spanish, french, so on and so forth, all those can do so in tunisia. they have all those can do so in tunisia. they have all left their imprint obviously come and when i spoke of reciprocal of civilizations, this is what i meant. like i mean, religion wise, jews, christians and muslims have coexisted for centuries in tunisia as well. side-by-side and culturally very close to each other, to the point that cultures at the end make up a mixture of a new culture, a new identity. hence the diversity, the openness, tolerance are a part of our ferry heritage. it's actually not our genes that this has grown. now, what on earth one could say what on earth could lead such a

country like tunisia to be one of the leading providers of terrorism in this context? they say three, four, five, 6000 of the so-called jihadists are tunisians. it amounts to very obvious content come and general kip ward just mentioned good governance. actually if you want to sum up the origin of all that, it's bad governance, or the lack or absence of good governance. tunisia has gone through a spell of authoritarian regim of authoritarian regime,3 of authoritarian regime, authoritarianism like political freedoms, diverse types of liberties which were not accessible to the population. a growing social divide, and

didn't even regional development scheme, and equal soci3 didn't even regional development scheme, and equal social economic growth, series of government mistakes. all these have ended up in a certain situation that fled afterwards to the appearance of extremism, and that we will see later on. so that totalitarian drift until the collateral damage is have inevitably led to unrest and eventually revolt. in a situation of despair, obviously religion offers soothing attractive refuge, and the more desperate young people, talking especially about the young people, these young people were the more prone to sink into

extremists out of despair, out of frustration because of lack of employment and socioeconomic problems in general. so hence the appearance of those islamist movements which is spread action in the arab world in general, and more or less the same context in the whole region, and in the middle east and north africa obviously. and turn later on into political trends, coming to represent a credible alternative to the authoritarian oppressive regimes that were in place. a vacuum created by the totalitarian regimes was naturally to be filled by religion, with a tendency of radicalization. is there that it starts with when we stop radicalizing, then

we get into the process of extremism and to end up in terrorist activities. with the 2011 upheaval and the ousting of the regime, the tunisian people opened their way to democracy and freedoms of all sorts, at all levels. nevertheless, in so doing, in that process, state suffered a real blow do in fact to the mistrust, and this trust filled climate left over by the regime. this is trust generated a huge weakness of the state in front of an aggressive public opinion, so fond of their newly acquired freedoms and liberties, and the

strong belief in their ability to establish the rule of the people by the people. that was the ambition and that was the main objective. so from authoritarianism, tunisia had moved to a crisis of authority, political parties, hundreds of them, hundreds, not to say thousands of ngos, media, i mean, filled up the place all of a sudden. there were four or five media that are active and all of a sudden we had tens in dozens and maybe hundreds of them may be active. all of them were against the ruler, however this may be actually. and this with the background that is a risk of totalitarian

relapse again to go back to square one. it is democratic turmoil that extremist groups found other ways to penetrate not only in the tunisian territory, but also to infiltrate layers of society, all sorts of activities like arms smuggling, smuggling, recruiting among the youth who did not see solutions to their problems, to the frustration. i mean, we're not seeing all of a sudden that they were hoping that with this change of regime that they would be offered a job straight away and they would improve their social situation and so on. this was very slow to happen, or maybe not happen at all, at some

stage. and then at that stage, also activities as we set arms smuggling, recruiting among the youth, establishing and running training camps on tunisian territory were evolving without the state being able to prevent them. because it was simply overwhelmed by so many other problems, i social unrest, i pressure from the union, by political strife, by all sorts of issues that definitely were overwhelming and could not allow the state to be ready to face certain threats. just a reminder of the facts over the last year, 2015, four major terrorist attacks, isis

claimed responsibility for three of them. an attack against the museum with 22 victims, a tourist resort in a hotel actually with 38 of victims. the presidential guard bus with 12 victims and the latest and new of its kind attack against a city in the south of tunisia, adjacent to the libyan border, in which 13 security forces were killed and seven civilians. while 49 are among the terrorists were killed in the same operation. i said a new in kind, meaning that it was the first time that in the succession of events,

apart from the isolated acts our very specific or targeted terrorist attacks, this one was meant to establish a stronghold of what we call the islamic state in tunisia. so they were attacking this small city to establish, and to start off what they did in iraq and in syria and so one. when you see the overall situation, it is actually a mathematical war that we're confronted with. the security forces and army are fighting an unconventional enemy with conventional means. so this is why also, apart from the overwhelming socioeconomic

situation and problems, it is also a problem, given the security forces who were never trained to be facing such an enemy, so a new doctrine had to be instated to frame a strategy in this war against terrorism. the strategy is based actually on four pillars. that's prevention, protection, follow-up and response, whole set of reforms is currently underway to optimize and implement the counterterrorism strategy, with a number of challenges on the ground like interagency coordination which is very complicated, at the u.s. have gone through that after 9/11. i mean, they had overall the whole system.

establishing the legal framework which is also problematic because in making legislation to combat terrorism, you have to take special care, less one would compromise on liberties, which in the case of tunisia, very recently and generally a quiet. ..

to reinstitute the authority of the state. improve governance. international actors, and establishing an articulate social economic development strategy to bridge the gaps. to restore a healthy economy. now, in sort of concluding remarks, on all of this general context, terrorism is definitely a global threat to world peace and security. so the fight fence terrorism has to be global. as the need for globally, well-coordinated, multidimensional strategy. such a strategy would never be successful if it is not based on mutual understanding as for needs and special if is of each and every -- specificities of each and every partner in the

struggle. as you look attune tune, tunisia is considered to be a beacon of hope an experience that our partners like to consider as model. even though we after -- after the affirmatively believe there are no recipes for democratization, and to be implemented has to take into consideration, particular couldn'ttries specificities like historical background and culture and so on this model is under serious threat, meaning tunisia in that very case. it is under serious threat and it is in the global interests that we come to terms with these threats continue on the path to success.

if proof is necessary that extremism and terrorism are alien phenomena fortune tune niche shuns, and first of a time defeat every inflicted to the so-called islamic state are the sole substance of the tunisian identity in that regard. the reaction was huge, not only security forces but population fighting without weapons, without arms, without anything. chasing those terrorists all over the place. so, to sum it all up failure to set up the right types of cooperation in diverse fields between tunisia and international partners could

lead us to waste an opportunity to promote plural listtic model of government in the arab world, based on social justice and economic opportunity and security. so again this has to do to what i stated earlier, that the threat is utterly global and so must be the response but it being global it needs to be extremely well coordinated so it is not ready-made recipes again but takes into consideration and different aspects of each specificity of each partner this world. thank you very much. [applause] >> dr. abdl aziz from egypt. -- abdl aziz.

