.s. government that would be making these requests, it would be governments around the world. governments of china and russia and other authoritarian countries who may not use it with the best of intentions. host: james comey testified this week. i want to get your reaction. jobs, toe two investigate cases like san

bernardino and to use tools that are lawful and appropriate. our second job is to tell american people that the tools you are using are becoming less and less effective. it is not our job to tell the american people how to resolve that problem. we are not some alien force imposed on america from mars. we only use the tools given to us under the law and so our job is to tell people there is a problem. everybody should care about it. costs and how do we think about that? guest: i think that director ey is right that the fbi has the obligation to use the tools that are available and under the law. i think there are reasonable arguments that this particular tool they are asking for is not

available. apple's brief in the case is quite strong, and we will have to see. i think ultimately this is a question for congress to decide. i think that congress, based on what was said in the hearing, i think congress has shown an interest in accelerating their involvement in the encryption issue, and i think that is what we will end up saying. nationalt about the security aspect, that this was a terrorist and there could be some information to stop another terror attack? guest: i think it is unlikely that there is information on the phone that the fbi does not already have. phonesrorists used other to plan the attack and destroy does. this was their work phone. it does not appear that he used it for this purpose.

he had personal phones that he used for that purpose that were destroyed. the other reason is the fbi has sought from apple and apple has cooperated and given the fbi the icloud back up. apple has turned that information over to the fbi. reseti made a mistake and the password on the icloud account so we do not have the very latest information from the account. the other reason is the fbi has sought from verizon, the carrier associated with the phone, the phone call and text messaging data from the phone, even for the period that is not covered by the icloud back up's. the fbi has quite a bit of information on what is on this phone already.

i think this is not being brought to further this particular investigation but i think it is being brought as a test case, because the facts are so conducive to the issue that you talked about, the public opinion, does this is a very rare terrorist case, national security case. it is the kind of case that is most favorable to the fbi. at the same time, over the same period the fbi made a similar argument in a case in new york and a judge ruled they did not have the authority to ask apple to create a back door into the iphone. that case was a drug case and i think that is much more typical. law enforcement does not spend most of their time countering terrorism, however important that might be. theirpend a lot of investigative resources on much more petty crimes, including

drug use and drug distribution. it is more about, i think, law , thecement wants this tool broad range of investigations it does. host: you all are familiar with the issue we are talking about, the fbi-apple debate. we have divided our lines a little bit differently. if you support apple, if you support the fbi, and all others. if you are supporting apple's position, (202) 748-8000 is the number for you to call. if you are supporting the fbi and the government, (202) 748-8001. we have our third line as well, (202) 748-8002. the wall street journal saying it is technically possible to unlock a lock iphone without apple's help that would be

expensive. what is the downside of opening this one phone? not creating a master key, just opening this one phone. guest: the downside would be the precedent it sets. of apple isg asked for them to develop a new version of the ios operating system. it will take them a few weeks. that operating system will then be loaded on the iphone in question and the fbi will be able to crack the phone in half an hour or so after this is done. let's suppose that the operating system has been destroyed. case, then in future cases there is nothing stopping the u.s. government

you need to take the weeks it takes for us to use in this case. it could happen again. it is not just a slippery slope, this is legal precedents. it is not about -- it is not , i don't think it is a stretch, or a progression. it is impossible to keep the president -- president just this once. paul from tennessee. what is your view on this issue is m? days beforeited 30 i could get a chance to talk. . would like to ask you i have a question for mr.

dourado. simple.pretty this is madness. i would love to see donald trump in the office today because they would bus that phone open. families that live in grief because of a terrorist attack. let's look at fort hood, chattanooga, all the things around the country going on right now. muslims want to kill our people. has told the fbi to not get in this man's phone. line is a very fine andeen what this man does treason. the president of the united states is muslim and he is going to make sure these people are

protected. host: we are not going to address the erroneous comments that the president is a muslim. that,ke this first point hey, these are terrorist attacks. guest: there have been terrorist attacks in the u.s. the latest statistics i have seen it since september 11, there have been nine jihadist in the u.s. and 45 people have died. that is very tragic. blessedly rare that we have terrorist attacks. the real question that we need how much will cracking this iphone do to stop those attacks? this is the first case where

