announced are probably not the best ones and certainly, very insufficient. so, this is a -- i mean this is a government that economically hasn't really confronted reality and that could very well be the one thing that will challenge the government in the future, even if the political pillars of the government are in better condition than they were before. thanks. >> and what -- and the cuban -- what do you think -- given -- you both seem to sort of suggest the cubans are playing a role. what do they, do you think, advising? what are the brazilians advising and brazilians have a lot invested in venezuela. i mean, what's -- you know, is there -- in other words, i guess the question is there external pressure on the government to move in a particular direction? you know, mike mentioned the china visit, another view of that, is that the chinese are extremely worried about what's

happening in venezuela and they are financing and that there is also a move to move in this direction. is there any -- is there any outside pressure or suggestions from abroad to maybe move a little bit more? >> i mean, i think that, you know, from the perspective of the brazilians that primarily are concerned with being repaid for their investments, so, you know, reforms that, you know, facilitate repayment, you know, green light those. >> they like. >> they like those. green light those right away. in the case of the cubans, i think you're primarily concerned about the oil shipments. so i think -- >> have they stayed low? >> yeah. >> no change? >> not that i'm aware of. yeah. yeah. yeah. so -- >> okay. >> i mean, i think that -- i could see from a certain perspective the cubans arguing for more -- a more flexible economy, considering the recent reforms they have made to their

own system. i think that would be -- i think that's plausible in some ways. and i also think that the cubans may have an interest in wanting to reduce some of the rent sharing that exists within the government to clear out some of the corrupt elements in some way or another. but, you know, i think that, you know, javier is correct, that, you know, that's what i was trying to say, that ramirez is not taking -- just very strong veto powers within the government, not just sort of, you know, bolt next in terms of decisionmaking but actual, you know, clamp down vetoes and sort of closed off very yas in a lot of ways. yeah. >> okay. let us have one final question, then ask javier to make a final comment. and then you can respond how you want to respond to. >> [ speaking a foreign language ] with the economic -- you explain and the government not -- not

having a plan to consolidate because of these political vetoes that you mentioned, do you see a repetition of the progress that we saw from march and february of this year? do you see a chance of that happening again? thank you. >> javier? >> let me answer that question by splitting it into two questions. let's assume that the venezuelan government does raise the price of gasoline, are we going to see part two in reference to the protests that took place in venezuela shortly after the second administration when the price increase was announced? i don't think so. in part because i don't think that the protests were related to that policy measure. it was a trigger and it added, but there was more to it, including movements in the

barrios that were making those protests less spontaneous than they seemed at first and i think -- i think in the barrios, it continues to be important. i don't think. maybe. increasing gas prices are very, very crazy, but i don't think we are going to see caracaso. the second thing is what happened to the student protests? yes, i don't think any of the conditions that gave rise to student protests have changed so that remains in place. what has changed in venezuela, and let's go back to the elephant in the room, is the level of repression that was used against students. this is nothing like anything that we have seen in latin america in 20 years. in venezuela, about 30% of the protests were repressed and there were about 200-plus house

searches, so the police went into homes, so they weren't just doing streets. key leaders of the opposition are in jail and threatened significantly. press censorship and attacks on journali journalists, take over of the press, this is serious. this is a bigger crackdown than cuba does nowadays. it is hard to forget it, but these things work in terms of blocking, especially when the protests were not violent. if this had been a violent group, it might have provoked further violence, but the sign that they were non-violent is precisely the fact this they were cornered back. the leaders of the opposition are divided, these actors explain it but the conditions leading to student protests haven't gone away. venezuela has had student protests since 2007. the interesting thing about student protests is that they are constantly being refueled by

new students coming in and so, i think that the cycle that i'm oak, this ebbing, is not shocking. it is also, in my opinion, not enduring either. >> great. thank you, javier. thank you, mike. this has been absolutely terrific and i want to thank all of you for coming. this has been a great session. thank you. [ applause ] funding for the federal government expires tend of the month. and in about ten minutes, at 7:15 eastern, the house rules committee is meeting to take up legislation to keep the government open through december 11th. the hill newspaper reports that an amendment to the spending bill would give president obama authority to confront isis in iraq and syria. the paper quoted house majority

leader kevin mccarthy saying he expects bipartisan support for the authorization so that rules committee meeting is happening in just a few minutes to consider the spending bill and you can see that live on the c-span networks. and tomorrow morning, defense secretary, chuck hagel, and the chairman of the joint chiefs of staff, general martin dempsey, testify before the senate armed service committee about the threat from isis. that's at 9:30 a.m. eastern, live on c-span3. and tomorrow afternoon on c-span3, a senate hearing on the ebola outbreak in west africa, officials from the national institutes of health testify, along with dr. kent brantly, an ebola survivor who was treated at emory university in atlanta after being infected with the disease in liberia. that hearing starts at 2:30 eastern live on c-span3. >> with live coverage of the u.s. house on c-span and the senate on c-span2, here on c-span3, we complement that

coverage by showing utmost relevant congressional hearings and public affairs events. and then on weekends, c-span3 is the home to american history tv, with programs that tell our nation's story, including six unique series, the civil war's 150th anniversary, visiting battlefields and key events. american artifact, touring museums and historic sites discover what artifacts reveal about america's past. history bookshelf, the best-known american history writers. the presidency, looking at the policies and legacies of our nation's commanders in chief. lectures in history, with top college professor develop nothing america's past. and our new series, real america, featuring archival government and educational films from the 1930s through the '70s. c-span3, created by the cable tv industry and funded by your local cable provider. watch us on hd, like us on facebook and follow us on twitter. and just a quick update that house rules committee meeting will be happening on c-span2

live expected in a few minutes at 7:15 eastern. on morning's "washington journal," we will talk with two members of congress about the president's plan to combat isis. first, vermont democrat peter welch, then georgia republican, doug comes and we will continue our look at higher education and the big 10 conference with ray cross, president of the university of wisconsin system. "washington journal" is live on c-span every morning at 7 eastern. and right now, here on c-span3, a conversation from this morning's "washington journal." >> a senior national security correspondent for the daily beast, also a frequent guest on the "washington journal", and author of a piece from last week, obama's new war on isis may be illegal is the headline of that piece from last week and eli lake, let's start by laying out the white house legal argument for its efforts in iraq and syria. >> sure. when president obama first

authorized bombing in iraq for the first time i guess since 2011, the authorization was that, you know, the constitution, the first article says congress only declares war but the second is the president is commander in chief and presidents before him have used article two authority, saying he is the commander in chief of the military and as the president, has the responsibility to keep american citizens and american interests secure and he used that as presidents before have used those powers, but the problem is 1973, there's something call the war powers act, which was a reaction to using these kinds of inherent constitutional authorities to wage very long, drawn out wars, the classic he example everybody pointed out, there was never a declaration of war against vietnam. the vietnam war was always seen as a police action, although it was probably our longest and worst war from the perspective of just casualties. civil war, i am sorry, would be our worst war in terms of

casualties, at least in the 20th century. so, in 1973, congress passed the war powers act and that said that every 30 -- 30 or 60 day, president needed to inform congress about these kinds of prolonged activities and it tried to narrow what exactly could count as that. so you know, certainly, a rescue operation in syria would count as something that would be covered under the war powers clause and the clause in the constitution, once you start getting beyond basic stuff like protecting u.s. interests and u.s. personnel, as the bombing campaign in iraq quickly did remember, it then became to protect and prevent, for humanitarian reasons a genocide against the yazidis and other iraqi mities, then came to protecting crucial iraqi infrastructures, such as the mosul dam and used the phrase, preventing isis -- isil from actions that could krim, permanently cripple iraq. so as the war expanded, i

believe the white house was looking for another rationale for that. then it gets to something called the 2001 authorization for the use of military force, but really, that is the post -- three days after 9/11, congress says we are declaring war on those who are responsible for 9/11. and that quickly became, obviously, al qaeda and was used by both bush and obama as the legal justification for air strikes, indefinite detention of individuals, not just in al qaeda, but also associated forceses of al qaeda as it became sort of argued in the courts. >> and in your piece, you say that is where they start to get into sort of shaky legal ground by using that when applied to isis? >> exactly. because isis, while it does begin as a franchise of al qaeda, is today a force that is really in competition and in some cases, at war with al qaeda's franchise in syria, al-nusra front. and because the leader of isis right now, al baghdadi declared

himself the c himself caliph, he is a direct front to zawahri. they have both acknowledged they are out of, you know, the -- isis is now no longer affiliated with al qaeda. so, i called up some legal scholars who have since written kind of on their own and in more detail, but the view was you couldn't really say that isis was an associated force of al qaeda because, you know, they are formally kind of kicked them out. the administration's argument is, well, you know, it started as al qaeda iraq and i think josh earnest, a clip of him saying last week it walks like a terrorist and quacks like a terrorist, walks like a duck, quacks like a duck, it's a duck, but i don't think that's really gonna pass the sort of legal muster because, you know, it's hard to make this argument that isis is an i associative force

it is a competing or -- it's a wholly separate force than al qaeda. >> is it then leaving it up to the terrorist groups themselves to define who they are -- who they are related to or what groups they come from? i mean, an argument that the white house has been making on capitol hill is that shouldn't shall be -- >> first of all, i mean this is independent entirely from whether or not the united states should be at war with al qaeda. i'm sorry, with isis. but the problem is that even before they used this justification for isis, there were a number of people who were very concerned that the original purpose of the war resolution, get the people responsible for 9/11, expanded to the point where it was justifying american, you know, air strikes in somalia and pakistan and yemen, really all over the muslim world. so, this was -- laces issue, which i have written about before, which is this a recipe for kind of war without end, a permanent war? if you expand the definition of

