but we all felt strongly that we would give our lives for him. in terms of the taliban, five of their top leaders, five of the ones called a strategy, five of the ones that are involved in terrorism are released. >> i'd feel pretty good about getting my top level guys back, personally. >> i understand that. but i understand that from the standpoint of the taliban, that

the impact, hey, they're back there calling the shots. would that have a demoralizing impact on the unit? if you were still with that unit? >> oh, no. american forces are going to do whatever they can every single day to do what they're supposed to do. i don't think they're really worried about anybody else. >> okay. mr. walsh, in terms of permanent impact on policy, have we set a precedence by doing this in regards to all the other terrorists groups 1234. >> i believe we have, congressman. i believe we've set a dangerous precedent and i'd encourage this body to look at future efforts towards release and calls to close guantanamo. we had these gentleman detained. men and women gave their lives to detain them. and now, unfortunately, i believe, men and women will give their lives to capture or kill them once again. >> thank you. and i want to thank the panel. i yield back.

>> the chair recognizes the gentleman from california, mr. vargas, for five minutes. >> mr. chairman, thank you, again. thank you for holding this hearing. i want to give my condolences to the andrews family, sir, to yourself and to your wife and i hope that the chemotherapy we heard about just a little while ago is successful, sir. your son, obviously, clearly, was a hero and thank god for him. and specialist full, too, i want to thank you for your service to our nation. mr. watso, you, also, for the service you've done. everyone was thanked for their service except for you. do you remember that? you were kind of cut off? you weren't thanked for your service? >> what was your service? at one point, everyone was thanked except for you. i thought you were in uniform for a while, too. >> i did. i served enlisted in the united states army reserve from 1993 through 2001 with service in bosnia.

i then took a u.s. navy commission as an intelligence officer. >> thank you. i thought so. i wasn't sure. i just wanted to make sure. i want to thank you, also, for your service. thank you. you're welcome, congressman. obviously, the issue here is the principle. do we exchange? do we negotiate? do we leave people behind. i want to know what the military thinks about that, mr. waths. what do they say about this deal? are they criticizing it? are they in favor of it? are they critical of it? what do they believe?

>> congressman, obviously, we have civilian side of the military and our most senior leaders are part of this policy. i can tell you from the file anecdotely, they're just as furious and resentful as we were at the time. i think things have been handled a little bit differently. there had been a quiet reunion with the family and sergeant berghdahl, there had been a rush to call him a hero, you would have seen a much more muted reaction. >> so it's not necessarily the principle of getting him back. i was very curious when i listened to you and you said -- i believe -- i don't want to put words in your mouth, but i believe you said we were out there looking for him and -- you sounded like you were doing what you thought we should have done. >> that's rigt. right. i don't know if many folks that debate the principle that we should get every american back. i think what's debated and

what's controversial is his treatment, and, two, the price we paid. i personally believe the price was too high. some people draw the line at sheik muhammad. i draw the line at members that were asked to come back. >> i have eemg going to ask you the same question again -- thank you, sir, for your testimony. what about that notion? do you know about the joint chiefs of staff? are they against it? >> i can only refer to terms of others. but two of my personal appearance who have retired from the military have been une kwif

cab. there are a lot of missions in the military that soldiers, sailors, airmen, marines are very happy to do. that's why they're professionals. and they don't like it. at the same time, i've spoken to many individuals who are very content with this and didn't have a problem doing it. but i would find it strange if there was any less disagreement over the -- how much one enjoyed having to do this or whether or not we should have done it. i'd be very surprised if there wasn't that disagreement in the military. >> you know, i have to say, one of the things that i find odd right here, is it seems like no one's disagreeing with the principle. it's just how it was handled. you know, saying that he was a hero, you know, giving the rose garden deal and all of that. but it doesn't seem like the principle is one that mr. walsh -- correct me if i'm wrong. it sounds reich the prinlike th

the one that you agree with. >> i would argue that we'll have to pay again to deal with these gentlemen there the future. >> and congressman, i think that it was a good price. and i think this was worth the risk to get the sergeant back home. >> thank you, mr. chairman. >> the gentleman yields back. the chair recognizes the gentleman from florida. >> thank you, mr. chairman. dr. jacobson, you had taken issue with mr. waltz when they thought this was a great thing for the taliban. well, maybe they thought beheading him would have been better. do you honestly think that if they thought beheading him would have helped them that they would not have done it in a second? they did this, they want those guys back in command. of course it was better for them. so i thought for that comment, i thought just struck me as totally off base. let me ask you this, do we have troops in afghanistan right now?

>> yes, congress man. >> so you have referenced troop who is have been left behind. we can argue whether he left his unit behind, and i think he did that. but if we still have troops there, who have we left behind? we're still fighting the conflict. it's not over yet. and so the notion that somehow had wed not done this trade that means we, quote, left him behind, is utter nonsense. to so what we've done is we've replenished the enemy in wartime when we still have fighters in there and those individuals will be back on the battlefield, even if you believe this guitar year, they're going to be back while we're still, under the president's timetable, still have troops there. so we have not left anybody behind. i think mr. waltz hits the nail right on the head. does this help or harm the interests of the united states. i would refer to people like my colleague sam johnson who was a medal of honor winner, one of

the most respected men in this body. prisoner of war. he said absolutely not this should not have been done. when he was a prison nerd of war, he would not have wanted to go back if it meant harming the security interest of his country. when i talk to veterans in my district, they say the same thing. yeah, of course we want to get everyone behind. we don't harm the country and put everyone else at risk to do that. mr. andrews. did your son darren get honored at the white house for his service? >> i'm not sure. >> and you were never invited to any type of rose garden ceremony. >> no, sir. >> and i think a lot of parents had a visceral reaction when they saw parents -- it was done to try to say we've got a hero back, susan rice, honor and distinction in order to divert the public's attention from the price that we paid. they didn't want the public focusing on the taliban five. they wanted 2 public focusing only we brought a soldier home.

so they had to inflate his service in order to try to do that. so it was an asempted deception. >> let me ask you this, the army lied to you about how your son died. >> they at least, at the very best, didn't tell the whole story. >> so knowing that do you have conferments that nay're going to do an investigation that's impartial and adequate? >> my personal feeling is if they will let the military do it and leave the politics out of it, i think they will do it.

specialist full, do you think that he deserves an honorable discharge from the army? >> no, i do not. it's a slap in the face for all of those who did serve. >> and if he goes -- and if this case gets day verted in any way, and if he's not actually found guilty and given a punitive discharge, is it your understanding that he would be entitled to back pay for all the years that he was gone. >> yeah, he would be entitled back pay which is around $300,000. college benefits, v.a. health care benefits, everything a veteran gets with honorable discharge.

>> there is an inherent amount of politics involved. i think it's important that this is trarnsz parent. and i think congress needs to can you recollect the oversight. >> again, my heartbreaks for you. i'm so sorry. i'm so sorry that you have to be here. i want to try not to politicize this really for your benefit. to the other gentle men, really, thank you, again, for your service.

i cannot tell you how much as a mother -- i don't want to keep hoisting my son up, but i understand your bravery, your sellessness. just thank you, thank you, thank you. >> what can we learn from his capture? >> as i know the representative knows from his time, a lot of what we understand about captivity, a lot of what we can do to help inoculate against those stresses comes from, unfortunately, the experience of

individuals who are held captive, not just during our wars, but during peacetime detention. one can hope that there's information to make it less problematic for future u.s. personnel who are held in captivity in the inevitable conflict ins the future. >> i believe without debating the merits of how long we stayed in afghanistan, i do believe that we were there. because our own freedoms were jeopardized by al-qaida and they were being preblgotected by the taliban. i want to talk about those freedoms. and what sets us apart from the taliban. specifically, i know you would all agree, go to fight for freedom, freedom of speech,

freedom of religion. and there's something else i would respectfully like to suggest which is our due process of law that we have in this country. and what a high standard it is. and so my question to all of you is should soldiers who misbehave be subject to due process of law. >> well, he's a member of armed forces. he's not subject to federal court. he's subject to ucmj action. >> should he have a due process, even though it's a military court? >> yes. and that's the whole point i'm coming forward and telling my side of the story. he deserlted. he's back. great. he's back. but he needs to face and be held accountable for his actions. >> congresswoman, there was a real fear, me included, in those first 24 hours that there would be ticker tape parades and rose

garden ceremonies and that this whole effort would get politicized and the truth would be buried. >> so i think we agree, due process of law, that he's sbiet md to that. >> absolutely. and lastly, anyone who wants to answer this question, and this i'm coming at as a mother, all right. which is do you believe all of our soldiers, all of these men and women who go into battle, go into war are perfect? do we bring in perfect people? >> i hope my friend mike will agree, when you've been in charge of junior troops, hardly a day probably goes by. it's almost like being a parent. you know, for a parent, your kids are perfect.