anything of that sort has been suggested. i don't think it is true that this will help solve anything. the information on this phone has already been obtained by the fbi. think this will help the investigation at all. there needs to be weighed against the cost of ruining the security of the iphone more generally. forrmation security billions of people around the world, everybody who has an iphone or any phone, because apple is not the only company that encrypts their phones. cedentms of the pre that it says, it is going to roll in encryption. -- it is going to ruin

encryption. have is the potential to access to the private information on the device of this information leaks. we are weighing it against a that it willbility help the investigation against a potential identity theft, potentially prostitution of authoritarian regimes, spying on journalists, increasing the incentive to mug people to steal their phones as you now have access to information on their device as well. i don't think it is as obvious as the color suggest. host: next call for eli dourado 's george mason university clearance from casper, wyoming. what is your deal -- view on

this issue? government should not require apple to do this. when they are doing it, they aren't saying it is just for this stone, but i have heard nine other cases that have nothing to do with terrorism, but murder cases. backdoors it creates a for this, they will want it for everything else. guest: i don't even think the cases,ases were murder they were drug cases. the new york county district attorney testified this week saying his office had 205 iphones where they wanted to use a similar tool. the fbi story that it is just this one phone has not lasted very long. this toear they do want become routine.

host: the political lines on this issue are all over the board. guest: absolutely. host: jill in maryland. -- joe in maryland. have copiesfbi does of verizon's records. they do not know with the content is. there could be a text message from one person to the terrorists saying, you know, i will leave the gun here. it the fbi will not know until they get into the actual device. the fact they have the records is not useful because they need to look into the phone to see what the messages were. that is the first thing. encryption, apple had the capability was doing it themselves. that was proprietary-only software. to encryption as a

business procedure because they did not want the burden of hundreds of thousands of law enforcement being sent to their offices to download phones. it is a business decision by apple. icloud goes, the icloud is only obtained if the person selects it to be backed up. to phone cannot be backed up the icloud upon your discretion. you have to agree to that. you seem to know a lot about this. why is that? i amr: put it this way, very familiar with apple and their devices and i am intimately aware of law enforcement's concerns. only suspects we cannot access, it is victims. family victims whose members do not have access coats and are unable to give it to law

enforcement. we do not know the intimate details of their family member'' death. this is a major issue. thank you for your perspective. eli dourado? guest: it is true that the verizon data is metadata and not necessarily the data. very often enough to follow up on new leads. they would know for instance who the shooter was texting with and so on. the leads are preserved to the verizon data. again, it is true that icloud backups are optional. apple walks you through a process when you set up the phone and the default option is to academic to icloud. in this case, that is what the shooter had done. then, so, as far as this phone

it is noted, particularly a concern. i think the fbi does have all the information that it's going to get. even if apple were to crack the phone. host: how did you get involved in this conversation in this business? i have always loved technology and my background is in economics. have age mason, we center that this academic isearch on policy issues and -- hadlled to have been the opportunity to join the four years ago and i now leave their technology policy team. phoneopening this compromises all of this security. this is a tweet.

we talk about issues involving technology ended on public policy. this weekend, we are talking and senator ed markey former senator jack field. they wrote the 1996 telecom act. it is still an effect. we talked about a variety of issues, but we asked editor markie -- senator markey about the fbi issue. there is how he responded. >> in my opinion, the apple officials should work with the government officials to open that iphone. at the same time, to keep that code complete secret so that it does not jeopardize the security of every other iphone in the united states, or the world. here.e to find a balance bill gates has not taken that

position. i understand tim cook is on the other side. it is a debate that we have to have because otherwise many of these devices can be used for the fairies purposes. there is a mckinsey in quality to all the technology. and worst the technology simultaneously. it can be great and dbase. eli dourado. guest: it is true that technology has lots of dual use. encryption is a dual use technology that can be used for good or for evil. general canone in be used for good or evil. the issue with encryption is that it is not just about privacy, it is about security for all kinds of information that americans might have.