>> let me start by taking the potomac institute and ceo and chairman michael swetnam for organizing this event and special thanks goes to professor yonah alexander who put as lot of effort and thinking gathering us for this important issue. and i think i should say also that the remarks i will make represents only myself and not necessarily my country. when i received the inindividualtation for this event i liked very much the notion of lessons learned. we, the international community, have been fighting terrorism for years and years and important from time to time to have a pause and rethink and reconsider what went wrong, what went well and try to draw lessons in order to do better in the future. in this spirit i would like to share with you seven lessons

that i think we in africa and middle east have learned during the last years of fighting terrorism. lesson number one, there is no country that can fight terrorism on its own, period. regional and international cooperation is a must. i'm very glad that general ward used the term collective responsibility. this is exactly the lesson that we learned fighting terrorism. four days ago egypt hosted 27 defense ministers from the region in egypt and the topic on the table was, how to cooperate better, how to coordinate better, how to share information in order to fight terrorism in their respective countries. two days ago saudi arabia also

host ad meeting for chiefs of staff from selected islamic countries in order to discuss the same issue, how to coordinate better in order to fight terrorism. but in fact, this is not a lesson learned in the middle east or in africa alone. think about what happened in brussels last week. before those tragic events the e.u. coordinator for counterterrorism said only five countries out of whole members of e.u. are really sharing information, open source information and classified information that is needed in order to fight terrorists effectively. so it is a necessity also on the e.u. level. think globally. why the members states of the anti-isis coalition is growing every single day to reach 66 countries right now?

because countries are realizing more and more they can not fight terrorists on their own. lesson number two, and i think general gray may explain this better than me because i'm a poor civilian. other armed forces are designed and constructed and trained to fight conventional wars but this fight against terrorism is unconventional war. what the u.s. has learned in goon began after 9/11 is exactly what we are trying to learn right now in our region. and here comes the lesson. that we should not start from scratch. we should not reinvent the wheel. we should start from where europe ended. and here comes the idea of sharing experience.

that it requires new training methods for our armed forces? of course yes. does it require new weaponry systems? yes, of course. new structure, new command-and-control? >> i think yes. these are questions that needs to be posed. lesson number three has to do with planning and this is not me speaking actually. when i discuss the matter with the military officers fighting terrorism on daily basis, they tell me that we used to say that military planning needs a lot of experience. so it is for generals to plan and for young officers to execute this plan. we have learned from fighting terrorists that it should be the other way around. it shouldn't be a top-down process. it should be a bottom-up process. those young officers who are

fighting terrorists on a daily basis have the know-how, the experience, the terrorist tactics on a daily basis so they can feed the planning process very well. the lesson they have learned on the battlefield, that if we keep the planning process in the capitals, in air-conditioned room, we will lose this fight. lesson number four. professor yonah alexander mentioned the number of isil fighters, 35 to 40,000 fighters? add like 10 to 15,000 in boko haram. add 7 to 8 in al-shabaab and 7 or 8 in taliban?

you have 80,000 fighters, terrorists. the question is how were these terrorists able to recruit these huge numbers? the answer is they use two tools. attractive religious narrative. two, they reach out to young people through effective use of social mead yu. -- media. in order to fight terrorists effectively we need to develop a count narrative to al shaw bab and boko haram. like tunisia in egypt and, and also comes the importance of reaching out to those young people if twitter and facebook will help us reach out to them, we should use them.

if local leaders can help us reach out, we should use them. if local languages can help us we should use them. i remember a very good experience after egypt develop ad lot of counter narratives and counter faw waas to counter isis, we developed them and put them in a book and went to local villages and schools and mosques in order to reach out to those people and it proved to be very effective. lesson number five, development. if we are going to have a tool in the sub-saharan countries in africa and visit the towns and villages where boko haram, were very effective in recruiting people it would be very easy for us to recognize those are

deprived young people and unemployed. so it has to do with development. that's why part and parcel of egypt's plan to combat terrorism in the sinai, delegate 10 billion egyptian pounds to build schools and hospitals for these young people. creating hope is important, it is important. this also has to do with the good governance aspect that general ward mentioned in his opening remarks. lesson number six, technology. th is always a forgotten dimension in our discussion. think of a couldn'ttry like libya with long borders with egypt, with tunisia, with chad and other countries. how can a country like this fight the cross-border terrorist

s? neither libya or other countries can afford using traditional ways to secure the bored earth. meaning deploy one tanker single kilometer. egypt can not afford to do it. tunisia can not afford to do it. but if we have tie tech equipment, we can do it. here comes the question, whether the developed countries are ready to provide the undeveloped countries with this high-tech equipment or not. it is not only related to securing borders. it also relates to the tactics of isis. i'll tell you a story. the international coalition were able to liberate sinjar, ramadi and tikrit in iraq last year but look what isil did before withdrawing from these three

major cities. they left a lot of mines and ieds behind them in order to prohibit refugees and idbs from returning back to their homes and towns. iraqi government is facing a lot of challenges, cleaning and clearing these minefields. they need a lot of high-tech equipment once again. this is repeated story not only in iraq but syria, libya and elsewhere. so once more it is up to developed countries to decide whether they are ready to provide this high-tech equipment or not. lesson number seven, sectarianism. this is also mentioned by professor yonah alexander. the fact is the sunni victims of isil is more than the shia victims, than the christian victims and the yazidi victims.

do not ever be deceived by the narrative of sectarian, sectarian violence. it is political conflict at the end of the day. those people are using religion, are using sect, in order to choosing, not using, misusing the religious narrative in order to achieve political goals. it is not about religion. it is not about different sects. let me conclude by a question. are those seven issues lessons we the international community have already learned or those are lessons that we should learn? i think we should come back to this question in the q&a. thank you very much. [applause]

>> thank you very much. [inaudible]. from morocco, please. >> thank you very much. i want to tell you that i'm very happy to be here. new for giving me this opportunity. it is really difficult to be the last speaker and i would try to be very brief and share with you some reflections about this topic. we heard a lot about lessons and in my country morocco has been a victim of terrorist attacks. first one was in may in

casablanca, in may 2003. since this time we learned a lot of lessons and we learned these lessons and since this time, we start practically with the strategy, military -- multidimensional strategy and the moroccan approach today, we can say that we have, we are in front of some experience. without forceful strategy around three pillars. the first pillar was good governance and security

governance. of course we are facing a war and we have to deal with this threat. other security facilities have to adapt all what they did before as it were and first and very important to state was how we can bring more security services to have deep, deeper cooperation so the first stage was to enter into crop requirings, crop requirings between security services. and you have to add to these security services more capability and more, of course

training and we can see that we have today we know more about the groups and where they can find funding and what kind of organizations they have and their linkage inside or outside of morocco. the second pillar, imagine the religious spectrum. imagine the religious spectrum where we have first of all to to start training imams and open this mission to women this

experience in all of the islamic world is very important because we know all of us the role, the important role of the women in our society. bring them to this, to the mosques and give them training and give them the opportunity to act as -- say exactly as the imam in some cases. this experience of training imams, the objective was to bring the imams to play their role and the role of the imam must be impress and prayer. it was opportunity for us to get

the role for others who use mosques, our space to give violent and extremist speech and political speech too. of course this experience today we share it with a lot of other countries. in africa, in arab world and in europe we start to train some imam from france, from other european countries, are asking morocco to share with them the experience. we, with mali, with ivory coast, with guinea and with other countries.

the second, the third pillar and as all my friends say before, that we have to go to this human development and of course to be near for all the needs in the poor areas, and to take care of the social and economic deficits in some areas. for this the strategy of human development to give a very important results and very good result. we can say that this strategy

today gives to morocco the opportunity to face this, these groups and as you can observe in this strategy we have one pillar, which we can say, what, that we are working on the short term, is governance, security pillar, and the two others, how we can work on the long term. but, facing terrorism for morocco, it is a very big challenge but at same time, the, the aim of this strategy is how we can fight terrorism and continue to build democracy.

how we can fight all of this extremism but at the same time how we can keep what the moroccan choice since more than one decade as a goal for their destiny to be state of law and to build democracy. it gives us today a lot of element that in this context, original context, we can continue. as you know morocco is, i would say it, oldest state in all the region and the moroccan political system, the monarchy is one of the oldest monarchy in all the world.

