half of been released he has conducted during the bush administration statements by the white house are misleading at best. i hope you will reconsider and understand this is not an academic exercise of deterrence or incarceration and yield my time. >> let's go to dana rohrabacher. >> do any of you -- do any of you know, do you believe americans at gitmo were involved with criminal mistreatment of the detainees? >> not aware of that. >> the president has made it a national security imperative

that we close gitmo and we are told he has to close gitmo because it has such a bad reputation, but we just said those charges are not true. is that right? >> we have a propaganda campaign going on by enemies of the united states against us claiming there was some kind of major criminal mistreatment of prisoners in guantánamo. neither one of you knows an example of that, there was one or two instances that didn't reflect what was going on in guantánamo, correct? >> the issue is wrongfully so. many people around the world, many countries who think there

were things -- >> let me correct it. a lot of people think that but a lot of people hate our country promoting that knowing it is not true. this isn't nice american politics. this is -- the president would like to think of these terrorists as being american criminals, americans who made a criminal act. this is people who hate our way of life, are engaged in an organized effort to terrorize western civilization by murdering large numbers of noncombatants. we are trying to handle this and we get the president makes a national security imperative to get to those people who propagandize and doing that, have some sort of credibility to the charge that our people who are working in guantánamo are a

bunch of fools who are torturing these people, there may be one or two instances where someone lost their temper or did something wrong but by and large you know and we know the printers in guantánamo have been treated extraordinarily well. the president, by making it a national security imperative, basically demonstrated propaganda by people who hate us will succeed and it will be seen as a sign of weakness by terrorists all over the world. this is encouraging those people who will murder noncombatants especially americans. let's get to the number 532 released by bush. among those, a lot of people were picked up. those from afghanistan will be picked up.

and a lot of situations like that, released 159, it is a bit disconcerting. this administration insists on treating terrorists, those involved in terrorist activities has nothing more than criminals. that is why the president find it impossible to stay with the words radical islamic terrorist. some criminal who committed an act of violence or murder in the united states. as a weakness, the president is encouraging terrorists around the world to take advantage of this weakness, if you have a propaganda campaign, i am glad to hear that we are suggesting

that our guys didn't commit all sorts of horrible acts against these people but of 159 that were released. and determined that this number any of these other acts after they have been released. i, like mister issa, it is absurd it is so bad. if we are waiting for evidence to prove before we can say it is probable because we know what kind of people they are. what we are told is unless we have overwhelming evidence, we are going to assume they haven't. this is not watching out for the security interest of the people

of the united states. this is projecting weakness, make sure more americans die by nothing else, giving in and having a president of the united states insisting on treating terrorists, do nothing but encourage terrorism overseas. >> we go to mike mc call, of texas. >> thank you, mister chairman. the president campaigned on a promise to close guantánamo. is it fair to say that campaign promise will not be fulfilled? >> difficult to say. and a small number of detainees, better than most, federal prison system gets a 100% success rate

in incarcerating 400 convicted terrorists. >> 29 transfers out at gitmo would leave 79 detainees that would leave 50 at guantánamo. >> that is correct. there are 10 in the military commission process that are being prosecuted or serving sentences. the periodic review board process is ongoing so it is possible the number of detainees will increase, and --

>> 50 remaining, passed in congress under the national defense authorization bill, express prohibition against bringing detainees into the united states. this administration will honor legal restraint and follow the law. >> as the president said, his goal is to work with congress to change the law. >> what is the status of the trial of collegiate mohammed? >> it is taking place. >> as a federal prosecutor, this has been since 9/11. >> i'm a former prosecutor as well. other people are better. place to answer your question. it is a new process, everything is new, there is no precedent, there are a bunch of different defense counsel's and the judge

has been careful and deliberative, we have general martins trying very hard but it is difficult to do the law carefully as you know. >> defense counsel following a lot of emotions. >> 50 detainees are left. how many are facing military trials. >> there are 7 in the motion states, 9/11 the alleged call bomber and one more al qaeda leader. continually looking at the others to see if there can be a case but i am not the best to tell you where we would be. >> you plan to release, we know 13 releases have been implicated in attacks since the united states or coalition forces in

afghanistan, not a good number. let me ask you this question. has the administration ever refused to send detainees to a country because it could not provide adequate security? >> absolutely. there are many countries we look at that determine are not suitable for this. >> you mentioned a lot of detainees you want to transfer out, yemen is a failed state in my judgment. it is in a really bad state of affairs. you have a rainy and forces, our qaeda, the arabian peninsula, fighting external operations against the united states. can you tell me definitively you will not be sending these detainees to yemen? >> yes. >> very good answer. what country would most likely

receive them? >> i prefer to talk to you in closed session about that. what i will say, as you know, we prefer repatriation because cultural affinity, language, skills, family connections, in this case that is not going to be possible for yemen, so we are looking at other alternatives. >> saudi's had a pretty good the radicalization program. have you considered that? >> yes. we transferred a number of yemenis to saudi arabia. >> my time is expired. >> back to the issue of what you told the committee in march. we asked specific questions about the transfer of detainees to countries bill equipped to

handle them. specifically we asked whether the department of defense ever transferred a detainee to a country that it knew was incapable of maintaining control of that individual and keeping him from returning to the battlefield and mister lewis responded no. your written response to the committee's letter suggests that the law doesn't prohibit us from sending detainees to countries of derogatory intelligence assessments. partially derogatory in common terms means can't continue or at least are seriously challenged in containing those terrorists. why not cite the lot rather than suggesting detainees were not being transferred to countries that were incapable of maintaining control when it is

so clear that they are? that is the point i want to make. that seemed to me like misleading the committee. i appreciate the witnesses willingness to speak in a classified sense which we will take advantage of, that can't hide the fact that these issues can and have been discussed productively here today. you can see we have serious concerns about this policy and we will continue this conversation but i think the witnesses and members of the committee and the committee is

adjourned. [inaudible conversations] [inaudible conversations]

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[inaudible conversations] [inaudible conversations] >> c-span washington journal

live with news policy issues, coming up this morning. one of donald trump's initial supporters, congressman tom reed with republicans to unify the party. black lives matter activist discussing the latest police shootings, watch c-span washington journal beginning live at 7:00 eastern this morning. join the discussion. >> joe biden joins democratic presidential candidate hillary clinton at a campaign rally in scranton, pennsylvania. the father of mrs. clinton, you see the rally life starting at noon eastern on c-span2. sunday, another chance to see

fbi director james comey and his testimony on the email investigation, see it at 10:30 en on c-span. >> the hard-fought 2016 primary season, historic conventions to follow. >> colorado, texas, ohio. >> watch c-span and delegates consider the nomination of the first woman ever to have a major political party in the first non-politician in several decades. watch live on c-span, listen to the c-span radio apps or get video on demand, you have a front row seat at both conventions on c-span beginning monday, july 18th. >> next, the oral argument in us

versus mohamed mohamud, the warrantless surveillance program. the case is the first time an appeals court will decide if a defendant's constitutional rights have been violated by the nsa's programs. this is just over an hour. >> all rise. the board is in session. >> the next case is the united states of america versus mohamed mohamud. if you are going to divide your time between the two of you and

reserve any time, keep time for yourself. >> understood. may it please the court, steve sady for mohamed mohamud. this case turns on the need for fairness and the rule of law where the risk is high that prejudgment and governmental overreach will deny the defendant a fair trial. the government brought massive resources to bear against a teenager who had not previously prepared, intended or researched a plan to carry out domestic terrorism. after a year of government contact, he pressed buttons to detonate a bomb in downtown portland. in the context of potential prejudice and fear that this type of case brings, instead of scrupulous adherence to the rules to guarantee a fair trial,

the trial was marred by an array of constitutional errors, any one of which requires rehearsal. i intend to first address three of the trial errors, the state of mind, the jury instructions, the closing arguments and turn to three areas of errors related to classified materials and finally go to the 702 surveillance issues which will also be addressed by security accounts. incorrect rulings on state of mind permeated this trial. the most flagrant involved the notice from interpol that said and what are l wally is an al qaeda recruiter.

the defense contests that the contents of that statement are false. the government repeatedly framed its questions to bring out the substance of that notice. saying that anwar al-wali was an al qaeda recruiter. almost every single witness was told did you see this? did you know about this? did you have notice of this type of contact with a known terrorist? no evidence was ever presented to back up those claims, but the government continually put into evidence his characterization of anwar al-wali who was called integral to its case. this court routinely reverses where there was abuse of the course of investigation hearsay, where the defense never has a

chance to cross-examine, but damning evidence is placed before the jury. in this case the erroneous admission of this type of hearsay was especially egregious because agents were permitted to testify about the state of mind of mister mohammed when he was making a statement. at the same time, mister mohammed's declarations were excluded based on self-serving hearsay even though those statements did fall within 803 sub 3 which is the rule on state of mind hearsay. the defense also presented 7 areas of the theory of defense on entrapment, specifically aimed at discourse and the

supreme court's rules on entrapment which is counterintuitive, certainly not something the jury would be able to come up with on their own. we get none of those jury instructions, the panel, and we did not even get the instruction on predisposed to what, and we know that causes confusion because of the note and the note from the jury clearly shows they were misunderstanding what their job was because they failed to get the instructions for that and in response, instead of simply answering the question, we get this mishmash of instruction that in some way validates the improper understanding of what predisposition was from the prosecutor's argument, was it strictly predisposition to the charge?

the answer is yes. we never got the answer and this court in this type of situation, concrete accuracy and jury instruction alone, mohamed mohamud to a fair trial. >> back to your state of mind. and reading transcripts, throughout the transcript, and why this evidence was coming in. it was the issue of prejudice. and the testimony of mister coleman who is a terrorism expert. and he was with you. was there and objection to his testimony at trial. >> there was objection to his

testimony only based on the 2011, not the 2009 notice so whatever that was reporting on was reporting on events and conclusions well after the november 2010 arrest of mohamed mohamud. it didn't correct any of the prejudice. >> i wanted to make sure you were consistent with that type of evidence, and read notice that didn't show directly what was going on in the defendant's mind that you consisted to that. >> every time it came up, we constitutionalize the objection on these -- the right to a fair trial. it was extraordinarily prejudicial, guilt by association, hanging out with al qaeda recruiter's, a different

case from the reality which is hanging out with an 18-year-old college students. all of that was exacerbated by closing arguments, tween 9 times during the closing argument basically said not that mohamed mohamud couldn't be induced, but someone, an individual, a person we highlighted in our brief, is a denigration of entrapment, basically a message to the jury you don't have to follow the law in this case. if you think this isn't the type of defense you applied to you are free -- if we objected and the government persisted 6 times after we imposed our objections a new the problem. not like this was an unheard of thing but the same thing happens

when the problem gets injected into similar conduct. what we were relying on adhering to jacobson rules and footnote 3, if we go anywhere beyond that, anywhere beyond that it becomes unconstitutionally vague by a similar conduct after hearing from the supreme court that type of argument and instruction, the jury thinks that. the burden of proof is diluted, and completely prohibits the new argument. and what is the prosecution

arguing -- the handling of classified material the classified information procedures act is designed to protect information while at the same time assuring that the defendant is not in a worse position as a result. the supreme court set out in this the overarching policy when the government decides to prosecute, they may choose between disclosure and dismissal, there are three areas they were inadequate in providing what we needed to defend mohamed mohamud. the identities of all the undercovers were kept secret. this is not a case of peripheral characters or people who didn't

have a credibility issue. we had major credibility issues because in the first face-to-face meeting which was not recorded, setting up the religious counsel that will -- one of the 7 worthy of their attention, testifying without his credibility on the line. we should be able to cross-examine him in a meaningful way. each testifies about various recording this, what mister mohammed was thinking, the meanings of their emails and communications. those are things that need to be testified to have some credibility. each were able to testify about their virtuous intentions about assessing rather than disclaiming anything other than to assess what he was doing.

