care taken on the part of the russian government or on the part of the syrian government spin let's talk about the european reassurance initiative or deterrence initiative. you name some of the things the initiative that has been able to support in the recent past and certainly seems like all of those are positive for the u.s. and european relationship. at the same time, my question would be, has it succeeded in determining russia from some of the activities that have been problematic regarding provocative maneuvers in european airspace and all of that? is it succeeding as a deterrent? >> i think it is. what we haven't seen is we haven't seen another repeat of what happened in crimea. so i think that's very important. i did have an opportunity as i mentioned in my opening remarks to visit the baltic states. and those who are directly on the border as you would expect feel the most vulnerable. so i believe, i'll just repeat what they told me.

they certainly do these actions as a major deterrence. and also as i mentioned, as a general proposition car allies would like to see more presence, more interoperable equipment, more training, more exercises. this was a general theme throughout all of my visit. >> do you think there's a risk of escalating tensions clutch he said the united states is not seeking a conflict with russia, but is there a risk of escalating the tensions that could potentially be to conflict by placing additional assets in eastern europe and the baltic states including some of these things that are associated with edi or just generally speaking with the desire to bolster the u.s. military presence in that area? >> of course managing risk is something that policymakers and military professionals do day in and day out. so there's risks in all that we do, but i would submit the greater risk is if we did not have a greater presence at this

point in time, if we were to pull back, if we were to do less of the types of activities. to me that would be a greater risk because i believe a lot of what's going on is poking and testing and pushing and seeing what the response will be, and that's why think with tab resolve and we have to have an active response student going back to something you said a little earlier, that the allies in the baltic states for example, are asking for more air force. what specifically are they asking you for quite what are er sort of major desires? >> well, they want more u.s. military in general. so the most immediate very important upcoming activity is we will be having a permanent presence in the baltics. it will be some u.s. come u.s. actually will have the command in poland but then there will be nato allies in a combined fashion, multiple forces from different coaches will come together to have a presence in the baltics and it will be a rotational situation.

and so that is something there very much looking forward to having on the ground. they want to have continual presence through the baltic air policing, which they have. the united states participates though other country but to speak as well. as a major in germany has the mission right now. it rotates, so they certainly want to see that ongoing. they want closer cooperation in a number of other areas as well. >> do you believe any sort of more muscular response is required to deal with provides -- russian provocative actions versus come up with that risk as witches said, potentially said,y escalating the conflict unnecessarily? >> these sorts of questions are asked literally daily and people are making at the highest level of government is judgment calls on a daily basis. so based on everything i know, it's about right for now. but again again, tomorrow sometg could happen and this could change. i can assure you these matters are monitored at the highest levels of government daily.

>> you mention your communications with european and nato allies. following the november 8 election, have you had to reach out to the allies and reassure them based on present elect trump's comments regarding nato? how has that been an issue, if at all? >> i have not since the novembei haven't had an overseas trip, nor have i had a telephone telephone communication since that time. but before that time we talked a great deal about it. what i always would respond is the american people, the system will figure this out. regardless of who is elected president there are checks and balances in our system that nato has been a bedrock, europe has been a bedrock for decades and decades to come. and although there could be some tweaks or changes on the margin, i at least didn't leave there would be a fundamental shift that would be worrisome to them. >> it is remarkable at times

increase anxiety both in europe but because events like brexit and then because some, i just mentioned regarding nato and potentially questioning some of the security commitments that have been fundamental to nato. do you sense that in your conversations prior to the election or subsequent that you have had with partners when they visit? do you sense the anxiety that the european nations have about the sort of trajectory of the alliance? >> they had questions is the way i would put it, which, of course, allowed me to go back on a message of that i regularly deliver. and that is the importance of everybody doing their part. everybody can i do know of a single country in nato that isn't experiencing some sort of economic difficulties, even those countries that are doing relatively well by our standards. there are many tugs and polls on society and on government spending.

we all share in this and its top politics for everybody, but everybody has to do their part. and their part by the document is 2%. so if not 2% this year, it's important for everybody to get on a trajectory to get there in some reasonable amount of time. back in the 1980s when i was on the house armed services committee staff, one of my assignments back and was a native burden sharing panel. i think was an old issue back in the '80s this has been around as a topic for a long time but certainly its top of my now with the election. it's my hope as hard it might be because a government spin is tight everywhere, that the allies who are not at 2% can get themselves on a trajectory to reach that point. >> i have two more russia questions for you. how do you see come if you could just comment on the situation we have in syria where the united states and russia are operating in the same airspace.

what has that extra spin like and in terms of managing that, thinking about that at the pentagon and what do you see as the potential risk, or can this be managed as it has seemingly so far? >> what we've done so far is we have had the confliction procedures -- d confliction. phone calls to deconflict airspace. not to coordinate but you deconflict and a safe space in the air. so far this has worked quite well. we have been operating largely in different parts of syria. i say largely, not exclusively, but largely, but largely what has been troubling to us, i'll do speak for the u.s. air force is that there's quite a gap with russia. they say one thing but they do another thing. so they said they entered the fray in syria to help fight isil and terrorism. what they have done is they have propped up the government in the interest of bashar al-assad,

the government of syria. there's been very little action against isil. rather, they're going against the groups that are going against assad and threatening his direct interest in the territory that he is most concerned with. so that's a major say do get. they say they're doing precision guided munitions to take care not to kill innocent humans, but, in fact, 80, 90% are dumb bombs. there are a lot of say do gaps and a lot of trust between the russians and the u.s. as a result of not just that but many, many other things. most recently obviously aleppo has fallen but within days of that isil overran palmeiro. and the united states has begun bombing around palmeiro. the russians and the syrians, upon fleeing pau palmeiro as thy were about to be overrun left

behind equipment, artillery, trucks, tanks and so we are going in now and where destroying them with a variety of aircraft to include in q1 and a number of other aircraft as well. so the battlefield, the make up of the battlefield can ship and does shift daily. >> what was your perspective, what was your perspective on the proposed increase military coronation between united states and russia in syria? there was a proposal that fell by the wayside to not do joint targeting by to share information in order to target the al-nusra front? >> we were prepared to execute at that agreement reached fruition, but there was concern. there was concern in the pentagon precisely because of the lack of trust. so of course they did not reach fruition and so we are where we are spirit last question on russia. what would be your recommendations to your successor regarding how to deal

with the russian threat you mention in your remarks? >> i do think based on everything that i have read and understand of russia, russia is the country that does understand force. and so to present a strong front at a time like this come at a time when i believe they are i think the alliance it needs to demonstrate that resolve and show force. so what i would suggest to my successor is continue to support to the maximum extent possible the role of the united states air force in the baltic policing, in the air dominance actions that i talked about. ongoing rotations, like we did on the f-22. like we are about to do with the f-15 in the spring. like i am thinking in the not-too-distant future, the f-35. these are the types of approaches which not only

demonstrate that resolve but they also are great training opportunity. they provide experience with interoperable equipment, and am into airman, it works well when we get to work with our counterparts. >> great. i want to turn to a couple other issues. you mentioned the threat of migration coming into europe and the burden that is placed on european nations, number one, having to provide for refugees and think about security threats that could come along with that. what is the air force role in that course you mentioned the global hawk. what other ways can air force specifically contribute to helping manager that threat? >> probably the isr is the greatest one. airlift can from time to time be helpful depending on if people have to go from point a to point b. when we have gotten obviously more in a wartime environment there can be air drops any humanitarian type of in a

vibrant. this is much more extreme than what is going on in the european space at this point, but the air force also has certain intelligence association. so we have intelligence assets as did the other military services and the i.t. command as well, so the sharing of intelligence is something where time to do more of the cost of the alliance. >> there's been a lot of discussion obviously in the last year, year and a half about the threat of islamic state, plots within europe with the attacks in paris and brussels and elsewhere. what is the air force role in that in terms in addition to intelligence sharing specifically the air force contribute to that? >> so other than the intelligence, sharing information whenever possible, that's our top role for that sort of a threat i would say. >> okay good. >> much more of a law enforcement. >> let's talk a little bit about

the air force itself and the trajectory of where the u.s. air force is headed. one of the things that people talk about is how the fleet is aging and that readiness has really been under pressure because of continuous deployment, because of the budgetary issues. how would you recommend dealing with this in the next five years? what is the best way to cope with the readiness and he sort of strange the force has been facing? >> whenever we talk about readiness i think it's really important that we step back the moment and we say ready to do what? you heard me say the u.s. military is still the strongest and the best in the world. i absolutely believe that. so if you were to say is the u.s. air force ready to do its mission, which have been continual, thousands of bombing missions, even more isr, humanitarian and all of these missionsmissions, are we ready l of that? the answer is you're damn right we are, we have been doing it and we been doing it for the