our political system, our state in morocco is there since 788. so when we deal with morocco, we have to keep in our minds that this state has a very deep and long story. because of that we have a very good, the state has very good control of all of the national territory and very important proximity from the citizens. and at the same time, we have the chance that the king is not part of the political game. so all the moroccans, have the most important confidence on the king and in the monarchy. so we can have, have the feeling

that the -- one major and the one who, who would be the last institution on which they can of course ask some response. the new context today is completely different in our region from, from the first bombing in casablanca in 2003. we have to face new emerging threats and i think that in the moroccan strategy, first of all we have all this non-state, violent actors in this region. militias, rebel groups, separatist groups.

terrorist groups, criminal groups, and so of course our friends from libya talked about some groups can say only in libya we have nearly 300 militias, military groups. and when you go a little bit to this arc of the sahara, all these rebels and separatists groups dealing with all of the terrorists and linking today to all the terrorist groups. and transnational organized crime. for this reason i think that the moroccan approach takes on this time on one hand and as the

major goal, the terrorism and terrorist groups. we have certainly daesh as you say but we still have akim and we still can at this time that they are acting in a lot of african countries, in mali, in burkina faso, in ivory coast and others. we still have today very bad, and important activity of, as my friend general would say boko haram. we talk less about boko haram but it is one of the bad, very bad groups and al-shabaab. the second point, when we focus on the terrorist groups in the

moroccan approach with, we never put transnational organized crime. we have this region a very important activity and what we learned, that today, and i will be, i'm realistic. i'm not optimistic, not pessimistic but just realistic, we are moving for more instability in this region and the future, in this region, with a lot of uncertainty. so, we have change. in our region we have to do our homework. and we must move out just to put some concept, but, to have some real strategy and to act all as

responsible states. unfortunately we still have some kind of thinking in this region that is not helpful and we still have some dreams on some kind of people role in this region. it will bring more disaster. and we still have some people, bad informant or inform ant can come in with some proposal or solution and it would be a disaster. i think that today we know that we have to, and the major concern for us will be the foreign fighters. we have 1500 moroccan foreign

fighters in syria and iraq. 495 was killed. 217 returned to morocco, but we have 1000 from algeria. and we have 5200 from tunisia and they can move around. if we go just to in the north, we have 1700 from france, foreign fighters coming from france. and we have 815 from belgium, 415 from germany. 500 from the u.k., even sweden, 120. i can go around a lot of countries because what we know today, that daesh, this is for the first time, terrorist group

had this important pflum per of foreign fighters -- number of foreign fighters and the number is 45,000. more are back from syria and iraq to libya. we know also a lot of young people from the region, who tendency to move to syria and iraq and now to libya are still in in. they have today the capability, they have all, all what they need as many and they have

weapons. so, how we can face this global enemy with only national policies. it will be very difficult. we are facing a global enemy, we need global responses and we need global strategy. the second element is transflags organized crime and i think that in issue we talk less about drug trafficking. and i remember with the general that we had once years ago we

had very important program about these issues. today, 185 arrive every year to the western africa and sahara region. it represents 25% from the international markets of cocaine and the needs of the european market from cocaine come from there and there is 32% from -- one cocaine in the is the sahara can sell it at 24,000 euros. you can observe there is no place for other, other soft drugs, hashish or cannabis or

others, nothing around. the second element is the proliferation of weapons. one of the consequences of libya wars was that today, we have a lot of open markets. in this region of is a heel -- saheil. several years ago you could buy one ak-47 from chinese origin around $75. you can have today in the saheil, ak-47, one from russia,

for less than $55. and this proliferation of weapons are not only small, small arms but we know that a lot of missiles are there, especially some other kind of missiles. so it's a very, very big concern and we know today today that all these groups are working together, cooperating together and using all, what they control as zones and as of course roads. we know that the latino-american cartels today are very established in the saheil and

the sahara. they have the opportunity to find somewhere in the southeast of algeria, some groups who are speaking spanish. they use them as guides and using them in this illegal activity. we know also that this pham no that of illegal immigration and smuggling, human smuggling is very, very important activity and terrorists groups use this tragedy, human tragedy for their goals. for this and the third this last point in the moroccan strategy that we need international

cooperation and morocco is open to this and sharing information, sharing intelligence, to other countries. we have examples with france after the attacks in paris, in belgium, after and before brussels. and with spanish government, with a lot of other, even with ivory coast today and a lot of other countries but we believe that we need to build our own regional strategies and not to have external intervention in the region. it will be bad response and bad solution, but at the same time, knowing how we can cooperate in this region, if you still have

and we had all the time, we are happy to share with the -- borders are closed. second example between closed borders and between morocco and algeria. it can give you the idea that we, no way to cooperate against this enemy. for the reason i think we need today to act as responsible state and to move out a lot of paradigm coming from one other history and one other area we have to build the future and the future we will be either, all of

us, safe or all of us victims and i hope that we will choose the life and we will for the future of our child, all over the world. more stability, more comprehensive and more inclusive policies and approaches. thank you. [applause] >> thank you very much. we'll try to open up for q&a for the general and panelists. please identify yourself. yes, sir. >> my question is, for general ward. so far the war on terrorism focused mostly on security and counterterrorism efforts. how could the u.s. and the

international community deal with poor governments, political exclusion, economic grievance, and corruption? >> thank you. i think based on my experience and what i see as a way ahead in a total sense, i talked about how we cooperate and many of our security apparatuses, from intelligence fusion centers and cells, to collective training events, to to come and joint war fighting activities to address these specific threats. you heard the comment made by colleagues here on stage with respect to these tactics are clearly important tactics to address bad actors on the seen. we have to do that. and i think we must devote resources to that. at the same time, to address it over time, to do those things

that are required to promote long-term stability, to get at the root cause of why these things are allowed to exist we must do more. so therefore the thrust of what i talked to with respect to sustained developmental engagement, sustained diplomatic engagement, those are things likewise in my mind's eye ought to have the same priority if you will in a collective way as we move ahead. it's not the u.s. requirement to do it. i believe it is the requirement of the world of nations to participate in activityies that one, provide an understanding of the region, the area, that those activities are so it does things needed by the population, no from the our perspective but from the perspective of those who are there. then based on that, be deliberate and in conducting activities that will address

these things that, and i use the term, and that is the term that i like, that's why i use it, that will provide this horizon of hope. can't get everybody and it won't be perfect but it will sure go a long way to address the conditions that underlie the undercurrent positions that breed these things because folks feel a sense of despair. and, it is a long -- investment. it's a long endeavor. it won't happen overnight. we have to be persistent and we have to be focused and remain to it over time for it to see the result. it's a generational activity and in my mind's eye. >> okay. please. >> i have a yes on the eventually many of these fighters with i will return with a lot of combat experience, especially directed toward mr.