who is responsible for 9/11, bin laden is now dead. most of the senior leadership of the organization in guilt mow or killed. if you continue to sort of define it out, and then -- this original resolution becomes so elastic that it allows for kind of permanent war that will last beyond obama's presidency and maybe this new normal. so that's been a concern from not just a legal perspective but from a political perspective. so i think the alternative could have been a new resolution that was narrow and against isis that was just sort of encompass everything that obama himself has said that we have to accomplish, i think there was -- there were the political votes there, certainly, i think most republicans would vote for it i think would have gotten a number of democrats as well, based on the public sthamts they have said. but -- and i'm still -- i still don't know, i don't think -- i don't know why exactly they haven't gone to congress, but i can say that the last time they went to congress, similar things, air strikes in syria this time against assad a year ago, after assad violated the

red line on chemical weapons, they ended up not having the votes. -- >> in our first segment of the "washington journal" this morning, whether they thought congress should hold a vote and if they did, should happen before or after the election. is there any chance that something like that could happen before the election at this point? >> well, we haven't seen house speaker boehner say woe hold that vote and haven't seen harry reid say that he would have that vote yet. so it's up to them. they are the leaders of the respective chambers of congress. but the other thing is that if they have, from a military perspective, if you have, you know, baghdadi in your sights and he's in syria, then would you not then take the shot if you knew you could get him because you didn't have a formal authorization? i think that's why they are asserting they have that authority under the a umf. >> talking with eli lake of the daily beast. if you have questions or comment as we go through this segment of the "washington journal,"

democrats can call 202-585-3880. republicans, 202-585-3881, independent, 202-585-3882. outside the u.s., 202-585-3883. and as you're calling in, want to note that we use the term, you have used the term, long-term war, a new war in iraq. secretary of state john kerry was on face the nation yesterday and was asked about calling the fight against isis a war. here's what he had to say. i want to get your thoughts. >> clear up one thing first? this week, you went to some lengths to say you wouldn't call this a war, yet at the pentagon and the state department even, they are saying we are at war with isis. are we at war? >> well, bob, i think there's frankly a kind of tortured debate going on about terminology.

i'm focused on getting isil. if people need to get term what is we did in iraq it is not combat troops on the ground, not hundreds of thousands of people, no the that kind of mobilization, but in terms of al qaeda, which we have used the war with, yeah, we went -- we are at war with al qaeda and its affiliate, the same context, you want to use it, yes, we are at war with isil in that sense. but i think it's a waste of time to focus on that, frankly. let's consider what we have to do to degrade and defeat isil and that's what i'm frankly much more focused on. >> eli lake of the daily beast. again, we see, bringing up al qaeda and isis here and the same sentence. it is a war because the united states will try to kill its assets, take its territory.

they won't do that with combat troops on the ground, over 1,000 americans in iraq sent since june. they will be using air power to do so. and nobody at any point ever said we weren't at war with al qaeda, even though there were not combat troops in pakistan or yemen or various other places. so, it's a little precious to sort of hear kerry say that. that said, i mean, it's to me kind of interesting because john kerry has been, i think, out front on saying this the united states needed to stop and defeat isis. he called them the face of evil last month. the president was the one who was very reluctant. we saw the president go from degrade to defeat, i guess, or destroy isis. so, the president, i think, was the last holdout there. and i think kerry's main point is there isn't going to be an invasion like we saw with iraq and afghanistan and i don't think there's any republicans really clamoring for that either. so, it's kind of a red herring. >> we are talking with eli lake "the daily beast."

his recent piece from last week, obama's new war on isis maybe illegal. we will start with matthew from mechanicsville, maryland, on the line for republicans. good morning. >> caller: good morning. and thank you for taking my call. i've heard -- with my comment, i have heard it said another way, i will try to do my best here. but i can remember going into iraq when i was in the fifth that and we've been in area for about 25 years now. beltway ande in the you're -- you're listening to these people and you're seeing they define the actions we're taking over there, it's starting not to pass the smell test. kind of letting people that in t have the united states their best interests define the way that we approach security issues. you can hear it in the way tried t president let be honest, these are the same people, if anything that ws

were fighting in afghanistan. and you can just read jeep history, like universal history books on these topics. iversal these -- they are learning to sn fight us in a way that they can definernin the term. this is just what i've noticed t from the semantics our own are leaders doing. . they are tying themselves in knots with who they are fightino and it's like they can't -- if they just read some general history on the area, i think they would figure out who they a are fighting and they are all the same , tpeople. figur >>e eli lake? >> well, there is an ideology, we could call it jihadism, we could call it islamic extremisme i suppose it is not the same as the religion of islam. extremi in fact, we know that muslims are often the first and worst t and they are most victims, i wt suppose, of thes ae barbarians. the caller does have a point if you ant want to say the ideology that motivated united states on bin laden is the same one that

motivates baghdadi and the same one that is one that would enslave all women, would make it illegal to be anything but a muslim, jewish or christian, could you pay a tax. it's gruesome stuff. a tax. i think i would say it's fair to say it is rejected by the people who have to live under it. and we have seen that over and again. and the only way they can enforce the ideology is through just horrific and kind of almost theatrical violence. it has also recruited, i think, a fringe group of kind of losers in the west who feel that this t is an opportunity to, you know,t have a kindo of exciting -- to participate in some sort of world historical movement and it's true the united states has been fighting this current for some time. i would say 9/11 was kind of thl hinge point.

the irony here is that the president has until really about june. obama has tried to say no, no, o no, we are only at war with al y qaeda central, only at war witha the franchise in yemen and he has really resisted the idea of talking about the enemy in thisg kind of ideological sense, that there is this ideology, it's probably wrong to say it is political islam, per se, but certainly an extremist version of political islam. and now, he's facing that. and the greatan e irony of the earlier point about the 2001g authorization for the use of military force is that by sayin, that, you know, that justice the war against isis, he is making a hiins point implicitly this is l part of the same war and even though the franchise of isis isc fighting al qaeda's formal frac franchise in syria, they are still sort of fellow travelers of this same ideology. the there was a really revealing

interview in t"the atlantic" wih jeffrey goldberg with hillary clinton about needing a component to address the ideological element of it and the same as the toe at that timian war against come innism in the cold war n that rrngt think it's correct. i think it's wrong to say these are the same people, they sharef the same faith of islam, so mani muslims who fought against them. i have about ton iraq as a reporter i spoke to several , tribal sheiks who had come to reject al qaeda, even though they felt at first that they sort of reached a pragmatic deal with them. even though they felt at first that they sort of reached a pragmatic deal with them.nedrej they felt at first that they sort of reached a pragmatic deal with them.rom have

>> caller: the "new york times" put out an article that the states are taking money from overseas in order to influence what they say in the united flue states government. ay and that -- he -- he was also captured by -- by the american military in iraq and captured b iraq an in loose. he was part of the anbar awakening. the very people that john mccain and them armed. >> let me ask you, you are the calling inar on our line for rb republicans. do you disagreeou with republics in congress and how they are handling this? >> caller: ron powell, don't believe in this war and stuff. this is -- >> all right. >> caller: let me -- >> go ahead. >> all right. >> g first of all, ron paul is now s giving his lunatic opinions on g foreign policy in the h kremlin-funded rt network.emlin-

so, he is the one taking direct payment from a foreign government and a foreign government that just invaded and occupied ukraine. second of all, you hear this a lot and certainly, politics lie. there's a bit of assembling, the intelligence community operates in secrets and debate this is s stuff, but the truth of the matter is this president was uninterested in a war until thib isis, which is sort of a terrorist army was able to take over iraq's second largest city and then really became engaged when they threatened to wipe out the rest of the yazidis, an ethnic minority in iraq. now we have three gruesome videos ofit beheadings two hey american journalists and one british aid worker, moved worlda opinion to the point they realize they cannot live in a world in which you have the equivalent of al qaeda stand in the middle of the middle east. now, those are just facts.e th this is what this group has uld done. the argument that could you leave them alo alone and they w leave us alone i think is clearly, you know, it's --

discredited by events. h "the d i would just leave it there >> eli like slaik a national security correspondent with the daily beast, previously worked with the washington times, the new republic, new york sun, how many times have you traveled overseas to iraq and the region- >> oh, god, well, i have been to iraq on three different three occasions, three different ffern extended trips, been to thet region several times, gone've b sudan, been to -- i have been to -- lucky, fortunate enough to travel a lot of my job. >> here to take your questions t and comments 2 for about the ner 20 minutes or so. joseph is up next from court land, new york, on our line for independents. oi joseph, good morning. >> caller: good morning, how you doing? i just want to thank you for taking my call. >> go ahead. >> caller: a military person, served in vietnam, gulf war and bosnia, i tell you something, i, served with a a lot of differen people, muslims, arabs, jews,