that's why it's so bornt to have well-trained ncos. and to ensure that they all get home alive. >> i do know this. i don't know very much about him or his family or what he was going through, where his mind was going through. i hope it will be determined, as you have cig jested. i think that's fair. but i do know this, that so many of our young men and women are coming home and are stressed out and are mentally unstable. i would not like to think that they would not be subject to due process if they committed a crime. so, with that, i want to thank you, thank you for all of your service. again, mr. and mrs. andrews, i'm so sorry for your loss. mr. chairman, i waive the rest of my time! just so the record is clear, mr. andrews served in the united states air force.

so all four of you all, thank you for your service. >> thank you for your service, sir. >> the chair recognizes the gentleman from florida for five minutes. >> thank you, mr. chairman. mr. and mrs. andrews, thank you for the sacrifice of what you went through. i, as a grateful citizen of this great nation and a member of congress, am appreciative every day of the liberties and freedom that is we get to experience because of the willingness of people to serve, commit and dedicate to this country. i thank you. i think we should keep the narrative on the policy. the description of whether or not he was a deserter or not, as you brought up, specialist full, that will come out and go through its due process. mr. waltz, you said in your bib,

you deal or provide strategic analysis and policy development for other countries was the transfer for one american soldier a wise decision in your opinion? >> congressman, you know, i think we should look at this policy as a whole and learn from it. right now, a jentle man who is the head of the taliban military community that we releeszed from guantanamo. and further, the head of isis that easter rising syria and iraq right now, was also detained. we need to learn lessons. >> dr. jacobson, you and mr. sherman were referring to democracy: and i know i don't

need to remind you, but this is not israel. we're not israel. we don't do that as a policy. a true democracy is majority rule. i had to remind people. we're a constitutional republic. where the minority is protected by rule of law. as ben franklin always talked about, a democracy is a sheep and a fox deciding what to have for lunch. the sheep always loses. as far as mr. berhdal, he will come home. any time we get an american soldier back to our country, we all should celebrate. before we hang judgment on him, was he wrong or right, we need to look at and let the military go through what they're going to

go through to decide the fate of that young man. do we negotiate with terrorists or not. again, specialist full, you brought up terrorists. it's not even a nation, it's a terrorist group. again, this goes against our precedence. it goes against our historical policy. do you think that this is a wise thing that we do or imp left. >> congressman, i certainly think it's a wise thing that we retrieve ser jent bergdahl -- >> there's no doubt about that. >> i want to go through a few instances of terrorism. taking a look back at our own history, not just discussions with the north koreans -- >> north korea, that's a country.

>> i also look back, as i said, if you understand that there are differences between insurgents, between terrorism between state sponsors of terrorism. the concern that i have is this idea for ransom of a hostage. again, ronald reagan, in terms of what happened with the arms for hostages deal, margaret thatcher and her secret talks with the ira. sometimes you end up sitting across the table from those who have the blood of your friends on their hands to bring peace. if that is the case, then i fully support that. >> let me ask you both, did the congress, in your opinion, break the law? >> congressman that's my understanding of the law. i'm not a legal expert, but my

understanding of the law is that congress was to be consulted. >> i'm not a lawyer and you're all going to argue about that statute. but what the president did acting on short notice was absolutely the right thing to do. >> i yield back. >> the gentleman yields back his time. >> thank you, mr. chairman and to mr. and mrs. abdrews arn drews, my condolences and safe travels on your way back to texas. thank you for being here. and thank you to all of you jentle man for your service. i want to focus on the policy, the agreement thafgs made for sergeant in that transfer being made. i think the most constructive thing that we can get out of this hearing is what we do in the future. in that vein, there's two issues here.

first, if someone leaves their unit, should we retreat that person. and, second, what is the appropriate deal that we should make for a soldier. it sounds like at least the prevailing ideas that even if somebody deserts, we should still try to retrieve that person. does anyone on the panel agree or disagree with that principle? >> congressman, i think it comes down to a matter of intent. dr. jacob son raised the issue, the case of mr. jenkins, who deserted into north korea. to my knowledge, there's no atempbts to bring him home until he appeared four 40 years later there japan. >> and it has not been adjudicated as to whether or not he deserted. assuming for the sake of argument that he did, does that mean that we shouldn't go get him? >> well, i think the problem

that's been stated is they brought him home to a hero's welcome. and we're not the only people that knew that he walked off on his own accord. there was an investigation done. it's still open because they have to get his side of the story. but everyone knew that he walked off on his own. >> so assuming that he did desert and there's no argument, then you're saying still bring him home, just don't celebrate him. yeah, why would you call him a hero. >> okay. and then, to my second question, what is the appropriate deal that we should make to have a soldier returned, right? there is a big issue here over whether you negotiate with terrorists or only nation states. i think the difficulty that

we're running into here is that enemies of this common era are no longer nation states. they are groups that work in others. so, let me ask you, mr. waltz, you're both a soldier and a policy expert. what deal would you have made for sergeant berhdal. >> in this case, the enemy walked away happen i. and received exactly what they asked for. i don't think that was a good negotiation. >> if you were writing policy, what would you have exchanged? congressman, there's a number of lower-level detainees. a lot has been mentioned about training numbers. the issue for me here is the quality.

>> so you might have given a hundred people for one person if they were lower-level folks? >> i don't like it. i think that's a policy issue that had to be debated. but the decision that was made, theesz five, was a bad decision. >> did we get anything in exchange from the prisoners that were released from getmo by president bush? >> not that i'm aware of. i can remember from that time period, there was talk about political deals and that. but nothing like this situation. >> so that was just a straight release. >> yes. >> okay, chairman. i yield back my time. >> i thank the gentle man from texas. another gentleman from texas, mr. webber, five minutes. >> thank you. . specialist full, what would you say was the morale following

this exchange? >> i don't know, sir. >> would you hazard a guess? >> well, we were very upset, like i said, numerous times, with the hero's welcome. >> okay. if in your opinion, would this have set up this agreement between enlisted officers and those ranked in file? or was this pretty much in agreement that this was a bad deal? >> a bad deal all the way around. >> in you could say anything, what would you say? >> i'm not going to answer that. >> fair enough. mr. walz, you're forewarned, same questions. >> what would you say to the president? >> fairly low. and in terms of your second question, i would point the president to the heroes at the end of this table. they deserve the same level of treatment. >> would you advise him to make the same trade twice?