better part of 25 years. but where we have our readiness concerns is are we ready to do a high in the fight? so there's where it would get into an anti-axis areal denial situation, if it would be a very complex fight against a file or foes i could shoot us down from it if you're with us in space or make it a more complex environment, there is where we are concerned that we don't have sufficiently high levels of readiness spirit like a rush or a china? >> yes. so the answer is severalfold. the greatest thing that we can do in the near term is increase the size of the air force. i mentioned we are, we been downsizing for 25 years. we are now the smallest active duty force that we have been since 1947 when we became an air force and you can't do too many things at once if you are that small because capacity matters. so to increase the size modestly. i'm not talking hundreds of thousands of people, but that

would allow us to plug some holes and also build up certain capabilitiescapabilities, parti, cyber and a few other areas, fighter pilots we are short. these are some areas that we want to build up. so grow the air force is the first thing i would recommend. the second thing is continue to fund some of these high-end capabilities, particularly and the training environment to get ready. this means upgrade our ranges for example, so that we can practice against a simulated height and a threat. what's your mother told you, practice makes perfect, really is quite a lot of truth to that. when our pilot season vibe it's in the simulator world, 100% of the time they will do better in the real world if they've had that ability to practice. so beef up certain things like that in the readiness account is another key recommendation that i would make. and then keep monitor rising. that's the other part speak what about new technologies and active mission? to what extent can air force do

that in the way h it would likeo because of the budgetary constraints? >> the budgetary constraints are real, and there's been discussions about increasing defense spending certainly we have gotten once and for all sent the sequestration to the dustbin of history. there's talk of doing that. we've been talking about that for two or three years now. it hasn't happened are i'm hopeful maybe this spring it will, because that's the first thing. that has to come off and then some additional funding would certainly be very welcome so that we, by the way we're modernizing natalie our conventional forces but we have an imperative to modernize our nuclear forces spirit what would be a reasonable increase in the in strength, talking about growing the size of the air force, what would be a reasonable -- >> we ended our fiscal year at about 317,000, so i would like to see growth over the next several years to the mid-three '20s.

i'm sure we could use more people the net but i would say at least that. >> and if there were to be a budget increase for the air force in the next administration what would be sort of your priorities, would it be the personnel or if there's one thing that you could choose to spend the money on what we did the? >> personnel spirit okay. okay. what asked a little bit about the election and went just about five minutes before going to open it up to the audience. without getting into the politics of election what do you think that the change in administration at the change in parties will mean for the air force? >> first let me say we've had the transition team has been in the pentagon now for weeks, and they have been meeting regularly so i had the opportunity to meet with them, the chief of staff of the air force, conducted in a very professional way. ..

these will be questions for that team and i will have to answer, i just hope that these equal issues will come out on top because i want to reiterate, i think that's the best way to eliminate some of the readiness concerns in the near term as well as alleviate some of the frequent deployment and the family concerns we've been seeing quite what about the president-elect's comments considering the air force?

that's damaging for the industry institution relationships or is that something that will really amount to much? >> well, i think any incoming president or any incoming leader is going to be asking questions, right? this was in effect a way of throwing a question out there to twitter about the cost of these systems which, let's face it. this is a lot of money we're talking about. both the f 35 and air force one but it's time as this additional material is presented and briefings are had, the complexity of both of these programs comes to light though it's not quite as easy as it may seem to get the cost down. there are ways of doing it, for example in the case of air force one, the complexity is it's more than 747. if you look at the cost of the 747 and look at the

process of air force one, it appears astronomical but air force one is a flying white house with ultra high level security and communication and defensive protection matters built in so it is nothing like you've ever experienced before and that is what involves the cost. moreover, we made the judgment to go with the force on that so if you were to compete it, maybe only about some of these requirements, maybe you could get the cost down, but the us air force by the way has developed requirements to air force one , to professional communicators and security people in the white house, develop those requirements so if you were to strip away those requirements you could get because back to that approach again and the new team will get a full scan for that and determine. on the f 35, we certainly had a history of crossover runs and problems, there's no

doubt about that but if you look at recent years, the f 35 cost has been coming down. it can then be approaching the per claim cost will soon be approaching a fourth generation plane so that's a pretty good deal, fifth-generation and fourth-generation prices but again, the past is the past and it was a difficult past and were focused on the future and once again has all of these facts are presented, then the new team, the new president and make up his mind quite you think they might get in there and see the details and think about it differently? >> i think the more details you are exposed to, it certainly opens up the aperture to see what the possibilities might be and what the constraints might be. >> one final question before we open it up, what's next for you? >> i don't know, is the washington post hiring? i'm going to be unemployed pretty soon but i don't know. i think the beach is going to

be in my immediate future. i'm looking forward to some time off and my children live in new york and i might crash on their pad for a little while until they don't want me anymore so i don't have immediate plans but i'm sure something will come up. >> let's open it up to the audience. i think we're going to have, if we can go ahead and do questions, is there another microphone? maybe someone in the front, city? identify yourself andmake sure your question is a question hi, i'm sidney freeburg , defense?. i wanted to fold on the f-35 issue, you mentioned in passing it was important for us to have denial on some of these high-end issues on how economies are buying it. what's the case we would make to the transition team for this program, what is the sort of game changing valueof it for the us , for the allies that makes price tag admittedly high worth it in your opinion?

>> the case is the threat that if you look at the various scenarios where we may have to go into combat around the world and i'm not talking about against isis in the middle east, i'm talking about the type of clients that we have, these access area denialenvironments , the threats are what to me sell the capability, sells the program that's .1 and of course the new team is in the process of, not everybody has their clearances yet but those that have had clearance were able to get some of these briefings so that is happening and then the other piece of it is don't just look at the past but look at the recent past. look at the past few years as experienced on the program where there have been great strides and great accomplishments made in bringing down the price. so to get a fifth-generation

capability which all those who have experienced agree that that it is a cut above any other aircraft because of those capabilities and to be able to get back at a fourth-generation price, something like you not pay for an f-15, that's beginning to sound much more reasonable. now, then the cost be driven down more? perhaps and i know the current leadership that jc always focused on changes every day. i know the industry has made concessions to bring down the price so can more of this be accomplished? i would say probably yes and the pressure should remain on. >> the gentleman in the second row? >> i'm harlan olin with the atlantic council, thanks for this informative and professional briefing. space did not allow you to talk enough about two issues,

one, as carter has set a 4+1 matrix the planning which in the united states military is needed to deter and defeat if necessary russia or china and second, you didn't talk about the offset strategy though obviously you referred to it. could you comment about air force thinking about how do we go about deterring and defeating russia or china? what's the thinking in that regard and could you also relate this back to what the air force is doing to follow bob works third offset strategy that is the centerpiece that is in the this administration? >> of course, there are joint war plans that are written against a variety of scenarios that could happen around the world and for each of these war plans, the united states air force is front and center and one thing i will tell you is that the us air force is not only are we front and center in each of these scenarios but we are front and center on day one and the date you, it's not a 30 or day 40, it's

right off the bat area we are, those who would kick down the door so to speak so we would be on that front line of defense so we are heavily involved in all of as i mentioned, if there is a worrisome aspect to this, it is that we have become sufficiently small both in numbers of people and aircraft that if there were multiple things happening simultaneously around the world , there's where the capacity may be such that we could do all of it, we may have to swing and let one area go and nobody wants to do that so that's a key concern. in terms of the third offset, this is simply a way that we are looking for what would be the next big advantage that our allies could acquire for a future concept so just as the nuclear, having nuclear weapons back in the 40s and 50s was quite an advantage, that was what we called the first offset of the 20th century because no one else in the world for a while had that capability.