we know what the answer to the question was. smith versus illinois says you must have the name. there are protective measures you can take but you have to have the name of the person so we can investigate and you can't investigate the story, you violated the sixth amendment without warrant and we know from giles versus california that only when you intentionally obstruct somebody from participating in the trial that is what it takes to forfeit your ability to have these names, did nothing to do that. >> correct me if i'm wrong but every meeting between the defendant and the first meeting was indeed recorded and those

were played to the jury in videos. >> along with those recordings, providing the play-by-play, a subject of legitimate cross-examination we were denied and under those circumstances there is a violation. >> how was the jury prejudiced? as credibility finding, able to see what was said to mohamed mohamud and vice versa? >> we agree the recordings speak for themselves. don't put these people on, do the recording and let it speak for themselves, the government decided not to do that and once they decided not to do that it is open season to investigate and cross-examination, smith says failure to allow us to have the identity -- >> take the second meeting.

how would the identity of hussein affect the ability of the jury to understand what was said between him and mohammed that was videotaped and played? >> it would allow us to cross-examination his interpretation of various things they were saying. >> he would understand cross-examining. >> we were unable to do the full cross-examination from an investigation which illinois says but this case says we don't have to rely on the government telling us we don't have anything to investigate but do our own independent investigation. i want to touch on the substitute evidence under controversial information procedures act we can get substitutions that make sure we

have substantially the same ability in our defense without disclosure, or full disclosure. and agent, case agent who was not the case agent testified preemptively about the substitute statement that was basically fbi counterterrorism said they believed mohammed would not commit an act of domestic terror less directed by undercover agents and he didn't know how to pull off the bomb plot. the same thing was said on two other occasions that we continue to assess. the government preemptively had the agent testify, denigrating their own supposed ratings substitute saying that is not an assessment or summary.

on cross-examination, this is the type of thing that is an assessment and intimating he is skeptical about his content. to introduce our substitute evidence, we one that evident in front of the jury because it says it is continuing to assess like the witness said, we believe he won't commit a terrorist act, hugely exculpatory. the jury should have that piece of evidence because the government interposer the history so how could that be an adequate substitute when the government is free to denigrate without us putting the document in front of them? the strangest elective declassification, i can't talk a lot about that because there is not a lot to say that you know

and i don't but there is a reason i wanted to bring it up and that is we have by analogy to a supreme court case on discovery and from the cases on reciprocal immunizations so you don't allow the government to skew the types of evidence by being able to declassify this, we are not going to declassify that and in this case providing a ton of evidence of other things out there and one of the aspects of this case is a defendant's statement under this precedent, they are always admissible under pool 16. it doesn't matter whether it is cumulative and the right to

them. >> let me see if i understand your theory correctly. the government selectively declassify's a lot of evidence to show that the defendant was pursuing innocent -- so the jury could assess whatever context which might not appear to be innocent formed a small part of the personality and could be disregarded more or less. my question to you is this. if the defendant had his computer, hard disk returned to him by the government, why couldn't he have access to all the innocent emails of which you think the government has many more?

>> we tried to access everything we could. most of the reciprocal information we are asking for is derived from telephone and text messages. >> why couldn't he at least with a cell phone bill show how many times he called, compared to the amount of times the telephone calls were nefarious? >> that is what we did. we set out in detail there are 10,000 calls and 1000 recordings and a huge gap. this case is the first appellate review of the constitutionality of surveillance under section 702 and before reaching that, we contend there are two issues that should be addressed preliminarily. one is determining the violation of pretrial notice requirements, shouldn't be any conflict with

the fourth circuit violation of pretrial notice requires the statute, prohibiting the statute doesn't authorize examination of emails, the individual search requires suppression by analogy to rodriguez and the united states and searches of the contents of american communications requires individual judicial review and on those issues. >> i am patrick to me -- toomey. thank you for giving me the

opportunity to argue today. the government is using surveillance to bypass fourth amendment rights like the defendant. a huge database of their private communication and resolving this challenge to understand how the surveillance of hundreds of millions of communications each year actually work. justifying surveillance government is saying we are targeting former while at the same time fbi agents around the country are clearing the database for communications to specific americans as the government appears to have done in this case. we set out many problems, i want to use my time to focus on one issue to allow the court to resolve this, the government's use of backdoor searches, the practice of querying its data,

turning around communication for phone calls, emails and other communications. >> is your argument based on the premise that even though the government is procured information through the use of 702, once it had information regarding that, it should not look at it? >> we object that communications were lawfully acquired in the first place. >> humor me. accept that as a premise. accepting that the government procured the communication by the us person within the bounds of constitution and the statute once it has that information it is your position that it cannot rummage around in its database

and find more information about that person? >> our position is the government is not clearing the database using the defendant -- >> even though it got the information? >> there are other cases and two lines of strong sources of arguments that despite the fact the government has the information, there are restrictions that limit this to identify the us person targeting, the first one in authority are cases like riley and rodriguez which acknowledge a search that is reasonable at its inception may become unreasonable when the government seeks to change its justification. >> in riley, the iphone case the court held the iphone information couldn't search.

>> entitled to sees the thought but in order to search its context -- >> analogous to the conversation or accept email legally and putting it on its database. and legally it becomes legal to look at it. >> the justification is targeting communications focusing exclusively on the rights of foreigners to justify the search and the court could take the view what the government is entitled to our to foreign communications which are not protected. the government says those communications are intermingled with communications to us persons that are protected and in that sense the court is facing a problem similar to comprehensive drug testing, the

file the government was seeking was intermingled with the drive that was removing from the offices of the company and what the court said in that instance was what the government has to do is adopt a set of procedures that find the initial use of information to the scope of the original authorization. here what we are saying is the court can apply a set of procedures on the back end to protect the us person's interests in communication and the court can start its analysis in this case that the case has come to tight use the searches by at a minimum interposing a warrant requirement or something similar at that stage of the investigative process. i want to highlight a second line so you can see another example how this might work in

practice. there are plenty of instances where minimization procedures limit the government's ability to use information beyond the scope of the initial authorization, and detaining these procedures, there is precedent for the type that the court should adopt here. and original -- government warrantless surveillance and certain narrow classifications like surveying phone lines and the government permitted to engage surveillance in that context on the theory that it will not pick up communication but if the government does require the government, apply within 72 hours to keep the

communication. there is an equivalent provision governing what congress added in the 1990s. that is the regime that is analogous where the government is engaging in warrantless surveillance and our argument is at a minimum the government should have to individualize traditional authorization before it turns around and decides to query a particular american to distract communication of a particular american, this would not represent a radical change. up until 2011 for a number of years the government itself prohibited certain agencies including the nsa as part of its minimization procedure. a number of proposals put forward could apply the same limitations to the president's

review group selected by president obama, using backward searches that was prohibited and civil liberties oversight board also called for limitation. you can find recommendations to the civil liberties oversight board report. as i said, it contained very similar restrictions before here. i want to emphasize because of the way it was used in this case where communications were retained and a massive database and ultimately queried using his name or email address that the court can examine the last step and say the government didn't even go to the court for individualized approval of queries focused on the last

stage. it does not need to resolve from this. i spend most of my time on this. >> thank you. >> may it please the court, appearing on behalf of the council of the united states, the trial team and the national security division, what mister sady did on the fairness of the trial, you have before you an extraordinary series of orders from judge king displaying the extent and care that he took in examining all the issues that were raised in this case and

making reasoned decisions. starting with the state of mind section that comes up in the briefing, the red notice was introduced by the government with limited purpose of the message king described, why was the agent in this case did not pounce on mister mohamed mohamud. mohamed mohamud's defense was made clear months before this trial that the fbi targeted him because he was young and easily manipulated, when in fact the primary concern and a mating the undercover investigation was that he was communicating with anwar al-wali and the saudi arabian government had a note issued for him. that caused concern. in addition when they were looking at his communications which even the defense has described as disturbing, many of the articles he wrote with

jihadi recollections raised concern about whether his avid support for violent jihad both abroad and in the united states was something that was in fact all talk, as he said, he was a member of a subversive blog, or was he simply waiting to take action? and those communications coupled with his attempts, repeated attempts to connect to anwar al-wali and his associates that explains why the undercover investigation took place. it is no different from another case where the da is sitting in a car next to an air strip in the middle of the night and we need to explain why they are there. in addition this exhibit in the testimony is far more limited from the government then it was from the defense. ..

there would be an objection on irrelevance or here stay it would be admitted as state of mind. this would go throughout the trial and there seem to be confusion at sometimes. if we would disagree with you on the admissibility of those agent commentary, the fbi commentary i was looking through your brief and trying to find where you argued the admission of that evidence would be harmless. the word harmless appears once in your brief.

it does not directly tie into this argument that they are making at the agents the color commentary on what they just said and what it meant. are you arguing in your brief that those comments made by the agents were harmless. >> no we did not argue harmless list. what we argued was this was evidence that fell within the discretion. the commentary that is really admitted, in major part, they were testifying on their observation. when they described his attitude that he was excited about committing the act of terrorism, it was all admitted as testimony in addition to simply explaining what was going on.

>> there's a difference between saying mohammed was excited, case one and saying he meant this, case two. i think his questions went to case two. >> yes. >> i don't recall that specific testimony. what you have been doing with the commentary that was placed between the videos, the videos are the strongest evidence of the interaction that took place and the commentary provided some context about that. the videos themselves are hard to follow without some explanation of what's going on. in part because, in addition to the videos, there were some telephone calls and e-mails exchanged in order to set up the meeting. i think overall, the jury was given a fair opportunity to appraise precisely what happened between mr. mohammed and the

undercover agent. whether or not we described this as harmlessness, clearly it was in judge king's discretion in ruling in evidence ruling. we think there was no air here. >> i'm having trouble understanding why, if the interviews were take in video, why were the agents asked what did he mean by what he said. doesn't call for speculation on part of the agent? >> at most it was cumulative. >> if it didn't -- you not ruling that they were erroneous rulings.