>> no, congressman, i wouldn't. just to follow up, i think there were a lot of other policy options open that weren't fully explored. more pressure on pakistan, for one. there were a number of other options on the table besides a trade. >> dr. jacob son, what would you say to the president? >> congressman, i would say good job. absolutely go do this again. bring our soldier home. >> mr. andrews, after having sat here and thank you very much, and you, mrs. andrews, for being here. after sitting through this hearing, what, now, would you say to this committee? >> for one, it's not as lochk as it used to be. but what i would say to the committee is my son was a soldier's soldier.

it didn't matter what the assignment was, he was going to do it. and i don't believe that you have to be a perfect person to follow the military code of justice. you have a book right there. read the book and do what its says. it's not that complicated. but do not let my son -- to me, this situation with us not being told the whole truth and then trading a private for five high-ranking taliban, exactly why did my son die? tell me one more time. because i don't know what we've accomplished. >> if you could say that to the president, is that what you would say to him? >> yes. >> and now the hard questions. forgive me. if you could get your son back by trading five more of those senior taliban? >> if my son had been a deserter

then, no, absolutely not. but my son was a man of honor. and i would do almost anything. >> thank you, folks. mr. chairman, i yield back. >> the gentleman yields back his time. the chair recognizes the gentleman from pennsylvania. mr. perry? for five minutes. >> thank you, mr. chairman. and i want to thank each of you gentle man for your service. certainly, mr. andrews, i want to let you know as someone who's wearing a uniform, that many americans feel like the actions by the administration and the president have diminished your son's service and i'll let you know that i'm in that opinion. but i also want to let you know that he has done a great thing for the men that he served with and the ones that are particularly alive because of his actions and a very grateful nation.

so i want to thank you for your sacrifice, as well. turn to questions to start with mr. jacobson. you keep saying or i heard you say a couple times the end of the war or reference to prisoner swaps. i'm just wondering, has the taliban, as far as you know, stated that they consider the war to be coming to a close? >> congressman, i was referring to the end of conflict in the second world war in korea specifically. >> so the paradigm is not the same, is my point. we might be drawing down, but the taliban, are they going to continue to fight? >> well, the taliban has been in talks -- >> as far as you know, do we have any reason to believe right now that they're not going to continue to fight when we stop? >> i don't believe we're stopping the fight. >> we're just disengaging. so the war is going to continue, as far as you know. >> we're still working with the afghans. >> all right, i got it. i got it. so when you say these folks that we released have been so long gone that they can't be

relevant, are you aware that mr. baghdaddy, who's currently running isis was released in 220025. it is 2014. is hi still relevant? >> i can't comment. >> i can comment. he's damn relevant, sir. let me move on. mr. full, there was an investigation regarding mr. berghdal's absence at some point? >> yes, 156. >> do you think that the army is aware of the circumstances, his circumstances of departure? yes. >> you do. and i do, as well. i would like to turn to mr. waltz at this point. understanding your circumstances, if captured, what was your understanding if you were can captured of what we would do and what you would do.

>> we deploy the high likelihood of being captured. it comes with that understanding that ransoms will not be paid. the united states will do everything it can to get us back. but there's limits to what the country is going to do. and i, personally, would not want anything done that's going to harm our on going national security or endanger my physical low soldiers. >> were you ever given the impression when you took the oath or any time after that that the united states was jeopardize our national security on your behalf. >> on june 30th, the ap reported that the united states government knew his whereabouts from three sources. you're a special operator. you got out in 2009, right? it's now 2014.

things have changed a little bit, but i know you stay involved. my point is the options. do you have any lack of comforts in your ability of your unit of the the united states army with the capableties we have if we knew where he was, your ability to go and retrieve that soldier. >> i don't know the details. >> i know you don't. but if we knew where he was and we were confident and the risks were evaluated, absolutely. we have the ability to go get him! so you already sboek about the different options and you think this is the best one? >> if you knew where he was, can you come up with some scenario

when we have people on the ground who do what you did for a living that we wouldmented exercise that option? >> the only scenario that comes to mind is that this was part of a broader policy initiative to open up talks with the talib aurks n. that this is a confident-building measure. that po tin shlly, this trade would be a comforts-building measure as a first step towards future talks. that's the only plausible scenario i can come up with. >> the chair recognizes the gentleman from wisconsin, mr. duff fill, for five minutes. >> thank you, mr. chairman. >> first of all, to respond to my colleagues across the aisle about due process, all of us agree on due process. the conversation today is about the decision the administration made for the five taliban

members. we all believe in due process. mr. waltz, i do blooech it was you who had a conversation about your country will never leave you behind. was that your comment? >> yes, it was. was the sergeant left behind? >> no. he walked off on his own. >> he left, right? >> yeah. he left us behind. dr. jacob son, you indicated that the fight is not over, right? we're going to continue this fight. it's not over. peace has not guilty been declared. >> that's correct, congressman. >> so with the war or the fight that's going to continue, it seems to me the argument that we're all putting arms down. the conflict is going to end.

this exchange makes sense. that's what we do. but that's not this case, right? in this case, you've said the fight will continue. and with the fight still going on, we took someone who allegedly walked away from his post in exchange for five higher level taliban members. and the fight continues. am i wrong on this? >> the fight continued in korea after the prisoner exchanges. the fight continued in world war ii in '44. the fight will continue after afghanistan. my argument is the risk of putting these five individuals on the battlefield is mit gaited to a number of factors, to include all the accomplish. s that we've seen over the past several years. >> i'll get to the risk in a second. but in regard to the prior swaps that have been made, those swaps have been made with nation states, correct? do you have an skparm where

we've had swaps with a nonnation state before this one? >> the examples i have, and you turn this swap, the examples i have -- no, no, no. when you exchange prisoners with a nonnation state. or u better yet, for a deserter. if that's what the military finds him to be. >> the closest thing i can think of is after the battle of mogadishu. >> that was with muhammad and not a nation state. >> in regard to the threat that this now poses, i listened to mr. andrews talk about his son and how he may hope that he would be able to make that exchange to bring his own son back. i think everybody'shearted breaks in here thinking about what his family has gone through in the sacrifice that his son made for his country. do you feel pretty comfortable

with these five taliban members released, that we won't have another hearing like this of another american family who lost a son or a daughter because of these five that are released? or do you feel that america is a safer place around that men and women are safer. >> our men and women are always at risk. regardless of what happened or will happen. mr. walls, i think you said the taliban got their top five draft picks in exchange for

sergeant berghdal. >> yes, sir. >> good trade? >> absolutely not. >> the gentleman from california is reck nieded for five minutes. >> i'm sorry if i cover any territory that's already been covered here. let me just note that i disagree with the statement that our policy has been that to do everything we can to get back a prisoner, that is not the case, that is not policy for our government. everything we can? no. etch the people who are in the field totally understand that we're not going to do thing that is will further put other americans at severe risk in order to get them back. they understand that. and that's part of why they're heroes. that's part of the reason why mr. andrews son was a hero.

he knew he was taking a chancement and even 23 he was captured, that we would not be doing thing that is would put the american people at risk to get him back home. so i want to make sure that that is a very significant point for people to understand in the discussion of this: second of all, there are other alternatives to try to get these guys back -- or man back. than just giving out these five leaders of the taliban. have you seen the evidence that there was pressure on pakistan in oorder to get the taliban to return this prisoner?

there is no indication that they could do what they could do to get back this prisoner. instead, day gave up five murderous leaders. we know that one of them was engaged in the status of 9/11. he's being let go. i know about this man. i knew about him a long time ago. he was, in fact, captured. this is -- you might say, a second time he was released, you might say. he was captured early on in 2001 after 9/11. and there is a tradition in

afghanistan rngs it's almost the law that people live by. that is once you were captured, you do not try to overpower the person who has camtured you. and the reason they have that as part of their law is because over the centuries, they would have had to kill all of their prisoners 23 they didn't uphold that. so it's part of their on nor as a person -- once you're captured, you do not try to overcome your captor. what happened in this case? i'm sure he's not pitting our people at risk. but at that time, he led an uprising against his captors. they murdered about 50 dostoms before. and they murder in the third degreered the guys who were holding him captive. but they also murdered a cia officer named mike span.

i visited that spot. do you think that's going to indicate that we're strong? that they're going to have to deal with the united states of america? no, they're going to have to deal with people they think are weak or cowards and they'll be willing to kill more americans and to capture more americans in order to cut more deals. this is a travesty. the president of the yiet has gotten himself into a position

where, i don't know, he thinks he's a peacemaker. mr. chairman, i've got six seconds and i would actually like to give our witness a chance to retort to that. >> quickly. >> respectfully, i disagree, congressman. fieb. >>. >> the chair recognizes the gentleman from goo eorgia, mr. collins for five minutes.