then others acquired it and they didn't have quite the same value as it once did, still very valuable but not the same value. then the second offset is frequently termed the combination of precision weaponry and all of which is enabled by our space assets and we saw that in the persian gulf war. that was sloughed off to the role in that conflict but for 25 years, people have been watching how this works and they've been catching up so the question is what's the next next offset going to be, what's the next big thing? we think it's somecombination of technology , all of which are designed to make or have greater endurance, bigger ability to make decisions quickly, make sense of many sources of data. was the important data amongst all of that clutter and push that decision in a very fast way that we are

investing in a variety of technologies that would give us some elements of what i just said, but technology is certainly part of that but so is tactics, techniques and procedures so how do you put all of these technologies together into a process and procedure in a way in which you are going to be executing a plan and the third element is people, the data has to make sure all volunteer force is continue to have the very best people that can think agile leak, that can problem solve, who can be creative, who can take those tactics and procedures and technologies and put it all to our best advantage. >> thank you very much, damon wilson here, executive vice president of the atlantic council. thank you very much for your service and thank you for coming back to the council for this question and thank you for your service on the board before you assumed this role.to underscore the importance of the actively named philippine deterrence

initiative and the us president, particularly in the baltic states of poland, romania, bulgaria, there's a question about this in terms of how long will the forces be present in this place? how do you think about the reigning assumption for our presence on the eastern front and the finding that supports these, as i understand it it's really not in the budget, and should this be something that overtime is put in the base budget to recognize the fact that it isn't a one-year deployment, that we are likely to be there for quite a while ? >> yes, to go into the base budget, all of this for most of his could go to the base budget but the folks who are here living in washington know that the budget doesn't count for purposes of counting money that we spend in the federal government so how do we use that? it's kind of an accounting situation but if we can list

the frustration, if we can clean up some of these accounting situations we have backed into in the past however many years, 10, 15 years, then it would certainly make for a more clean situation but for now, that's the way we fund it because that's the way we can fund it and get it done. most important thing is to get it done and i consider it to be a perpetual mission, in other words any mission that stops but there's no plan to stop it, so it's a perpetual mission, it will be reviewed on an annual basis and unless the world changes fundamentally, i don't see any reason why that would change in the near term. >> in the second row and their comments will get to the back. >> laura with aviation, it's good to see you secretary. i wanted to ask a little bit more about president-elect trumps to. the air force one to and the f-35 to i would say rattled

the defense industry a little bit . do you think that he has a point, i guess, without being too political. is it good to put this kind of pressure on the defense industry or do you think it's better to do this kind of negotiating behind closed doors as opposed to on twitter? >> time will tell. what is good is it's good to have a focus on cost-saving measures. as i mentioned, that focus has been very much in place as we look back over the past several years. the cost has been brought down. i give him credit on that, in negotiating that in the jpl, i give credit to industry as well because they have made certain concessions as well but you heard me speak a lot of times lera and you know i have three priorities.

taking care of people, getting the balance between readiness and modernization right, we both are us air force and we make every dollar count which is my way of saying costs are down and we got to be the most efficient team possible so i'm all for that focus. twitter is a different way of doing it and time will tell. i hope that costs can come down. >> in the back, the man in the blackshirts, kyle? >> hi, secretary, global. another f-35 question. i'm wondering how you are pitching the efforts to any new customers overseas whether the president-elect has these comments that it's out of control and on top of that, you already have foreign governments like canada that are already associated with this program? >> well, the big news about the f-35 ministry guard is we

don't even have to pitch it. there are other countries, it was just delivered to israel, italy has got the f-35 coming. it was just developed and reduced in italy so in a way, it is selling itself you might say.of course we still do talk about it, i certainly talk about it but i'm not the only one and the us government is not the only one. there are other allies acquiring it and they want it. in the case of canada, canada has decided to bridge with the f-15's but they haven't shut the door on the f-35 down the line but time will tell and of course that will be there judgment. they do remain as part of the program, they are contributing to be part of the program, albeit they have not decided to actively purchase it at this point in time. that remains an open question for the future. and we take another one in the back, the gentleman with a white shirt.>> iq, we haven't talked all about north korea so in the interest of your views on the

current threat, and the role of the air force in responding to that and moving forward, where do we go from here? >> so north korea is a major threat. we talked about the 4+, so north korea is one of the four, we will put it that way. north korea, iran, china, russia and terrorists, particularly isis but other forms of terrorism.that's +1. the us air force is very involved and in deterring, countering that threat. we saw a continuous bomber presence that takes place on one, we had b1, b-52's and b2's deployed to guam that do periodic patrols. they are there, they are available at a moments notice to do whatever we would need them to do. similarly in south korea we have forces stationed there

along with the army, along with the rest of the us military so we have a close relationship with our south korean counterparts and then finally i will tell you as north korea has been testing nuclear weapons, testing launch capabilities of late, the recent one that we know a lot of this is because the us air force has been monitoring and detection systems know exactly what went on here. was it a nuclear weapon or was it something else? what was the possible yield of it?we hobble these systems to be able to then explain to our leaders, our allies and partners and the world what has happened here so that's an important attribution. >> i want to follow up on a question, because the air

force is so close to this, do you think the north korean threat is getting the attention it deserves within the us national security community? they've obviously made strides in their program and in recent years but often we are focused on isis, on russia, not the same way we are in north korea. >> i can tell you we are focused on north korea and there are things that we talk about and there are things we don't talk about but we are very focused on north korea. >> ... tony capacity with bloomberg news. among the comments lately were some insinuations that the revolving door in washington has led to some of the quote, out-of-control costs of the f-35, his words. do you have a point in terms of the revolving door, are postemployment regulations enough from where you sit and he did say last

week in his speech he wanted to impose a lifetime ban on those who issue major contracts and even the smaller contracts. what is your view on that? >> my view is the totality of the restrictions that are placed on people coming into government in terms of these high-levelpositions are pretty strong .i've lived it. i had to, when i came into government out of industry i had to divest stock, i had to make all sorts of decorations and you make your whole life public. i think it's not an overstatement to say that people who are coming in to these senior cabinet level or even some cabinet level jobs have much much stronger legal requirements upon them as then the president has on him, if you see what i mean. so i think they are pretty strong. i haven't seen his proposal exactly. there already are lifetime bands on people who have had

particular matters worked on particular matters so what i understand of it is quite strong but obviously he will have the opportunity to do that. >> postemployment, you are talking about coming into the government, postemployment also. >> right, so the postemployment, there already is a lifetime ban. there are certain individuals who have worked the definition into the law called a particular matter so that's already a lifetime ban. for me, i will have a two-year ban on being able to represent back a fourth company to the government, a two-year ban on that. i'm not a procurement official. obviously there are people who are procurement officials and others who are policy overseers and whatnot so the rules are different for different types of people but what i'm saying is the totality of all this is really quite strong and the proof is, if you look at the number of positions that

people from industry actually occupy, it's not a tie as perhaps you would like because they are that stringent to come in and know when you come in what restrictions can be made on the way out. >> the woman in the blue in the back? >> courtney with inside the air force, i wanted to go back real quick to the comments about some recent i guess successes on f 35 over the past several years. for the l rep nine contract there was a unilateral contract action that was provided for that and i wondered are we going to see more of that as a way to reduce costs and if so, what concerns you have about what that faces for the industry? >> i think the unilateral action came as the result of what had become a very, very prolonged period of negotiation and it was a feeling where there just wasn't not going to be any more progress to be made and

so the unilateral action was proposed. back to this question of, are we being sufficiently good to the taxpayer money, there's where the apo had a choice to make or the contacting officer who was in charge of making this decision, the choice was to continue to negotiate, be given perhaps what would have been a higher cost to the taxpayer in order to improve negotiations but at the end of the day this contract official decided to impose a unilateral solution so that's a fairly unusual thing, it's not done all that much so i would say that it might be more or less in the future, i think it depends and it was a unique set of circumstances in this particular case and the length of the negotiation and the belief that there wasn't going to beany more progress made . >> for going to go to the third row here.