whatever you want -- this here i think it is an illegal war against muslims because not all muslims are the same as we think they are. you know, we have a group of zer people like hereim in america, klux klan, organized crime and neo-nazi thing.p in i okay.nt to. fine. >> eli lake, i will let you jump in if you want to. a fair >> well it is correct. i think it is fair analogy to s say that al qaeda and isis are the are to islam and muslims. as the ku klux klan is to christianity, a perversion and a kind of terrorist violent frame some that is a correct analogy. >> ernie is in littleton, colorado, on our line for end pep dent. ve a few ernie, good morning. call good morning. >> go ahead, ernie. , ar i have a few questions

here. as far as n isis and al qaeda, e they not one in the same? just a different terminology for isis? and two, as far as going -- get assad out of power? and then my third question is en the bush administration, the obama administration, neither e one of them want to release the 28 pages on 9/11. i was just wondering why.ow >> eli lake. >> i don't know why they won't release those 28 pages. i suspect it's because it implicates the saudi government. i think that's probably it.se as on the second point, i don't think that these air strikes are a threat to the assad regime, re although it's true that assad has had an opportunistic relationship with these ultrajihadists. he certainly worked with them ra

when they were funneling fight nears iraq. he is fighting them now in his s civil war but not g fighting th consistentlism he has gone aftec much moream moderate encamp.sofs the free syrian army and has largely left some of these isis positions in syria untouched. he is, i think, he has intended to create a choice. it's either me or these lunatics. >> they share the same ideology, the two are competitors now and distinct. the key here is that you could -- both zawahri and baghdadi have said this themselves that is the most bportant point, they have -- they have said, you are no longer a formal affiliate of al qaeda. so, that -- that i think is why you can't say that they are exactly the same organization. though certainly have the same

ideology. >> one thing i did want you to talk about is your latest column in the daily beast, gotten attention, contractors ready to cash in on isis war. >> well, first of all, i want ta point out that people who are nr military contractors, a lot of them have had long and importann careers in military, usually at the tip of the spear and there'r nothing wrong with kind of going into the security contractor industry. i'm not one of these -- not like jeremy stay hill who thinks it is all sort of suspect. couple but that said, if the -- the president has said a couple of things that are very noteworthy. number one, this is going to take more than a few months. remember, he said it is not going to be weeks, it is going to be months, a few years, probably lasting beyond his no m presidency. the length of the time isth important. the second is he has promised these no combat boots on the ground. when you have that, then the people -- there are companies, triple canopy, academy just n merged, that are specialists in training up local forces,

similar to our green berets in the military, turning them into fighting forces and done by contractors, you know, for some time now. so i -- the view is that it's probably going to be a low the of reliance on these contractors, an irony because, of course, you know, blackwater was very much associated with t the republican party and joe biden himself, first trips to ju iraq, promised to prosecute blackwater from the justice department and so forth. this administration tried to politically distance themselvest from the contractors and almosh certain the contractors themselves how interviewed saida theynd believe this will presen business opportunity for them t and that obama will be relying t on them for this new war. >> talking with eli lake from the daily beast about a few of his most recent columns. you can see them online, the qui daily beast.com. and he is here to answer your questions or comments. atlanta, georgia, is up next, sal weight on our line for democrats. al, good morning. i

>> caller: yes, good morning. yes, i just like to get something understood here. i do agree with what obama is doing. he has a hard job. i don't know anybody who would want a job like that but the question is, it seems like the v talk is ouert now that he has t have the permission of congress to do things and everything. and why is it going back 20-some years ago or so president reagan did not have the permission and i believe did he not have, maybo i'ming wrote, but did he not have the permission from congress to send army troops into grenada. neither did, i don't believe he had permission to send 1,000 combat marines into lebanon, t l whereed over 400 men got killed

i wonder if you could answer that >> surely. >> well, the constitution, legal scholars would say, has two views on it, one is the congresn declares war and the other is mo the president is the commander in chief of three military, modn presidents, including reagan, sa have said that that article two gives them the authority to do things such as grenade d.a. i would say on grenada, it was a a very time limited operation. in it was to save medical students from -- after a communist coup. in the case of what we are envisioning now against isis ist by the president's up admission, a long war. airs you know, not just weeks or out months, not a couple air strikey and then we're out. m not so, that is one factor i think that place, i'm not a lawyer, but i think that's an important difference. i think there's a broader point beyond the law and that is that, you know what we saw in the bush years was that despite even a he resolution authorizing the iraq

war, once that war went badly, once there were no weapons of mass destruction found, it became a partisan issue. when you can havetiar l a kind t resolution that authorizes a war like this it's a way of having a political buy-in so that you avoid having that war becoming partisan issue. this should not be considered, in my view, it shouldn't be a democrat wore waer to ar republican war, it should be an american war and that's the one benefit of having one of these awe rizzsizations, i think. >> gloucester, virginia is next. robert is on our lynn for democrats. robert, good morning. >> caller: good morning to you. i served with the 82nd airborne many -- a couple decades ago. i see us not being able to squapder our resources anymore. you know, when you have an iraqi army that throws down its weapons and runs away after a decade of training, why are we the policemen of the world? you know, why do we have to ourl

involve ourself?not affo we can't afford this anymore. >> well, i mean that is a -- i think that that's viewpoint that has been gaining a lot of supporters recently. i mean, certainly, this idea about america not being the y. policemen of the world. here's a great irony. the 2000 republican convention,n condoleezza rice in kind of hera introduction to the mass media,m i guess, gives a speech in which she says, america is not the world's 911. then 9/11 happens. and then, of course, we become d even more engaged in this long i war, which the president obama has tried to get us out of and t now he is kind of dragged back in. so, i mean, i think it's true that america shouldn't be the only kind of, you know, the nation of last resort that's engaged in these nation building it is so dec frustrating, i was there seeing a lot of these training, on the job training in the last decade, where the

american military mentored iraq military and to see them throw down their weapons in mosul, but i would just say this, not making any excuses for it, because i mean, i think in some ways does show the limits of american power, but one of the factors that led, i think, to the, you know, failure of the iraqi military in mosul is that the prime minister, nouri al maliki, governed, in many ways, like the shia, saddam, he alienated the sunnis and others, including the kurds in his own country and replaced a lot of an competent military leaders with chrome nist and tried to le don consolidate his power the way a petty dictator would and people don't want to fit for someone like that or something like that. so that, i think is another poli factor. all these wars have that sure w politicale' component. n i'm not entirely sure that we've seen that this was a matter of just the -- we failed in training them.iki i think it was that maliki failed as a leader. and i think we failed in tryingp

to use h our influence to stop maliki from this -- from doing what he's doing, which is tearing the country apart. of "the you e daily beast." caller: people declare war on us and we just ignore it. we ignored 9/11. >> caller: people declare war on us and we just ignore it before 9/11 and "the cole," they declared war ounce and they just too small to cause trouble. world war two pearl harbor, they attacked first and then declared war. why we kept all the ships together and didn't pay attention there is beyond me. but we can't be asleep at the switch. the other thing is we ought to look at 9/11. who was getting benefit from shorting the markets then? what countries? what peoples? and study that and find out whether it was more even just an attack, it was a financial attack on our country to try to

really set us back. >> eli lake on the being asleep at the switch. >> that is the way of things usually, the united states is attacked and then we kind of are surprised, like in 9/11, like that but i mean, since 9/11, there's been enormous amounts of resources, the military intelligence community, in trying to prevent another one of these mass casualty attacks track these terrorist groups, i would just say that the think the united states is much better at fighting a war on terrorism since it started fighting that war on terror after 9/11. >> carp neg girl, pennsylvania, patrick is on our line for democrats. good morning. >> caller: you know, when i listen to your guests, almost astonishing when i listen to the level of deceit, particularly when it comes to the facts of the words existential threat. the only existential threat to the united states of america is this -- is the israeli government, which represents a true exist tension threat, which is -- which was an active participant in 9/11 and -- >> eli lake, do you want to jump in? >> i would like to jump n make sure, sir, if you are watching

this, to listen to the man in the white lab coat. he is only trying to help your recovery. you know, and i wish you luck with your mental illness. >> jim is in winston-salem, north carolina, on our line for republicans. jim. >> good morning. >> caller: good morning. the problem with what we are having today is the same problem we have had with washington as a whole. republicans and democrats, regardless who the president is you know, we do the same thing with -- in the same manner expecting the same results -- different results and we never get that. evidently, there's not enough people up there to realize we are not at war with isil. if we have a problem, let's go take care of it quick labor day be done with it. we are not war with the whole muslim world, even though, who knows. but with this particular group, when there's a conflict, and who calls it a conflict, i haven't heard anybody call it a war or a conflict, but let's go take care of the problem. they have killed two of our

citizens. if we need to bomb them, let's go bomb them and get out. >> that's what we are doing. i mean, yeah. i agree we are not at war with all the muss lynch just at war -- i mean, sure, i think it's an eye dielogical component of it, you can't win with just bombing and military action alone, a lot of things there >> talk about the coalition is being built here, some headlines of a lot of the front pages and major papers today, arab nations offering air power and u.s. strikes against isis, although unnamed be a ran nations to this point. >> well, i think it's been a harder slog in some ways than they had originally anticipated, but keep in mind, this entire effort has really caught the white house. the white house did not want to do this. they have not -- they have been reluctant at every stage. i think every stage is taking longer than they thought. i don't think it was a particularly fruitful meeting with -- between kerry and president al sissi in egypt.