people keep their medical information on their iphones. they keep making records. -- banking records. we are in a world where we need that kind of security. is a barely this complicated issue. i think that congress will ultimately have to decide it. i think there is moment come behind the idea of an encryption commission in congress. there have been proposals for such a commission. host: an encryption commission? guest: yes, that would solve the issue through a study that congress would commission. instead of in the courts, right? there is an adage that bad cases make bad laws.

the precedentant to be sent in this case versus a careful, deliberate study of the issue that might come up with a different -- host: how quickly would congress get to this issue? proposedere is a bill to create the commission. i think it would have reasonable a time period for study, two years. host: a couple of years before we get to a legislative -- guest: i think that is right. tweet saying why did the fbi changed the password? instructed the san bernardino police department to change the password. weren'tthey just thinking. i think they made a mistake. they did not consult apple about

the question. apple said they would have advised not to change the password because then you could take the phone to the wi-fi network and then it would automatically do a new update. kerry int call is akron, ohio. you are on the line with eli dourado. we are talking about the apple/fbi issue. caller: good morning. i have been following this debate for the last several weeks. i see a lot of issues that are being missed the need to be addressed. plan toa comprehensive deal with the situation. that't say anything at all addresses that. started with the terror attack in san bernardino.

the first situation that came out of it was a big rush for gun control because -- on?: which side you fall caller: i follow on the apple's side because it goes to what i was talking about. of what thean issue phone is going on. every time something like that happens, there is going to be a rush to have us give us our privacy. you so much. loretta lynch, the attorney general, was quoted as saying in a speech in san francisco, she -- apple isas -- is subject to a social contract on this issue. true, butt may be

there are a number of national security officials who have sided with apple. the former director of the msa thinks the u.s. is better off with strong encryption. o'connell,ssor, mike thing.e same the same with the department of homeland security. this is precisely what the issue is, is what is in society's best interest? there are a number of national security officials who think , notwithstanding the difficulties that law enforcement faces, it is still in the national interest of strong encryption. it means u.s. medications can be more secure. it means foreign governments will have less access to american data.

-- theot just about national security is a comprehensive issue in terms of putting the need for cyber security for preventing identity theft, foreign espionage, etc. host: here is an article from ." terday's "new york times as carter says he is not in favor of a data back door. barbara in new york. what you think of this issue? even believe't this should be an issue. i believe apple should release all the information on the phone to the fbi. host: why? caller: because it is a terror attack that happened and they should have access. host: barbara, what if this was a murder case? what if this were a drug deal?

should apple release that information to those types of issues as well? caller: absolutely because we are in so much trouble here in the united states that i believe they should have access at all times to anything -- murder cases, anything. i don't think apple should be doing what they are doing right now. they should release all the information regarding that phone. host: think you, ma'am. eli dourado, if this were e-mail they were trying to get or phone old wirelineom an phone, are those different issues? guest: i think it is different. maybe the color does not understand that apple has turned over everything on the phone. but the court is asking apple to produce something that it doesn't have. asking apple to take its engineers, put them in a room for four to six weeks, creating

a new operating system that it does not have that apple believes is too dangerous to create, and then after having that team of 10 engineers working for six weeks, they would have this tool the fbi can then use. , justple has turned over as other companies turnover .-mails when it is a warrant other companies turnover records that they are ready have when there is a proper subpoena. this is not a subpoena, this is an order to create a neutral. host: robert tweet sent, not collocated at all. fbi can go to court, get a search warrant to search a home or confiscate your computer, same thing. the opposite of what i was just saying. it is not the same thing. again, this order is a fairly unique court order. it is not a subpoena at all.