>> thank you, sean carberry, federal computer geek. you mentioned in your remarks cyber being one of the domains for the air force at this point, obviously part of the whole partnership concern area can you talk about where things stand with the air force cyber campaign plan which is to be dealing with everything from workforce to hardening systems to interoperability, things like that and it is this plan something that is established enough that it's going to likely survive transition and so what would be the concerns you would highlight going forward for immediate priorities? >> i think we have made very good progress in terms of the common security environments, for networks and the protection of networks for the air force and really across the military, there's justbeen a lot of traps there

. we've now as you point out are shifting the other part of the equation which is those cyber protection of many of our weapons systems. since nowadays, even legacy systems that were built years and years ago before software was a key component, those have all been upgraded so even the old depend heavily on spyware and certainly the new systems have a dependence on software so that is where we have tomake the case there . we have laid in additional monies for rent teams and ways of testing and making sure that there are no vulnerabilities, that the addresses are right off the bat so this is going to however be an ongoing situation since cyber is continuously changing and adversaries and people are attempting to break in our very clever and they can

change their tactics, techniques as tools become available so this is something we will have to remain vigilant on for probably decades now. >> maybe that gentleman with the glasses? >> thank you. >> secretary, i'm retired army. you mentioned very briefly the fighter pilot sorties and i'd like you to elaborate on that a little bit, what the cause is, what you are doing to increase improvement of fighter pilots and what the lines look like. >> we have first of all we are monitoring all of our pilots and we are monitoring with return, we have current shortages in the most important ones or the ones that is most important is the fighter pilots but we are watching the other pilots categorically get involved so what's going on here? there's a number of factors at play. number one, the airlines are

retiring so airline hiring is quite cyclical. you are up against it again where there's an upward trend in hiring and of course what better pilots than the trained pilots of the us military, the air force but not the air force that's supposed to take place so that's one factor. another factor is of course when you go to theairline , you actually take a pay cut as i understand it for a year or two but after about two years , you make it up and you begin to make more than what we currently can make but then of course it's stayed on your schedule, it's more family time but perhaps less interesting work so there comes the trade-off for our pilots. so the airline hiring is one thing, another thing driving our pilots is the base of operations and family separations and family concerns and stresses that come with that so the old saying you recruit individuals and you retain a

family is really true here and after 25 years of constant combat operations, this is taking its toll on some of our families that's another thing. the third thing is we haven't ramped up the production of pilots so we have retention issues but then we also need to ramp up production of pilots more and you take steps to do that, if you have more pilots, that will help the shortage situation and finally there's from surveys we know that pilots and others in that matter are, they get encouraged by additional duties but pilots love to fly and maintainers love to maintain but they don't like to do lots of extra paperwork and additional duties that are not inspiring to them, let's say so anyway, what are we doing about it? can we help stem the tide going to airlines when it's easier to pay and we did make

some progress with congress, not as much as we would have liked that we are getting increase wellness of the party. we have attached the additional duties and some of these additional trainings that are, more to follow on that but we've taken a good first whack at it. that's a technical term by the way, and more to follow on that but the third thing is we are going to be setting up some new training units so that we produce more pilots from the get-go so it's going to announce over the next few months a couple locations where we will have more training of more pilots. that's another element. so there's a variety of factors at play and one last thing, very important. when the pilots in the unit come home, we need to manage their time at home that are so what has happened is sometimes pilots and units can come home from deployment overseas, home for two days and we will send them for

three weeks to do something. that's not so good. you have to manage the time so that people have time at home. how to manage that differently and not immediately send them one atd wife to some other location. that goes to the quality of the family experience. >> we have time for one more question at the very back row there and maybe we should take a couple, we can take like three more questions and you can answer them altogether. the gentleman right there and then right there second to the left. >>

you have changed the number of personnel, things that you mentioned just briefly about cutting additional training time and that's an order to hire and recruit better people. do you see that same urgency to get those people coming into the next administration and continuing that kind of work? >> the gentleman in the uniform, right there. >> thank you very much. madam secretary you elaborated on transferring the air war to come.

you spent with the nations an awful lot of work in fourth and fifth generation integration life in virtual integration and mike question, how can we make sure that nations that do not procure the f-35 but have the capabilities in the first maybe then the third generation are still part of the air war to come so how can we handle this integration also? >> we have three questions in three minutes. okay, all right. the chinese drone i think it was unprecedented. i don't know of another situation quite like this. does it comport with the way i understand the chinese government operates? what i understand about the chinese is they act upon orders. they do not make stuff up at the lowest level on there on so that

sounds like maybe it was a coordinated action from the top but of course i don't know. i'm speculating but they saw my understanding of the way the chinese personnel are trained in their armed forces and was said it in response to something that mr. trump said, i'd literally have no idea. it might have just been an opportunity to send a signal of some sort. i will say this drone was operated by the military command so it's not exactly a front end fighting war. it's about 6 feet long so it's pretty small and it travels just under the water so you can see it when you're above the water and it was doing scientific type collections like the degree of salt in water and things of this nature so it was not a surveillance drone. my understanding of it and i further understand that we are hopeful it will be returned

within the next couple of days. i believe the second question, at least i wrote down the landing teams that are in the pentagon, are they as focused as we have been focused on some of the people issues and positional duties and growing the force and the act -- the answer is i believe so. certainly we have hit strongly with them particularly the growing of the force and we could set up an ongoing body that is going to be continually reviewing matters like the additional duties and that is a body that will be chaired by military service people who will remain so it's certainly my hope that focus will continue because it's very important. as i said i know it from my travels and we know it from our exit interviews. lastly how to ensure that the non-f-35 nations are still very much part of any future air campaign.

i think it's crucial to keep training together and having these exchange programs that we have. the more that we work together that will facilitate any future operation. certainly it will facilitate any future combat operations and let's remember that it's going to be many many years before the u.s. has a fleet that no longer has fourth-generation aircraft in it so we ourselves have to make sure that we can interoperate and we certainly want to continue to make sure that we can be interoperable with countries around the world who have fourth-generation and other capabilities that are not quite the f-35. >> i want to thank secretary james for being here for a very informative session. >> thank you very much. [applause]

[inaudible conversations] [inaudible conversations]

♪ the presidential and a duration of donald trump is friday, january 20. c-span will have live coverage of all the days events and ceremonies. watch live on c-span and c-span.org and listen live on the three c-span radio apps. ♪ earlier this month the u.s. supreme court heard a case about racial gerrymandering and drawing legislative maps.

black voter sued virginia alleging that the state legislature packed minorities and a few legislative districts alluding the power of african-american voters that the high court is considering whether that violates the 14th amendment's equal protection clause. the case is bethune-hill versus virginia state board of elections. >> your argument versus morning case 15680 bethune-hill versus the virginia state lord of elections. mr. elias. >> mr. chief justice and may it please the court to the district court created a poll cloth in a legal standard that permitted virginia to apply a one-size-fits-all 55% of racial floor to all 12 of its predominantly black -- virginia plate is 55% rule to new voters in and move voters out of districts on the basis of race regardless of the differences in

voting patterns geography demographics are the actual interests of black voters in each of those districts. this actual conflict passed which the defeat -- sorry which the district court intended for predominance has no basis in this court's jurisprudence. instead it confirms the sword of judicial immunity to visually appealing districts that nevertheless were drawn with a predominant purpose of placing voters within and without based solely on the color of their skin. >> i'm not quite sure i understand how you assess predominance which i think is the challenge here and to take a hypothetical let's say you are trying to select people for a particular court or something and you say they have to come from the city with more than 500,000 people, absolutely and then you say and they have to

come from such a city in california. he can't be anywhere else. now which is the predominant factor, the 500,000 or california? >> well if this is under jurisprudence. >> i'm not talking about this case. >> i think that you can set aside the population center and you would look at the state of california as the predominant factor because the criteria for which all others must meet. >> how do you know back? this seems a 500,000 is the criteria. >> in that hypothetical each of them might be an unmoving criteria. in case -- in this case there's only one. >> i know that's what i'm looking at why this is a hypothetical because it's not about a particular case but obviously what i'm trying to highlight is predominance one

that dominates over the others and it's easy to imagine situations where you can't say one dominates over all the others so what do you do a situation like this? >> i think i now understand your question. in that case neither criteria would predominate. neither one controls the other and in that case we would not have predominance and as a result we wouldn't get to the strict scrutiny. where you have one thing you can fairly say there was predominance. >> you're trying to figure out which predominates and i think this is where the inquiry are the test if you challenge comes from. one way to tell which is the predominate is to see if they conflict and if they conflict then you have the result and whatever trumps the other bats the predominate court. >> your honor that is one way that evidence is deduced to determine predominance but it's not the only way. if in fact you use your

hypothetical the legislature of california lets assume they are the ones setting the criteria, says a predominant factor, the dominant and controlling factor is that it has to come from the state of california, the fact that it may also come from the members may also come from a city with more than 500,000 members doesn't mean the first criteria didn't predominate. we know it because the legislature told us, this is the dominant criteria. and that's what happened here. >> what if the legislature says look we want to follow all the transitional districting, fly over traditional districting factors however one thing that we absolutely do not want is to be held to a violated section to the voting rights act so we have 12 majority african-american districts and we don't want to do anything to them that result

in liability of the voting rights act. is that predominance? >> it is predominance if their rate was the controlling factor. it may very well be that there would be a strong basis in evidence that drawing the districts that we applied with a good-faith understanding of the voting rights act and then that's in this case with the state did as it started. >> i didn't really understand the answer to the question. if the states, the one thing we absolutely do not want to violate the voting rights act. that is not necessarily predominance in your view? >> that is not necessarily predominance. their any number of ways to comply with the voting rights act. it does not require race to be the predominant and controlling factor.