and i think america in some ways lacks the influence it did before. but that said, particular employer the gulf state, particularly for saudi arabia, united arab emirates, they know that while they've been saying for some time that iran is their number one threat they know these particular groups like isis and real radical extremist are also a major threat and i thank you in that sense that they have an interest here in trying to defeat them, although, i have to say, they came after -- they came two years ago to the united states, three years ago after the -- when syria was devolve nothing civil war. they said we need you to do something and obama pretty much declined. so, they might be saying, you know, too little too late, but at this point, i think, you know, u.s. is engaged and they will -- they will probably eventually end up helping. >> got just a few minutes left with eli lake "the daily beast," try to get to as many of your calls as we can. freeman's been waiting a while in sioux falls, south dakota, on our line for independents.

freeman, good morning. >> caller: good morning. any way, listen to this guy here and you kind of started talking about what i was gonna talk about. the fact is that barack obama, senator barack obama, had tried to keep us out of the syrian mess and people like mccain and probably guys like this guy here, you know, when this conflict first started wanted -- basically wanted boots on the ground and thing likes that there. either way, this isil popped up and we have had the ukrainian deal and the president wasn't just, you know, following just jump in there and risk american troops' lives and what he did do is hold out and make sure that he was able to get a coalition, just like germany, germans and the english and the surrounding nato countries, just like down there in the middle east, there was no, you know, if the americans would have went in there, like mccain and this guy here probably would have wanted, we'd have been sitting there with probably 100,000 troops, by

ourselves and still trying to five to ten years from now figure out how to get out. >> freeman, let's let eli lake talk about it. >> i don't think that's the case. i think if they would have let 10, 20,000 stay as a safety valve in iraq there would have been -- i think there would have been more political influence and also, if there were more political influence the united states would have wielded against mall lack kirk save him from himself so to speak a lot of this probably could have been preve prevented. >> you thank you would have influenced what happened with the iraqi forces? >> troops alone would not have done it. i mean, president obama has a point. he said he addressed this last month in a press conference before he left for martha's vineyard, listen, all these troops there would have been worse, would have been in the middle of a civil war because of maliki's decision, there were troop there is and those troops would bring it with it more kind of sense of seriousness and political influence and there was an active ambassador and i think jeffrey, by the way, was pretty active in this, i don't think hill as much so, who was his predecessors, if there was a

kind of policy that at the very top of the u.s. government, that u.s. was going to really try to influence maliki and say we will sell you the f-16s but you have to, you know, leave the military alone. tough make a deal with the kurds, you have to do this you have to do that. and try to use its influence with mall lack kirk instead of giving the impression, hey, we are out of here, we promise to leave, it's no longer we are going to treat you like any other nation, i think that that probably could have saved a lot of heartache. so you know, i guess maybe that's not a satisfying answer, i flow's one view, just left troops, wouldn't have happened, another view nothing could have done. i think there's something couldn't have been done, wouldn't have been about leaving troops there. >> edward on our lane for republican, edward, good morning. >> caller: by attacking these people, think we are only legitimizing them f they want to live in this theocratic state, modern 21st century, they want to be drinking chickpea cola and whatever, some of the same point that blue jeans and rock 'n'

roll killed tommy tutone in a way. >> explain what you would do here. what do you think the united states should do? >> caller: well, i mean, i'm saying, like i just personally believe that their regime is just gonna fall flat on their face. it may make a good breakfast but a poor dinner f they want to fall flat on their face, they want to be left in the dirt, i mean, have this overwhelming fear that you know, these people are gonna come out of theed would work and come and get us, but i believe that we have a lot more to worry about in america. i mean, poor people in america are gonna terrorize you a lot faster than jihadists in, you know, out there. so -- >> i just disagree with that. i like the expression, may make a good breakfast but not a good dinner and i stay with all due respect, i think that this is an organization that's just pure evil. and they will be a threat to our allies and eventually to us and they have made it very clear

that they -- they intend to attack us and if you give them the resources of a state, they make $1 million a day, if they are able to consolidate their gains, they will use that to threaten not just us and the united states but all of our allies and i think that you know, we are ultimately gonna do a good thing by trying to destroy them. >> mohammed is in brooklyn, new york, on our line for independents. good morning. >> caller: yes, hi, good morning. thank you for taking my call. i wanted to ask elike eli, nouri al malaki, he was -- he was the shia prime minister of iraq and saddam hussein was a dictate over iraq, last sunni. now, if you had -- if you had the opportunity to choose to go back in time and -- what would be better for iraq, saddam hussein or nouri al malaki? your personal opinion? >> well, put me on the spot, i think mall lack ski better than saddam. and i don't even have to think about that. if you're familiar with the horrors of saddam hussein, by

the way, saddam hussein was a sunni but he was really defined himself as a secular bathist. saddam was truly one of the most evil figures in the 20th century, he brutalized the iraqi people, he was a threat to his neighbors, he was a threat, i think, to the united states. and as bad as maliki was, it's really -- you -- i use the phrase shia saddam because of his son sol days of power and arbitrary attention of going after other sunni political leaders, suf as his vice president was saddamesque but it did not reach the level of just pure barbarian evil is saddam eli lake "the daily beast," his latest piece, "contractors ready to cash in on isis war," you can find him at the daily beast.com. we always appreciate you stopping by. >> thank you so much for having me. on the next "washington journal," a discussion on the president's strategy to combat the terrorist group isis. first, we hear from representative peter welch of vermont.

he is followed by congressman doug colins of georgia. and later, we look at the impact public policy issues have on higher education. our guest is ray cross, president of the university of wisconsin system. "washington journal" is live every morning at 7 eastern. and you can join the conversation on facebook and twitter. congress is taking up a spending bill to prevent the government from shutting down at the end of the month. that legislation is expected to include an authorization for the president's plan to respond to isis in iraq and syria. and on the senate floor today, mississippi senator roger ricker spoke about isis and defense spending. >> as we all know, last weekend, a much-anticipated address to the nation, president obama outlined a plan to defeat the islamic state in iraq and syria. i want you to know i intend to

do my part to make this plan a success. i am not alone in hoping that this goal to defeat, not contain isis, will replace the half measures and disengagement that has divined the president's foreign policy to date. the president's previous comment that we don't have a strategy yet, isn't tsent the wrong signl to our allies and our adversaries, in response to the president's address last week, congress and the american people are now seeking specifics about the new strategy. i am hopeful that the new plan is strong enough and broad enough to be successful long-term. u.s. leadership and the projection of military might are critical to defeating the isis extremists.

13 years after september 11, 2001, americans need to send a unified message that we remain resolved to fight the scourge of global terrorism. isis is part of that scourge, wreaking havoc in iraq and syria. with torture, mass executions, crucifixions, and plans for a seventh century style islamic calipate. as we all know, isis broadcast it's savagery, through gruesome propaganda online including two americans and a british aid worker. it is clear that our efforts to date have been in sufficient to overthrow this well funded, well quipped and sophisticated army. it will take more than limited air strikes and the modest deployment of military advisors to curb the rapid spread of isis

across northern iraq and syria. the united states must be committed to building a coalition that fosters regional cooperation, dismantles the group's considerable financial network and assists the iraqi kurdish and free syrian forces. and i want to help the president in his request for authorization to train and equip these forces. this coalition needs to include muslim majority nations who are all in, with a demonstrated resolve to defeat the islamic terrorists in their own neighborhood. the cost of inaction is already high, the rise of isis in northern iraqi and in syria have threateninged regional security, and the security of our allies in jordan, turkey, lebanon and kuwait. the foreign fighters raises --

earlier in month, defense secretary chuck hagel said there are more than 100 u.s. citizens with passports fighting for the terrorist group. he went on to say, there may be more, we don't know. secretary hagel who will testify tomorrow before the armed services committee, has called isis, quote, an imminent threat to every interest we have, whether it's in iraq or anywhere else, unquote. secretary of state john kerry has expressed similar alarm, saying the wickedness it represents must be destroyed, unquote. i agree. but if these statements are true, then we should respond to them aggressively, like secretary hagel and secretary kerry, the american public is concerned about the threat of isis to the united states. a new report by "the wall street

journal" and nbc news says nearly 7 in 10 americans believe military action against isis in iraq and syria is in our national interest. americans are ready for a bold international strategy to confront these extremists, whose ruthless campaign of terror and ethnic cleansing have survived for too long. these radicals have driven tens of thousands of iraqi's yisidis from their homes. according to reports, thousands of civilians have been slaughtered across northwestern iraq. general jack keane, former vice chief of staff of the u.s. army, and danielle paleta a senior at is american interprice institute, a u.s. led

international coalition can provide the military capability, including air interdiction to deny isis freedom of movement, take away its initiative, to attack at will in iraq and dramatically reduce its sanctuary in syria. in other words, with u.s. leadership and international cooperation, we can defeat this enemy. and we ought to get about the business of doing it. i believe congress should support our commander in chief in the fight against isis. a fight that can result in victory, and a peace that can be sustained. i look forward to hearing more details about the president's plans, when secretary hagel and general martin dempsey testify before the armed services committee tomorrow. there's still questions to be answered. for example, if public opinion turns, will the administration lose it's resolve?