mahmoudi, about hen ham my, these people will come back. what what strategy is it about returning national its? >> thank you, sir for that question. actually it is one of the major issues that we are to deal with because the returnees are already there and some of them even indulged in one of the, some of the acts that have been committed so far. so definitely strategy that has to be implemented in that regard. as i said in my remarks, it is kind of a tricky situation and very sensitive because we have to deal with those people and to give them a special treatment

because to avoid any further activities, and so on, but the issue is also to preserve the, their rights and, to be in line with human rights and so on, which is rather a little bit difficult. so definitely there is a special strategy for that. we're trying to frame these people. the thing that they be monitored and they be taken care of and they be followed closely, to avoid any, any relapses or any sorts of violent activities. but again, it is still a

difficult approach, a difficult situation that you have to face. >> in morocco we resolved this problem. we have this vacuum, jurisdictional vacuum. now we have the law and the -- of course. all 250 are now in prison. i think they are criminals. of course we have to respect their law as they are criminals and at same time we have to protect society. we couldn't do this before 10 years ago but today our -- all what we can have as guaranties to in the criminals so they are criminal and they have to of

course be treated as criminals. >> commodore i'm an attache, thank you for all your opinions. my question for general ward, your position, have the three-d approach, it is something we can fully support. it is policy in my country we do it. at undersecretary level we have integrated cabinet of prime minister, ministry of development, ministry of development, ministry of foreign affairs, they talk on a weekly basis. we operate that way in mali. that is our lead and principle. my question is the following, when we do this is takes long stamina for our societies because here we are in present societies that wants quick

results, that wants quick action, that wants to see results today and not in a year. and my question is, could you elaborate, think that is a thing that's overlooked, we need to have strategic communication, strategic stamina and how do we do it to keep support in our societies for these very long-term approaches? because we all know that the development doesn't happen overnight. >> commodore, that is a great question, that's a great point. thanks for your service as well. i'm familiar what goes on in your country having working with your forces in these endeavors and importance of it. two quick things and i won't belabor this. whatever a nation does, the nation will do in its own national interests. so how we develop a narrative that will allow citizens of our respective nations to include the people in the respective countries where these things

must go on so though know these things are in their national security interests and their best interests. we clearly have that problem here in america. and so, the narrative that was talked about here with respect how it is made to be understood that unlike centuries ago when great seas provided barriers, when great mountain ranges provided barriers, when deserts provided barriers, is no longer the case. like the sahara and the trafficking. these terrorists that are just bad guys, use the same ancient routes, drug traffickers, weapons traffickers, human traffickers, they all use these same systems. those things impact our neighborhoods, doesn't matter whether it is in america, europe, asia, because of the global commons, where we are with technology, transportation,

markets access to resources. all those things that advantage populations globally have to be dealt with such that we see where we are, that our ability to sell a product, to receive a product, may come from anywhere in the global column, commons. be it agricultural, be it technological. this piece of equipment right here, if your neighbor in the netherlands or my neighbor in michigan knew that where its component from, let's make sure we have access to that. so how we develop a narrative that lets every citizen understand that what goes on globally has an impact on them locally, and unfortunately we don't devote time for that. as you said, we are a fast-food group of folks but that doesn't say that we must give up that we

can give on promoting that narrative. and we must persevere and just not give up. just like in the korean war when he charging that hill and he was out of ammunition and he tooked around and looked at his infantry soldiers. our mission is to take the hill. hey, boss we have no ammunition. well we've got legs and we've got bayonets. fix them. let's go. but we have to use any means we have to continue to deliver that message, to move forward, even in the face of those who don't want to hear it but we should not, because they don't want to hear it, fall the way from delivering it. >> obviously we're all done, right? >> just the beginning. >> yonah, if nothing else, dr. alexander, you certainly are

consistent, because once again we're out of time and i've been asked to speak and to, thank you for all of you to being with us today. it has been informative to all the pa panelists, obviously we need a global strategy. all the free world has to get involved. has to have regional connotations because the regions are very important and they're different and must be adaptive along the way, we ought to be able to decide now what we can look like 10 or 15 years from now, turn to make it happen. one word really hasn't been mentioned today, i think is crucial, and that's education. we have got to educate in america our people and we've got to educate the free world as we know it today. what this terrorist idea, what is all about and what jihad

really, really means and we have to go back centuries and really study the history of what this means. we need to understand how the arabic linguist mind works and with when you analyze that, these words mean different things to different people and above all it means a different thing to jihadists. we need to understand how these words have changed. what jihad in the beginning really meant effort in the light, unity of effort. it has changed now. it changed in the beginning of the 20th century of the like and now has to do with conquering. it is up to us, do we want to be conqueredded, do you want to remain free. they need security and democracy. that is what we had to be able to provide. it is very complicated issue.

it start in my judgment with education. thank you. [applause] >> thank you. see you next time. [inaudible conversations]. >> the czech prime minister is in washington today to talk

about the state of the european union. as it deals with the u.k.'s possible exit. he will also talk about the refugee crisis and the brussels attacks. that's live at 10:00 a.m. eastern here on c-span2. today in the atlantic council host as conversation on nuclear security at state and federal levels with california governor jerry brown and former secretary of defense william perry. live coverage starts at noon eastern here on c-span2. >> this week on c-span we're featuring programs on the situation of the current supreme court vacancy. today at 6:00, with an apparent impasse between democrats, the white house and republicans, over the next supreme court justice, we look at what today's leaders have said in the past concerning the nominating and confirmation process of individuals to the supreme court. >> in my view confirmation hearings, no matter how long,

how fruitful, how thorough, can alone provide a sufficient basis for determining if a nominee merits a seat on our supreme court. >> thoughtful senator should realize any benefits of barring idealogical opponent from the court are not likely to outweigh the damage done to the court's institutional standing. friedman goes on. idealogical opposition to a nominee from one end of the political spectrum is likely to help generate similar opposition to later nominations from the opposite end. >> those are some of the programs featured this week on c-span. >> booktv with 48 hours of non-fiction books and authors every weekend. here are some programs to watch for.

>> the donor class through the people who are in office and who are running for office are, those same people over and over very often. >> right. >> in the state legislatures and the local things and the families and so on. they are the one who is are corrupt. >> right. >> and they are the ones who are corrupting democracy. the other people are not getting benefits of it because they're not acting collectively to counteract it and haven't found a way to counteract it in all of these years. >> on sunday, "in depth," live with guest steve forbes, author and publisher of "forbes"

magazine. we will join to us talk about his life and his latest book, reviving america. he argues for repealing the nation's health care law, replacing the tax code and reforming the fed. other recent titles include, money, freedom manifesto and how capitalism save us and power, ambition and glory. join us in the conversation, we'll take your phone calls, tweets and emails at noon p.m. eastern. we take a tour of the folger shakespeare library in washing ton d.c., home of the largest shakespeare collection. go to booktv.org for the full schedule. >> supreme court ruled wednesday in the case of lewis v. united states for defendant's right to council of choice. in 5-3 decision, justice held that sixth defendant forbids the government freezing assets not related to criminal activity when they need the funds to pay for attorney.

the november 2015 oral argument before the high court. this is an hour. >> we'll hear argument next in case 14-419, luis versus united states. >> thank you, mr. chief justice. may it please the court. the sixth amendment has always recognized the individual's right to spend his own money to obtain the advice and assistance of counsel. at the time of the adoption of the bill of rights, that was the core right. a time when the right to appointed counsel had not yet been established by this court. we submit that the right to representation by private counsel must allow a defendant to use assets which she rightfully owns, assets there is no dispute she has good title. so she may be represented by the lawyer that she prefers. . .

ms. luis is wanting to use assets that are not drug money. they are from lawful asses. there cannot committed any crime. >> in a comparable situation one is the one monsanto talked about where a bank robber goes in and he is a pile of money now. and monsanto says unocal even though he wants to use that money to pay for an attorney, too bad. now a bank robber gross income he has a pile of money, puts it into separate bank account.