it is not technically a subpoena. a subpoena is when you go to court ended on the court says, the order you to testify, or we order you to produce evidence you already have. this is a court ordering apple to do work that it does not want to do. jeff, maryland, give us your views, jeff. caller: good morning, thank you for having me on. the first thing i want to say >> caller: thank you for having me on. the first thing i want to say is it's very disappointing the guest speaker when we talk about terrorist attacks in our country that we downplay them because one, it's too many and one shows us the failure of our government its greatest responsibility to americans as deemed by our founding document which is to

protect us. the second i want to make is the most important aspect of all of this is the fourth amendment. americans forget that the fourth amendment protects us and what we do and what you see is the press. they control through fear. as the one caller said let's wait and see until it's your family member that's murdered. we forget the calls. the cause is liberty. if my child was murdered i would not expect americans to give up liberty to solve that case. i do agree with apple at this moment in time. >> host: thank you sir. eli dourado. >> guest: this actually is in the fourth amendment issue. the shooter is dead in this case

so the shooter does not have any fourth amendment rights or privacy in virtue of being a dead person. so in this case just a legal issue is centered around other things. the 1789 act is the justification the fbi is using for this and apple is opposing the order on the grounds of a clinton era law on obligations of communications providers to law enforcement and on the first and fifth amendment grounds. so i would caution the caller that this is the fourth amendment issue. so i think privacy isn't even the issue. this is often being framed as privacy versus public safety but it's not privacy. its data security that is drying

the objection both from apple and other people that support apple. >> host: would we be having this conversation with android or microsoft on? >> guest: is very possible. android devices also have a form of encryption on them as well and in the android case the operating system is written by google and the phone is made by different manufacturers perhaps so it's not clear exactly how it would apply but a similar case in the future. >> host: the government has said the so-called marketing issue. >> guest: apple asks for it to be in secret. they don't want to have this fight in public. they would much prefer to do it in private so that's not

consistent with it being a marketing ploy at all. and again it's the fbi that wants to have this battle in public because of the fact this case is so favorable to them at any court of public opinion and of course nobody supports terrorism. nobody has any sympathy at all for the shooters or their privacy. it's astounding that anybody would care about the privacy of someone who has obviously committed a terrorist attack. so this is a marketing ploy perhaps by the fbi much more than a ploy by apple. >> host: in fact "the wall street journal" on wednesday in their lead editorial apple was right on encryption. they write defensive anti-terror programs whose popularity waxes

and wanes especially on surveillance but this case isn't about privacy. this is about engineering security and its implications for the security of all americans. anthony is in maryland here in the suburbs. anthony where'd he come down on this issue? >> thank you very much for the opportunity to speak with you. i support apple. it would create a momentum and an intrusive situation for everybody across the globe. not just united states alone but everywhere. it's a blanket injunction to open up the floodgates were anybody can just go to anybody's home no privacy nothing.

i'm surprised that they allow this issue. this is not a political issue. this is about everybody. this is -- nobody has privacy any longer. >> host: anthony m. bowie maryland thank you sir. >> guest: i think absolutely absolutely -- anthony is absolutely correct. it's certainly going to be a global issue. i think we should be clear about the fact that the u.s. is asking for something that no other government has yet asked for but if the u.s. government succeeds in asking for this from apple is going to be immediate.

every other government is going to find cases where similarly there are reasons either good reasons or bad reasons from our perspective to ask apple to do the same thing. of course apple is a multinational company. operates in china it operates in russia it operates around the world. if a legitimate court in the u.s. can request an order apple to produce its operating system then a court in any of those countries will be able to order apple to do the same thing and apple will face a choice potentially between having to produce at their relieving that country, leaving operations in that country. that's a terrible precedent to

set. we should be supporting dissidents and oppressive regimes journalist and oppressive regimes who don't want to have the government have access to all of their information. >> mr. dourado have any cases come to other countries like that? >> guest: this is the only time in history where the government has asked apple or another computer company to affirmatively produce something like a backdoor to their system that doesn't exist. >> host: mary tweets in our device to spy on us track us and collect info on this or they are uncrackable fortresses of our privacy? >> guest: obviously our devices are tools and we can use them in whatever way we want.