how long will it take to win? how long will it take to crush isis? what is the definition of success? what is the definition of victory in this case? if we accomplish our objectives, will we once again abandon our gains as we did after the surge in iraq? what is the plan to eliminate the terrorist group's financial network and are the president and congressional leaders willing to find a solution to defense sequestration in order to fulfill the mission if more resources are required and more resources will be required, p t president addressing these questions will be more -- americans and congress deserve this clarity. congress has the responsibility

to provide the resources that our u.s. military needs for its missions, we do this through appropriations, through the power of the purse and the national defense authorization act, which has garnered by partisan support for the past 152 years, under the capable leadership of chairman levenson, the armed services committee approved the bill more than three months ago. so has the full house of representatives, it's passed it's authorization act. i hope that even at this late date, majority leader reid will allow our country's major defense policy bill to come to the senate floor for consideration soon. an annual blueprint of the military priorities is vital to making sure that our troops have what they need to protect our national surt interests at home and abroad. this year's bill for example includes a provision to stave off drastic cuts to the u.s.

army, which would put troop strength at levels not seen before world war ii. well trained units like the 155th heavy brigade combat team in my home state of mississippi should not be jeopardize by short sight -- an independent commission would have the opportunity to make recommendations on force structure and size before the national guard personnel could be cut. or the apache attack helicopters could be transferred. another provision of the bill would allow for the u.s. navy and marine corps to modernize their amphibious warships. these ships signal to the world that america's fighting forces can respond to threats rapidly. currently our fleet is significantly smaller than the number needed to perform required missions and many of

the ships are near the end of their service lives. the defense authorization bill as passed on a bipartisan basis by the committee would authorize the construction of a 12th lpd 17 warship, ensuring that the men and women who defend us in perilous corners of the globe have world class hardware for their missions. i believe it would be a fitting tribute to senator levin, who is retiring at the end of this year after decades of distinguished service, or the senate to take up this bill in regular order and pass it as a tribute to our retiring chair. in conclusion, mr. president, we have work to do. the senate armed services committee and the house of representatives have passed the defense authorization bill, it's time for the senate to follow suit. america has the most formidable fighting force in the world and this presence must remain

resilient as dangerous groups like isis put our interests at risk. the rapid rise of these barbaric terrorists is a wakeup call for u.s. leadership. now that the president has declared his intention to degrade and destroy isis militants, we must ensure that the mission is fulfilled. in a few moments, a preview of the fall term of the u.s. supreme court. in two hours, the discussion of cyber security. then education secretary arnie duncan discusses the so-called common core standards. then later a hero foundation forum on immigration. the supreme court's new term begins in three weeks, up next, a look at some of the key issues and cases the justices will consider, from the smithsonian

institution, this is two hours. if you can hold your questions to the end, if you want to sit up straight and smile, you want to sit up

straight in case you're in the picture. i have given you a handout with the speaker's bios in order to leave them with as much time as possible to discuss the cases and to allow time at fend for your questions. but i do want to welcome them today. our panel includes, ken snannagan, willie jay, who is a partner in the litigation department and co-chair of its active litigation process. john biscubic, editor in charge at reuters. general donald varelli who represents the united states before the supreme court. and lori alveno mcgill who is a partner at burk hard and sullivan and was law clerk to justice ruth bader ginsberg,

please join me in welcoming them and enjoy the program. >> great, well, thank you very much, and as we said, my name is cannon shannagan, i specialize in litigation here in washington. it's my great pleasure to moderate today's program. i'm going to try to speak as little as possible during today's program so you can hear from this really fabulous group of panelists we have put together to talk about the upcoming supreme court term. and while we have advertised this as a preview of the upcoming supreme court term. i think quite frankly that that was false advertising to some extent, because we're going to talks more broadly about the supreme court. and in particular, i think we're going to start by talking about the roberts court, because as hard as it is to believe. we're about to start the tenth year of the roberts court, of

the supreme court under the chief justiceship of john roberts. i suspect for many of you, at least of a certain generation, you remember where you were when president kennedy was shot, i think for many of us who are supreme court lawyers, we remember where we were when we heard the very sad news that william rehnquist, the previous chief justice of the united states had passed away, i was actually watching college football at my parents house when they broke into the football game with the news that the chief justice had passed away, and for all of us, in many ways it feels like it was just yesterday and yet it was now more than nine years ago. john roberts had of course already been nominated to join the supreme court as a replacement for sandra day o'connor who had retired but president bush promptly turned afternoon a around and renominated him to become the chief justice.

i thought we would start with some observations about the roberts supreme court, we'll talk about the term that ended in june before we transition into what will be the upcoming supreme court term. i want to start by talking about the inspector general, who really needs no further sbro destruction, don varelli, the solace ter general of the united states. certainly the government's chief lawyer in the supreme court. and don, i think in many ways, you have a unique perspective, not just because you're the inspector general, i'm going to admit that i did a little bit of googling, you're almost the same age as the chief justice, you distinguish yourself in private practice as the head of jenner and box, so of course you've known the chief justice for many years, first as lawyers in

private practice, and now of course with a perhaps somewhat different relationship as the solicit for general to his chief justice. so i would really like to get any thoughts you might have from having now argued in front of the supreme court, the rockets court, both as solicitor general in private practice and also having known the chief justice for many years before that. >> i would like to start off with a couple of observations, one being that, i guess i would say there are two ways in which the court, the roberts court does reflect something fundamental about the chief justice himself. and one is, i get to see this because in my job i am at the court for just about every oral argument session, whether i'm arguing or not, usually somebody from my office is arguing. we're up there for about 80% of the cases and i go when our folks are arguing. so i'm in there just about every

day, just about ever argument. one thing i find remarkable about that experience is to observe how extraordinarily well prepared and extraordinarily engaged all the members of the court are in the process of deciding the cases. i mean, it really is astounding, you think about the big cases, but even on highly technical cases of statutory construction, that frankly most of you aren't going to be paying awhole lot of attention to, they are really drilling down, thinking very carefully, incredibly well prepared and i do think that the court throughout my time in practice, i think has been a very engaged and well prepared court, but i do feel like it's at another level now, and in some respects, that's reflective in the way the chief justice himself approaches the law and the task of judging. and the other thing i think that's emblematic of this court and i don't know how much of

this is just circumstance and how much of this is predisposition of the chief justice and the other members of the court. but from where i sit, they are not afraid to tackle big issues. if you think about the last several years, the roberts court has taken on a lot of very, very consequence shall issues in the law and for the country. and that doesn't show any signs of abating either. so i guess, to start us off, i think those are the two things that stand out to me. >> is there anything in particular that you can attribute that to, don? do you think that's just institutional confidence? >> it seems like a psychological disposition that this is their job and they're not going to shirk from it. they don't look to avoid the tough issues, they may get themselves into the tough issues and rule narrowly, but that court and the justice, they

understand or they feel a responsibility to take on the big issues. >> it makes sense to get a perspective from someone who covers the court and we have one of the best here and joeng biscubic has been covering the court for 25 years, who i also known from google is roughly a contemporary of the chief justice, i don't way anything more than that without seeming ungentlemanly, joan is currentlily essentially the leg editor for reuters and has previously covered the court for many years among other publications of the "washington post" and usa today and of course because joan has been covering the court now for a quarter of a century, she has covered not only the roberts court, but also the court in prior incarnations. and so, joan, i really want to have embarrassed you and you can

return the favor in ample measure i'm sure, give your sense of how the roberts court differs from previous predecessors and how it differs from rehnquist's both in style and substance. >> it's one of the few institutions you can cover and still feel pretty young, until here. so it's great. but i am glad that you first brought us all back to that september 3rd, i believe when the chief justice died. i of course remember where i was, i had prewritten the story and it was right during the hurricane katrina episode. >> of course the chief justice had been sick. he had had cancer. >> he had been very sick with thyroid cancer. and actually during that prior term had not been able to be in very much. but i remember getting the call, and it was late on saturday night when you were at a ball game and i was probably working at the computer. but the funny thing about the hurricane katrina angle is i remember one of our reporters

being down there in new orleans and coming across a man who said we haven't had any news for days, did the chief justice really die? so he was a very different kind of man than john roberts, although john roberts was a protege of his, john roberts had clerked for the chief when he was an associate justice. he had done the lower court clerk ship and i have to say i agree with much of what general verilli has said about the assessment of him. but i also would say, i think he's playing a much longer game that if he doesn't have to go broad he won't. i think we have seen that in many of the rulings where they will just bite off something incrementally. in this most recent turn, i saw him making a few more turns to the center in a way we would

have expected from anthony kennedy. i think in the abortion case, where he would join with more liberal members on the legal rationale on abortion buffer zones out of massachusetts. but he -- and what most people will remember him for to far is his key vote in the obama sponsored health care law when he swing over with more liberal justices to uphold that in 2012, our good buddy don varelli. i think he's moving slowly. he's only, let's see, since you mention it, he was born in january 1955. so he's 59. so he's got many, many years, the last chief died i believe 80, 81. so he's got a lot of years ahead of him and unlike justice sca a scalia, who sort of like barn stormed everything like he did since 1986. the chief doesn't go at it very

forcefully, he is a very forceful man, but he doesn't go forcefully above the law. when he is on the right wing, which happens a lot in the most consequence shall cases is we have seen something really emerge from his partner from the george w. bush appointment years and that's samuel al lito. justice alito took the lead in two very important cases in the last week of the term. the hobby lobby case, the contraceptive mandate one, and the union piece case. it occurs to me if you're the chief, and you're looking for a conservative ruling and you want to hold that coalition together, who are you going to go to? are you going to go to antonin scal scalia? or are you going to go to kennedy who looks like he's going to skew too far left of your case. that's the observation that i would make about the court with