>> more specifically, the rulings were not abused at the trial at discretion. >> , what does he mean? if we disagree with you if i was outside discretion and you're not arguing harmlessness, where does that leave us in this case? >> well i think you can affirm on any basis supported by the record. there is no way that the verbiage here was affected. >> that's arguing harmlessness. >> well then i'm arguing harmlessness. >> that's what i'm trying to understand i was very surprised that you didn't argue

harmlessness in the brief, but that's what i wanted to confirm with you and you've confirmed that you're not so, i think the answer to the question is that if you're not arguing harmlessness and we find there was air on the admission, then there is a line that would permit us to find that hard harmlessness even if the government doesn't argue harmlessness but the -- it's extremely high. >> i would need that standard here. there was no air because this fell within judge king's discretion. we don't think, in any way, it president is the defense. it added very little to the case pretty was offered to provide context. we argue that the time that this was permitted under the supreme court's decision as a way of permitting us to lay out our case. i think that's the best answer i can give you on that. >> i understand, your example is

quite appropriate. you set up there that we had a call that there were drugs when we dropped off. that makes sense. the comments of the agents commenting on what the jury just heard on the video, that's not explaining why they met him at the embassy suites or why they met him at a hotel. that is, you heard what he said, now tell us what it means. do you have another example we can look to to say this is within discretion? >> i guess in terms of allowing us to set the scene is probably our best case on that point. if i may tear into some of the other issues, again, i really think if you look at the entirety of the record, this was a fair trial. i think you can look to other cases to determine this was harmless as a matter of law if

it was error at all. next moving to the jury instructions on predisposition judge king appropriately followed the law of the supreme court and properly advised that all in order to convict them they had to find that he was not predisposed or that he was predisposed and not induced to commit the crime and properly instructed. the court properly used this court's instruction on entrapment. he placed no limitation whatsoever on both parties ability to argue all of those

points to the jury. the defense argued his lack and his influence by the statement of the undercover agents, all of those things were freely permitted to be argued. turning to the prosecutor. >> can you point out any place in the record where there is a predisposition to commit a terrorist act prior to his first beating with undercover agent use of. >> prior to his first meeting judge king noted several pieces of evidence of predisposition. first his writings with jihad recollection in which he prays terrorist activity. he talked about terrorist activity in western europe and said god willing that will continue.

we had his context with his effort to get to yemen to join a jihad training school. we also had the fact that his father had contacted the fbi and was concerned that he would become radicalized. mr. mohammed had repeatedly extolled the virtues of violent jihad, and if we even move past his initial meeting he stated that he in fact had been thinking about committing an act of violent jihad since the age of 15. they found there was more evidence to support the jury's verdict that he was not entrapped. moving on if i make to the prosecutor's closing argument. mr. knight, in his closing to the jury repeatedly emphasized

that the government bore the burden of disproving entrapment. this is not a case -- mr. knight told the jury not that entrapment wasn't legally viable basis for defense but simply that in analyzing entrapment they had to measure that against the nature of the crime and the level of inducements. that was really be some and substance of his argument, not that it was not legally viable and judge king recognize that in denying the objection to the closing argument. unless there are other comments on the trial, i'm going to turn then to the classified record. we had to nondisclosure issues relative to the proceeding.

judge king carefully reviewed each one of the government submissions and apply that this court required and was the material either relevant or helpful to the defense and most of it he determined was not even relevant to the defense. then as if it was relevant and helpful, the court balanced that it was not relevant to the defense. the undercover agent's true identity was relevant and helpful and he was convinced that both in the open proceeding in the government's compelling compelling need to protect those identity wade against disclosure in this case. i think the record that was submitted fully supports that

conclusion. it was modified and they were affirmatively informed through judge king from the government that in fact there was no material for either one of these individuals. we understand they would like to have done investable additional investigation but they balanced keeping the identities of these valuable agents not disclosed. >> should we review judge king's balancing with a test of the use of discretion? >> the other issue of nondisclosure that came up was relevant to the application in their it's the statute that required that judge king conduct an ex partake in camera review

to determine whether or not disclosure to the defense is required, is necessary. he did that review as well and determined that he determine the lawfulness of the the application without disclosure to the defense. his application of the standards was fully consistent with this court's decision and should be affirmed on that basis. i turned to the question of 702 and two and its constitutionality. 702 is very different from what we are used to seeing in criminal cases. i understand the acl you has warranted that this is useless and a backdoor approach and nothing could be further from the truth. what we have really gone to is, what we have is the ability of

the government to conduct surveillance. pfizer and the pfizer amendment act have been congress's answer to providing the executive to a structure and limiting principles and how we conduct foreign surveillance. the pfizer amendment act hasn't provided the type of protection that are needed on violence and ultimately reasonable under the fourth amendment. the act permits us to conduct surveillance, targeting foreign persons located outside of the united states. the targeting procedures also require that the nsa analysts do due diligence and ensure that both of those requirements are met and that the surveillance is conducted for the purpose of obtaining foreign intelligence information, and that it's reasonable to believe that foreign intelligence information will in fact be found.

>> you say faa allows the targeting of foreign individuals per the targeting is not done as it is under fish with approval. it's done in a topical sense and the selection of the target is done without the initial approval and only by agents of the executive branch, true. >> accurate, but there is in fact rigorous internal oversight and there is oversight on the backend. >> there was oversight by the executive branch. >> we are required to report to congress on this program. although it's different, there are significant protections for

communications that are built into the amendment act. you're correct it doesn't have enough that were ordinarily used to seeing criminal cases but it does happen throughout the process. the reason for that initial difference is that we are only targeting foreign persons. the supreme court recognized that form persons do not have fourth amendment rights. because of that the statute then protects the incidentally collective. through the targeting and minimization procedures. >> once you collect that incidental information regarding a u.s. person, you should not claim the data system collection without a warrant. >> i believe specifically he is referring to persons.

>> i don't think he has objections to us for doing collection for foreign investigation purposes. both judge king has rejected the notion that there is a warrant required before using a u.s. person query. for good reason. first off, as you've identified, once we have legitimately acquired the information, there is nothing to prevent us from then looking at every single item. the query is not a search. it simply a means by which we access the information we have already acquired. i'm not aware of any court that is told that once information is lawfully acquired we then have to obtain a warrant to get a search. in addition, what takes place here is vastly different than the search of the cell phone in riley. 702 neroli targets, what happens is you target a person and then the nsa will task a selector and

typically that's going to be for example, an e-mail address. so the only thing that we are getting through 702 collection is the e-mail that is in the form persons account. so were not seeing the contents of anyone's computer. we are not seeing internet history, were not seeing other e-mails to other individuals and were certainly not seeing the email account of the u.s. person. so congress nevertheless recognized that to the extent that there are privacy interests in the u.s. e-mail going back that in fact those are adequately protected through minimization because were not disseminating them everywhere. in fact, the u.s. person's identity will have to be massed unless it fits within one of the exceptions which looks to whether or not we need that identity to understand the importance of foreign intelligence. so the amendment act provides us

with a structure that i think congress has carefully balanced both in the defenses interest and the public interest in protecting u.s. communications against the government compelling interest in protecting this nation from terrorist attacks. now the senate committees, when when they were looking at reauthorizing the faa in 2012 described the amendment act as one of the most valuable tools that we have in our arsenal to fight terrorism. 702 has specifically been credited with uncovering terrorist plots in this country before they happen. the civil liberty review report that was mentioned earlier gives a couple of examples of ones that were afforded for example the plot to bomb the manhattan

subway and the plot to attack the new york stock exchange were prevented specifically because of information gleaned from this program. both the supreme court and this court have recognized that our foreign intelligence exception the information that we gather to protect our nation from terrorist threats is of interest to the highest order and when you balance that interest against u.s. of persons infringement and their communications with a foreign individual who has been targeted under 702, each court that has been confronted with this scenario, all of the fifth courts. >> yes your honor. >> and me for interrupting you mentioned our foreign intelligence exception. are you relying on that statement that there is a foreign intelligence exception on any case other than keith and clapper? the 2002 court of review

decision also recognizes before next and intelligence exception. >> really that exception is just the first step because then you'd then turn to whether or not the structure, if you you will, is reasonable under the fourth amendment and for all of the reasons identified and judge king's opinion opinion and the two other district courts had ruled on the constitutionality of 702. 702 is where congress struck a constitutional balance because when were looking at whether or not the program fits within the confines of what's constitutional many of those criticisms have been raised by the defense and the aclu are certainly valid criticisms and their the same criticism that congress is taking up right now. those are policy questions and political questions. the more narrow questions for

this court is whether or not the amendment as drafted by congress strikes the right balance under the fourth amendment and we believe that it does for all of the reasons that judge king identified and the other judges who directly address this in colorado and new york have identified and as every decision that has approved this decision have identified. i take it your first position remains. >> if there was an intersection under 702 of a foreign person, not a u.s. citizen but a foreign person in a foreign country, then there was a subsequent over here in reviewing those communications, then you would say there's really no fourth amendment interest at all in this case. i'm just trying to understand the straightest line to the finish line for you.

if someone else looks at the medications that were collected that did not inflate the fourth amendment, so under that line do we even get to them this case? if that's the way were going to go in this case? >> constitutionally i think that's probably the cleanest way to get there. that's the way judge king approached it which was to first look at foreign intelligence as an exception to the warrant requirement and then look at reasonableness. in addition, we have the statute recognizing that we are to undertake these targeting procedures and that's where i would turn to the record before judge king, the classified record that proves that in fact all of the surveillance that was done in this case was done within the confines of the statute and within the confines of the fourth amendment. >> i understand.

trying to understand that you are reading is that an individual overseas who is now u.s. citizen and has no fourth amendment rights at all correct? >> correct. then of those communications are collected, so there's there's no fourth amendment connected to those communications than a substance subsequent review of those medications were not further implicate the fourth amendment so there really would be no fourth amendment analysis at all under the government's in this case. >> i think that's true. to the extent that the u.s. persons has a fourth amendment interest, it is limited and it is absolutely protected by the safeguards within the statute. >> that's assuming there is an interest as opposed to what i call the over here situation where some other person starts

talking on the phone and you can still use that other person's communication to get another t3 for the new individual. >> correct you say that the foreign intelligence exception dispenses a warrant requirement of the fourth amendment then we turn to an examination of the reasonableness and i wonder why. if the fourth amendment doesn't apply at all, why would reasonableness apply? >> true, for not recognizing any fourth amendment right then we would need to go there. >> why would we need to discuss feasible mess. >> this court chooses to recognize a fourth amendment interest on the u.s. persons work communicating with foreign persons overseas. that's where were engaging the fourth amendment analysis. >> not a fourth amendment as to a warrant requirement and magistrate.