we can use our devices to track ourselves to upload data to the cloud. if that data has been uploaded to the cloud the companies do need to produce it when asked by a lawful court and that's exactly what they do. we also have the option to use these devices in a very private manner. we don't have to upload everything to the cloud. we don't have to allow tracking to occur on our devices or at least to some extent we don't. and insofar as that is the case i think we are better off this security. of course there are always going to be some ways that we can be tracked. right now cell phone towers are still being used were still collecting data about where we

are civil law enforcement has access to that data about which cell phone tower you are connecting to. even if you lock down your phone otherwise. so it's a bit of both and it depends on how you use the phone. >> host: daniel in maryland please go ahead with your comment. >> caller: i just want to speak about the technological aspect of this debate. it seems as though apple has come out with the concept where we can no longer breaks the encryption and know what people are saying to each other and what data we have. whether or not we'd legislate and make a legal solution or a law enforcement cover national security solution for how to see the state of this technology is out there whether it's apple or another company or in the case of a foreign company was not

subject to american laws they can create communication standards that are not subject to this fbi federal judge ruling that they have to unlock this. here we are dealing with encryption standards that cannot be broken by conventional means, cannot be seen so how do we as a society deal with that? how do we move forward understanding that communications are going to be encrypted. we are not going to be able to see them. people are going to use it. it's coming. it's a fact of life now. >> host: daniel you seem to have more than a second-level understanding of this issue. do you work in this area? >> caller: i do actually. i do software engineering for te since moved on to government things. >> host: thank you sir. >> guest: danno makes a really good point. to some extent the toothpaste is

out of the tube here. encryption even if big companies are subject to court orders for open source contracts anybody can now have access to these encryption tools and indeed apple i would not be surprised if the next generation of iphone is something that even apple can't break into even if they want to. this is really the future of how we engineered devices, devices that you own that nobody else can access without your permission. in using encryption to enforce that restriction. i think it's spitting into the wind to try to undo that legally in the short term. >> host: it's not farouk's private phone. does that make a difference?

>> guest: at the warrant at the warranting cryptic code. it would mean the government have the option to turn it over to the fbi without a warrant and that the government wouldn't even -- need in order in order to access the content of the phone. but of course it is encrypted so in practice it does difference. whether or not the government says san bernardino county wants apple to open it they still need a --. >> host: time for one more call. adrian and suffolk virginia. where do you come down on this issue adrian? >> caller: i think apple should open the phone. >> host: why is that? >> caller: 14 people were killed and it seems like the shooter was connected to a

terrorist group and i think the fbi needs all the help they can get to solve the crime. i think this case right here in terms of crime solving is more danced coming out with a new type of technology. i think that's just the future. >> adria and what about another case? what if this weren't a terrorist case? what if this were a murder or robbery etc. etc.? to the same standards applied? >> caller: i think so, yes. think they should open the phone in those cases, i do. i don't think we have any -- i think they collect that

information. nobody has any privacy anymore and everybody's social security numbers out there. we were just talking about that yesterday. >> host: thank you sir. >> guest: and apples view this is a dangerous tool. they think it's too dangerous to create so you can imagine even if they created this and even if the fbi use it appropriately you could still see hackers from foreign countries and foreign government hacking ackles -- apple system be able to load it onto the people they want to spy on. this isn't just about lawful requests to access data.

this is about should we have the presumption of social security on our phones. as other national security officials have said we have other interests besides making law enforcement's job easier. we recognize that what apple is doing may include law enforcement but we do have other interests and those need to be considered as well. >> host: the final come, cousin joanie and twitter if you want a correspondence right down to stamp on and mail it u.s. postal. eli dourado from george mason university mercatus center technology policy program director, thank you for your time. >> guest: thanks for having me.

>> so many of my books were horizontal studies. many countries across the whole region. covering a minimum of six countries. here i look at one country and death and i use it to explore great themes, i think great themes. the holocaust, the cold war, the challenge of vladimir putin. romanian and romanian speaking

fault though the -- muldova said to study romania is to study the legacy of empires. >> romania was endemic. correct country come extremely corrupt because it's endemic we had weak institutions where everything was based on bribes and doubledealing and what this shows is this is nothing new. what's happening is the romanian population has grown up to become far more sophisticated and is demanding clean government. it is its number one demand.

next the supreme court oral argument concerning the texas abortion clinic law. then the chair of the national intelligence council talks about u.s. efforts to combat -- combat terrorism. on wednesday the supreme court heard oral arguments in full women's health versus hellerstedt. the court is considering the texas law that requires doctors to have admitting privileges at hospitals within 30 miles of the clinic and forces clinics to meet hospital like standards constitutes an undue burden on women seeking an abortion. this is an hour and 25 minutes. >> we will hear arguments this morning in case 15 to 74 whole woman's health versus hellerstedt.