the george w. bush appointments. it is a dynamic that the chief is part of and that's justice sotomayer breaking out in the michigan affirmative action case with her dissent in the case known as shootie, where she and the chief actually got into it a little bit because she was dissenting from the ruling that upheld this michigan ban on affirmative action practices, including in higher education, and the chief felt that she was airing too much of the strins behind the scenes in her dissent and i think we're going to see her using her first latina justice voice and i'm not sure how well that's going to sit with the chief either. >> that gives me an opportunity to atone for embarrassing joan to point out that joan is about to public a book on justice sotomayer. which i believe is going to be coming out afternoon the first week of the supreme court term. >> the first monday is for oral

arl arguments and the second -- it does raise a far out west which is to the extent that we think about the roberts court, we also think about john roberts, we have four new members on the court. including justice sotomayor and justice kagan. to what extent, when you think about the roberts court, is it really about the new justices more generally and not jiflt about john roberts? >> and i think justice kagan is especially one to watch. she's our yingest justice, she was born in april of 1960 she . she's been quite strategic, unlike justice sew toe may more who's breaking off from the -- i find her to be quite a active

participant during oral arguments and so piercing with those questions. she's got a way, even though she's on the far end of the bench of being able to zip right into the conversation, i would think that it's -- >> sometimes it's great, sometimes it's not so pleasant. >> she is very effective and she's a very effective stylist of the rank of certainly of the chief justice who's an excellent rhetoric igs, and the two of them go off a lot on majority and disseptembering opinions. >> let me just ask you one other follow-up question, joan, you refer to the fact that the chief justice is playing the long game and that's kind of one of these bogus washington phrases. i think the first time i came across it was actually in your book on justice scalia whoempb you talk about how justice scalia early in his career had to play the long game. what do you think that means with regard to the chief

justice? because after all, one thing it might mean is that he is moving along incrementally. he has no guarantee of what the makeup of that court is going to be, and whether he's going to finding himself in the majority or potentially in dissent. how do you think that that factors into the psyche of the chief justice. >> i'll give you two examples, but it's an excellent point you raise, this is all very unpredictable. the chief justice was in his 80s. he had been very sick, so his death was predictable. but strange things can happen to all of us in our lives and nobody can be guaranteed of this makeup of this court or about the composition of the u.s. senate after november or who will be in the who is. and i think where the kind of increme mental approach of chief john roberts will manifest itself, where we saw in 2009, where there was sort of a

warning shot fired by the chief in terms of intense scrutiny for the federal government's voting rights poll so i, in terms of federal authorities having to clear any kind of electoral changes in jurisdictions that have had a record of past discrimination, the chief and frankly the majority was on board with him on this, said be careful how this is used, we're not sure whether this is still going to be constitutional into the 2000s and sure enough, last year in 2013, in the case of shelby county versus holder, the chief got a five justice majority to effectively gut this key provision known as section 5 on the affirmative action and higher education case, i think they punted in some regards in the university of texas case we saw up there last year also, i think people like the chief and anthony kennedy who took a more modest step in that decision,

no, another one might be coming down the pike at some point. so even though they -- he can't think, oh, in another ten years when i'm not even 70 yet, i'll be able to do some things. the way the cycle of cases is coming toward the court, it can at least wait two or three years. >> right, well, with that and at the risk of seeming obsessed with age, i want to come to too the youngest members of the panel who happen to be two of the real up and coming stars of the supreme court bar, willie jay who is the co-head of the supreme court and lori mcgill who is a partner specializing in supreme court and appellate litigation at the clint emanuel firm. as it happens, willie and loir clerked at the supreme court really right around the time of the transition from chief justice rehnquist to chief justice roberts. really in the last year of the rehnquist court, lori clerked in the first year of the roberts court and willie and lori in

their careers as supreme court litigators have like me, sort of grown up with primarily the roberts court. so i think i'll just throe the floor open and ask for thoughts on what you just said and any additional thoughts you have on the roberts court. i'll start with willie andive you have any thoughts about arguing in front of the roberts court that would be of particular interest. >> one change that we see today has almost nothing to do with the chief justice himself. but it's equally significant to some of the developments that joan mentioned. and that is the retirement of justice stevens in particular. and so, you know, what struck me was joan mentioning that we have four new justices, in some ways, we almost have five because justice ginsberg today plays a real very different than what she played when she pittsburgh came on the court and when i was a law court and when i first

started arguing before the court. but justice stevens was very much a leader on the court of justices, not always the same justices, but the justices who agreed with him on particular issues. and he too was as tablctically savvy as the justices have ever been. and i think for a time, after he stepped down, there was a lot of press coverage about whether justice ginsberg would be able to step up and fill that role. i don't see a lot of news articles speculating about that anymore. but it has been interesting to see who -- what she would do with dissenting opinions, would she assign them to herself, would she assign them to other members of the dissenting group? i think we have seen her write more impassioned dissents,

deliver more of her dissents from the bench as a sign this is something she feels really passionate about and she knows that when she does that, it gets more attention than if it's just filed in writing. but that's been one of the most interesting developments. another development and then i'll pass it off to lori has been the addition to the court of a number of justices, with experience standing at the lectern and arguing before the court. justice kagan, don's immediate predecessor as solicitor general had done that. but justice alito served in the chief justice's office and the chief justice had been the number two person before he became the number two member of the private bar. that's not just how they treat county skill, and their expectations of council, which are very, very high, especially for those who wear the tail coat, the lawyers in the soli t

solicitor general's office, by also the cases they take and to just put one example on it, i think you see a lot fewer run of the mill death penalty cases, if it's fair to call it a death penalty case, a run of the mill case rpgs when the court takes a death penalty case now versus the case it took in the rehnquist court, often it is to eliminate an entire category of potential defendants from the reach of the death penalty, rather than reverse an out of control lower court that has said aside a death sentence. that's not true all the time. but the court takes more business cases, fewer death penalty cases, fewer search and seizure cases. and lyori would you agree with that? >> i wanted to get the thoughts of someone who clerked for justice ginsberg, and this summer, she's given quite a few

interviews in which she's talked quite candidly about her role on the court. >> not to bring this back to age again. but she's been asked ad nauseam, whether she has plans to retire, given her age and some of the well publicized, you know, health problems that she's had, and i think it's fair to say that in a series of speeches, maybe going back almost two years now, she has at every opportunity definitively refuted any suggestion that she is looking at retiring any time soon. so i think it's fair to say, that she kind of developed a stronger voice, kind of came into her own a little bit more, if that even makes sense, given what her position was at the time, but starting around 2006, 2007, when she started reading those dissents from the bench, the lily led bettbetter case, a

companion case, i think they were just within days of each other and it was big news that any justice, and let alone the same justice would read a dissent from the bench, you know, just days apart. i think that she has made clear that she feels like she has taken on that role, not just of the justice stephen son room, but the elder woman in the room and i think she feels like she still has work to do. i wanted to touch on something that we have been talking about, we have been talking about the transition between the rehnquist court and the rockberts court, d the one thing i observed, actually i was in the sg's office when willie was clerking, that last year of the rehnquist regime, so i witnessed a lot of oral arguments that year, and then i went to clerk and then it was the new chief. and watching him sort of

navigate how he was going to run the courtroom was interesting. he's definitely made some decisions to run things a little bit differently than his predecess predecessor, and one of the things that you pick up on almost immediately, probably has to do with his history as having been behind the lectern and that is when your time expires, the chief will not stare at you and, you know, tell you to sit down, council. if you dare to go past the red light. he will let you finish your thought and sometimes will even let a colleague finish a question and let you answer it. and that's something that's very different. and i wondered as i was silting there this term and which case it was escapes me, but i wondered whether he's ever regretted kind of the loosening of the normal rules or formality

around argument protocol. because you do see on occasion, this dynamic in particularly with justice sotomayer, where you can see the chief visibly getting upset that someone is either talking over another question, or sort of overstepping in some way. and there was at least one occasion this past term where i felt like he visibly shut it down, in a way where he was kind of trying to restore order and i wonder if we'll see, you know, this term, everyone on a little bit better behavior. >> so one thing i just interject on that related point to that, one thing that this chief justice has done that chief justice rehnquist did, only very rarely, and this chief justice is doing it more. is allocating more than the normal amount of time for oral arguments, usually the 30 minutes per side. but in a significant number of cases this year, and a couple

the prior year, the chief has, i assume it was the chief, but the court has provided for 35 or 60 minute aside rather than 30. from my experience this makes a huge difference. because this is a very active bench. and they all have their questions. and they kind of compete for air time in a 30-minute argument. they're both hovering waiting to get their questions in and their questions aren't necessarily related to the other justice's questions that have just been asked. and so what i found is when the decisions are made to extend the oral argument time to 45 or 60 minutes, the arguments just go a little better. the justices are more relaxed, the articles get a little better chance to elaborate on their points. that probably does come from his experience as an advocate, realizing that it's not every case by any means, but there are going to be situations in which

it just makes sense and the oral argument will go better if you take a little pressure off it by just adding some 250i8. >> and the chief justice has even done that on the fly on a couple of occasions. >> those are harder because he didn't say, hasn't said i'm going to give you five more minutes. he has said you can keep going. and that's hard when you're at the podium, because you don't know when he's going to say, okay, stop now. it's hard to figure out, well, do i hold this point back or should i get it out now? but in general, he has been much more comfortable about letting the arguments stretch on. >> willie? >> one thing i think is a point of commonality in the two observations between lori and from don. i think in general this is a court that values oral argument as a way, both to getting to the heart of what the case is about, which is not always as perfectly clear from the briefs as we until bar might like it to be. and it's our fault.

but also, as a way of communicating with each other, in a way that they don't do before cases. it seems that they do not walk down the hall and say, so that case is going to be argued next week, what are you thinking? and the first opportunity for many of them really is in the context of oral argument. not all of the questions that you hear are purely, i don't know the answer to this and will you please tell me what page it's on? some of it is more pointed, more aimed at the weakness in this case that we are hearing is x, what is your response? and i think a lot of the justices have begun to use oral argument to kind of probe. >> the conventional wisdom, and the supreme court bar that oral argument only rarely alters the actual outcome of the case. >> that's something people say to make the advocate feel better. >> i heard that a lot in my last case.