>> i'm sorry not following your question. >> you're saying if there is an interest by u.s. person it should be measured by reasonableness but not by the fourth amendment precise statement about a search of a particular place. >> why is that question. >> because the foreign intelligence exception, it is an exception to the warrant requirement so we would agree that the foreign intelligence. >> this is not an exception to the reasonable requirement. >> correct. >> is contrary to what you can told me about two minutes ago. >> i apologize if i misspoke. >> again, that that only presumes there is an interest in fourth amendment to the u.s. citizen in communications that have no fourth amendment. there were collective under a different theory. >> correct.

i think you've answered my pet question. >> i have just a few seconds to wrap up. we also have the alternative arguments based on judge king's finding that even if you were to conclude with the statute was unconstitutional, our agents relied upon it in good faith and under illinois versus another case that was reliable. in this there are other questions i submit. >> thank you very much. >> we haven't talked about sentencing at all. we fully briefed that and i hope the court does not reach that question. >> what we just heard to me is an incredible look at the privacy rights of all americans. what they are saying is that if we collect material that has no

fourth amendment protection but then we know or reasonably know that some piece that we collected belongs to an american citizen, we can then access the contacts which has a further intrusion with no further review. that is a step that should never be taken. on the question about bill smith that we just heard for the first time, i want to point out that his testimony, we didn't find out about him because the e-mails speak for themselves and then agent god spoke for the e-mail. the pretrial motions on that, at 2483 and 2736 show that we preserved every objection to that. this is not waiting at the airport.

this is them giving it in the opening statement as a fact. lastly, on the color commentary issue, i think that tells us a lot about the standard of review we constitutionalize every objection. constitutional objections are reviewed and they know those. :

overruled. he is asking for a state of mind. that's not state of mind of the that is completely inadmissible. it is completely harmful and in this case we think that the court could look at the evidence and come to the conclusion this is entrapment as a matter of law, there is no harmlessness in this case. >> thank you very much. >> thank you. >> all right. the court thanks both counsel for very good argument and the case of usa versus mohamud is submitted in decision. we'll stand in recess until tomorrow morning at 9:00. thank you very much. >> all rise.

[inaudible]. [inaudible conversations]. >> today health and human services secretary sylvia burwell fending for the cost sharing reduction of the affordable care act. she will appear before house energy subcommittee live, 9:15 a.m. eastern here on c-span2.

>> booktv has 48 hours of non-fiction books and authors every weekend. here are programs to watch out for. saturday, 7:00 p.m. eastern, hillary clinton's 1996 book, it takes a village is a topic after roundtable discussion with gill troy -- >> 1993, 1994. it takes a village is hillary's branding. >> it was a big moment right then to declare as she did in this book, i'm a moderate. >> amy parr of the hill. >> she is pushing ideas she is pushing today. equal pay and you know, child care, which is a huge issue for her right now. >> at 8:30 p.m. eastern, gary byrne discusses his book, crisis of character. a white house see set cvs officer discloses his first-hand experience with hillary, bill and how they operate. on sunday at 9:00 p.m. eastern

afterwards, heather mcdonald discusses her book, the war on cops, which looks at policing in america. she is interviewed by deloris brown, professor of police science at john jay college. >> no question black males today face a much higher rate of getting stopped when they're innocent than white males do today. that is a crime tax that the community unfortunately pays because of the elevated rates of crime. >> go to booktv.org for the complete weekend schedule. >> sunday, another chance to see fbi director james comey and his testimony on the hillary clinton email investigation. see it at 10:35 a.m. eastern, on c-span. >> house republican members met with donald trump thursday at the republican national committee headquarters in washington, d.c. following that meeting, former oversight

committee chair darrell issa and others spoke to reporters. this is 40 minutes. >> so what were your takeaways from the meeting? we heard he bashed the media. how did it go in there? >> a lot of what was stated you heard it publicly before but most importantly it was a conference that i think welcomed donald trump and a conference to me showed a unity behind his candidacy and he is going to offer a real choice for america's future and we're going to make america great again. >> what did speaker ryan say in his introduction? >> paul really welcomed him. opened the conference in a positive way and overall, turned it over to donald trump. this is opportunity to for donald trump to introduce himself to many of the members. together we'll come out of this united and go into convention in a strong fashion. >> there is concern about his appeal to latino voters. how did that go over there? >> there are general

conversations about strategy and going forward but donald trump has done some amazing things. he has a limited staff. a lower budget than any candidate that i have ever seen run for presidential candidate. we should applaud that. that demonstrates to me a ability, skillset we need in white house and america to keep our fiscal house in order, in order to grow america, create jobs of tomorrow. we don't need bigger government, we needless government. we need a stronger government. that is what donald trump demonstrated in his successful campaign to date. >> you wishing he had more staff and more money. >> he will have resources. they're having outstanding fund-raising month what he reported and talked about in there. i think will have money and resources. he is lean and efficient that is the kind of leadership we need in america. we need a government not this big government mindset that is causing $20 trillion national debt level. that is not sustainable. >> what about republicans unnerved by the unforced errors

of trump campaign, last couple three days? >> obviously i will let donald trump speak how he conducts the campaign, a lot of what is happening is just a national campaign with a high public spotlight that is obviously on him but overall the message is resonating. the american people are saying enough is enough. we need new leadership. we don't need status quo of hillary clinton for hour years and eight years, continuation of obama's policies. that is what we get for donald trump presidency. >> for those in there still on the fence whether or not to publicly back him, anybody can answer, do you think what he said in there swayed minds? >> oh, i think so. i think people, this was a first impression. this was the first time to have the opportunity to meet with donald trump. i think a lot of members will walk out there we can unite. we'll come out of this strong and be united as we go into the convention. we'll come out united because the future of the country at stake. you have the supreme court at stake. a general requirings impacting policy of america going forward. right now we're in the process

of uniting in a strong fashion. >> is trump unifying factor or hillary clinton the unifying factor? >> obviously you have a clear choice, you have a contrast. you have hillary clinton representing status quo, business as usual, big establishment and disruptive force of donald trump. that draw as lot of people and draws me as member who came here in 2010 to change washington d.c. that is the attitude and that is leadership we need. that is what we're getting in the donald trump presidency. >> what do you mean by disruptive force? >> he is not been to established interests and establishment here in washington d.c. he is willing to talk to people, embrace people. travels acontract the country. outstanding number of people going to the rallies. he is engaging in a way i don't think a candidate for presidency has ever done before. you see him speak from the heart and teleprompter. people are begging for relationship and he is offering fresh leadership in my opinion. >> good job.

>> kevin cramer from north dakota. i stood up telling you how proud i was of our speaker. i thought paul welcoming of mr. trump, his introduction was warm, it was sincere. he spoke of the importance of our agenda and how closely he and his staff have worked with mr. trump and his staff, especially on the better way and the agenda that the house republicans have been putting together. he talked about the obvious fact if we were in fact to make our agenda the nation's agenda, he needs to be president. so i was very pleased with that i would also, i was very impressed with mr. trump's demeanor. i've been around him a fair bit as you know, he was ultimately respectful of the institution of the house and certainly of the individuals in the room. we talked to us like peers. he asked questions. he took advice. he appreciated people sharing their advice on things.

i just thought it was very, very encouraging. >> what kind of advice was offered? >> for example, at least one member talked about the importance of, or, vouched for some of the names he had presented through his requests for nominees for supreme court. obviously the supreme court is a very big, uniting issue for republicans. the fact he came out with the list of 11. some weighed in on that. both expressedded their appreciation and then, gave their endorsement for some of the names on that list as one example. others just talked about the importance of jobs, you know. obviously jobs is a unifying force, unifying issue, not just with republicans but with americans. so it was just -- i think, my sense of it, watching heads nodding in the room he was speaking, realizing for many people in the room it is first time they have ever seen him much less met him or had any interaction with him. it create as comfort level probably wasn't there previous

to this meeting. >> you say paul ryan was warm and sincere he has had publicly some pushback, rebuke of trump. was it more warm and sincere what we've seen publicly? >> listen, paul ryan is speaker of the house. he is the highest ranking, highest elected republican in the country and i don't think we can expect he will roll over every time he disagrees with something. we can expect he will always provide his opinion, his advice and always protect the integrity as he sees it as the institution of the house. that said he is very clear donald trump is the best opportunity for a limited government, a pro-freedom agenda that the house republicans have been trying to put forward last several years with great resistance from the white house. but, at a personal level, what impressed me was that paul stressed that message of unity. by the way, probably one of the lines that mr. trump used many times, i think resonate with a lot of people, it was sincerely

delivered every time, we need to stick together. in other words, we are in this together. this is, this is how we're going to win is together. i was very impressed with it. he wasn't demanding it. he wasn't requiring it. he was pleading with us for it. i think that is appropriate response. >> was he humble? >> i thought he was very him bell. i've been around mr. trump. by comparison, right? we all have a different threshold but every time i've been around him in person i found him to be a very charming and engaging personality. >> controversies surrounding his tweets of the star, the star tweets? >> it never came up. you mentioned earlier that, you know, he did do his usual, his usual critique of you all but we want you to know, no member of the house republican congress agrees with that. we think you're all great. >> wouldn't go that far. >> he didn't get specific, that didn't come up nor did anyone

ask about. >> did you ask about the vice president slot. >> no. >> why do you think he brought ivanka. did she speak and what did he say of her. >> she didn't speak. she was introduced. she was warmly welcomed. i frankly found interesting, she has obviously an important role, both her and her husband and relating to younger people, for example, the $28 million raised by average contribution of $71 by the way. very important point. a lot of that was raised over internet and role that they played in that as connecting with the younger generation. those issues came up. but, i don't know why she's here per se, it is not unusual for his family to be with him. i find that, one of his strengths. that he doesn't just talk about family values. his family is very important and close to him and rightfully some they're very accomplished young people. >> you all would recognize and i would assume admit he is still

behind when it comes to fund-raising. just having one month of internet fund-raising that is half of what hillary clinton did in a quarter of what bernie sanders did doesn't necessarily advertise one's self as juggernaut when it comes to fund raising. >> i think country is looking to somebody run something much more efficiently with fewer dollars. he demonstrated that. he wasn't one of the big spenders in the primary race. we see how that turned out for him. that is not a major concern of mine. i'm a state finance chair for him in north dakota and have pretty high threshold we have to meet. i'm not one bit concerned about that. obvious he is able to do more with less. i think that is part of the appeal. >> talk about tax cuts, anything like that you all want to get through? >> i think, for all of us members we'll try to be brief. i'm chris collins. i was first member of congress to endorse donald trump and i'm co-chair of his congressional

leadership team. what you saw today, donald trump, the next president of the united states supercharge the republican conference. one standing he ovation after another. beginning with speaker of the house saying we have to elect donald trump as the next president. the supreme court is at risk. the future of this nation is at risk. we are united to defeat hillary clinton. we're united to elect donald trump. the future of our country depends on that. and so donald trump that i know, the listener, the individual, who wants input from other people, not donald trump at rallies. but real donald trump who will be president of the united states with the greatest cabinet you have ever seen in the history of this country was the donald trump that spoke to over 200 members of congress today. and i can tell you, when we're going back home a week from friday to campaign for the next seven weeks through labor day, you are going to have 200 plus republicans at town hall

meetings, 200 plus republicans going throughout their districts talking about making america great again, defending our jobs, our borders, bringing our jobs back and defeating isis. that was the donald trump that showed up today. it was so necessary so people can say i met donald trump. i've been able to ask him a question. you had 25 or 30 members line up. he took every question. he was respectful. because that is the donald trump i've come to know and i think as america now continues to get to know mr. trump and he has got 200 plus advocates carrying that message around the country to every congressional district donald trump is our next president. >> senior republicans not going to cleveland, i have spoken to one republican, been at convention last 20 years he won't be there because of trump trump. how can you begin to claim the republican party is united? clearly to any independent observer it is not.