>> mr. chief justice may it please the court. the texas requirements undermine the careful balance struck between legitimate interest in regulating abortion and women's fundamental liberty to make personal decisions about their pregnancies. there are unnecessary health regulations that create substantial obstacles to abortion access. see hackers are primary question , would you address that this claim is precluded and let's take first the claim that was and -- let's assume they are separate claims or it making privileges. that was argued and decided. why is in their precluded? >> your honor it's not precluded because they carry all facts relevant to the claim develops subsequent to judgment in the case.

>> but you could have asked for supplemental briefing. the action was filed six days after the supreme court issued its decision in this case. >> and have it abetz the court of appeals said it would only consider evidence in the trial record in rendering its decision and it's held that the evidence in the trial record was speculative that there wasn't sufficient basis to conclude that any doctor or any clinic would be forced to close as a result of the admitting privileges requirement. >> you are asking amid allegations asserting those same claims. as you argument that we have allegations on the facial challenge and all you have to do is come up with new evidence and you can start over again? >> no, your honor. the evidence must be material

and it must be newly developed so newly discovered evidence wouldn't be sufficient. if there was evidence it was available at the time that the plaintiff nearly had to discover the evidence to bring it forward that would provide the basis for subsequent suit but evidence that develops after judgment in the pursuit that is material does provide sufficient basis. >> what is the key new evidence? >> the evidence is the clinic closures that resulted from enforcement actual and oarsman debbie admitted privileges requirement so the first suit was a -- it was before the law took effect in the court concluded there is not sufficient evidence that any doctor would enable admitting privileges or any clinic. >> there is little specific evidence in the record in this case with respect to why any particular clinic closed.

basically your argument is the law took effect and at that point it was decreased a number of the knicks. so suppose you win here and the state ban examines what happened in each of these clinics and comes up with evidence showing in quite a few instances the closure was due to other factors and so then could they take the position well the decision of this law is not binding so you would have to see them again and they would be able to make the same argument that you are making now. is that correct? >> no your honor. >> what's the difference? >> first of all the state had an opportunity to bring forward evidence in this case. not in the first instance that

the plaintiff -- plaintiff came four with evidence and did not offer anything to rebut the evidence which is more than sufficient to support a finding that h.b. two was the cause of the clinic beauchere. >> what evidence is that? >> there are a couple of things your honor. prior to each btu in the five years prior the number of clinics in the state remained fairly stable. in any given year that would be a one to two clinic variants. following the enactment of h.b. two more than 20 clinics close within a short period of time. the timing of the closure. >> i'm sorry what is the evidence in the record that the closures are related to the legislation? >> the timing is part of the evidence your honor and of testimony the plaintiffs about the reasons that their clinics close of the plaintiffs testified clinics closed in anticipation of enforcement in some cases and in some cases

because actual enforcement. >> go on to the ambulatory surgical centers. that was not part of the last case in your position is that his not a claim for preclusion. is that your position? >> that is correct. the claims against the requirement warned at the time that the case was filed because the final implementing may give give -- regulation hadn't been adopted. >> certainly in the federal system regulation sometimes take years to promulgate. i don't know of any rule that says we have to wait for regulations to be promulgated unless a something unanticipated and the objections you are making for clearing the statute anyway. >> i would disagree the extent

of the burden of law would impose is clear. until those implemented regulations are adopted in the statute provided a deadline for the adoption of those regulations. until they were adopted the plaintiff could have known grandfathering again permitted and the flavors are grandfathering were permitted for abortion providers the burdens would have been much less and the plaintiffs would have first attempted to get licensed and approved seek appropriate waivers before filing their dispute. >> why can you separately challenge the admitting privilege provision in the afc provision? >> s. your honor. >> if you can separately challenge them and he challenges the admitting privileges provision how would you factor coming just assumed the eighth