he uses that bank account to pay his rent, other expenses. he uses the money that would've gone for the rent and other expenses to pay a lawyer. why should the two cases be treated any differently for transit purposes? >> because no amount of so-called dissipation as the government would suggest negates petitioners lawful interest in the property she owned apart from any alleged memo activity. >> doesn't make sense the sort of substitution rule? if you've got $10 million in drug money and enjoy 5 million in dollars and you spent 10 million, you can't say i spent the drug money, you can't touch the 5 million. it seems to me that's what the statute is doing what is has whatever it's a reasonable substitute or assets substituted for. >> and so, mr. chief justice, if there is a conviction, if the defendant is found guilty, after the conviction when punishment is determined, there may well be the opportunity for the

government to seek punishment that includes the financial penalties associated with the crime. but before that time, pretrial, when the defendant is the exclusive owner of the untainted assets, there is no principle of all that deprives her of the right. >> i thought the chief justice's question slightly different. i don't know if you are privileged to you the exciting argument yesterday on tainted assets. >> i was. >> there are degrees of obtained. -- tank. can you follow the assets of? tainted or untainted, it's a more difficult question than that spent in this case it's a simple anthony coscia we have a stipulation, joint appendix 161, that the assets across the subject today or assets that undisputedly untainted, not traceable to the crime. they include family jewelry, not

trace to any criminal activity. they include real estate acquired before the allegations of the conspiracy. >> let me go back to justice kagan's question and ask it in a different way. we have two brothers, twin brothers, and they rob a bank. they get $10,000. they split it up $5000 each. on that same date happens to be their birthday and the rich vocal comes in just each of them $5000 as a birthday present. they go up to party, and they both spend $5000 partying. one of them spends the money from a bank robbery. the other one spends the money that was given to them by their rich uncle. your position is that the one who spent the money from the so-called tainted assets, the money from the bank robbery, is entitled to use the remaining $5000 to hire an attorney, but the other one is out of luck? >> yes, he does about --

>> what sense does that make? >> because the property interest that a defendant has been an inheritance or in the gift, those property rights are not negated simply because the defendants allegedly committed a crime, simply because there's probable cause. >> so the law, you want this court to say spend the bank robbery money first? thatcher positioned? >> the government is concerned about what we would have described as the so-called widely criminal. the defendant who spends the money, but tainted assets, faces perhaps even more punishment at the end of the day either through money laundering charges or otherwise. keeping in mind the forfeiture has as its primary component punishment, there are ways of disincentivize in these kinds of financial transactions you're referring to. it doesn't affect the defendant's property interest in assets that are wholly apart from any criminal activity. >> i don't have these things

actually work. the defendant has daily expenses, and that the government's freeze order of the rebels beyond the money she has. does she get an allowance or something? >> of now she gets nothing. >> putting aside lawyers, if her daughters tuition bill comes due, she can't pay the? >> under the current restraining order she can do nothing. >> but she can surely pay the rent or the mortgage? >> under the current restraint order she can do nothing. the statute as construed by the district court allows no exception. >> isn't your position the government could prevent payment for the tuition but not for the council? >> our position is that there's a constitutional right under the sixth amendment to retain counsel. >> so the government can stop the tuition payment but not the payment to counseil? >> i would think so in those instances there may be other cases it was life or death matters, a different defendant might come before the court and

say there's a strong compelling need for that money for other reasons but if it's ordinary routine expenses claimed today doesn't reach that our claim reaches sixth amendment issues. >> you don't have a statutory argument. you're making a sixth amendment argument because if it were a statutory argument, you can't restrain untainted assets. >> justice sotomayor, the statute 18 usc 1345 of which is different than the drug forfeiture statute, it's the blue brief at page two -- >> i guess, i understand what you're going to say because i read your brief. but the logic of your argument would suggest that you can't freeze untainted assets for anything, because using the government has no property right to it. it's untainted. it's your money.

it's not their money until they secure a judgment. so the logic of your position would be, i think, they can't restrain untainted assets, period, constitutionally or statutorily. >> we do not go that far in -- >> i know you don't because it's very nice that you limit it. but once we announce a rule we have to care it to bits logical conclusion. if the rule is it's untainted assets and it belongs to me, how do we then limit the? >> i suppose if there's no sixth amendment right at stake him if there's no constitutional right to use the asset today, i don't know of any prohibition, provided that there's due process, it would prevent the court from restraining assets or post to be used for other purposes. >> but you said this is her property. if it's tainted, you say she doesn't own it, it's not her money. but if it's untainted, it is her money.

so i think justice sotomayor has asked a fair question. isn't the logic of your position that the untainted assets can be used without restraint for whatever she wants to use it for? >> justice ginsburg, from a constitution perspective i don't think that's correct because the courts can give injunctive power to ready -- to restrain assets. our objection is in such an injunction interferes with the constitutionally protected right to retain counsel of choice. so while the statute could constitution allowed, provided there's adequate hearings, et cetera, the restraint of even a defendants owned assets, lawfully owned assets, that principle can't extend to the subset of assets she needs to use counsel of choice. >> what if the woman is a devout

muslim and she makes an annual trip to mecca every year? wouldn't she have a constitutional right to use the money for that? >> so certainly she would have a constitutional right. and whether she could then out came the assets free from the injunction immediately would raise a separate first amendment question. a sixth amendment, because the deprivation will be permanent, meaning, we need those assets now before the trial, and the immediacy of the need for those assets -- >> she has an immediate need to go to mecca. if she doesn't get it now she's not going to be able to fulfill what she regards as a religious obligation. i don't know how you can limit your principle to the sixth amendment. >> the sixth amendment is important in the context of the adversary proceeding that will determine the ultimate ownership of those assets at the end of

the day. unlike any other amendment, the sixth amendment is a guarantee that the defendant will be represented at the proceeding where the property and for liberty are at stake. with regard to the traveled to mecca, those travels, while significant under the first amendment, don't bear on the outcome of the criminal case. because of the need for assets that we are requesting limited to that amount needed to retain counsel of choice, limited to the amount needed to mount a legal defense to the very charge that threatens her property rights and our liberty upon conviction, there needs to be an accommodation so that she can use enough assets, controlled by the court's -- >> this goes back to the chief justice's first question to it seems the distinction you are making is one the court explicitly rejected in monsanto. in other words, the court said the sixth amendment here is the exact same thing as the first amendment. it even used that example that justice scalia gave, or the general example.

so it goes back to the chief justice question in the sense of there's a very powerful intuition guide you argument but it's a powerful intuition that was explicitly rejected white house. this case doesn't seem to present any different circumstances than that one. >> i think the circumstances are quite different because of the tainted property that was at issue in monsanto. first, we know it was drug money in monsanto. it'd been established by clear and convincing evidence. in our case it is totally untainted assets. second to the court recognized the defendant doesn't have a lawful property interest in drug money. no different than a bank robber does not have a lawful interest in the bank loot. >> but your earlier argument was yet a constitutional right to establish that it is in drug money. that was your whole answer to the justice scalia. >> in this case there's no dispute that the money is untainted. >> i'm talking about the rule

that you are proposing. >> the row i proposed, consistent with coarse observations dean daly, there are two elements to establish orbited billy. one, that there is a crime committed compensating, traceability from the majority opinion in kaylee. in monsanto, the assets were drug money you're a defendant doesn't have the right to use drug money to represent, he represented the chat -- counsel of his choice. i guess this may be justice so much as plan. your argument, you are distinguishing tainted and untainted and understand that. i just don't understand if you can freeze the assets despite the sixth amendment when they are tainted, i don't understand what it's not the same rule when their untainted. you may a statutory arguments, but if you argument it has nothing to do with the constitutional right to counsel. >> mr. chief justice, i think it has everything to do with the sixth amendment because at its