for example you have any number of -- i would hazard to guess the majority of the districts in this country and of majority minority where they start with traditional criteria and the district is over 50% or whatever the applicable threshold is then they'd never mean to trump the traditional with race. in this instance they trumps and i use that word. >> what is your evidence of back? look at which i'm sure you have read in the alabama legislative black caucus which i had hoped would end these cases in this court which is certainly doesn't seem to have done but if you make the comparison it isn't enough i don't think for you to say that they just saw some traditional factors and they didn't take into account other evidence that they were using race predominately. if you look at the other evidence on page 1271, it was

pretty strong evidence. they added 15,785 new voters and of those precisely 12 were quite. and when you looked at the factors, the traditional factors they were. irrelevant. the point of that in the opinion and that's meant to guide the district judge, and so what is the equivalent here? assuming you didn't say exactly the right words and no one can it say exactly the right words, what did it say -- what is the mistake? >> the mistake was setting an arbitrary threshold of 55%. >> what is the evidence that you say would show in fact they did use race? what's your strong one or two pieces of evidence? you saw this 15,785 and that's pretty strong.

>> i think if you look at district 71 what you find is this is an inner-city court, this is an inner-city district at the core and this is a district that had a 46.3% bvap and because of 55% rule set out in there's really no dispute the district ordered that was a rule that guided the districts, all the districts. as a result of that rule what you see is racial gerrymandering. you see that district and from 46.3255.3 by essentially rating every other district around especially the suburbs rating those districts in bringing black voters and notwithstanding the fact that it was a classic crossover district. he was a district in which essentially white liberals in the city were voting in harmony.

>> what was the number roughly of the new people in the districts, how many are black and how many are why? of the people who are moved out of the district how many were black and how many were white approximately? >> i don't have the precise number that were moving out that there were significant number, and the many thousands of voters to move down and many thousands who removed out. >> the number of matters because after all that was the key factor so how do i find that? >> i think it's in the joint appendix on 669. as i stand here i don't know them but it is a significant number. it's not two or 10 or even 100, it's several thousand in a district. >> i found what i wanted to know. i just want to know where it is.

>> mr. elias just to understand your view the policy says 55% and across-the-board in each of these 12 districts and it says effectively this is the most important criteria in the sense that people trump other things, all right? but if i understand your argument you are not resting your case on that fact alone, is that correct? >> that is correct. >> and why is that? will win with a policy not have the requisite impact on the voting district? >> justice kagan i think it's justice breyer's exact point. you had a district where you have no impact and it actually didn't cause voters to be moved in significant numbers then we agree with the solicitor general's office and this court in alabama that is a significant number of voters are not moved as a result of that racial

threshold bend it is not triggered. >> so we really are looking toward what justice breyer suggested which is we are looking at the movement of a vote -- the voters in another project where district. >> yes and i don't think that's disputable issue here for my colleague prayed i don't think that's the dispute. the issue here is a legal error that was committed by the district court in saying that if we find a district that looks like it's abided by traditional district criteria that is equal. >> even if we can see there were essentially all the african-americans were moved in and all the whites were moved out. >> even if it were done for racial reason under the trial court's past, the legislature of virginia could say we want to corral all of the african-americans we can because

we think they all -- and we don't want them infecting the neighboring district so we want to get 70% of them into a district and if lo and behold they draw a circle under judge payne's opinion we don't ask a question about race. >> so you are saying you do not need traditional criteria and race but do you agree with the solicitor general who says nonetheless courting on page eight of their brief in the vast majority of cases the conflict may be necessary evidence to establish racial predominance? >> i think that overstates it slightly. i'm not sure i would say the vast majority of cases. in many cases you are going to have a correlation. >> even if you are saying not in the vast majority but the majority, why is that? why is it that you are almost

always are vast majority is something less than that? >> the reason in the real world the way in which population distributes you are going to need to create bizarre districts in many parts of the country. you are going to need to have visually unappealing districts in order to conduct what is essentially a schott violation. the reason i point to richman is richman is a place where it's not going to be necessary because you have a crossover district did you have a district where you have white college students and white young professionals moving into an urban center voting in harmony with the african-american population in that area so it won't necessarily be visually bizarre but nevertheless the destruction of that crossover district to create a 55% for the sake of 55% is not good even

going to be. >> we haven't said that for a reason. just the use of race is wrong. he said it has to predominate as you know and my problem with your argument here if you want to go with what the district court said there, which you may be right but it's such a complicated area. the easiest thing in the world to go through the lengthy opinion and find a sentence that is not exactly right. that's why seems to me if we are going to have to surfing done back in the legislature rather than in the courts you have got to prove your case that not only what he said was wrong but it mattered with. strong evidence. >> i agree justice breyer but i made two points in response. number one this was not a factor. in every one of those 100 plus

cases over and over again you look at page 111 to 115 and which is a discussion of the same richman district and read that analysis and he says well it's visually appealing but we don't need to address it and by the way district courts shouldn't be in the business of assessing credibility between witnesses. we shouldn't be in the business of discussing credibility between legislatures. this was rife through the opinion not an isolated statement. it was his holding that where traditional redistricting principles can explain, can explain then we look at other evidence of what the real motive was and that's not something that comes up over and over again. that is a unique error in this space. >> are you proposing that we remand and tell the district court define their own standard and the right standard is to

dominate even if there is no distortion of the shape of the district? >> i think that is an appropriate relief justice ginsburg. with some of these districts with respect to the richmond district analysis is the facts are not generally in dispute as to what was going on in that district that can be reversed. >> it's kind of hard to do it with just the one is in it lacks you can pull these orders and so you have to push them back analogous of the other district has them. >> mr. chief justice that is a fair point. i think if you look at the maps what you will see as we are actually talking about for geographic pockets. there is a richly popular district. there is a southside virginia which is up against the border of north carolina, to districts and then there is a lower hampton road and an upper hampton roads in each of those pockets really don't impact the

other so yes i agree with you in general as far as redistricting around the richmond area but if you recall in the hubble case which this court heard last term , we dealt with a similar district bobby scott congressional district which had been racially gerrymandered by the same legislature and when they did they redistricting they only dealt with the two neighboring district, that district and the district next to a binder standard point and it's a fair one and that since remand would not be an unreasonable step to apply. >> just so i can understand your sense of the relative sense of your argument if we did remand say this is the wrong standard vilify the right standard and that was done fairly where you think you would have to change this feel? ready think there would be a

question and where do you think the same result would probably remain? >> there would be new results everywhere but to answer your question fairly as i try to always do in the richmond area there is no question that a fair application of the standard would lead to a districting, i'm sorry in the richmond area which are district 71, 69, 70 and 74, i think there is no question it would lead to a different map, a different result. i think in the southside of virginia which is to districts, 75 and 63, this was a curious one because they actually found

race at predominate in 75 in the border county of north carolina. but yet did not find a predominated with respect to 63. it's difficult to understand how race would have predominated in one side of the line but not predominate in the voters. >> the 75 that you say strict scrutiny was not met because legitimate and conventional factors were considered and present. 75 is the strongest case of the district? >> i think 75 is the strongest case in the sense that the application of the legal task that we met our burden of predominance, i think it is a week finding on the part of the district court in this regard your honor. if you look at what the actual evidence was you need the strong

basis of evidence. once predominance was found in strict scrutiny applied now the burden has shifted to the government to explain why there's a strong evidence for doing what they did. their strong base of evidence was the following. number one the elected officials felt like she needed more african-americans in her district. with all due respect most incumbents feel like there are more voters in the district who are going to support them and that can't be a strong basis. the second is they alluded to the fact that there were prisons in the district and this is interesting because your honor this is exactly the racial stereotyping that is intended. there's nothing of the record is to the racial demographics of those persons. there is nothing to believe that those places included or excluded raise or lower the overall lack voting population