>> tell me whether you disagree with that and if you don't disagree with that, i would be interested in how you would reconcile that with what you just said, willie about how the court does seem to be more solicitous in oral argument. >> it may not flip a lot of clients a lotle of time. but there's no doubt that it is incredibly useful in figuring out the weaknesses in the case how the things that make the justices tick intersect with the things that the cases are about. and sometimes the justices, i think, find in the course of an oral argument that the case is about something, perhaps a little bit different than they had thought coming in. i do think it's pretty rare that a justice marches in thinking i'm a solid vote to afirm and marks it out thinking, boy, thanks to oral argument, i'm now a solid vote to reverse and no oral advocate wants to have been the person who changed that

mind. >> don, you don't have to identify particular cases, but as you're standing up there as the solicitor general of the united states, are you standing up there thinking, boy, i have an instinct about how this case is going to come out or are you thinking this case is generally really hard to come by? >> i think much more the former than the latter. but i think that is a part of the function of the kinds of cases that an sg argues, which tend to be the big cases and they tend to be the cases in which the justices put in the most work and the most thought, and probably in many instances have the most well developed sense of where they think the law is and should be. but i will say on the oral argument point, one of the benefits of getting to go every day and see the arguments, is that i do think there are other cases that lawyers in my office have argued that may not be the superhigh profile cases, it may be a supertechnical case about the meaning of the statute or

how one statute intersects with another statute. it seems like the judgings aren't buying what we're selling, they seem kind of hostile. but it's because they don't really understand the way the statutes work and the lawyer in our office is going to work through how the statute actually operates and how it fits together with another statute. although you never know for sure, there's two or three instances where it seems like minds were changed by that process of education and argument. i don't know if that's true, and it doesn't tend to happen in the really high profile cases. but it wouldn't surprise me at all if some of those outcomes change in those kinds of cases. >> well, i'm the one person who hasn't worked behind the scenes as a clerk but i have been able to interview the various justices over the years for books an other projects and they do say what they think matters.

they have a hard time quantifying it because it is an elew sifz factor. they will use oral arguments to telegraph to each other what their positions are or where they see are holes in a competing position. and we have seen a little bit of what don was referring to in the cell phone case in the most recent term where they seemed quite hostile to the idea that police wouldn't be able to search the contents of a cell phone. but by the end, you were a little bit uncertain about how they would come out, and then they were unanimous about putting a requirement to police for cell phone soifts r searches. it is part of the w40e8 process. they do not actually talk in any formal way, i think you're right, willie. even informally before oral arguments on the case, the conference ask typically at the end of the week, they have a wednesday conference on the early week ones and a conference

on friday for the later oral arguments. but i think from everything you all say who work behind the scenes and what ahave heard from them is that the conversation actually begins way before they get to the conference and part of it is in oral arguments. which is why it becomes so crucial for all of you who get the argue these cases. >> you have given me the perfect opening to start talking about last term, since you mentioned the case on cell phone searches, riley versus southern california. would you describe that as the most consequence shall decision from last term? are there other decisions that you think will have long-term consequences? >> politically, any time we have any kind of ruling involveding the kbaum sponsored health care law, that's a big deal. and we're still seeing how issues of the contraceptive mandate are playing out. we had the union fees case that could be more consequential down the road for other labor

disputes, but i do think for all of us regular folks out there the cell phone case might have been the most important. >> can you provide a little bit of background? >> of course. the issue was when you're stopped, when all of you are stopped and arrested, as a matter of course. >> this doesn't look like a particularly felonious crowd. >> it doesn't. do police need to get a warrant to search the con tengts of your cell phone. a smart phone essentially. and, you know, with the police argued, it was a pair of cases that they shouldn't have to quickly get a warrant as a general rule because somebody could tampaer with the contents there's a lot of issues that would lead to the destruction of it and it would lead to a routine cursory look anyway. but the justices by a 9-0 vote said no, you do need, in usual circumstances, unless there's some sort of danger or some sort

of chance that the contents would be destroyed immediately, you do need to get a warrant. and the interesting thing about oral arguments then, you felt like the justices might not be aware of smart phones. there was a moment when the chief justice himself suggested at least who would carry two cell phones unless he was a drug dealer. and we know for a fact, at least i know for a fact that justice -- yes. justice kagan, justice ginsberg even carries two. justice kagan and justice sotomayer have two cell phones on them at any given moment. he got set straight probably in the roving room. >> someone sent him a text? >> yeah. and justice kenby, who's our key voter who we're always watching, many of his questions from the bench were all about police and

police concerns and he seemed to be very much taking the point of view of law enforcement. so that was a really interesting ruling. so what it means is when we all leave here today, if we get stopped for any reason and our smart phones are confiscated, they would need a warrant to search. >> other cases that were of significant from last term that people want to comment on? >> well, we saw a split the baby, 9-0, but a split in the rationale decision about recess appointments. that's another case i think of when i think of long-term imp indication force the future. any time you have the judiciary talking about the limits of executive power, it's a big deal. evening though it was kind of a compromise decision that allows recessed appointments in a narrow window of time. it's the sort of thing that can

have, you know, long-term implications and end up in the common law case book. >> that must have been a particularly interesting case to argue because as an advocate it was something that the sprblt had never spoken about. >> it was literally, this was the provision, and we talked got it here on this forum here last year, before the argument, that it gives the president the authority to make a appointments that would otherwise require confirmation of the senate, if the vacancy shall happen during the recess of the senate, and the question was -- there were three questions in the case and one was, does the recess mean only the recess at the end of win session of congress and the beginning of the next and between those two points or can it be any recess during the session of congress and the second being does the vacancy have to arise during the recess

or can i arise before the recess. and what about these pro forma sessions of the senate. and really, the case turned so much on the historical practice, precisely because there really wasn't any precedent from the supreme court in all of our country's history resovm kwhag the scope of this power was, and they said well yes, a president can make appointments for any recess of ten days or longer and the president can even make appointments if the vacancy arose before the recess, but know the president has to respect the senate's assertion that it's actually in session for these 32nd sessions and the court's not going to look behind that. to as lori said, it was some sort of a split decision and this may be looking at the world

with rose-colored glasses, but i think from the perspective of, from where i sit, representing the interests of the executive branch of the government, actually there was a lock that wasn't very positive about that decision, because for the first time in our country's history the court said that the president does have the authority in these circumstances and the exercise of these authority by presidents going back a very long time has been validated and that will be there and be solid going forward so future presidents will know what the scholarship of their authority is. so that was quite an interesting case. >> you talked a little bit about the constitutional cases that the court decided last year. but willie, in terms of cases of interest for friends of the business community, one thing that came through loud and clear last year is that this is a court that is very interested in resolving issues concerning intellectual problem in particularly patent rights. could you skmencomment on that?

and we'll be commenting on cases of that variety as well. >> last term, the court took six patent cases, two copyright cases, one very cutting edge and significant. and two trademark or false advertising cases, it was an absurdly high slice of intellectual property on the court's docket, the kind of things during the rehnquist court you would have seen, all of those would have been replaced by cases involving an officer searching a car somewhere in california. one thing that's significant about the patent cases in particular, but i think also about the copy right case that took the streaming of live tv over the internet, involving a start up called aero. is that in some of these cases, the supreme court doesn't have the traditional guidance for which cases to take. usually in a -- you know, the

simplest version of criteria the court has for what cases to hear t court looks to see if this appeals kurt has decided the same issue one way and that appeals court has decided it another way. all of the patent cases go to the same jurisdiction over patents. it's harder to figure out what the federal circuit, which is what that court is called is not despiting in a way that the supreme court ask comfortable with. sometimes they ask vsg to weigh in on is this a patent case they should take on. i think one of those patent cases got there because you asked them to take it. but others did not. and the supreme court reversed the federal circuit in every single one of those cases. they generally don't take pat tent cases because they're happy with what the lower court has done chx there's been a lot of reversals. in the case that is don't take,

they're just fine with what the lower court is doing. it's still fine for them to take and engage with a bunch of -- patent lawyers often think of as quite settled. nec term there's more on that subject. the copyright case, where there is no circuit split at all, but the court thought it was time to jump into this fairly hot, fairly legal interesting issue. but both justices asked the court to jump in and settle it. they could have said this is a preliminary case, it's still being lilt gaited. go work it out in that lower court. >> i have actually argued a patent case as sg in each of my three terms. i have not gone back to research this. i have been told by many people that i'm the only sg to have argued even one case much les three, so i think that's a sign about willie's point that the

intellectual property docket is becoming increasingly important to the court. >> you know, what this reminds me of, do you remember the letter that ken starr wrote to the wall street journal about business and intellectual property in the early '90s? >> no. >> ken starr was -- everybody remembers them with monica lewinsky and president clinton. after he left the sg's aifs early in the '90s, he happened to write two pieces about how the court was not hearing the right business cases, he didn't say as willie say, you keep hearing these search cases from california, can you take some business cases. and he actually said that some of the clerks weren't quite up to spooeed. and john roberts who once was a clerk certainly is up to paid on intellectual property and the high-tech business cases.