>> i can assure you we're way united than the democrats. >> we're not talking about. >> some of these losers who have been shown to be losers who are irrelevant today, don't want to come. we don't want them there. who wants a wet blanket. for every person that wants to go, there are 10,000 that want to go in their place. forget about the losers who do not represent the future of this country. donald trump is a movement. bringing our jobs back. economies for our middle class for our children to live the american dream, no. they should stay home. they should stay home. >> what about a transformed republican party where those who are skeptical or opposed are not welcome? >> oh, everyone is welcome but frankly if somebody wants to, if a republican wants to support hillary clinton as next president where we lose the supreme court for generations, someone who lies to america, lied to our face, ladies and

gentlemen. she knew she had classified top secret emails on that server. that server was not secured. how many times did she lie to americans, lying is a clinton family trait. enough is enough. america is going to speak. hillary clinton will not be our next president. we can not have a liar in the white house. you can't believe that one thing that comes out of her mouth. >> can you clarify by what you mean by those going to the convention are losers? because you've got john mccain, not going. marco rubio not going. >> darryl, why don't you jump? >> a lot of people haven't defined whether they're going. a last couple people said they didn't say they were going and now they're going. you mentioned one person. 24 years ago in 1992, one of the most popular figures in american politics today, the former president george h.w. bush, managed to have a third party candidate bring literally millions of people away from the party. we are much more united today.

we don't have a third party movement. it is clear that the vast majority of republicans in their particular. we were talking about expanding this campaign. we were dialoging about new issues and expanding on issues, pro-immigration issues. this is the most experienced businessman that we've had in our lifetime, perhaps, sort of in a modern way a george washington of business. he understands the modern business. we're talking about 1.2 million people who emigrate to this country. we are talking with our future president about how we do a better job of bringing in 1.2 million people who add to our economy. we're looking at trade policies. this president candidate is not anti-trade but wants better trade deals. that is the nature of business. the difference between a winning business and a business that is out of business can be just a few points. this is a president that wants to make that difference. so the dialogue there was people who supported him and people who

haven't supported him asked him question and candidly making suggestions he expand what he is talking about on key issues. yes, thanking him for his support of veterans and so on. but you know, going back to your point, there will always be one, but in fact, that number gets smaller every day and more people who weren't sure they were going to cleveland, where i was born and raised, looking forward to going, in fact are saying they're going. so you found one. i bet, if you checked with senators after the meeting today, you will find ones that are thinking about going that weren't going. and in there were people that will be there that hadn't planned to go. >> darryl, can i ask you, i don't think it what politicians will be in cleveland. fact of the matter republican participation in the primary is up over 60%. this is not about people here in washington. this is about the american people. this is movement. we have never seen a groundswell of organic support of common folks, democrats, blue-collar, independents than we've seen

before. this is not about washington. this is about america. >> lou's point is good. we're adding to the party clearly in the votes. >> [inaudible] >> well it would be a food example i said -- good example would be immigration. we have 1.2 million people come to this country legally every year. donald trump never said let's reduce the 1.2 million but i think you will see him out there talking about to improve the immigration system to add to our economy. there is unlimited amount of people who want to come to the country. we make a choice on 1.2 million. how many can be people who are additive to the economy? that is just one area. this is a businessman. he looks at things as a businessman. you saw his list of candidates for the supreme court. what he did he went out to people that knew about it and sought advice and he came up with a list that nobody has said

one bad word about 11 different candidates. that kind of advice and building of a cabinet is something we need in america. america is not run by a president. america is led by a president and run by 24 different cabinet positions. >> congressman you supported marco rubio. he said when he was a candidate trump didn't have proper temperament. two issues you are familiar with. saddam should be praised for killing terrorists. saddam -- >> no, your point. >> took a web video, took image after web site of anti-semitic web page and put it on the web page. those are two controversyies in the last four days. are you comfortable -- >> donald trump has huge following in the jewish community. many of friends that would make it clear that he is not anti-semitic. >> was that incautious. >> incarb sure is appropriate. he took down the tweet and took it down. >> it was mistake.

>> he took it down and took it down quickly. the fact is, you know, donald trump is, is in fact somebody who has been leading, if you will, not from a teleprompter and not from 29 or 30 people scripting every word he says. so, you know i think that one speaks for itself. >> are you comfortable with it? >> i am comfortable with the fact that the party has chosen their presumptive nominee and that in fact, those of us in there, over 200 members of the house, our job is to expand and improve his candidacy and then once he is elected, make sure that he puts together a cabinet of people that are going to lead america in a constructive, pro-business way. we have had eight years of the slowest growth of an economy that is sputtering and we need to be a pro-business, pro-america, if you will, party. i think we are. >> what about saddam. >> it is very clear that obama obama said that the war was a

mistake and he couldn't have taken saddam out in 2003. he ran for president saying that he wouldn't have done it. the difference is, this is a man who made an observation that is technically correct. that we have gone into a number of areas, qaddafi, what we did in egypt, what we did in iraq, where we didn't have a plan well-orchestrated for the day after. if we're going to have a change from a dictator, who does bring stability, to democracy we have to have a plan for that transition. that is history. that is 16 years of under two administrations. so, i think you go back to hillary clinton, was there when saddam was, was truly taken out, and what happened? they didn't have a plan to finish the reconstruction. today isis exists. if we're going to have dictators fall on their own weight or through our action, we also have to have a die after strategy and it can't end prematurely and

lead to something like isis. now this president has called the take-out of bashar assad, a man who killed over 100,000, almost 200,000 of his own people and we have never executed on that plan. so bashar is still there. he is stronger than he was. this administration has a caliphate formed under their watch because they called to take out a dictator, made him weaker but did not in fact bring stability to the people. people of syria are suffering because of hillary clinton's policies. >> congressman, how is hillary clinton there when saddam hussein was taken out? it happened during the george w. bush -- she wasn't in the state department. >> right -- >> determined to paint hillary clinton one way -- >> first of all, she voted for that war. she voted positive. she wants to rewrite history. >> under republican president. >> supporting those policies and when she became secretary of state and well along to bringing peace and security and balance between shia and sunni, she supported president took out the

troops that led to where we are today. the fact is, the one thing you can say about donald trump is, he said that war was mistake and he defined it because of exactly what happened. we didn't have under both republican and democratic presidents the kind of morning after calculation that would lead to stability. we didn't have it there. we certainly didn't have it in libya. now libya actually is what you i was trying to refer to, she didn't have a plan there and we almost immediately had a failed state. it's a failed state today. >> from a person that actually was in iraq, because i was former seal team commander, what donald trump said was, saddam hussein was a bad, bad, bad, bad man. on one point, on terrorism, he was good at it. that is what mr. trump says. i agree. i was -- >> congressman saddam hussein tortured innocent people on basis of claiming that they were terrorists. i know this a personal friend of mine was tortured. >> and sir, i know saddam

hussein was a bad, bad, bad, bad man. on the one case about hunting terrorism, saddam hussein was good. that is exactly what mr. trump said. you can not say that saddam hussein was a good man or, that mr. trump or i said that saddam hussein was a good man. and sir, i fought in that war. and i know he tortured, his sons tortured. so the saddam hussein regime, abu ghraib was a prison, before we got there. that prison was run by saddam hussein. he tortured children. he beheaded people. that is the saddam hussein region. donald trump said mr., or saddam hussein was a bad, bad, bad, man. on on question of terrorism hunting terrorists he was a brute. >> he was a spate response sore of terrorism. >> he tortured people claiming they were terrorists. >> and he was a state sponsor of

terrorism according to our own country. >> can i say something? i'm brad -- of texas. the news should be children children perverting -- hillary clinton perverting justice. he said he was a bad, bad, bad man, when he was talking about saddam hussein. the news today is that the republican congressman are rallying around donald trump. he articulated every issue that is important to the american people. strengthening of our military again. stopping of our borders up, our porous border, eliminating obamacare and replacing it with something that the american people will want and like. returning america to greatness again. that is exactly what we, we're coming out of this building unified and coalescing around donald trump. he is going to be the next president. that is what is going to happen. thank you very much.