in the district. they assumed if a person had a thousand people it had eight thousand black people and that's exactly the kind of racial stereotyping that cannot form the basis. >> wasn't there primary in 2005 where representative tyler won over a white candidate by less than 300 votes? >> yes your honor. that is the most important one. let us take a step back because it's interesting she won by only 300 votes. the districts were drawn in, following 2000. in 2001 there was an incumbent who had been there for 30 some odd years who was it candidate that one. that candidate won again in a landslide in 2003. that candidate was for tyler and

it was than an open primary and in that open primary tyler won by five percentage points. what's interesting is that 300 votes is five percentage points. this was a 6000 vote primary so to say she won by 300 votes and that proves predominance, she won in a landslide i-5 percentage points as a nonincumbent in name multiple primary field. >> i thought she won by only 1.5 percentage points. >> in the general so what happened next is the incumbent whose son had run against her in the primary who she had beaten, he then endorses the republican opponents say you have this longtime incumbent who endorses the republican opponent and she wins by 1.3% of the vote. >> if these districts are going to last for a decade there's no aaron t. the same candidates are going to be running throughout that decade so you think they

have to take into account and it's very complicated the person is an incumbent and therefore it has an incumbent advantage. >> your honor i'm saying in 2001, 2003, 2007, 2009 this was a close election. in 2005 was a five-point election so that was just one election it was the 2005 general where she won by 1.5% of the vote. >> which you are saying is idiosyncratic. >> it's idiosyncratic but it never said it was a guarantee. there was a statement that it is not a guarantee. >> that gets to an interesting point. to what degree of confidence is a majority minority district necessary? >> i don't want to take up your

time. >> if there are no other questions i will. >> thank you counsel. mr. gornstein. >> mr. chief justice and may it please the court the district court was right to hold that the use of a racial target is not sufficient to trigger scrutiny but it was wrong to hold that a conflict with traditional redistricting principles was an essential element of racial gerrymandering finding. use of the racial target courts cases have drawn a distinction between the use of race as a fact or in the predominate use of race in drawing district lines and the use of a racial target shows that race was used but as the court explained in alabama, the critical question is whether it was predominantly

used and asked to that evidence that a racial target is used as evidence but not conclusive proof. to take one example that i think you asked for, if they district starts out 75% black voting age population it's worth redistricting and that is based on general demographic patterns and then the target is set at don't drop below 50%. that was just not the case that district lines that are then drawn to bring the district into compliance with one person, one vote unnecessarily going to be based predominantly on race rather than traditional districting principles. if a racial target was alone sufficient to trigger strict scrutiny would deprive the states of the flexibility that they need to comply with the voting rights act. >> you were saying if that 175

it heads down to 50 that doesn't necessarily mean. >> no, i did not necessarily say that. the target should not go below 50 not the target was that i had to get to 50. >> at 75 they say it's not yet below 150 so it could end up anywhere between 70 and 50 so they could end up right at 70, or at 65 or at 60 or wherever so it's not necessarily the case that the use of the target had little or nothing to do with the target that is so low at 50%. when you started to appear at 75 the lines that you are drawing are probably likely to be drawn based predominantly on traditional districting factors. it's not necessarily the case that you have to predominantly use race because no matter what you did -- you end up above 50%. >> are those democratic districts where you would say a

target would not have an impact on district lines? in other words where the district has a population that is so far above the target nothing they are doing on the margin is affected by the target? are those the only kind? >> i would not say that. i would say districts for example like in this case where you start at 60 there is no reason necessarily to think that race is going to predominate in order to bring districting into compliance with the voting rights act. they started out at 60 and let's assume based on traditional redistricting factors and not on race there is no reason that it could end up at 60 for the same reasons. >> let me started at 53. again i am with you there. doesn't necessarily -- you would need more evidence than that. the one that raises the biggest question --. >> the most important evidence justice alito would be the

conflict with traditional redistricting principles and if you could establish that and that it went up to that degree and affected a substantial number of voters then i think you could make it. >> what they said well we are at 53 and u.s. 55% floor we want to bring it up to 55 and we can do that by drawing a district of these even more compact than the district we have so ordinarily speaking it would be difficult to show that raise predominate without showing the conflict with traditional redistricting principles but there's no hard and fast rule that says it prevents the plaintiff. >> when can you? what would be a case in which that might be possible exits theoretical -- theoretically possible but you can imagine happening. >> we are two examples in her breathe most of the cases are variations of those so the first relies on direct evidence from the map maker himself in the second is where the state

nonracial explanation credited by the evidence to be more concrete. if you have tens of thousands of predominantly white voters who moved out and tens of thousands of predominately minority voters who have moved in and the mapmaker says i do that to hit the target then defining racial predominance could be made even if justice alito said the district was reasonably compact in the second example i would bring is the state says politics is what explains that and they use racial data rather than political data then applying racial predominance could be made even if politics is also playing a role and there's conflict with politics in the drawing of the lines. >> this is all as you lay it out, very very complicated and the state legislature has to redistrict a large number of districts in a short amount of time using a very multifactor

vague predominant standard and if it turns out there is predominance wednesday when they will be deemed to have had a strong basis of evidence that there would be a voting rights act that is also quite unclear. there is just no way around it. it's just an invitation for litigation so we are sympathetic to the interest of the state being able to comply with the voting rights act while simultaneously pursuing this traditional resister singh policies and in fact we proposed the conflict case test to the court but we read miller and shaw to have rejected this conflict requirement and instead to replace it what you said is a complicated test about whether raise predominate in the drawing of district compliance even if traditional factors also played a role.

>> is a still be position that it would be preferable to have a test adopted by the district court here requiring the conflict before you find that raise predominate at? >> putting aside the case where they would overrule the court decision lets except that we want that to bleed over into racial votes. >> your objection of the court below is that it requires a conflict. >> correct. >> in your brief you say the vast majority of your words of cases will need to show a conflict and you think showing the conflict should he be in the decision? >> that is the position we advocated in our version of it in miller. >> in the alabama case certainly what i tried to do changing my

position previously in order to get a court that would have a clear set of standards on page 1271 there are two character apps that address the issue you are talking about and basically say what you say and then at the end to deal with the problem you are raising we say it has to be a strong basis of evidence because you don't want to put the district court in a position in the legislature to do the impossible. so it tries to do that. that is the decision of the court so having done that there would be lots of lower courts to rely on that decision. it's a good inl suddenly to change and go a different test? >> i'm not saying we should go to a different test. i think starry decisive considerations are what they are. the alabama -- the alabama approach is the right approach and the alabama approach justice breyer is not essential to show a conflict. >> , could and the two that i

talked about illustrate what that predominance means and they are pretty much i think pretty much what you said. >> we would agree with that. >> what is it that you said? >> i think what we said -- [laughter] what we said are two things. one that simply because you use a racial target you are not in strict scrutiny and that's from alabama and two a conflict is not essential to prove a claim but three there has to be some pretty strong evidence besides the use of the racial target to put you in strict scrutiny and so. >> may ask mr. gornstein the same question that i asked mr. elias? if we did vacate this on the grounds that is the correct standard what you just said and that's not the standard to district court used, what do you think would happen if the standard that you just stated

was fairly applied would anything change? >> we have only done close analysis of three districts as you can see from our brief and in two of those three districts we thought there was a pretty strong case but not one where we could say we definitely would come out one way or the other. >> a strong case that would change and those districts are? >> those are 71 in 95. >> thank you, counsel. mr. clement. >> mr. chief justice and may it please the court. they redistricting of the house of delegates was a bipartisan success story. there was wide agreement that the 12 majority minority districts that existed in the benchmark plan should be preserved and there was consensus on the bipartisan privileges and elections committee that a 55% bvap level was the appropriate level to

ensure that african-american candidates in those 12 districts had an opportunity to elect the candidates of their choice. >> how is 55% arrived at? >> 55% that testimony in the record justice ginsburg shows that was arrived at by the members of the bipartisan selection committee principally done by the principle architect of the plan by talking to members of the public and members of particularly the african-american caucus and they told delegate jones and they reinforce this on the floor and the four debates in the house of delegates are something that is on the cd and the joint appendix volume one of the joint appendix and it's worth a look to get the african-american members of the house of delegates testified that based on their knowledge of their districts that african-american voters cannot vote in the same numbers as white voters therefore to simply have 50%.