inception of the sixth amendment only encompasses the right to spend one's own money to be represented by counsel. there was no right to the appointment of counsel. so taking away the defendants lawfully held assets, whether it be their pension funds, and inheritance, lawfully earned labors, to take that away at the inception of this nation what it meant the defendant would've been left with no counsel at all since the notion of an appointed law is really a notion of more recent vintage in the 20th century. so indeed to take away the property rights pretrial, of a defendant at the time he or she is under indictment needs those assets to retain counsel, any private counsel, so we're not talking in this case about -- >> what if the prosecution brings a case for crime x and wins that case, and it imposes a

fine that takes away all of the defendants assets, and then the prosecution brings another case for crime y, would you be arguing that the fine had to make an exception for the defense of crime y? >> know, justice scalia. >> what's the difference? >> there's a judgment. upon judgment a defendant can lose his right to property upon execution of that judgment. so the government could execute on that criminal judgment and take as much of the defendants assets needed to satisfy the fine. our objection is the government doing it before conviction, before there's been any judgment. locking down some assets down when he or she needs is assets to exercise the right to counsel. >> the sixth amendment only protection money up until the

point where there's a judgment? >> yes. >> but in this case there was a finding of probable cause. >> yes. >> you want us to make a distinction between probable cause and a judgment? >> as. every case, every indictment brings with it a finding of probable cause. that you have to coexist. the right to be represented by counsel of choice under the sixth amendment have to coexist with indictment, because under patterson versus illinois the right under the sixth amendment is triggered by the indictment. it's triggered by the finding of probable cause. didn't say that probable cause destroys the right to the sixth amendment is didn't say that they don't coexist but, of course, they do because the sixth amendment was established in 1791 and is part of our fabric. >> i might be repeating myself but i thought that distinction was the one specific rejected in monsanto. monsanto could have said kaplan and dry as toast of because it is postconviction. monsanto refuses to do.

monsanto said same rule that applies postconviction ought to applaud upon a finding of probable cause. >> probable cause to get assets are tainted. poppe will cause to believe that the drug might is not the defendants to spend. not, there's no probable cause as to these assets that ms. luis -- >> the problem is as a matter of economics and common sense, money is fungible. to say if the so-called tainted money has been spent and what's left is the untainted money come it doesn't make a difference which pop has been spent and which part hasn't been spent spill respectful it makes a major difference. our property laws, money is fungible and co-mingled, if they're a segregated property, when creditors try to lead against property that's not part of a secret interest, along treated very differently. >> there's all sorts of complicated rules in those

areas. there's none of that necessarily apply to. suppose you have a situation where what's at stake is money that's going to be useful restitution. select the beginning of the case the question is whether the defendant can spend that money to hire the attorney of the defendants choice, which is certainly a very powerful interest, or whether that money into the case if there is a conviction is going to go to victims. so how do you try to accommodate those two interests? >> to provide a restitution exception would just swallow the entire sixth amendment out of the constitution. in most cases that they cannot sustain an injury. it might be property damage. it might be personal injury. if, for example, use a hypothetical if someone were to steal the mona lisa or allegedly steal the mona lisa at the mona lisa isn't found, there's no principle of this court has -- >> your entries to defendant's right to counsel of choice takes precedence over the rights of the victims and you would say

that no matter how strong the proof is? >> yes. >> until there is a verdict? >> as long as the assets the defender proposes to use offer lawful acid, untainted, not connected to the crime, not traceable to any criminal activity, yes. >> that seems to me not a very persuasive line. you are relying on property law. what you are seeing is the government can take with all your money if it's tainted, if there is probable cause to believe that it's tainted, right? they can take away all of your might if there's a judgment. but they can't take with all of your money if there is a judgment. if they're simply probable cause to believe that you're going to owe this money. >> right. >> that seemed to me a very, i don't know, and evanescent line. i don't see why the sixth amendment case is, the property case is stronger in one

situation than the other but i'm not sure that the sixth amendment case is any stronger. >> what the statute is purported to do is give the government a pre-judgment attachment. >> that's right. its property law. >> the sixth amendment -- >> your complaint about property law, not the sixth amendment. >> the to in some degree are interrelated of course because without money to i did 20 years ago or so, you couldn't hire a lawyer and none would be appointed for you. so while the court has accommodated the indigent by providing them with appointed counsel, that is not a license for the government to render people who are not indigent, indigent. it's not a license to impoverish them by virtue of the accusation alone. that would right out of the sixth amendment on the constitution. in every single case whether it's a victim who claims injury,

every single one, the government has by definition of probable cause because indictment is based on probable cause. is not subject to challenge under the tv of any. so if we're going to say that merely being accused in this country -- under the keeley case. to log all get assets, because at some future time maybe a jury will convict and maybe a judgment at a judgment as in maybe the court will then have to enforce that judgment, really is to write out the sixth amendment. there are ways, if the point of a criminal case this conflict punishment on the defendant, there are ways other than financial means to do so. incarceration is the number one form of punishment. while the needs of the victims are important, what we're asking here is to accommodate both. we're not asking all the funds be released, only so much as are necessary so that the accused can be represented by private counsel.

>> i know this is not part of the question asked at its suggested in the fringes of the briefs. how does the district court ensured that she does every penny for defense costs when the district court thinks that that's not reasonable, for example? >> i don't think there's an issue particularly in this case with that issue because the court which now has control over the assets would manage the disbursement of funds for counsel, and the bar rules would apply. just as with a cja appointed lawyer, criminal justice act appointed lower goes to the core, here are my house compares with a need for investigation, support services, discovered. that would be managed by the district court. >> you're not looking for cja rates, are you? >> no, we're not, justice. >> i didn't think so. [laughter] >> given the ability of our district court to manage those

issues, the only stand with us what is the reason why modified come a and the bar rules govern that. i should add that while we're having an academic discussion, it didn't seem to be such a controversial proposition to the government within caplin & drysdale in the brief they wrote the following. the constitution requires that the court afford a defendant after opportunity to secure counsel of choice using whatever assets he has at his lawful disposal. and so when the solicitor general's office argued his case in caplin & drysdale 25 years ago, they came to the court and said there was a difference between tainted and untainted assets. some 26 years later, those are being conflated as if there's no difference. >> we have a new statute. 853 made a difference and still does between tainted and untainted. >> that is very true. >> this section came later. it says substitute property.

>> that is too. so that is a statute, the statute that's at issue in this case, different from 853. 853 and most circuits does not authorize the pretrial restraint of untainted assets. also concerned about victims, also concerned that emanate from the questions that are asked today, congress struck a balance and did not allow for the restraint of substitute assets, at least in most circuits that it has been interpreted. the solicitor general has a different view. but in all events, but the victims are certainly to be accommodated so, too, the rights of a criminal defendant who needs to be represented by the council of choice. >> but congress seem to have singled out these banking frauds and health care fraud for special treatment, so they are not governed by the general forfeiture statute, which makes the distinction between tainted and untainted.

they seem to want to come down very hard on these two crimes. so why would we interpret, was at 1345, as doing nothing, as being controlled essentially by 853? >> so 1345, although it doesn't use the word of forfeiture, it doesn't say what happens to those assets. it essentially -- it simply locks them down so to speak until something happens. the one court, talks about the needs to be some sort of criminal procedure that follows the lockdown. and while congress may have given in this instance of the ability of the government to restrain assets of equivalent value, notwithstanding our statutory interpretation argument, it still needs to accommodate the rights of the criminal accused. if i may reserve the balance of my time for rebuttal. >> thank you, counsel. mr. grieve and.