>> i understand this all too well. mr. drakes, i have a question. you keep bringing up the fact that they're not going back to the same afghanistan. what intelligence -- what information would as a rule you believe that they couldn't get spun up in a country that's not changed a whole lot in four, five, six, seven years. what would cause you to believe that? congressman, as a civilian advisor, i do believe that there have been a great number of changes, if just in the last decade alone. i believe that most of the network that is these individuals had when they were a force fighting against the northern alliance no longer skpis.

and i also believe that the afghan people have changed. you've seen in the recent elections, this open defiance to kill people. 40 37b9 of the voters were women. >> pointing to an election is a great thing. but also pointing it to a change of hearts, minds and attitudes, you're not getting it there. i believe they may not walk back into the same structure they had before. there's a reason they wanted them. there's a reason they wanted these five. and i think there's a reason for that. the other situation that i would like maybe some general discussion about is something

that keeps coming up here. we're drawing down our action. we're drawing down this war. they basically talked about the fact that we're dealing with the taliban. we're dealing with this global war on terrorism. and grant it, when we ended world war two, there was country state versus country state. we're not in that situation anymore. >> and i don't believe they've changed their opinion of the west. do you believe or do they still have the desire to wreak havoc on the west? >> i don't think there's a single, unified view anymore. >> interesting. but i think among the largest terrorist network as a whole and i think we can go look at that.

there's still a vast determination area as we go forward. i'm not sure when we'd draw the line now with dealing with, negotiating with, however we want to do this. >> it just -- specialists, talk about this for a second. about this for a second. given the fact that we traded -- and there's some who will give an argument that this was the end of -- we had to do it, a political outcome at some point. but is this a price that you would have envisioned paying if -- for someone who walked off or didn't walk off? is this what we are sort of looking at? not that we give up, but the price that we give up? >> we're still at war with the taliban, whether people want to admit it or not. and just because if we stop fighting them doesn't mean they're going to stop wanting to kill us and fight us. when i signed an oath, it was an understanding, as mr. waltz has said, that i flew would be a certain price up to a point that the united states would pay to get me back and if that was me over there, no. you could have left me over

there. i would not want have you to traded five high-level taliban operatives for myself. >> well, the curious question for me at this point is if five was the price this time, what's the price next time? the president stepping down? cabinet member stepping down? congress giving them more money? what's the price? because we're not dealing with a nation state here. we're dealing with thugs. we're dealing with rogues. we're dealing with now the same ideological bent that is going through many of the middle eastern countries and iraq is simply a forerunner of what i'm fearful is going to afghanistan. i appreciate you being here. this is just a very much of a concern for many folks because they do not understand why this happened the way it did given the fact that most believe that this war is not over and that we will see these guys again one way or the other. mr. chairman i yield back. >> gentleman yields back. the chair will recognize the ranking member for one additional question then it will recognize itself for additional

questions. >> thank you. i'll note that in 1944 when we did a prisoner exchange it was with the nazis and, of course, that war continued for another year. >> would the gentleman yield? >> yeah, i'll yield. >> would the gentlemen also recognize that the nazi government at that time represented germany as a nation state? >> yeah, but you think that -- >> but al qaeda never represented anyone as a nation state. >> al qaeda did control and govern with the acquiescence of the united states the vast majority of afghanistan until 9/11 but, more importantly, if you want to create groups that are an anathema to the united states i'd put the nazis right at the top. in any case, i have not yielded any further. dr. jacobson, only an investigation is going to disclose the real facts behind sergeant bergdahl's

disappearance and his capture, but we've heard substantial evidence that sergeant bergdahl acted in an inappropriate and an inexplicable manner. can you describe the kinds of stresses that somebody that sergeant bergdahl would have faced in afghanistan and whether that would cause someone -- not everyone, but some -- to act in an inexplicable manner? i realize that the vast majority of our soldiers, marines, etc., are subjected to those pressures and do not act inexplicably. >> can i have permission to speak? >> yes. >> well, you're asking dr. jacobson what situation bergdahl was in over there. i was withberg dl at the same location. i can give you a firsthand account of what exactly what

bergdahl was going through because i went through the exact same conditions. >> well, then i'll ask you to respond to the question first and then dr. jacobson to respond second. i was asking more in a general sphere as to what you face in afghanistan but obviously you know the specifics. >> we were at an observation post, it was very primitive, we had meals ready to eat which are heated up with water. it was very hot, very dirty. we went without showers for certain days. didn't get phone calls or any comforts of home but it didn't affect anybody else there. we all continued the mission and upheld our oath. everybody deals with mental issues in some form or another, f they deploy to afghanistan or iraq and everybody else still came back from that same platoon. nobody else deserted on their own. there's nothing in my opinion that was so bad that forced him to walk off on his own accord caused by anything going on over there. he walked off on his own accord. >> dr. jacobson, obviously vast

majority of those in his unit were not affected to the point where they engaged in inappropriate behavior, but -- and obviously anyone in afghanistan is subject to being shelled or subject to an ied at just about any time. can you describe the pressures that people are under and whether that could explain inexplicable? >> well, congressman, i won't make a claim to be able to explain the inexplicable but what i will say is that the stresses of combat are tremendous. from my own, peer experience, w was not nearly as far forward in deployment as either of my colleagues to the right you still have fear, fear of being kidnapped, fearing of being shot at, fear of being shelled, mortar, whatever you. there's tremendous sleep deprivation from being on long combat patrols or being woken in the night to enemy action.

i do agree that you've raised perhaps one of the most important points and this is just just because there is combat stress doesn't excuse actions such as walking away from one's post. but this is exactly why you have to have the full investigation, to determine what happened and why it happened in the hopes that we can prevent that from happening again and hold those individuals who need to be held accountable, accountable in the military justice system. >> thank you. and just to correct the record, i once said al qaeda when i meant to say the taliban. i yield back. >> chair has one additional question for all four of you. the way i understand the law is that before people are released from guantanamo bay, prisoners there, that the secretary of defense must explain why it is

in the national security interest of the united states to release that specific prisoner. assume that is the law. and from your point of view, what was the national security interest or do you believe there was a national security interest of the united states in releasing those five individuals? dr. jacobson? do you believe there was a national security interest of the united states? >> yes, i do, congressman. >> mr. waltz? >> congressman, i believe america is less safe and the world is more dangerous with the release of those individuals. >> sergeant full? >> i believe america is less safe and the world is also in more danger: >> and mr. andrews, i'll give you the last word. >> thank you. i believe america is less safe. i believe these five guys are going to come after us. i believe that it was a mistake to release them and that it did

not serve our national interest in any way. >> i want to thank all of y'all for being here. miss andrews, i want to thank you for being here as well. the kmid tee is acommittee is a. thank you.

>> coming up tonight on c-span 3, a committee hearing on open internet policy and antitrust laws. after that, the latest what's happening in iraq. and later, a senate appropriations subcommittee hearing on the department's 2015 budget with testimony from defense secretary chuck hagel and joint chiefs of staff chair general martin dempsey. former fcc commissioner robert mcdowell called the internet "the greatest deregulation story in history." today at a house judiciary subcommittee hearing on net neutrality, otherwise known as open internet policy.

the fcc recently moved forward with a proposed open internet rule that, if fully implemented, would allow for the creation of a teared internet with so-called fast lanes for content providers who are willing to pay more. that this hearing is an hour and forty minutes. >> the subcommittee on regulatory reform commercial antitrust law hearing will come to order. without objection, the chair is authorized to declare a recess at any time. at this time, we'll have our opening statements. would you like to go first? >> if you like, mr. chairman, i'd be happy to. mr. chairman, thank you for holding this hearing. regulation and antitrust law have long had an uneasy relationship. antitrust law serves to protect a competitive process by prosecuting anti-competitive conduct if and when it occurs. regulation typically dilutes or casts aside reliance on

antitrust enforcement and attempts to constrain or direct market forces by imposing new rules of conduct. these approaches generally are at odds with each other and a natural tension has arisen between the two. there are few more important issues that will impact the future of the internet than the question of whether to apply antitrust law or regulation to protect the internet from anti-competitive and discriminatory conduct. i want to thank you chairman baucus. proponents of proposing additional regulation on the internet marketplace argue that it is needed to encourage competition and promote innovation. i am deeply skeptical of these claims. in my experience, regulation generally stifles rather than facilitates competition and innovation. in fact, it is my belief that the internet has flourished precisely because it is a deregulated market. that is not to say that we should stand by and allow

companies to engage in discriminatory or anti-competitive activities. i believe that vigorous application of the antitrust laws can prevent dominant internet service providers from discriminating against competitors' content or engaging in anti-competitive pricing practices. further more, antitrust laws can be applied uniformly to all market participants, not just to internet service providers, to ensure that improper behavior is prevented and prosecuted. in 2007, the department of justice expressed its preference for antitrust enforcement over regulation when it warned that "the fcc should be highly skeptical of calls to substitute special economic regulation of the internet for free and open competition enforced by the antitrust laws." doj further stated that "regulation could, in fact, prevent rather than promote optimal investment and innovation in the internet with significant negative effects for the economy and consumers."