>> my name is buddy carter and i'm from georgia. i want to add what is just said. folks we got to stay focused stay focused what is will take to get america great again. what i heard was encouraging. people are frustrated. i'm frustrated. i've been up here 18 months. i was frustrated mid-afternoon first day i was here. i can tell you this is breath of fresh air i saw here today. this is a businessman who brings the outside to the inner beltway. this is exactly what we need. we need to stay focused on the issues. we stayed focused on terrorism. we stayed focus on immigration. and one thing i want to mention that darrell issa was mentioning about, the wall. one thing i heard donald trump say i was very encouraged about, i want to make sure everybody understands it, he said yes, we're going to build a wall, and that wall will have a big door in it. now that is significant. i'm a member of the homeland security committee and i can tell you we work diligently to

make sure we're having a robust vetting process. to make sure we understand the number one responsibility of our federal government is to protect our citizens and protect our homeland. we can only do that through a strong border, through a strong the having process. we have never said we don't want anyone coming into this country. what we have said we need to pause and we need to make sure our vetting process is good and bust and we're -- robust and doing everything we can to make sure we're protecting our homeland. i'm encouraged. i'm excited. i see a new day on the rise. i still believe, i still believe that our greatest times are ahead of us in this country and i look forward to donald trump being our next president. >> you guys have all talked about unity, how they're was unity in there. let me ask the reverse, since there were 40 minutes and 20 questions from what we're told. did anybody express concern with any specific policy and if so, how was that addressed? >> there was no expression of concern for any of his policies

but there was questions, good questions about policy and where he stood. one of the most important issues that think he addressed is the fact that he is constitutionalist, and that he will abide by the constitution. so any of the issues moving forward are going to be, are going to be addressed with congress in order to effect policy and come up with good policy that abides by the constitution. >> talk about -- [inaudible] >> absolutely. in fact i did, i did have a question for him. i emphasized the fact that security is the number one issue for women in this country especially looking at everything with the events taken place with hillary clinton over the last couple days. the security moms of today were the soccer moms of yesterday. every woman in this country cares about security but there are some other issues like health care, mental illness, is number one issue for women in this country and we just passed overwhelmingly in the house a fabulous mental health reform bill.

that was one of the things i highlighted as well. >> yeah. i just want to say, bill shuster from pennsylvania. what i felt in the room up there was great sense of ionty of us coming together and it appears to me we're on the same page. members of the republican conference with donald trump. every sentence we're not in sync that is the way it is. i look at my colleagues from different parts country. we're all moving in the same direction. we have different ideas and different views. we have real sense of unity there today. it was a very positive meeting. coming out of this, going to the convention we have a wave moving forward. great to be part of it. >> is it unity because trump is inevitable and can't be stopped or people changing their minds about who he is and what he says. >> we're on same page. protecting this country. making sure we have strong against. improving the economy so all americans have a job. we all want to do that we have different views here and there.

look, i don't agree with everything donald trump says. i don't agree with everything my dear mother says. we're coming together. we have to move forward to win this election in november. you know there is a lot of talk about donald trump, what he said here and there, but what about hillary clinton has said? what about the fbi director saying yesterday he didn't recommend indictment but it was indictment what she has done. this will be prosecuted by the american people over the coming months. she used poor judgment. it was very, very clear to that. we've seen it over and over again. talk about what donald said about saddam hussein. what aboutn? when uprising occurred in iran they did nothing to help the people. that is brutal dictatorship. drew a line in the sand in syria. did nothing when they gassed those people. you want to talk about somebody with bad judgment and foreign policy it is hillary clinton on her watch. benghazi happened. there are a lot of things she was responsible for and her poor judgment. american people will be -- >> what about pennsylvania.

>> pennsylvania is in play. pennsylvania is absolutely in play. donald trump in my district got 63%. he will exceed 60%. pennsylvania is a tough state. hasn't gone for a republican since '88. i believe donald trump is just the person to bring pennsylvania in republican column in this election the thank you very much. >> mike kelly, from pen app pennsylvania. you're right, pennsylvania hasn't in play in a long time. the event i went to pittsburgh. media said it with 1500. close to 7,000. it was day 100 degrees inside hangar. who was in the hangar? i'm talking about people that mine coal. i'm talking about people that make steel. blue-collar people looking at leadership. they're saying to themselves right now, america will have a choice this november. we can choose to lose or we can refuse to lose. for the american people right now it is critical to look, if you feel confident about last yate eight years and going forward that is the type of direction america should be going in i think they're going

to say no. our meeting today with mr. trump brought the whole group together, brought the whole conference together. were there some questions? yeah, there are questions. but at end of the day, there is nobody better suited than donald trump to lead this country right now. we need strong leadership. i don't know about the rest of you, but somehow somebody says leading from behind is new way to go. nothing positive about that we see what happened to our country. see what happened to our position in the world. this is not about republicans this is about america. this is about americans where we go in the future. this is about a confident america that can see the difference between two parties. one that wants to continue to lead you down a path that leads to destruction. to complete economic destruction. one that says you know what? time to get america back on track. it is time to make america great again. the only thing missing in this country right now is strong leadership at the top. that is all that is missing. we have every single asset anybody would need. that man we talked to, or listened to in there today he has collectively done more to create jobs than that whole room

of congressman that were in there. i've been here for five years and i've been waiting for somebody to sit in the white house you know what? time for america to wake up. it is time for america to be great again. it is time for every single american to realize that november 8th is call to action. you can't sit at home think somehow things will get better or work themselves out on their own. i guarranty you that is recipe for disaster. donald trump is the answer. it is his time. it is our time. for my generation, i was raised by people who came through the great depression and through the wars, they gave up everything. 1.4 million americans in uniform have given their lives for the rest of us to have this opportunity. for us to stay back and not move forward right now, it is not an option. we have to refuse to lose this november. we have to make america great again. donald trump is the man to do that. the republican conference is solidly behind him. major, thanks. good seeing you. >> congressman? donald trump won a lot of success in the primaries

refusing to back down and double down on controversial statements. we've seen him doubling down on statement that has been, tweet an image that has been widely criticized as anti-semitic. is that mistake to continue pursuing strategy in the general election. >> here is the mistake, you folks think something donald trump said was bad. way i was raised actions speak louder than words. you look at last eight years of this administration. look at complete career of hillary clinton. tell me something positive and good for every single american. you tell me what happened the other day is not double-standard? if you and i did what mrs. clinton did she would be in jail right now. she got a free pass. why did she get a free pass. there is rigged system. two ways approaching it. not people are above the law. not because they deserve to be above the law. we put them in that position. the american people have to rise up right now and say what is true and talk about what is happening. watch what happened to our country. say we refuse to lose. it is that simple. don't worry about what donald trump says.

look at actions of president last eight years around donald trump said something that didn't make sense to me. nothing makes sense coming out of the white house last eight years. we have seen us tumble from the leadership position in the world. we created a void at top has been filled with bad actors. we've encouraged them and emboldened them because we don't have strong leadership. i'm looking for strong leader able to lead strong country to get america back on track and. >> as far as doubling down on tweeting image criticized as anti-semitic saying he wishes he had not tweeted. >> i know you want to keep hammer on that. i want to talk about economy hasn't grown. lower middle income people and lower income people have been stuck. maybe it about something donald trump tweeted out but not him, somebody else that is not the issue. that is not the issue. you can say whatever you want the idea is america going to be great again or continue down the same path? $20 trillion in debt. and you're worried about something somebody tweeted out. no this is what i'm worried about. lack of leadership, strong leadership at the top in the white house after eight years.

the american people can't look at this and think we're headed in right direction. they don't think we're headed in right direction. our friends no longer trust us and enemies no longer fear us. dynamic and robust economy fixes every single thing. this is the man that puts us back on track. thanks. >> i'm ted yoho from florida's third congressional district. i want to reiterate what everybody said. there was more unity in there today than i've seen in my 3 1/2 years and donald trump brought us all together. his slogan, make america great again, that will happen only if we make jobs in america great again and grow. he knows how to do it. he is unorthodox candidate. ran an unorthodox campaign. but that is what america likes. they like the person that comes out not from the political establishment but from the person that comes from the people and donald has done that he is winner and he will make america win again. thank you. >> i'm john carter from texas. obviously everybody knows donald

trump is going to win texas. we're overwhelmingly supported him. i went in there to get to know the man. i like the man. i like what he has to say. i believe in him. i noticed his family. he is a family man. he cares about the family and look at the great family he's got. most importantly, he cares about putting people back to work. you know the government doesn't create jobs, real jobs. they create government jobs. he has created real jobs for real people in america. and quite honestly it is time for that kind of leadership to lead us toward an economy that brings us out of doldrums and gets us back being great again. i believe donald trump is the man to do it. thank you. >> tim hills camp from kansas. it was a great meeting t was huge meeting. it was excellent. number things i learned hillary

might not have been indicted but we saw beginning of end of hillary campaign. it was excellent and tremendous on two particular issues i think will excite americans. we need leadership to fix the va. barack obama, hillary clinton and democrats had seven years and seven months. i don't know how they did it but they succeeded in making it worse. with president trump we will fix the va, number one. number two, he made it abundantly clear, the list he put out of conservative jurists that he will appoint to the supreme court. he will follow that list. that will excite conservatives across america. it was great meeting. very inspiring, very hopeful. beginning of the end of hillary clinton. >> good morning. dennis ross from florida's 15th district. i didn't start off as donald trump supporter. i was a jeb bush supporter but i believe what we need to do for this country is unify it and what we've seen today is opportunity where united states republican congress is going to come in and support donald trump and donald trump is going to subscribe to part of our agenda.

i think agenda the american people want to see which starts off with security. right now we're the least secure our country ever been in. we want to make sure we grow the economy. we need to make sure we have secure borders. what we heard today is opportunity for us to work together to give the american people an agenda to let us lead to have personal wealth again. see they have freedoms they want to have. more importantly the streets can be strong again back home and strong again internationally. i'm looking forward to this campaign for the next four months. and i think this congress, this republican congress will be very supportive of donald trump. thank you. >> i'm, if you may, i'm representative al baldasar on behalf of donald trump. i'm veterans chair. donald trump is doing right thing by coming in and bringing all the republicans here. this guy here is 100% behind the veterans community and i am hoping all the media look what is going on through the va in

the country. after talking to many so of the congressman, they tell me about issues in different parts of the country. i hope you focus on real issues over there, make sure that the veteran community are taken care of. that is what donald trump is all about. so, thank thank you. [inaudible conversations]. >> congressman marlon stutzman from indiana, third district. i'm really excited to see the meeting we had with mr. trump. he was engage, he was listening. he is resonating, repeating a message i hear across indiana all the times, jobs are not being created and struggling across this country. we're seeing we have a lack of leadership and trump realizes for our military to be strong we'll need a strong economy to support, a strong military. he is saying all the things that americans are saying across the country. i believe this meeting has

really given us a chance to see trump who he is as person. he was very open. very honest and i know that is what americans are looking for in a leader. i'm excited to support him and endorse him and looking forward to the next coming months to make sure we have strong leader in this country to turn america around. thank you. [inaudible conversations]. >> sunday, another chance to see fbi director james comey and his testimony on the hillary clinton email investigation. see it at 10:35 a.m. eastern on c-span. >> on american history tv on c-span3, saturday afternoon, at 1:50 eastern -- >> memoirs always you have to be wary of because not only are memoirs just by their genre bound to be self-serving to a

degree but the, they also, most of these people did not want to disclose too much and in some cases it may actually dissemble and to try to mislead people. >> historians talk about the techniques used by the cia and russian foreign intelligence service to gather intelligence stating back to the cold war. how that changed since the 9/11 terrorist attacks. at 6:00, a examination of race relations in post-civil war memphis. >> many whites thought this is it, it is finally happening, a full-scale black uprising and they panicked. mobs of white men, armed with pistols and clubs, formed spontaneously downtown, marched to the scene of the shootout, and began shooting, beating, every black person they could find. >> 1866 riot that resulted in the massacre of dozens of african-americans and the assault on freed women, also role of federal u.s. colored

troops stationed near the city. just before 9:00, author and journalist walter isaac man offers comment on benjamin franklin on what he calls america's national character. >> his view small businesses and startups would be the backbone of a new economy an indeed one of the things that his group did is leather apron club. they made a set of rules and maxims for how to be a good start-up entrepreneur and innovator. >> sunday morning at 10:00, on road to the white house rewind -- [applause] >> in the music of our children, we are told to everything there is a season, and a time to every purpose under heaven. and for america, the time has come at last. >> you know that every politician's promise has a price. the taxpayer pays the bill.

the american people are not going to be taken in by any scheme where government gives money with one hand and takes it away with the other. [cheers and applause] of the. >> 1972 republican and democratic national conventions with richard nixon accepting the gop nomination for a second term and south dakota senator george mcgovern accepting the democratic nomination. for our complete set school, go to -- schedule, go to c-span.org. >> we go live now to capitol hill for a house commerce subcommittee hearing on funding for the health care law's cost sharing reduction program. this is live coverage on c-span2.