save provision was not under chatlines -- challenge. vice versa fewer challenging the afc separately it have to assume the burden solely caused by that provision. it seems a separation of the two provisions would make your case harder. >> i would disagree with that your honor because each of these requirements is extremely burdensome on its own. the admitting privileges requirement which is partially responsible for the closure of nearly half of all the abortion facilities in texas today and the afc requirement the respondent stipulated that it would close any remaining license abortion facility able to comply with the admitting privileges requirement. was able to comply with the admitting. either one is burdensome is the

one-two punch would be responsible for the closure of nearly 30 -- >> i think the chief justice asked, i don't want to take words out of his mouth, but i think the question was, one of the two that have been asked, is on page seven, the district court said that if the asc regulation goes into effect there would be one facility left in austin, two in dallas, one in fort worth, two in houston and one or two in san antonio. and he said the enforcement of the privileges would reduce the number from 40 down to about 20. i think the question was what evidence did those findings rest upon?

you have heard the other side say there is no such evidence. but the court appeals said there is no such evidence. can you give a brief account or passenger numbers that will show those findings, the diminishment from 40 to about 8 which is what the district court found, rested upon some evidence. what was that evidence? >> yes, your honor. so initially 20 clinics closed in the wake of hb-2. eight closed prior to initial enforcement of the admitting privilege requirement and 11 closed on the day the admitting privileges requirement first took effect. repondants quibble with the evidence serounding the first eight. there is a bases in the record for the district court to inser those -- infer those eight

closed for the same reason. >> where in the record is that evidence? >> the evidence is in the plaintiff's testimony about the reasons why their clinics closed. each of the plaintiff's testified their clinics closed either in anticipation of enforcement of the requirements knowing the clinic would not be able to continue operating once the requirements took effect and as a result they needed to move resources to remaining clinics to ensure some continued to operate. >> could you give us record references later on rebuttal? >> yes. >> as to how many of the total you claimed close do you have direct evidence about the reason for the closure? >> 11 of them, your honor, closed on the day the admitting privileges took effect. >> how many are you claiming closed total as an are result of

the law? >> to date roughly 20. >> of the 20 how many do you have direct evidence? >> approximately 12, your honor. >> if you go through this, and we are not talking about a huge number of facilities. i don't really understand why you could not have put in evidence about each particular clinic to show why the clinic closed. as to some of them, there is information that they closed for reasons that had nothing to do with this law. maybe when you take out all of those there would be a substantial number and enough to make your case. planned parenthood center for choice brian, texas. is that one? >> yes, your honor. >> the huffington post said it

was the result of a bill that cut funding for family planning services. >> your honor, that evidence is not in the record. >> i understand that. and you put quit a bit of evidence not in the record in your brief but why isn't there direct evidence about the clinics? >> you said you had direct evidence of 12 clinics and you will supply us with that later? >> yes, your honor. >> could i just make sure i understand it. you said 11 were closed on the day the admitting privilege requirement took effect. is that correct? >> that is correct. >> is it right in the two week period the asc requirement was in effect that over a dozen facilities shut their doors and when that was stayed and lifted they reopened again immediately;

is that right? >> that is correct. >> it is like a perfect control of experiment. you put the law into effect, 12 clinics closed. the law is taken out of effect and they reopen. >> that is correct. and that is what the state stipulated would happen and that stipulation is direct evidence of the impact of the asc requirement. >> the state, i think, is going to talk about the capacity of the remaining clinics. would it be a; proper and b; helpal full for this court to ring in on further finding for clinic capacity? >> i don't think that is necessary. i think there is sufficient evidence in the record we have to show the remaining clinics,

fewer than ten, don't have the capacity to need the state demand. >> a clinic in san antonio, i don't know the adjective they used, but there was evidence there was a capacity and capability to build these kinds of clinics. would that be of importance? then it would show this law as a beneficial effect as far as the legislation. >> if the court had any doubts about the capacity of the remainder clinics we would provide the opportunity to supplement the evidence in the .. number of surgical centers