>> thank you, mr. chief justice, and may it please the court. i think that the appropriate starting point for this case is the last sense of monsanto, not because monsanto specifically addressed substitute property because it adopted a principle that i believe result of this case. the last sentence of monsanto says, if the government may, posttrial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when after probable cause is adequately established the government obtains in order barring a different from a frustrating that end by dissipating his assets prior to trial. >> that was said in the context of the government's submission that there's a difference between tainted and untainted, right wax your argument in monsanto focus on the tainted aspects of the proceeds. >> yesterday.

that's what i say that the principle that the court articulated in that sentence is what decided this case spent why is that the principal? they're talking about money that doesn't belong to the defendant. it belongs to smith or jones of the bank. let's try that principle indicates what is the defendant's money. the principle is the government, without putting his guilty of any crime beyond a reasonable doubt, can take all his money. because he might be fun. i've never heard of such a principle frankly. if there is some case that says -- >> sixth amendment or not. >> let me try to explain. >> i can go from there and find interest on both sides. >> i think it's important to start with the principle that monsanto adopted, not because resolve the factual circumstances because it's soft but the point in time after the couple wins a judgment. the principle is that if the government will have the right to forfeit the property at the

end, if it can show probable cause -- >> i understood that. i just wanted to try it with the facts here. the first principle is if, in fact, the defendant has somebody else's money that he's taken unlawfully and he hav has to git up at the end of the children we can make him give it up at the beginning to make sure it's there. let's tried with the facts you. if they didn't have some money, which may people have to pay in a fun, what we will do is take away all of his money before his been convicted beyond a reasonable doubt. that's the difference in the propositions. i'm saying it's hard me to think in the country which says that before he is convicted you have to release them on bail except in unusual circumstances, that nonetheless you can take all his money away so he can't hire a lawyer. i know that's a little simpleminded that nonetheless that seems fairly basic. i don't know where it comes from. >> justice breyer, i think the

embedded premise is that people will not suffer restraints on their liberty or property before they been convicted beyond a reasonable doubt. >> that is the principle and i would make a number of exceptions. one exception is if you think, i can think of exceptions would you keep people in jail. hear what they're saying i think in essence is, let's try and think of an exception for this one. pretty hard. and anyway, if there is one, what he wants to use the metaphor is to make sure he has a lawyer. it's called the sixth amendment. they are we are. at this moment in my mind that's where the case is. >> cannot try to break down fat a little bit? i do think the principle in monsanto is critical. the principle in monsanto is that if the government will be able to forfeit the property at the end of the day, it has an interest ensuring that it is debatable and not dissipated. it's the monitor equivalent of flight. its asset flight.

this statute was specifically designed for crimes in the banking and in the health care context in which money flows into accounts, money is fungible, very difficult -- >> i think that's come would you say is look, this is equivalent to the case would keep the guy in joe because he might run away. that's not a bad point. i have on that on one side, and on the other side that he would like to have a lawyer which is a sixth amendment right. i have a suggestion i want you to focus on. let's read this statute in light of what you said, that there is an interest on your site and is a constitutional amendment on the other side. why can't we read this statute is a they accommodate those interest in this way? the court has the authority to enjoin the alienation or disposition of property, say tainted, then you can ask for a restraining order to prohibit the prohibition, not just by the

tainted property but also of property of equivalent value. if i read that without knowing the background, i would say a lot of cases come up where you get tros, where they are not precise because you don't know exactly what property were talking about. so what you think about reading this statute to avoid because additional question to say that tro means tro and tro means whether some property and may be dated except for the untainted come you could get a tro of whole thing. you have to have a speedy hearing. bfb represented. your purpose is to separate the two kinds of assets. that seems to work for the purpose and it avoids the constitutional question. >> i hope i get a chance to see both of them. first i don't think it's a serious constitutional question in light of monsanto. i don't think there's a series of avoidance concerned to monsanto this look is that if the government has shown adequately it would be able to

forfeit the money at the conclusion of the case, the sixth amendment doesn't override the conference interest. this is basically a zero-sum game. either there will be money as able at the end of the case for the victims or the money will have been spent on lawyers. congress made a judgment that government can't come in in every case and simply restraint assets upon a showing of nothing. it does have a statute in a very specific area that allows it -- >> what is it that confines the rationale to a specific area? it seems to me if the government prevails in this case, every state in the union, every locality could say the incident of assault and battery, malicious mischief, drunk, an accident caused by drunk driving, any crime involving a bodily injury, that the government is entitled to restraint disposition of assets that might be used for medical

care, for pain and suffering. and this would in effect prevent the private bar from practicing law in less it did so on a contingent basis. >> justice kennedy, it's correct that our principle is not limited to the types of crimes that are in this case. it is limited to the government making an adequate showing that at the conclusion of the case it will have the right to the money spinning what you are talking about probable cause. the conflict can often show probable cause, and that's usually the basis for the indictment. >> that's correct. again i think that monsanto resolve this question by saying that if the government can take title to the property at the conclusion of the case, it has an interest in ensuring that it is available and the sixth amendment it doesn't override it. >> it establishes that right in the same way as the issue here,

without counsel on the part of the defendant, does you, i assume kv applies and 10 assets as well as untainted. >> that's correct. >> i think the defendant is often and how to hearing. the question is what issues the defendant may rates at 15. here for example, those clued an issue of whether the defendant was, in fact, dissipating assets. that would've been something that -- >> i tucked under kaley but it didn't have to be provided to hearing with respect to the pretrial seizure of assets? >> with respect to whether there's probable cause to believe the defendant committed and defense. that's what k visa is controlled. >> casey was a question of tracing. spent it was.

>> but you don't have any tracing problem here. as soon as he commits a crime that you say was worth 45 million, you can freeze $45 million worth of assets, greg? >> although there were far fewer here because most of them have been dissipated. dissipated. >> you agree these particular funds were untainted. i'm told by your adversaries the date we stipulate that it's technical but we stipulate that there may be some unquantified about the untainted assets. we did not know and did not attempt to dig out, it would be issued for a later date if the court said that that mattered. >> mr. drayton, a messenger argument goes like this. you have monsanto, you combine monsanto with a simple factor of dollars in that money is fungible and to get you to a judgment in this case. u.n., and that's a fair, strong argument. if one is comfortable with monsanto.