>> we are waiting for the house commerce subcommittee hearing to begin momentarily but we do know capitol hill, at least the u.s. capitol building and capital visitors center is on lock down at moment. police activity is reported, requiring the occupants to stay away from external doors and windows. we know the situation is going on right now. not what has causedded it but we know the u.s. capitol building and capitol visitors center is on lockdown although we are not sure the rayburn house building which is what we're looking at right now is on lockdown at the moment.

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>> good morning, everyone. for announcements we know there are a number of things happening over at capitol building and on the floor we will move as quickly and readily possible. i appreciate members patience trying to get through the witnesses. thank you. if someone could get the door in the back of the room i would appreciate that. this is hearing of the energy and commerce committee on ach cost sharing reduction program ramifications administration decision on source of funding for csr program. we say constitution is clear, no money shall be drawn from the treasury in consequence

appropriations made by law. this means that the executive branch can not spend money unless congress says it can. yet just yesterday the assistant secretary for tax policy at department of treasury testified before the ways and means committee, quote, if congress doesn't want laws appropriated if can pass a law. that is direct quote. direct contradiction to principles appropriation law. affront to powers granted to the congress in the constitution. i don't agree with the concept of that which is not forbidden is permitted. we're her to administration legal decision to fund the affordable care act cost reduction through permanent prepare operation. we're not here to discuss whether or not it is illegal. the federal district court decided it is. we're here to talk about the consequence of administration's brazen attempt to gab power of the purse from congress. aca established csr program but did not fund it. administration knew this requested annual appropriation

for csr program in the president's fiscal year 2014 request. congress however denied request. a few months later administration began making csr payments anyway. how? the administration decided to raid permanent appropriations for tax refunds that violated the tax appropriations law. in february of 2015 along committee on ways and means this committee launch investigation into the administration actions. committee's investigation sought to understand the facts surrounding administration decision to fund the csr program. through permanent appropriation. our questions were straightforward and included when and how this decision was made and who made it. from the onset the administration has refused to cooperate with the committee investigation but despite the administration's relentless efforts to obstruct necessary investigation we were able to shed light on administration's decision. the details of findings from the committee investigation are outlined in the joint report that was, at least yesterday this is the report you should all have that. administration position is essentially boils down to this.

don't judge my actions. judge my intentions. the president swore oath to preserve, protect and defend constitution. as members of congress we've done the same. again this administration seems to believe it is above the law. let me be clear. none of us are. this decision is not about the merits of the affordable care act or ability to provide health care for anyone. i certainly believe we should do something, help those particularly low income who struggle with health issues but this is about a constitutional question and will this committee and this cons congress uphold the constitution or look other way? no matter positions on affordable care act we should all agree we all must follow the law. today's hearing will examine consequence of findings of committee investigation into the administration's decision to unconstitutionally fund the csr program through permanent appropriation. these consequence widespread and impact aca, impact the appropriation law and impact congressional oversight. obama administration actions

with respect to the csr program are part of a broader pat in. clear problems with the law and administration must violate the constitution to keep it afloat. not just csr program. the transition program, the basic health corridors, the list goes on. there are broad constitutional claims at play here. constitution clearly states power of purse lies not with executive but with congressional branch in provides congress important check on congressional branch applies to any president of any party at anytime. president's claim of appropriations by inference turns the constitution on its head and threatens the important power of congress. finally we as institution must confront the executive branch's position that can dictate terms of our oversight. oversight is critical to functioning democracy. that is why the constitution grants congress extensive authority to oversee and investigate executive branch activities. that is how we improve efficiency and effectiveness of the laws and eliminate waste fraud and abuse from government. as our report makes clear,

executive branch gone at great lengths to keep the information about the cost reduction program from congress and american people. if they think what they are doing is legal and invite them to come before the committee to explain it. subcommittee can not and will not accept any, any witness tactics that delay and deny. in fact again today, we have another instance administration obstruction. committee invited department of health and human services secretary burwell or designee of her choosing to attend today's hearing but the department failed to provide anyone. alleged most transparent administration in history this administration is trying utmost to avoid congressional scrutiny, that begs the question, is someone trying to hide something? i want to thank our esteemed panel of witnesses appearing. look forward to expert opinions on consequence of added administration's actions. before i recognize the ranking member of subcommittee, miss degroot, i want so thank this committee was done on mental health reform particularly my friend miss degette.

steadfast in investigating a very important question of this nation. the chair, vice-chair, full committee, ranking members is powerful what came through and i personally want to thank you for that but now i recognize the ranking member of the subcommittee, miss degette, for five minutes. >> thank you, mr. chairman. thanks for your praise on the mental health bill. it really was a joint effort. there were a lot of bums in the road and difficult negotiations. . .

oversight. as i said repeatedly in my statements on this committee, i wouldn't mind that if there actually was an attempt to do something to improve the way the aca works. obviously, we tried to enact constitutional legislation in this congress. that's our job. that's the thing we were sworn to uphold. we do have a judicial branch which is there to give checks and balances just in case people get it wrong.

in this case, the house republicans decided that they thought the csr program was unconstitutional. it's not this committee's job to determine whether this program is unconstitutional or not. it is the court's job. guess what, the house republicans filed a lawsuit in federal court, they asked the judge to decide between conflicting interpretations of the law. guess what, the trial court judge actually chose to rule on the merits of the case and the judge ruled for the house republicans and said in fact according to that judges physician, this provision of the bill was not constitution. now they are appealing that decision. what are we doing here today? this matter is in the court.

i'm not here to say whether it's my opinion, even though i am a lawyer, about whether this is constitutional or not. i will say, everything i knew in the deliberation of this bill was everybody's belief this provision was constitutional. so once again, we are having this oversight we are falling in the administration, were hauling in other people to talk about whether this provision is constitutional or not, but in fact what we should be talking about is what are we going to do to improve the aca so the middle class and lower income taxpayers can afford healthcare. mr. chairman, i was was glad to hear you say that it's not about the merits of healthcare or provision of health care to low-income people, but isn't that really what we should be worried about? shouldn't we let the courts

worry about the ins and out of the constitutionality? the appeals court opposed the trial court decision and shouldn't be our job to try to figure out how to give some kinds of subsidy or other offset to middle and low income people so they can afford healthcare? there is nothing i have seen since 2009 to indicate that there was any ill will on behalf of the administration with respect to the low-cost fund or the low cost sharing reduction. there's no indication that the administration knowingly violated the constitution. they in fact thought that it was constitutional. why are we here? once again, we are here to bash the aca, to rake the administration through the mud and to continue to question this policy. i think it would be much more useful for this committee to

look at legislation or to look at policies that would help fix this program and help make it affordable to get healthcare. i yield back. >> i recognize mr. upton for five minutes. >> thank you mr. chairman kudos on mental health. it was a great effort. it was nearly 18 months ago when paul ryan and i sent our first letter to the administration requesting back information about the source of funding for the health law cross sharing reduction program. chairman brady now continued on with me in this investigation after he became chairman late last year and we believe then and still believe today that the president illegally and unconstitutionally funded this program for a permanent appropriation used primarily to pay back tax refunds. over the course of the

investigation we spent more than a dozen letters and interviewed as many administration officials we were forced to issue subpoenas for documents on the issue. i sent three subpoenas myself and we learned a lot during this time. despite the unprecedented obstruction from this administration, there are even basic facts that the administration is still withholding from the congress. yesterday the majority staff of this committee along with others release the support revealing our investigation. we did it because folks at home and my state of michigan and across the country and elsewhere deserve to know how the government is spending their hard earned tax dollars. we are taking billions, talking billions in this instance. the government has an obligation to spend the money with full transparency in accordance with the law. when it comes to the csr program, i am sorry sorry to say the federal government has failed to do so.

this administration has gone to great lengths to prop up the health law, going as far to break at signature law to keep it afloat. here they won't even give coverage to documents or the testimony we need to fully understand how they came to the decision they made to fund the program, in my view, illegally. i have access to the information from the executive branch and we cannot conduct effective oversight. without effective oversight we can't protect the public's interest. last month i join my colleagues in introducing our proposal to replace the affordable care act once and for all. i believe our plan offers a better way forward. one that makes important changes to our healthcare system to improve access and also decrease cost. it will allow a way that won't allow the government to secretly shuffle around billions of dollars and violate the law like we've seen this administration do with the affordable care act. yesterday's hearing was focused

on the findings detailed in this report. today we are here to talk about the long-term implementation that goes far beyond this program and they are important to the affordable care act laws and principles and even our institutional powers in the legislative branch. we did invite the secretary to attend and provide witness for the hearing and i'm disappointing they declined our indication to testify. we deserve answers and were not going to rest. >> i would like them to comment about the department of health and services in notice of the secretary through appropriate designee to continue to investigate this issue. this administration has taken and transferred money from the authorized previous tax credit

account to the cost-sharing reduction program aired throughout this investigation the administration has gone to unprecedented lengths to delay providing this information often citing legal privileges. if the administration's rationale for withholding information had been accepted, we risk exempting the entire executive branch from congressional oversight. this all-powerful administration must not continue in the next administration. i look forward to hearing from you witnesses about transparency and oversight and what this committee might do to further prevent this activity in the future. i yield to the lady from tennessee. >> i think the gentleman for yielding and to the answer as to why we are here today, we as congress have oversight. that is exactly what we are doing because we have found that there is money that is being reprogrammed and shifted from one account to another. that is being done without our agreement and appropriation.

it is called article one powers. we are talking, as chairman of upton said, about billions of dollars. it is it is inappropriate. we should be doing the oversight and making the determination of what is happening with these dollars. with that i yield back. >> thank you. i now recognize mr. green of texas for five minutes. >> thank you mr. chairman, it's my job to give our ranking members statement today because i think he is locked down in the capital but before we do that the issue of litigation brought by the republican majority is not unusual. we had a litigant that would not show up and not come to a hearing while you're in the court process. we know that district court made a ruling on appeal. i don't think there's any problem with somebody from the administration not showing up simply because we can decide we

have opinion between all of us on what's constitutional. that doesn't matter per the folks that make that decision should be over in the supreme court building. i don't think there's any problem with the administration not showing up because since the litigation has been brought by the majority, let's let the court work its way through that. now i go to my colleagues opening statement. we passed the affordable care act over six years ago. it changed the healthcare landscape in the united states. it has made access to affordable health care a reality the american people. at the close of the third open enrollment this year, nearly 13 million people had selected health plans or had been reenrolled in quality quality affordable health insurance. the uninsured rate has fallen to a historical low an estimated 20 million previously uninsured adult have gained coverage since the passage of the bill in 2010.