>> my question mr. clement the 55% was based on a single district, 75 and they said okay we looked at 75. you need 55% there and then it was applied across-the-board in every other majority minority districts without any granular analysis. >> i don't think the record would support that characterization of the evidence justice kagan. i think it would be based predominantly on the hc 75 but it was also based on the testimony of delegates fans from district 63. she testified as well that it had to be north of 50%. it's also been -- done in consultation with delegates parul parul from district 77 and it was based on not just the demographics in the hc 75 but that was essentially the starting point but also based on the characterizations of the

districts and the voting. >> isn't there something a bit strange about this kind of rule and is not to say that this kind of rule is the end-all and be-all. it might be the even have this rule and still be absolutely fine in the way that mr. mr. gornstein suggested that the idea that you would look at 12 districts and say that every single one of them has to meet the same bvap standard without looking at the characteristics of those districts, who is in them, how they vote, i mean it's sort of defies belief that you could pick a number and say that applies with respect to every majority minority district. >> justice kagan i think maybe if you are picking one number for every district in the state from big stone gap to arlington maybe that would be the case and if you are trying to apply one number to latino districts in one part of the state and african-american districts in another part of the state you might have a point but there are

12 districts and therefore subregions. these are all pretty much in the same part of the state. they all started on the benchmark map somewhere between 46 and about 52% for starting. not like the number comes out of thin air. with respect to nine of the 12 districts they are already north of 55% between 55 and 62. two of the other ones are very close, 54 and 53 and then one is a little bit lower at 46 which is district 46 which i hope we will get a chance to talk about because they're strong evidence that the redrawing was not done. >> let's talk about 71. remember what i was trying to say. the court's cases that moment pre-alabama were problems so i'm trying to reflect miller for better or for worse and to make it clear.

the column i have referred to talks really about evidence showing predominance, does it or doesn't it? there are two things that are crucial in those two paragraphs. one, there was direct evidence that they moved 15,000 people and they were all black, okay? two when you look at the pre-districting traditional require -- requirement they are pretty weak as applicable to that case to what they are talking about. now let's look at 71, the same kind of thing they are arguing, the same kind of thing. they moved, you have it in the fc brief too they moved 11,293 people out and 17,000 in. let's look at those people. the ones that moved out were three-quarters or something white and the ones they moved denver three-quarters or something black. that's pretty similar. seems to me they paid a lot of

attention to race and then they say let's look at the traditional criteria. when they mentioned, they said they did it to preserve richmond by the party changed its and their changes have nothing to do with it so what they are saying in that case, look at that specificity and you will see that the mistake of the judge in listing the criteria you know the statement overly broad or whatever made a difference, send it back and get them to do it right. now that's a long question. >> i'm glad to be focused on district 71 because with the district court did is not apply any sort of cartoonish analysis. you look at the district that is drawn and the first thing you notice it preserves 70% of the core of the district which is higher than statewide average of 70%. so you have the core of the district being preserved which is a traditional districting

principle. he then looks at those and he doesn't just look at them and say they look a little funny. he has direct testimony from delegate jones who drew the district and he realizes the horns were drawn in order to preserve unencumbered and the neighboring districts of that income but can stay in her district. he then looks at precinct 207 where he said he doesn't want to get into conflicting testimony between two delegates in what he says i think absolutely directly is this is a contiguous precinct. 207, is right on the border so whether it's in our out. >> so you have to possible districts. each of them look conventional and each of them are conventional in the same sense that you have been describing but the stated reason, the stipulated reason for choosing district a over district b is because it has more voters of a

certain race, black, latino, white whatever. is that a predominant vote based on race? >> i would say the right answer to that in a predominant in the court's cases is no. >> that's what the district court said another problem with that because predominance is designed to measure intent. when there are multiple causes and my hypothetical, my hypothetical is the tipping point, the principle motive was to race. you say in the district court i think said because the districts are conventional strict scrutiny does apply. i have a problem with that. >> justice kennedy i thought you might but i would like to say three things to try to convince you in defense of district courts. first of all when this court says predominant place in the meantime, the dover something else and i think the something

else is traditional districting principle so when race predominates over those principles those principles or sacrifice. they are subordinated. i think that's a way to make sense of this court's case. second of all i think if you apply the test that we what you are doing is you are mapping on the test to a theory of a shaw claim. you may disagree with me on this but i think what makes a shaw claim a shaw claim is not that somebody is kept in a perfectly formed district in a community of interest based on race. it's a particular shaw claim. people from different parts of the state who had shared nothing in common except the color of their skin are put together in the same district. that's what is different from other kinds of claims that i completely agree with the solicitor general's office that in thinking about this question we should be thinking about shaw claim to again about them

separately from vote claims. i think there's a row problem in this area of the law. what's happening is that shaw which started as a doctrine for outlying districts in outlying plains has become the weapon of choice in redistricting litigation and people see shaw violations everywhere. that's not the way the shaw was originally constructed. it ignores there is a separate vote dilution claim that can be fraught that has a much higher standard of proof. people are trying to evade that. >> please. >> people are bringing junior varsity dilution claims calling them a shaw claims. the third to put on the table is at some point then you have to ask the question if you disagree with me on the first to point and you think we have a different conception of what a shaw claim that there has to be a question of is the camera to candle given the state

legislatures. 80 members of the house of delegates voted in favor of this plan because they comported with traditional districts and principles and everybody wanted to preserve majority minority districts. >> going back to justice kennedy's question is seems to be clear to me in the case after shaw because you could have looked at it and it's all about the way the district looks and after shaw the court makes very clear that it's not all about the way the district looks. >> can i stop you there though? miller this court's argument was the bizarreness of the element of the claim. i think come nobody thinks that is the right answer. >> if you look at shaw and shaw, to in a day look at miller and you think about the hypothetical that justice kennedy gave you which is essentially maybe i'll change it a little bit essentially a mapmaker that says look we really want to do race

based to districting here. we can manage to do this in a way where the maps look kind of contiguous and kind of regularly shaped by what we are doing is race-based decision-making. seems. clear to me that if you look at shop, to when you look at miller that's for ben and that's exactly the opposite of what the district court said here. >> i don't think that you have to read those decisions and not we. i think if you are going to read those decisions and not we it's appropriate to pause and reflect and i think everyone of those decisions starts out by saying this is a very difficult task for state legislators and it's hard enough to draw districts without the voting rights act but to draw them in compliance with the voting rights act is exclusively difficult and we want to have deference to state legislatures. >> justice breyer suggested a

few years ago we took those concerns into account that we tried to figure out a test which was responsive to those concerns and that is not the test the district court used here. >> i beg to differ. you have to as justice breyer was discussing get the court to more credit than that. his record of alabama in front of him and he also had the argument of the parties. if you go back and look with all due respect to my friends on the other side they did not argue this in terms of let's look at all the people moving in and out. that was not the thrust of their case. they really argued that this was a direct evidence case based on the fact. >> that's the argument. you gave me exactly what i needed. he gave me the things on the other side and they didn't use exactly the right test but does it matter and i think the reason i approach it that way is

because, for the reasons you said, you have to give leeway here. the government makes a pretty good point here that it was important evidence he didn't look at and that's my job, isn't it to redo things and figure out how they look. >> absolutely but i think you should look at the evidence in this case then you should look at the evidence that could have been mounted. you should have looked at the evidence -- though we came and and if you look at the closing arguments in this case you will see the other side did not say this is a case about moving to many people and not the particulars district. this is a direct evidence case. they told you what the problem was. they told you they were going to apply a 55% bvap so they try to get not just some from the fact that there was a bvap court they try to make express the case on

that proposition as a result of that left them with the backing of the evidence because of we had extraordinarily good evidence on our side of the case because the principal jar delegate jones testified for hours and hours about what particular lines were drawn and in every case he provided explanations to why they purported with traditional passable but not just that he told the why the lines were there. the lines were there because we had a 55% even if target. he said well you know down here in south hampton roads we have three incumbents that are all close together because this part is they lost a lot of population so i did sig's insights to keep the three incumbents separate which is a perfectly nonracial explanation for it. district 77 it looks a little funny but i got it gather with delicate sprool and he said he went to reignite the only city. we did that and that required us to move district surrounded there it is.