so i think i would just ask you, suppose the court is just uncomfortable with the path we started down the road on a monsanto? you might be right that it just doesn't make sense to draw a line here, but it leaves you with a situation in which more and more and more we are depriving people of the ability to hire counsel of choice in complicated cases. so what should we do with that intuition that monsanto sent us down the wrong path? >> i would hope that the court sees that even if it is some unaccountable aspects of incentive, it actually rests on a sound legal judgment. i realize i've said this, but i will keep coming back to this because i think it is a touchstone for monsanto. caplin & drysdale was a postjudgment case. it said once the funds are for affordable, the defendants, a few paces away with them come is paying the lawyer with someone

else's money, namely the cover. can the government do anything to prevent dissipation of assets before it obtains the judgment? the court said not automatically, not as a general it can always come in and say this is what we want, this is what we get. but with an appropriate hearing, the balance of interest does permit the government to preserve the equities. this has an effect on counsel of choice. it has no affect on the ability of the defendant to be represented by counsel. >> i don't know how these things work. let's say you get an order freezing the assets, $10 million, and the defendant comes into the court, whatever, says look, my lawyer is going to cost $100,000. 1% of assets that are at issue here. then you would argue, no, even though it's only a tiny fraction

of what we are ceasing, the sixth amendment doesn't even in time to 1% of the assets that might end up being for affordable? >> yes. i don't think there's an exception to the sixth amendment. now, this is a statute in which the government proceeded through seeking a civil injunction and restraining order, and addition court does have discretion. it's not a flat rule that forbids the district court from releasing funds for council. >> how does it work? the daughter's tuition bill comes due, and it's, you know so much these days, $60,000. the defendant cannot pay the? >> not as a matter of right. but this is a -- this is a civil statute in which the judge can exercise equitable discretion. >> if he can exercise equitable discretion for the daughter's tuition, why not when the sixth amendment is at stake? you know, counsel of choice, it

turns on.com it would seem to me if there's going to be a case in which equitable discretion would exercise, it ought to be in a situation. >> the judge said one consideration is will the defendant have representation in the 1345% of southwest the defendant did. mr. srebnick represented the defendant representing the quartet i don't need to worry about that. in the courtroom to the question of whether the defendant did council into the criminal case and said, the defendant will be afforded counsel in the criminal case by a plan if necessary. >> you had two responses to my reading of the statute. i heard the first and i didn't have the second. by the way, let me remind you -- >> i remember exactly -- >> but i want to say it because maybe you can focus on this. we are in before the judge on a tro. the object is to separate the assets that are not this man

some assets that are this man's. so we do that separation. we say $10,000 is not his, it's the banks. $15,000 or $10,000 over your is totally his. he's never been convicted of the crime. what's the government's interest? why can't he take this other, once we got the tro, to separate it? >> i think i need to stop you because it's not that tro. the statute does not -- >> my suggestion is we read those words we straining order as temporary restraining order, which three b. it seems to be courted permits but we can get of the argument. award about that later. >> my second response is this was a statute that contains two basic provisions. i think petitioner described actually. section eight describes the things that government can seek under the statute.

subsection b. describes the procedure that's used. subsection a first allows the government to get an injunction against fraud in a wonder in a debate allows you to restrict assets as the ultimate object of the suit. not as a temporary interim measure tipperary interim measure i described in subsection b. where it allows the court to impose various restraints until the court has concluded the preceding. so it addresses temporary relief. subsection 82 describes the thing the government can seek as the ultimate object of the case. injunction against the first allows the funds or restraining order against any person to restrain the funds that are derived from illegal activity or funds of a -- to make one final point on that the reason that make sense in a baking context and can help the context is dollars are fungible. they will float into an account.

they will pull out into other accounts. it's difficult to trace them. congress obviate the need to do that by saying you can restrain the defendant but we will not rely only on restraining the defendant. you can also restrain the banks where the funds are. you can restrain to not only in the amounts that represent the tainted funds but the monetary equivalent of them. >> i don't -- go ahead and finish. >> this statute negates the premise that there's a clean line. that money is fungible onc ones interested by the different. it is medicare fought if the government establishes probable cause, and its financial interest is ensuring economic judgment to make all the medicare trust fund or other victims at the conclusion of the case. >> i'm troubled by the statute. i can't understand the difference between anp. i don't think, the issue was not

raised in the petitioner on whether to be brought in with doctor constitutional voice because it has nothing to do with the sixth amendment. this would apply regardless of whether there's any sixth amendment issued in the case. having said that, i understand to be argument, i don't understand what it contributes? >> so eight u.s. two different sections, and it describes what the government can seek -- (a)(2) is sort out as an afterthought injunction statute. summer is going around with a boiler room operation or ponzi scheme, takes a while to get the evidence to indict. the government can seek an injunction to prevent for the front. and congress added (a)(2) on the theory that there's something else the government needs to do, ensure that money is available at the conclusion of whatever

parallel criminal case or civil fraud case the government brings. >> what they can do is this if we read this literally, mr. smith is indicted for a banking law violation, he has $100,000 of other people's money. the government can say that the restraining order of the court prohibits his wife, any other client, the milkmen, anyone in the world, from taking, not the $100,000 that belonged to the bank, but any other 100,000 that he got for any other purpose, i guess including his retirement fund, including no matter what. it seems to me that's what it says, any other person from taking property of equivalent value, and he hasn't been convicted of anything. >> yes, but it's referring again to a person who, it is probable

cause to believe has obtained money as a result of a criminal violation. vendor provides a mechanism for restraining it. it's not aimed at restraining people a of nothing to do with e case and less they are holding the defendants money. >> this is innocent money. the defendant, not the money he obtained as a result of a violation of the money he did nothing, that's what this case is about. >> it all depends on the theory that there economically pure. the only argument that mr. srebnick make a distinction, and i realize there may be members of the court who think this is not a very good argument and maybe the question is whether monsanto is at root problematic. but at least insofar as that argument goes, it's a sign reading of the relation back to doctrine that's contra to this court case. monsanto said the government can restrain money that would become the government's property at the

conclusion of the case. >> you are taking monsanto out of context, because 853 by its nature was limited to tainted funds. this is the first statute i know that permits the government to come in and take an tainted funds. the incidence of the tainted funds concept was, you can't spin another person's money. use all this money somehow, and you can't spend that money because it belongs to someone else. it really doesn't belong to you. but it's not until a judgment, and this is what your adversary is try to say, that the money that is untainted, the money or the property that you bought before this crime, this untainted property becomes yours. it's not until that moment, the judgment, that the property is affordable. >> that's true. >> you can't forfeit it beforehand. >> that's true for all money, tainted and untainted.

>> still the question becomes, is there a substantive difference, and i think justice breyer is expressing, the problem with this, as justice kagan said, this intuitive sense, which is where do we draw this line? does the right to counsel had any meaning any more? >> i think it does. >> frankly i expect within three to five years if we rule in your favor, 852 of a change to have the same language. >> so 853 does permit forfeiture of substitute property. >> yes, but not pretrial. >> this statute is different because it has a different function and a different purpose. the basic concept of forfeiture is punishing the defendant by taking money through forfeiture that's equivalent to the tainted property if the tainted property is gone. >> of that's true of every judgment.

every judgment gives you a right to substitute property of some sort. >> yes but the point is that the tainted property and the subsidy properties are similarly situated at the end of the forfeiture case. the government has a property right in each of those. i don't think the property right is the essence of what's going on. that's not the section (a) 53 permits pretrial restraint of tainted property but it doesn't reference the subsection that deals with substitute property is a feature of the statute. but i think that has nothing to do with the underlying point, which is that if the government is going to be able to collect on its forfeiture judgment, sometimes they wanted to restrain property. monsanto recognizes that, and they don't think that saying that the defendant has an interest in paying for counsel comes to governments interest in being made whole at the conclusion of the case. >> win was the first statute

that allowed the government to restrain expenditure of tainted funds? does no that go back a long timr -- >> the whole history of in persona and forfeiture was dormant until 1970 and congress passed a statute that permitted this kind of activity. it improved the statute in 1984 to remedy defects in the pretrial restraint of assets. it was recently developed, targeting basically drug conspiracies and organized criminal activity. >> and the first time that congress ever applied it to non-tainted property was what year? >> well, the substitute assets provision was added to the basic forfeiture statute had been there at least by 1984. i think it a bit earlier. this provision is different, from the basic forfeiture