i understand that the nature of the internet and the speed at which the market evolves could prevent challenges to enforcing the existing antitrust laws in the internet context. we may need to consider amending the current antitrust laws to ensure that they can be applied promptly and effectively to protect the competitive nature of the internet marketplace. the judiciary committee has long played a role in ensuring that antitrust laws are properly equipped and can be applied effectively in the telecommunications industry. this committee will continue to play a key role advocating for strong antitrust enforcement and certainly will examine these issues closely to the extent telecommunication laws are rewritten over the coming years. i look forward to hearing from today's witnesses on this important debate and i yield back the balance of my time. >> i thank you the chairman of the full committee, mr. goodlatte. now i recognize the ranking member mr. hank johnson of georgia for his opening statement.

>> thank you ma, mr. chairman, modern internet is a powerful engine for social enrichment and i would argue for basic freedom in america. and perhaps in other locations throughout the world where the culture has attained this degree of intellect and innovation. whether it's educational opportunities like the academy channel on youtube, starbucks' recent announcement to offer its employees a free college education online through arizona state university, or online consumers benefitting from content services that educate, enrich, and connect us to together. it's no mystery why the united

nations lists internet penetration as a key metric in reducing poverty we all succeed when more members of society have access to such important tools online for productivity, education and, indeed, personal well-being. that's why today's hearing is such an important opportunity to discuss the best path forward to advance an open internet. i strongly and unequivocally believe in an open internet. openness goes beyond economic concerns like growth and competition. openness embraces our very core values as americans. equality of opportunity. if our ideas are good enough, they should have a chance. openness also separates us from closed autocratic societies that limit the educational and social

opportunities of their people. look no further than the great firewall of china which has established barriers to free expression, education, and cultural enrichment and stunted the opportunity and growth of china's people. undoubtedly, antitrust agencies have certain advantages like a prosecutorial mind-set and a removal from political influence that make them attractive as regulatory watchdogs. but as tim woo will testify later in today's hearing, the current framework for antitrust law is designed for every kind of business in the world but is a poor fit for non-economic values like openness, freedom of expression, and, indeed, equality. and freedom. it is also abundantly clear that the remarkable success stories

of the first large internet startups, google, amazon and yahoo! were not written in a regulatory vacuum. rather these companies benefited from a regulatory ecosystem that encouraged the widespread deployment and adoption of broad band internet. as an expert agency with 80 years expertise over telecommunication services and more recently information services like that internet, the federal communications commission has been at the forefront of crafting regulations that not only encourage gret and competition but also advance non-economic vams like equality of opportunity and fairness. indeed, as the d.c. circuit recognized earlier this year in verizon versus fcc, regulations that ensure internet openness have fostered a "virtuous circle

of both social and economic fruit." although the court ultimately vacate it had open internet order in verizon, the d.c. circuit strongly upheld the commission's basis for promulgating net neutrality rules under section 706 of the telecommunications act of 1996 precisely because congress mandated the commission to encourage broadband deployment to advance this virtuous cycle of social and economic growth. there is little doubt in my mind that the d.c. circuit's blueprint in "verizon" amply demonstrates the commission's authority to promulgate rules to protect the open internet through its section 706 mandate. but the commission shouldn't have to rely on this authority alone to uphold a common goal and countless americans -- excuse me.

but the commission shouldn't have to rely on this authority alone to uphold a common goal that countless americans share. there is wide bipartisan agreement that updating the telecommunications act of 1996 is long overdue. yes we all enjoy the thrill of logging on the aol, or we enjoyed the thrill of logging on to aol or other internet service providers over our dial-up modems in the 1990s, but the internet has changed since then. so should our laws. in closing, i thank the chair for holding today's hearing as the sole committee with jurisdiction over antitrust law, i look forward to working together with my republican colleagues to ensure that the next great communications act upholds the common principles of competition and opportunity and i quality of freedom.

these being things that we all share. i look forward to today's testimony and i yield back. >> i thank the gentleman from georgia. i want to welcome you tow the hearing today. the hearing today is entitled "net neutrality: is antitrust law more effective than regulation and protecting consumers and innovation"? so we're not dealing with the whole subject of net neutrality or some time may be more descriptive network neutrality. a lot of people don't know what the "net" is but i think it refers to the network. batch chief justice. >> our focus is not on any regulatory proposals although they will undoubtedly be referred to during the hearing. rather, the interest of if judiciary committee is whether

the application of antitrust laws would be more effective approach to protecting consumers and promoting innovation in this arena than the long frequently contentious and sometimes arbitrary federal regulatory process. the internet is a wonderful education tool. they've always had interest because of policies they raise. as a railroad attorney, i've studied the railroads and that was always a struggle between the history of the rails and regulation and many of you who

know that industry overregulation almost killed the industry before the steigers act and it revived itself only because of a scaling down of regulation but even today there are tremendous issues? that industry as well as this industry on public interest, public safety, et cetera. and these issues with the network to deal with issues including access, competitive balance and the tension between private interest, public interest, between regulation and innovation so it's always a balancing act. on may 15, the federal communications commission proposed a rule marking his third attempt to address the issue away from net neutrality. its two previous attempts were struck down by the courts. as regulatory proceedings continue to stretch on, a

question i have is whether there may be a more efficient and more effective way to safeguard against potential discriminatory behavior than federal rule making. that is where antitrust law comes in. antitrust law has a number of benefits to consider. antitrust law and the standards applied by the courts have developed, evolved and been refined over decades. this stands in contrast to newly proposed regulations that include untested definitions and approaches which would be interpreted and enforced by constantly rotating commissions and the courts monooccasions would be dealing with cases of first impression as opposed to establish case law. antitrust law uniformly applies to all participants in the internet marketplace. a recent fcc regulation, by comparison, would only apply to

a smaller group of internet service providers. antitrust law prosecutes conduct once it occurs and determines on a case by case basis whether a violation has occurred regulation is a one size fits all approach and imposes a burden on all regulated parties regardless of whether the parties actually engaged in that conduct. then you have the different approaches that different countries take although the internet is a worldwide system. antitrust law violations may be brought by both private actors and enforcement agencies equipped with lawyers, economists, technicians who have decades of experiencing releasing anti-competitive conduct. regulatory violations typically may be pursued only by select

group of defined part iies. notably the fcc only has one single administrative law judge. that's something that i was not aware of before this hearing. these are only some of the factors that should be considered when determining whether a antitrust or regulatory approach should be taken to protect internet users from anti-competitive conduct. today's witnesses are very distinguished and have perspectives from each of the relevant agencies, the fcc, the federal trade commission and the department of justice and i notice commissioner wright is here so we actually have one of our sitting commissioners, i'm glad you're joining us. i look forward to hearing their

opinions on how to use antitrust laws to protect consumers and innovation. that the time i'd like to recognize our panelists. at this time i'd recognize the gentleman from michigan, mr. conyers, the ranking member of the full committee, former chairman for his opening statements. >> thank you so much, chairman spencer bachus for holding what i consider an important hearing on net neutrality and the role of antitrust in ensuring a free and open internet. this should be a very interesting hearing to say the least. this committee has a central role in studying the issue of net neutrality and more generally competition on the internet and i appreciate the