there is really a vacuum of evidence on the other side of this. i do want to look into the reason is so problematic to think that just because they apply a bvap 34 so the way to applying strict scrutiny is whether it's -- what else is a state legislature supposed to be a quick something in this context the bvap for is inherently sinister. and the only way of thinking about this the voting rights in fact is a bvap court. the situation requires a majority minority district that's at least a 50-point 01% but everywhere it's a qualitative floor that you have to preserve the ability to elect and so there's nothing in this context and that's exactly why this court has gotten where it's

gotten and i'm not so sure you couldn't further refine what you said in alabama to make it a little bit closer to where i think -- but here's the point the reason this area uniquely the court allows race to be considered is in part because the voting rights act makes the consideration of race absolutely necessary and you don't want to send a signal unless you want to take the first steps towards declaring the voting rights act unconstitutional, he don't want to send the signal that when legislatures approach this in a way that i think is perfectly appropriate to what's going on in virginia has 12. >> mr. clement is one thing for a legislature to say we view it as the core priorities up there with one person one vote to comply with the voting rights act. it's another thing for the legislature to do what it did for example in the alabama case which is to just say something about there can't be any

retrogression from order for the goose notwithstanding its not the section 5 on similarly it's another thing for the legislature to just pick a number out of one district, apply it to all 12 districts and say that that's compliant with the voting rights act. i agree with you and mr. elias and mr. gornstein. that does not get you up away there but there's something about alabama suggested this was evidence. when the state says across-the-board we are going to do something is not required by the voting rights act, that's a problem. >> i am with a lot of what you had to say just as kagan. i think where i'm not with you is there is something particularly problematic about getting a 55% number and applying it in richmond in the south in the hampton roads area and i would say two things about that.

in the universe of possible numbers 55% is about the best number you could come up with because my friends on the other side agreed these all need to be majority minority districts so that the whole debate is it's got to be somewhere north of 50% , 55% which gives you a little bit of margin with the fact that there may be differential's in turnout and where the rubber is going to meet the road remember the incumbents are always going to win and most of these districts are minority majority so where the rubber is going to meet the road about opportunity to elect is going to be in the open primary. that's when you're going to tell whether the african-american has the opportunity to elect the candidate of their choice. that's relatively rare so the idea that somehow it's presumptively unconstitutional for the state to look at one of the most recent open primaries in hd 75 and say you have five

percentage points in a badly splinter primary come it's only three and a vote and delegate tyler herself is saying you know these need to be north of 50%. i don't think it's fair to put this and this is where i really take issue, i think it's a mistake to put this in the same basket as alabama. the idea that you can't go from 80 to 70% is a cartoonish version of the voting rights act to say in an area where nine of the 12 districts are already north of 55%, to say that 55% is a pretty darned good threshold for compliance with the voting rights act just isn't in the same category at all and i know they try to get a lot of mileage out of the idea that his one-size-fits-all but the two things i would say about that and what i have already said we are talking about the same part of the state and there's no reason to think there's a different dynamic in this.

all of these districts a majority minority districts african-american districts is not there like they are playing one role in trying to say that it's fixed for the complicated districts in northern virginia with multiracial groups and districts in the south. the sub -- the second thing you send keep in mind whatever role you adopt is not for relatively sophisticated state legislatures. it will apply to all sorts of school boards and sewer districts. ..

>> what they want is more use of race and more minute detail when you go district by district and say if it 75 is going to be 55, that is a 63 is going to be 74. 77 to be 74. seventy-seven is going to be 56, i don't think that gets us further along the lines of compliance with equal protection clause. i don't think it's practically possible. >> i think the real difference between your standard and the other standard is in your standard the shape of a district functions as a threshold inquiry. such that if this shape is okay we don't look at anything else, particularly particularly we don't look, even if the districting was completely race-based emotive. that is just what the three-part test us. it sets up a threshold inquiry

about how the district is shaped in a way that some people thought shaw was when it was first announced and that this court in one, two, three subsequent cases make clear it wasn't. >> justice kagan, think through difference between our position in the other position is the difference in the real world. which is, they, they admit it will not make a difference in 99% of the cases. a lot of these cases it will not make a difference. but given given the stakes is going to mean that lots more states legislators get sued over districts that don't even look particularly suspicious. this case is the perfect example. these districts existed for four years and two election cycles before anybody proceeded there was a racial gerrymander working here. what changed in 2014 was the resident of the governor's mansion in richmond. what happened as these guys realized if we can get these districts thrown out, and they

have to redraw the district will not have veto power that we didn't have before. that explains why lines that work perfectly square, relatively and were approved 80 - 9 with a majority of democrats supporting them, all but two members of the african-american supporting them with one of the two members opposing them because the numbers were not high enough. that is the dynamic that was 2011. you go from a bipartisan success story where everybody points to the house and say these guys did a right, the senate, not so much. the house did it exactly right. the house did it exactly right. they did everything they were supposed to do. four years later they can still draw a racial gerrymandering charge and have to litigate for years based on that the theoretical possibility that maybe, just maybe in join the square line. >> it's more than a theoretical possibility.

he says given states latitude but he looks at this and says this standard actually did make a difference on the ground, that there were districts that were kicked out and said this is it race-based because it looks good even though it was race-based. >> well i would put representing the state legislature of virginia, looking out for the states even ahead of mr. gordon steens and it's easy and the general's office to stent just throw out a standard that's theoretical clear. these districts weren't good enough everybody for four years. they're good enough for to be preclear for the justice department. having this detailed inquiry out there doesn't seem right. >> you have two minutes left. >> i want to call out a few

factual points and answer any questions. the first, the timing of this case followed the page decision. it decision. it was the page three court that ruled on the congressional map that then it had nothing to do with republican and the governor's mansion it had nothing to do with who's in the governor's mansion. we completely agree with the analysis that there needs to be and show voters moved in and out in account of this rule. if you look at ja 672 you will see there is a 50.8% differential between the white voters moved out and the black voters moved in. as you point out, three quarters of the voters moved in were black.

>> you you make a point to that. >> i mean i think i heard while this is all been brought up after the cases over. >> your honor, it is in our experts report from trial. it's just not true. you can find it in the ja. >> you call the to the attention. >> it was in our experts report at trial. number two, this court in shaw versus hunt specifically dealt with that justice dissent saying there should be an actual conflict test and what this court said is in his dissent justin stevens argued that strict -- does not comply with traditional district and principled. that however is not the standard announced and applied in miller. shaw to resolved for this three-judge court well before alabama that an actual conflict

was not the law. the district court here simply ignored it. >> thank you council. the case is submitted. >> coming up tonight on c-span2 it is book tv in prime time. as we talk to politicians about books that they have written. starting at 8:00 p.m. eastern senate majority leader mitch mcconnell in his memoir. then outgoing california senator barbara boxer, her book "the art of tough". then. then jc watts, author of ""dig deep" and we close with virginia congressman dave brad who two years ago one a primary against eric cantor. the second ranking republican in congress. mr. brett's book is american underdog, proof that principles matter. but to be in prime time starts at 8:00 p.m. eastern. >> military forces one of the things that the american public

very often gets impatient about. they believe they have this trump card, this this great military that can defeat anyone. that's not true. it's extraordinary military a very powerful powerful but it can only when in certain situations. it could only really destroy things, can't build a new order in its place. >> sunday night on q&a, journalist and professor mark danner talks about his career and the challenges facing the u.s. war on terrorism in his latest book "spiral ". >> what we don't want to do is respond in a way that will produce more militant organizations. they want us to overreact. they want us to occupy muslim countries so they can build their recruitment. they want us to torture people. they want us to do things that will allow them to make their case against us. >> sunday night.

>> sunday night at eight eastern on c-span's q&a. >> follow the transitional government on c-span. as president-elect donald trump selects his cabinet and the republicans and democrats paper for the next congress. we'll take you to key events as they happen without interruption. watch live on c-span. watch on demand on c-span.org, or listen on a free c-span radio at. >> the federal abuse court richmond virginia recently heard a case challenging the national security agency searches of americans internet communications with people overseas. the american civil liberties union brought the case on behalf of the wikimedia foundation, the nation magazine and amnesty international. >> good morning your honor, the plaintiffs in this case are challenging what is known as upstream surveillance of the government searching of their

communication. it is unprecedented ground, one that involves systematically searching the full contents of messages in real-time. plaintiffs have challenges on statutory and constitutional ground. the only question before the court today is whether the plaintiff plausibly stands. the government asked the court not to credit the plaintiff's extensive allegation and their many complaints. there's no question that applying the same rules that apply to any other case the plaintiffs has plausibly alleged standing. the precise of election of the third circuit permitted a similar challenge to session 702 surveillance two surveillance to go forward. we have alleged the government is searching plaintiff international communication as they travel over the internet backbone. we've we've expanded in detail how that is taking place.