the long clued several mechanisms like the cost-sharing reductions of the csr program. it is a slow and middle income americans afford their insurance and copayments. they also ensure that out-of-pocket healthcare costs do not place a crippling financial burden on american families. many healthcare enrollees have taken advantage of benefits offered by the csr program of approximately 11.1 million consumers who are enrolled at the end of march of this year, 57% or nearly 6.4 million individuals were benefiting from the csr to make their coverage more affordable. the csr program is proven effective at accomplishing what it was designed to do. one study estimates americans who are eligible for cost-sharing reductions would save an average of $479 each year. if you listen to my colleagues on the other side of the aisle you hear nothing about the benefits of the csr program or

about the affordable care act at all despite the overwhelming success of the law, this committee has chosen to hold another hearing to attack and undermine the affordable care act. this is nothing new. the republican majority spent six years promising to repeal and place it the act but we have yet to see a meaningful piece of legislation until the last week. they recently unveiled the plan that falls laughably short in providing quality coverage for their constituents. those watching this hearing need to understand that the republican majority is exclusively focused on taking down the affordable care act. they have now voted 64 times two undermine or repeal the affordable care act. they've held hearings and letters and documented and issued subpoenas. they've filed an unprecedented lawsuit. there are certain ways we could be conducting meaningful resolve

of this and i'm sure we could come together and approve the law and enhance the coverage and options available but this hearing in this investigation will do no such thing. this only serves to hurt americans and reverse the progress that's been made for millions who benefit from the law and it's time a republican stop litigating the past and work with us to continue to improve the health care quality of the country. >> i could continue to talk for a minute but i'm happy to yield back. >> thank you. >> i have unanimous consent that the opening statement be introduced to the record and without objection it will be entered into the record. i like to introduce the witnesses. first we have doug badger who will lead off the pan panel.

he is a senior fellow at the galen institute. we thank him for being here today and look for to his comments. we also welcome tom miller, a fellow at the institute. he studies healthcare policy including insurance and market-based alternatives to the affordable care act. thank you for being here and we appreciate your testimony. next we welcome legislative consultant rosenberg. he was a specialist in the american public with the american law division of the congressional research division where he focused on the scope and application of congressional oversight in congressional prerogatives. we appreciate him being here today. finally we introduce mr. simon who is senior at the accountability center. i want to thank all of our witnesses. it's quite a qualified panel with legislative experience we look for to hearing from you. we are taking testimony under

oath. do any of you have any objection to taking testimony under oath benchmark seeing no objections, the rules of the house and the rule of committee you are advised by counsel. if any any of you desire to be advised by counsel today, i've seen no request for that, inc. that case please rise and raise your right hand and elsewhere un. you also where the testimony you are about to give is the whole truth, and nothing but the truth. >> thank you. you are now under oath and subject to title 18 section 1001 of the united states code. we will have a five minute of your written statement because we are on it tight time schedule and please be a attentive to the red and yellow lights. >> thank you members of the subcommittee and ranking chair for this opportunity to appear before you this morning to discuss the affordable care act

cost-sharing reduction program. implementation of that program has been a irresponsible unaccountable and unlawful. occasion by a serious miscalculation of a demand for health insurance among young and relatively healthy people. this calculation led to a series of decisions by senior officials at the department of treasury, and health and human services during 2014 that range from the reckless to the illegal. my colleagues have published two studies to ensure performance in the 2000 benefit year. our first for study provided information on how insurers fared selling individual qualified plans, cute hp. we found the corporate welfare payments made to these plans in the form of reinsurance payments and risk or claims average more

than $1100 per enrollee. 25% of premium. put another way had those payments been made in full insurers would have received $1.25 in revenue for every dollar they collected in premium and still lost money. our second paper examine the relative performance of the 174 issuers that sold cute hp in both the individual and small group market. we found that insurers lost nearly three times as much per in rowley than they did two small groups. those losses occurred despite billions of dollars in subsidies that were available for individual to hp's but not for group qhp. the they average 24% more per enrollee than for group qhp. those.

those plans consumed 110% of premium dollars. these losses continued after 2014 and mckinsey and company estimates they may have more than doubled in 2015. why is this happening? brian blais at the marquita center, i think has laid out why the rules governing the individual qhp have produced such disastrous results for ensures that billions in lawful and unlawful corporate subsidies cannot cure. he said they largely replaced wrist based insurance in the individual market with income redistribution based on age income and health status. whatever the merits of the re- disparate redistribution of wealth, congress cannot redistribute health. the the rule structure for the individual market seeks to do this by requiring insurers to sell products that are generally unattractive to younger and

healthier people. they are being overcharged without programs while discounted premiums for people who are older and less healthy. the result is a market that attracts high-risk enrollees and repels low risk once. such a market is dysfunctional. as this began to dawn on the administration officials during 2014 they made a series of sudden policy reversals to entice insurers to remain in exchanges. these included the expenditures of unappropriated money on the csr program, the diversion one billions of dollars from the treasury to insurance companies through the re- insurance program, repeated restructuring of the reinsurance program to make payments 40% more generous to insurers then at the time they submitted their premiums, and a slow retreat from the agency's prior position on risk budget neutrality. in an effort to turn it into a fund, it forces taxpayers to bear the cost of bad business decisions made by big

corporations. this committee has been diligent in calling attention to these actions and congresses actions to ensure the risk program operates as intended. further action is is required to ensure lawsuits followed by insurers do not render the budget risk neutrality meaningless. the health care reform laws are working in the individual market the unlawful payment of corporate subsidies cannot fix this. i am encouraged by the remarks of the ranking member and the chairman, i agree that congress should repair the health care reform law. it should not overlook unlawful improvisations that try to disguise its deficiencies. thank you. >> thank you. >> thank you chairman and ranking members of the committee

and sub committee for the opportunity to testify today regarding the cost-sharing program under the affordable care act. the federal district court ruling reaffirmed the long-standing rules of appropriation. advance payments to insurers to reimburse their expenses in providing cost-sharing reductions mandated were never appropriated by congress. they cannot be spent by the obama administration and all appropriations must be expressly stated. they cannot be inferred or implied. the aca does not designate a source of funds to make the cost-sharing reimbursements. the administration has offered a number of legal rationale to try to find authority for its decision to continue funding of the csr payments. as the judge concluded, the plaintext of the aca outweighed the arguments in most cases when other important distinctions did not already. the administration's overly broad approach to inferring

permanent appropriations by congress in this case would provide no limiting principle to prevent future administrations from paying for virtually any aca program on the theory that it is linked to somehow the premium tax credit under section 1401 of the law. it is this congress and future ones that is the constitutionally designated branch of government that must decide whether or how to appropriate funds for csr payments to insurers. this contribution he needs to be placed in a larger and disturbing context. for the last six years the obama administration has been frustrated by its inability to get them to support more funding or a number of less popular objections under the aca. it keeps trying to stretch appropriations to spend money without consent or authority. the administration has a lengthy rap sheet in bypassing the

constitution, statutory law and norms. this has challenged opponents to just go ahead and sue in court if they want to uphold the law. with this pattern of conduct seriously undermining the level of respect we need for an from our government agencies and officials. laws passed by congress are not just mere suggestions to be subjectively selectively revised or discarded by the executive branch. elections do matter and so do the decisions by the elected representatives in congress who are in power. trust in the basic integrity of her government institutions and the adherence of law is a key foundation of mechanic accountability, civil discourse and economic progress. if we are ever going to reduce the partisan rancor and operational gridlock in remedying the long list of dysfunctional components of the aca, taking illegal shortcuts and making administrative

revisions in the law must be replaced by offering a more persuasive case for whatever legislative changes in the underlying statute are necessary and then facilitating actual votes in congress to do so. until then, the subcommittee's continuing investigation and oversight of the executive branch policies and practices in this area remain essential to maintaining political accountability and the rule of law. i cemented our testimony earlier this week between the reports in the source of funding for the cautionary reduction program was available for review. it carefully and meticulously details how the administration first abused appropriation in order to pay for the cost-sharing reduction program and then obstructed the work of several committees to investigate the actions. we have learned over the years that not every serious abuse of executive branch power can or

will be remedied in court. at a minimum, the american people need to know more about how officials execute the law that control taxpayer funds and order to hold them accountable in our form of government. i hope and expect today's oversight and investigation hearing will further that objective. thank you. >> thank you mr. miller. mr. rosenberg, you are recognized for five minutes. >> please do your microphone on. >> thank you. >> i'm pleased to be her mr. chairman and members of the committee. this is a welcome return to be before a committee i learned whatever i think i know about investigative oversight from legendary chairman like john and their great staff.

i did more work for this committee between 1975 and 2005 than i did for any other committee in the congress. if i had to boil down the essence of what i've learned about oversight it would be this , committees wishing to engage in successful oversight must establish credibility with the white house and the executive department and agencies that they oversee early, often and consistently. in a manner invoking respect and not fear. they have been invested in in an array to support their power of inquiry and that's absolutely critical to the success of the investigative power that there be a credible threat, of meaningful consequences, for refusal to provide information in a timely manner p in the past, that that threat has been

the possibility of a citation of criminal attempt of congress or a trial at the bar the house. either of which can result in imprisonment. there can be little doubt that such threats that were effective in the past until 2002. between 1975 and 1998, there were ten votes to hold cabinet level officials in contempt of congress. four of those votes came from this committee and were very effective. the first two votes to hold cabinet level officials in contempt involve an issue that was raised here. it involves two statutes that had noncompliant and

confidentiality provisions. the heads of each of those departments in the hew in 1978 claim that a broad nondisclosure provision applied to congress they challenge that and in both cases both preliminary votes of content in the subcommittee were sufficient to have the documents released and the testimony given similar things happen in the early '80s under john bengal. as i said, all of these resulted in one way or another of substantial compliance with information to ban in question. before the necessity of any criminal trial. it was my sense that in those instances, that established such

a credible threat and it was possible so in 2002 even the threat of the subpoena was sufficient to move an agency to an accommodation with respect document disclosures and the white house to allow officials to testify without a subpoena. the last instance was the failed claim during the chairmanship of dan burton in the 2002 investigation of two decades of informing corruption in the fbi forced an office. i might add it was a bipartisan effort in which the contempt vote was a virtual certainty. the current situation is that congress is under a literal siege. the last decade has seen