chairman's decision to assert our jurisdiction. turning to the specific question of whether antitrust is more effective than regulation in addressing net neutrality, we should keep in mind that we need a regulatory solution to address potential threats to net neutrality and must allow the federal communications commission to do its job congress created the fcc to develop expertise so that it can properly regulate the complex telecommunications industry. any fcc rules to address net neutrality would have the benefit of addressing some potential threats to net neutrality before they fully materialized. and it could do so in a manner that would be more comprehensive than the piecemeal approach of

antitrust enforcement additionally, having a set of best practices enshrined in rules would provide certainty for the industry the fcc's efforts therefore must be given the opportunity to develop it and developing its rules to ensure a free and open internet the fcc should incorporate the following principles. broadband network providers should be prohibited from failing to provide access to its broadband network for any provider of content, applications, or services on reasonable and non-discriminatory terms. broadband network providers should be prohibited from blocking, impairing or

discriminating against or otherwise interfering with the ability of anyone to use a broadband service to use or access lawful content applications or services on the internet. and there should be strong transparency requirements regarding clear disclosure to users of information concerning any term, conditions or limitations on the broadband network service the fcc began its rule-making process only a month ago and so we must give time to allow this process to proceed. to the extent that we do look to antitrust law as a way of ensuring net neutrality enforcement of existing

antitrust law would be insufficient. under current antitrust law there is relatively little that antitrust enforcers can do outside the merger review context to address the conduct of a regulated industry like broadband internet service with respect to enforcing net neutrality principles. through a series of decisions the supreme court has limited the potential to successfully pursue claims under the sherman antitrust act arising in the net neutrality context. moreover, exclusive reliance on antitrust enforcement while having the benefit of a more nuanced and fact-specific approach to the problem would also be a cumbersome more

limited more resource intensive and after-the-fact way to develop a regulatory regime for net neutrality another potential approach would be for the federal trade commission to use its authority under section 5 of the federal trade commission act to stop unfair methods of competition. while i hold an expansive view of section 5, to the extent that this approach goes beyond the scope of the sherman act or other antitrust laws it would be very controversial as some of my friends on the other side of the aisle would be the first to note. moreover, antitrust law is not sufficiently broad in scope as it does not address the non-economic goals of net neutrality. including the protection of free

speech and political debate our former chairman of the judiciary, james sensenbrenner and sow lofgren and i introduced bipartisan legislation in 2006 to strengthen antitrust laws to address net neutrality in part because the fcc was doing too little at that time in my view and i certainly opened -- i'm certainly open to suggestions on how antitrust law can be better tailored to address net neutrality concerns. but if we go down that path current law must be modified to codify net neutrality principles. so whether one supports a more antitrust approach or a more regulatory approach, insaks by congress and regulators is not

an option as potential threats to net neutrality remain present. and in my opening statements in 2008 and 2011 on this very same issue i noted that many parts of our country -- in many parts of our country consumers have the choice of only one two broadband internet service providers that effectively function as monopolies or due woplies. i noted then that the market power that these broad providers enjoyed could lead to differential treatment of content carried by the provider depending on how much a customer pays or the financial incentives for discriminating for or against given content. the concerns i noted may have

only grown since then, particularly in light of increasing consolidation in the telecommunications industry that may result in even less choice, less innovation, higher costs and more power in the hands of the fewer broadband providers and having given you that impartial view of my position on this matter i yield back the balance of my time and thank the chairman of the subcommittee. >> thank you very much. and i've taken the chair for mr. bachus who was called away for votes in another committee that he serves on. without objection, other members opening statements will be made part of the record. we've really got a great panel today and i'd like to begin by introducing our witnesses. commissioner josh wright is a sitting commissioner at the federal trade commission. he was sworn in january 1, 2013, to a term that expires in september of 2019.

prior to joining the commission, commissioner wright was a professor at george mason university school of law and held a courtesy appointment in the department of economics. he is a leading scholar in antitrust law, economics and consumer protection and has published more than 60 articles in book chapters, co-authored a leading case book and edited several books and volumes focussing on these issues. commissioner wright also served as co-editor of the supreme court economic review and was a senior editor of the antitrust law journal. commissioner wright previously served the ftc in the bureau of competition and was inaugural scholar in residence from 2007 to 2008. he's focused on enforcement matters and policy. his return to the ftc marks his fourth stint at the agency after having served both in the bureau of economics and bureau competition from 1997 and 1998 representatively. prior to his tenure at george

mason commissioner wright clerked for justice james sell that of the u.s. district court for the central district of california. commissioner wright graduated with honors from the university of california, san diego, and received his j.d. and ph.d. from ucla. mr. robert mcdonald -- commissioner mcdonald is former commissioner of the federal communications commission. he was appointed by presidents george w. bush in 2006 and barack obama in 2009 and unanimously confirmed by the u.s. senate each time. his second nomination made him the first republican appointed by president obama to an independent agency. during his tenure at the fcc, commissioner mcdowell worked continuously to forge bipartisan consensus in adopting policies to promote economic expansion, investment, innovation, competition and consumer choice the "washington post" called him an independent force at the fcc.

while broadcasting and cable magazine described his tenure as "statesman like." commissioner mcdowel has been a member of the u.s. diplomatic negotiation working on treating international conferences covering global spectrum and telecom policies. prior to joining the fcc, commissioner mcdowell worked in a senior position in the telecommunications industry for 16 years. he graduated qume laud from duke university and received his law degree from the college of william & mary school of law. professor bruce owens 1 morris m. doyle centennial at sanford university and a seine juror fell flow the stanford institute for economic policy research. he directs the stamford public policy program which offers public policy degrees. professor owens was the chief economist in the office of telecommunications policy at the white house under president nixon as well as the chief economist in the antitrust

division of the department of justice under president carter. following his public post, he taught economics at both duke and stanford. professor owens as published numerous books and articles on mass media economics, telecommunications and regulatory policy among other topics. he earned his pitch a dee at stanford. welcome. professor tim wu is a professor of law at columbia law school in new york city he teaches communications law and intellectual property. professor wu has taught at the law schools of harvard, stanford, university of chicago and university of virginia. professor wu recently served as a senior advisor in the competition and consumer protection division at the federal trade commission. he's widely credited with coining the term "net neutrality" through the publication of his paper "network neutrality, broadband discrimination." professor wu clerked for judge

richard posner at the seventh court of appeal and supreme court justice stephen breyer. professor wu received a bachelor of science degree in bio chemistry from mcgill university and his law degree from harvard magna qukuqume law day. each statement will be entered into the record in its entirety and i ask each witness summarize your testimony in five minutes or less. you have some indicators in front of, you much like the traffic signal, green means go, yellow means hurry up and red means stop. we'll get going and start with commissioner wright. you're recognized for five minutes. >> chairman goodlatte, chairman bachus, ranking members conyers and johnson and members of the subcommittee, thank you for the funt to appear before you today. my name josh wright. i'm pleased to join you to discuss competition and regulation in the broadband seconder and more specifically the issues highlighted by the

ongoing debate surrounding net neutrality. i should make clear at the outset that the views i express today are any own and don't necessarily reflect the views of the federal trade commission or any other commissioner. today i'll focus my comments upon competition policy and regulation and broadband markets from a consumer welfare perspective. consumer well surface-to-air the load star and it guides decision making at the ftc. the consumer welfare approach harnesss the power of rigorous economic analyses to inform competition policy and antitrust. this emphasis on consumer welfare makes antitrust particularly well suited for tackling complex issues and questions relating to broadband competition and addressing the important issues raised in the net neutrality debate. more specifically. the rule of reason analytical framework that lies at the core of modern antitrust analysis can be deployed effectively to analyze business practices in the broadband seconder and to separate conduct that increases consumer welfare from those

business practices that make consumers worse off. the net neutrality debate concerns the competitive effects of what economies would describe as vertical contractual arrangements between broadband providers and content providers. put another way, it's about the fear broadband providers will enter into arrangements that disadvantage certain content providers, harm competition and thereby leave consumers and internet users worse off. for example, a broadband provider might enter into an exclusive contract with an online video site to foreclose a rival video site access to the subscriber. this type of concern is grounded in antitrust economics and in the raising rivals cost literature familiar to all students of antitrust. proponents of net neutrality traditionally have responded to these types of concerns by favoring a rigid categorical ban

or other significant restrictions upon providers ability to enter into vertical contractual relationships. fearing any network discrimination by broadband providers creates harm, they've argued for a one size fits all approach prohibiting such arrangements. this approach fails to recognize the fundamental economic point that most vertical contractual relationships benefit consumers. the economic literature is replete with examples and empirical evidence that vertical contracts create consumer benefits by reducing double marginalization, preventing free riding, facilitating new business models and entry and aligning manufacture and distributor incentives. consumers benefit from these because they're passed on to them in the form of lower prices, increased output, more content, higher quality and greater innovation. moreover, considerable empirical evidence further supports the view that vertical contracts ar

competitive. this cuts sharply against the idea that broadband providers necessarily will use such arrangements in a way that harms competition. the way the marketplace experience and learning also demonstrates that so-called non-neutral business models deployed by providers have proven highly beneficial to consumers. for instance, in 2002, a fledgling google was able to strategically achieve economies of scale by beating out its competition in a bid to become the default search engine on aol. then the country's leading internet service provider, by offering a substantial financial guarantee. to be clear, the economic literature and empirical evidence doesn't claim that vertical contracts never create competitive concerns the correct question is whether it can harm consumers but rather what regulatory structure and legal rules will promote consumer welfare in this context. any answer to that question must begin with the fundamental observation and market experience that the business practices at the heart of the net neutrality debate have been

pro-competitive. in light of the economic theory and evidence. antitrust offers a superior analytical framework to address competitive concerns in the broadband sector. antitrust jurisprudence has been evolved to highly sophisticated rule of reason for investigating whether vertical arrangements are anti-competitive in practice. the rule of reason framework is a flexible one that allows consumers to benefit from the vast number of vertical agreements that help consumers by creating a means grounded in sound economics and evidence for identifying those contracts that harm consumers. in closing, it's my belief that antitrust offers a superior approach to addressing anti-competitive concerns and broadband markets in a manner that achieves the best result for consumers. i'll be happy to answer any questions. thank you. >> thank you, we'll now go to commissioner mcdowell. can you turn your microphone on?

>> thank you, it's an honor to be back here. at the outset i should make clear that it's my hope that the internet remains open and freedom enhancing as it has been since it was privatized in the mid-1990s. as it migrated further away from government control it proliferated beautifully growing from just under 90,000 users in the late 1980s to approximately 3 billion users globally today. its success was the direct result of the clinton administration's bipartisan policy to keep the government's hands off of the internet sect or in short, the internet is the greatest deregulatory success story of all time, in my view. when it comes to the net neutrality debate it's important to remember that nothing is broken that needs fixing. the fcc is pursuing new rules

without the benefit of a comprehensive peer reviewed economic study, something i have called for time and again over many, many years. if there is systemic market failure, let's discover that through a data-driven process in 2007 the federal trade commission examined the market and in a unanimous and bipartisan fashion found that there was no market failure. while eloquently warping against new rules that may produce harmful up intended consequences. a report whose lead was another staffer. instead of making new and untest ed and collateral regulation of the entire internet seconder our public policy should rely on what has worked so well for every other aspect of the highly complex american economy those laws are effective, enjoy a

century of court-tested legal precedent and can be administered by the federal trade commission at the same speed or lack thereof as the federal communications commission other state and federal statutes in common law offer powerful consumer protections such as those cover ing breach of contract, tort interference with contract, deceptive trade practices, fraud and much more. for instance, if isps were to breach their terms of swfs their customers the plaintiff's bar would have a field day launching an unaccountable number of class action lawsuits. additionally, having in part of official u.s. diplomatic delegations to negotiate treaties and the communication space as well as being an international blue ribbon panel on internet governance i can personally attest to the influence of the net neutrality debate to regulate all corners

of the internet. the ongoing prospect of new net neutrality rules has generated thinking throughout the world that more regulation in the internet ecosystem should be the norm some internet regulation appears to be a one way ratchet. lastly, today i offer a warning. some technology companies that are pushing for classification of internet access as a telecommunications service under title two of the communications act of 1934 should be careful what they wish for this section of the communications act is not only antiquated, in fact the fcc to celebrate its -- just celebrated its 80th birthday yesterday, but it's particularly powerful. printive, far reaching and by some accounts has over 1,000 requirements.

tech and telecom companies have converged and companies that today are calling for regulation of their rivals and naively think they won't get swept up in title ii regulationings themselves could wake up having to live under its mandates. as a technical and business matter, transmission services and information services are quickly becoming indistinguishable. across the globe content application companies are falling under the purview of more and more regulations and court orders. in conclusion, whether creating new rules or foisting antiquated laws on new technologies, the end result would be counterproductive and create uncertainty and unintensed consequences. a better path would be to rely on time-tested antitrust and consumer protection laws that have helped make the kmern economy the strongest and most innovative in the world i look forward to your questions.

>> we'll recognize professor owens for his five minutes. your microphone, please, sir. >> thank you, mr. chairman. >> you probably need to bring it close. the accuse i cans in here are odd. net neutral city a seductive slogan. its meaning seems quite protean. it adjusts like a mutating virus to fit the defenses of the body against it.

i think it's more commonly called common carrier regulation. that means a public utility that everyone has a right of access to in non-discriminatory terms. we have a lot of experience with common carrier regulation in the united states. starting with the first regulatory legislation in 1887. the act to regulate commerce which created the interstate commerce commission and began the regulation of railroads. the fact is that none of that regulation stopped discrimination. in fact, under the act it was much worse or much more extensive than when it began. moreover, like many other

industries, the transportation industries became embedded in the political economy of the regulatory structure. the loudest voices affecting transportation policy in washington were the railroads, the trucking industry itself. and before very long, before the depression, in fact, we had a series of regional monopolies or cartel carte cartels overseen and refereed by the regulator and the results were consumers were not good. consumers were clearly worse off. they paid higher prices, output was reduced, entrants were kept out and innovation was resisted because you had to get aa license from the icc to compete in the transportation business. and one of the things they took into consideration was whether the current incumbents would be

harmed. the issue is not whether customers would be benefitted -- but whether incumbents would be harmed. the same thing happened in telecommunications. in telephone regulation in particular it came to be true that the interests of at&t, the old bell monopoly that was broken out in 1982 were primary at the fcc and the interest of consumers were definitely seconda secondary entrants were excluded, technology was excluded or slowed and consumers lost in order to benefit the incumbent monopoly. we don't have a good history with regulation even where there's a lot of con seine trags in the industry. i think therefore we have to be careful before imposing regulation. the first stop, the presume in our economy is competition and the promotion of competition by

the government is the ideal way to go and if that fails -- which it can do -- then we turn to regulation reluctantly as a last resort to solve a serious and otherwise remediable market failures. we don't start with regulation so there's no particular evidence that competition isn't working in the parts of the telecommunications industry devoted to internet supplies there's evidence that competition is increasing because of technology, in particular the growing use of portable devices supported by broadband wireless service the capacity of wireless broadband service to serve the needs of consumers in competition with

wire line internet access providers is limited only by the fcc which is in control of the spectrum that can be devoted to that use. if we'd like to see more competition than we already have in local broadband access to the internet the first thing to do is to increase the spectrum available to wireless providers. technology will also help with that as we move to the fifth generation of wireless service we'll provide greater amounts of service within roughly the same bandwidth. antitrust policy promotes and protects competition regulation, whatever its intent and however well meant has the practical effect of suppressing

competition antitrust promotes and protects innovation that makes it easier to answer an industry when that would benefit consumers regulation, whatever the intent of it may have been, tends to suppress innovation in the interest of the incumbent regulated firms. it seemed clear antitrust is an effective way to preserve competition. one of the great victories of antitrust in the last century was breaking up the bell system monopoly the result of which was a huge increase in competition both at the local level and in long distance service and more importantly unleashing the forces of innovation.

the bell telephone monopoly was a great inventor. bell labs was a wonderful source of invention. >> professor, if you could wrap it up, we need to try to stay on our time here. >> i'm sorry. but it was a reluctant innovator at&t didn't become an innovator until after it was largely deregulated after the breakup. >> thank you, mr. chairman. >> thank you, professor. we'll go to professor woo wu. >> chairman, ranking member, members of the subcommittee, thanks so much for holding this hearing. i welcome the opportunity. i can summarize my comments in a few sentences. i have the highest admiration for the antitrust laws and the agencies enforcing the antitrust laws but i don't think they're equipped to handle the broad range of values and policies that are implicated by net neutrality and the open internet.

j us to take a sample, what i'm suggesting is that when this -- when we consider internet policy what what we're really considering is not merely economic policy, not merely competition policy but also media policy, social policy, oversight of the political process issues of free speech. there are a wide range of non-economic values that i fear that the antitrust law, despite its expertise, despite the decades, indeed over a century of law making in that area simply does not capture and for that reason i think that despite its imperfections we should stick with the process of fcc oversight of the internet and enforcement of net neutrality rules. so let me break some of these ideas out a little bit. first of all, as i said, i have enormous appreciation for the antitrust laws and the agencies that enforce them. i served for some time at the

federal trade commission and i think there are some advantages that the fcc could learn from in this area. there's a commendable insulatio. the adversary process is very well handled. i think the fcc does a very good job at what it does. the problem is with the continuation cc and other antitrust agencies is that they are optimized for two kinds of problems, and that is the protection of consumer welfare through the competitive process. and this is obviously a worthy goal. i'm not going to sit here and say we should take competitiveness out of the process. that's terrific, and it's particularly accomplished by focusing on a complex and very sophisticated economic analysis, which again i commend when we're considering only the issue of competition. the problem is in its day to day operation, the internet implicates a whole host of

non-implemented values of antitrust laws. let's imagine we had an internet service provider that for its own reasons decided it did not like political speakers on one or another side of the spectrum. let's say we had a different isp that, for whatever reason, believed that local news sources were more valuable than the national news sources and decided to favor them. or let's say we had an isp that had a bias in favor of big speakers as opposed to small speakers for whatever reasons. or maybe just something totally irrational, like it just thought the new york rangers were a better hockey team despite losing the stanley cup to the l.a. kings and so tried to adjust the coverage around the sports. whatever it was, these are the kinds of issues, whether political, social, sports, whatever, you name it, that simply do not register in antitrust analysis.

because if you have political bias, it doesn't necessarily give a competitive advantage to the isp. so what i'm trying to suggest here is that at stake in that neutrality debate is really protection of the american political process. and protection of the united states as an open society. and we can't accomplish that simply -- we can't leave a matter that important to the economists. that's what i'm trying to suggest. i have great respect for economists, i have great respect for economic analysis, but i want to suggest we cannot leave the multiple values at stake in american society and our political process to mere economic analysis, and i'll close my comments right there. thank you very much. >> thank you very much. we will now recognize the chairman of the full committee, the gentleman from virginia, for the first round of questioning. >> thank you very much, mr. chairman, for your forbearance, and professor, while i disagree with much of what you just said, particularly the thought that as has been attempted in the past,

regulating the content offered by broadcasters on television and radio, which was a very popular thing to do in the past, and now that that has been pushed aside to allow for freer speech, i would suggest to you that we have far greater diversity of opinion expressed in that traditional market, and the thought that we would need to have fcc commissioners regulating content on the internet to make sure that somebody's avenue to access to the internet was fair and balanced would be, to me, an extraordinarily harmful thing to do. but i want to commend you on one thing, and that is you've picked a name for this subject, net neutrality, that stuck. i've been at this issue for a dozen years. congressman rick boucher and i

introduced legislation before congressman conyers and congressman sensenbrenner did a few years ago. we called it open access. and i think we would agree that the internet should have open access to all the competitors and all the consumers and have access to it. so let me direct a question first to commissioner wright. it's been reported that during peak hours, netflix traffic accounts for approximately a third of all internet traffic. when i saw that recently, i was amazed. i think that's a great credit to the popularity of netflix of whom i am one of their customers. this amount of traffic could be indicative of a significant market position. one of the reasons that antitrust law holds more appeal than regulation is its ability to prosecute improper conduct by all market participants, not just a select few. and i'm not in any way suggesting that netflix has an

improper market position. but to the extent netflix were to use its market position to engage in anti-competitive behavior, would antitrust law or existing or proposed regulation be more effective at policing improper conduct? >> thank you, chairman. i appreciate the question, and "house of cards" is quite a show. so whether it grants netflix market power, i think is a question that is one that the place where antitrust analysis began with such a question is what the antitrust laws do with respect to market power is say that if a firm achieves its market position by innovation, by building a better mousetrap, by making a content that benefits consumers, this is the type of conduct that the antitrust laws celebrate rather than condemn. the antitrust laws step in when a firm with market power abuses it in such a way to make

consumers worse off. those source of concerns that a netflix for a hypothetical example or any firm in the broadband space with market power would discriminate in such a way to harm consumers would set off a set of standard analyses, the ftc and other antitrust agencies and courts for that matter have analyzed these problems for decades upon decades in a variety of industries, and the formula -- excuse me -- the algorithm for analyzing these problems are now sort of well known. i will say with respect to the methodology rather than boring you with its details that it is focused upon asking the central question of whether the conduct at issue makes consumers better off, in this case, internet users, better off or worse off. >> i'm going to interrupt you there because i want to direct one more question. i have one minute left and i'm going to direct it to commissioner mcdowell. antitrust law has the ability to

be available for improper use and conduct if and when it occurs. in your view, has there been a demonstration of widespread abuses by internet service providers or other market participants that justifies deploy, a before the fact regulatory approach to potential improper conduct on the internet? and a follow-up question is, can you explain why the fcc is unwilling to conduct a cost benefit analysis before regulating such an important component of our national economy? is it fearful of the potential results? >> no, i'm not aware of widespread market failure, and that's why for years i called for a bona fide peer reviewed market study to be put out for market comment. the fcc is 0 for 2 in the public courts. i can't speak to their motivations. the court has handed the fcc a very tiny legal needle, and it's trying to put a big fat regulatory rope through that eye. i think they'll fail again in

court unless they're very, very careful. and, if anything, this is an issue for congress to look at if there was a market failure to begin with, which there's not. >> thank you, mr. chairman. >> thank you, mr. chairman. we'll now recognize the ranking member of the subcommittee, mr. johnson, for five minutes. >> thank you, mr. chairman. i would ask unanimous consent to include a letter from consumers union on the importance of the rules or importance of rules to protect net neutrality be placed in the record. >> without objection, so ordered. >> and i would also, for clarification, just note that commissioner wright, you're testifying before us today only in your individual capacity and that your oral and written testimony do not necessarily reflect the views of the federal trade commission. is that correct? >> that is correct.

>> thank you, sir. now, professor owen, you stated that most consumers don't -- are confused about the definition of the term net neutrality. would you give us your definition? >> i don't have my own definition. i can do my best to infer it. >> let me ask, then, for professor wu to give us his definition of the term. >> net neutrality is a principal which suggests that internet carriers should give consumers what they want when they want it and not stand in the way, not to block some sites and not to favor some sites over others. it's just a basic principal of nondiscrimination which we have in many public accommodations, inns, hotels, airlines and so forth, as applied to the basic transportation facilities of the

internet. >> all right. thank you. commissioner wright, the u.s. supreme court's recent decision in american express versus italian colors upheld the right of companies to force arbitration of antitrust terms through adhesive clauses and hidden in contracts in companies' terms of service on-line. are you familiar with that decision? >> i'm vaguely familiar with that decision. >> well, in her descent, justice kagan clarified the issue. she said as a result of that decision, amex's contract will succeed in depriving italian colors of any effective opportunity to challenge monopolistic conduct allegedly in violation of the