i won't, it's been such a transition from the rehnquist years to now, but that was something that the bar had been pointing to and the problems. the court of course is a court of discretionary jurisdiction, the court only hears around 75 cases a year so it has the great luxury of deciding which cases to hear. i'm just curious of whether anybody on this panel has any thoughts about whether there's a particular category of cases that the judges should take more of, or the category of cases that the court's taking too many of? everybody on this panel who's a practicing lawyer is going to stay they don't take enough of my cases. >> intellectual property has

become such an important driving force in the economy, that it's not such a surprise that the court's taking so many cases. it's as though you go back to the late 19th century, there were a lot of railroad cases on the docket and that makes sense due to the nature of the economy. >> let's say the one issue that seems to have fallen off the agenda a little bit in the roberts court are cases that involve federalism. >> uh-huh and cases involving claims by states. and that was an area that was obviously of great interest to chief justice rehnquist. that seems to be a little less of a priority in terms of the court's docket with this court. >> and of course we lost our true westerner in sandra day o'connor and the federalism issue, the state authority in the case of some sort of mandate from washington was a big deal to her also. so both she and the chief, chief rehnquist made better priority especially in the 90s.

>> but it is interesting because justice kennedy also seems very interested in federalism, but he seems unable to do what the other two were able to do, which is get other people interested enough to grant, you know, in these cases. >> yeah, let's talk about the cases that the court actually has granted review in in the coming term so as to avoid that lawsuit for false advertising for this program, let's talk about the upcoming spring term. we're really talking about half of the upcoming supreme court term because the court has filled a little less than half of its calendar for the upcoming year, the court will continue to grant review to fill out it's calendar for the upcoming year. is cases that are on the court's docket for october, november and december. i want to start with, the solicitor general, and as we were sort of talking about cases we were going to discuss today,

we came up with, you know, probably about 10 or 12 cases and the common thread of the cases you're going to talk about don, is they are cases that seem to involve the separation of powers, and the relationship between branchs of the government. so i know you're going talk about a couple of cases, but the first case you're going to talk about you have tried already. i think the secretary of state has changed since the last case you argued as well. >> yeah, this is as ken said, this case is back for the second time in my tenure, it is a case, separation of powers case, the recess appointments case that we talked about earlier was a separation of powers case, in allocating the authority under our constitution between the president and the executive branch versus the congress. it involves a clash between the congress and the president over who has the authority under the constitution to decide whether

to recognize and how to recognize a foreign country as sovereign. it's really quite an interesting case and it arises out of a statute that was passed in 2002 statutes title was the following -- the title of the statute is united states policy with respect to jerusalem as the capital of israel. it has four sections. the first urges the president to relocate the u.s. embassy from tel aviv to jerusalem. the second one says the united states funds can't be used to fund u.s. con sell in jerusalem. the third says, any document like a map has to list jerusalem as the capital of israel and the fourth says that any american citizen born in jerusalem has the right to have israel listed as the country of birth on his

or her passport. that statute was enacted in 2002 when president bush signed it into law. it was part of a big statute. but when he did, he said the executive branch and in particular the state department which issues passports was not going to follow the fourth of those provisions. it wasn't going to allow citizens to have israel listed as their country of birth if they were born in jerusalem. the reason for that is that going back to 1948 when president truman first recognized israel, the united states has not recognized the sovereignty of any nation over jerusalem. it has said that until the parties in the region work out among themselves who will be sovereign over jerusalem, the united states will remain agnostic about that question. and the concern about issuing passports to people born in jerusalem, listing israel the country of birth would be that it would in effect be a

statement of the branch of united states that jerusalem is indeed a part of israel and president bush said he wasn't going to enforce that provision because it infringed on the president's exclusive authority to decide what countries to recognize and what borders to recognize in countries. and president obama has continued with the same policy president bush had of not enforcing that statute. now, someone brought a lawsuit under the statute saying, hey, this statute says i have a right to have israel listed as my country of birth because i was born in jerusalem and state department has to be ordered to give it to me and they're refusing to give it to me. that made its way through the federal courts of appeals and one of the arguments the government made, hey, that's a political question. this is something the court shouldn't get involve nchd you ought to fight it out between the president and the congress using the usual tools that each branch has to bash the other

branch with. and the court shouldn't get involved. now, the court rejected that in a decision back in 2012 saying, no, no, this is the kind of question the court should answer under our system because it involves the constitutionality of the statute and send it back to the lower courts and that case is now back in front of supreme court to decide the constitutionality of this statute. and the question i said is whether that statute infringes on the president's exclusive authority under the constitution to recognize foreign sovereigns in which case the president wouldn't have to follow it. or whether it doesn't and it's a valid exercise of congress's powers under article one. now, the problem with this case and one thing that makes it really interesting is that the text of the constitution does not, at least in so many words, assign to either the president or to congress the power to

recognize foreign sompbs. on the president's side, it gives the president powers to receive ambassadors. and starting with george washington, presidents have said, well, in order to receive an ambassador i have to recognize the legit masy of the country from which the ambassador hails and therefore, i, the president have the power. and then the congress says -- in more generally the president of course is in charge under our constitutional system of di blomsy and those are the constitutional arguments on the president's side. congress said, no, well we have enumerated powers in article 1 section 8 to regulate foreign commerce to regulate naturization and we have a power to declare war. and sometimes nonrecognition of countries is bound up to declare war and it's long recognized that congress can pass laws using these powers to regulate

the contents of passports and that's all we've done here. so, you look at -- this is a case a little bit like the recess in appointments case that very, very little law and there's actually no law addressing the question of where the recognition power resides as between the president and the congress. history will tell you that there's a very, very long history of presidents exercising the recognition power and no history of congress actually exercising the recognition power but actually there are numerous instances of congress tangling with the president over the recognition power, enough of them at least so that the thing is not entirely clear cut. you know, as a structural matter, you know, what the folks favoring the constitutionality of the statute will say is that most presidential powers are subject to a check in the congress. the president can negotiate treaty but it has to be ratified by the senate, for example. and it would be odd that this

power isn't subject to a check and so the congress should have a role. on the other side of the coin, one of the things that we'll argue on behalf of the executive branch is that as a functional matter, just can't work to have the recognition power reside in the congress because sometimes that power has to be exercised instantaneously. for example, president truman recognized israel 12 minutes after israel declared its independence. sometimes there's very sensitive reasons why you may want to delay exercise of the recognition power. of course, going back to the founding era, congress wasn't around for about half the year, at least. so it would be hard to exercise the recognition power under those circumstances. so, it's going to be actually quite an interesting case and somewhat like the recess appointments case i think that you'll have to really dig down deep to the first principles of our constitution structure and function and look very hard at the history and see what you can learn from it in order to resolve the case. >> and i think the other case

you were going to talk about involved not the allegedly improper exercise of the legislative power by delegation. >> allegedly improper casting off of legislative power. this is a case called department of transportation versus the association of american railroads. it's a case about the powers available to congress under the constitution, but it's a different kind of question in this case, particular it's a question about whether congress can delegate any of the government's decision making authority, the federal government's decision making authority to a private entity. it arises out of a statute that congress passed in 2008 to try to improve the on time performance of am-track. you laugh. >> seems to have worked. >> it's doing much better as a result of this statute it's doing much better. outside the northeast corridor, am-track runs on tracks that are owned and maintained by freight railroads.

and by law, the freight railroads have to let am-track have the right of way on the tracks and they have to give am-track a preference so it can increase its on-time performance. but before 2008, on-time performance was pretty abysmal and by lots of calculations was costing the government a lot of money because the am-track is not profitable, the government has to subsidize it. and so congress passed a statute in 2008 to improve on-time performance. one of the things the statute did is say, am-track and the federal railroad administration should get together and jointly set metrics for performance for am-track. and that if they agreed, great, those would be the metrics that govern am-track's performance. if they disagreed, then the statute provided for the appointment of an arbitrator to make a decision. so am-track and the federal railroad administration got together and agreed on metrics.

they accomplished them as proposed rules and the freight railroads, whose freights am-track runs over and they challenged them. and they challenged them on the ground that congress has imper misly delegated to a private entity. you're asking who the private entity is, well, am-track is the private entity because although am-track is heavily subsidized by the government and has numerous other features which may play into the case that make it seem like a government entity, when congress created am-track to try to preserve passenger rail service in this country, some 40-some odd years ago, one thing the statute said is this is a private company, it's not a government entity. and then why do the freight railroads care about this? why do they challenge this? well, it's because if am-track is falling short of these metrics on the freight railroads' lines and am-track can show the department of transportation that it's the freight railroads' fault that

am-track is late, then the freight railroads have to pay damages. and so the freight railroads were complaining about that. now, this case went first to the d.c. circuit court of appeals here in washington. and the d.c. circuit struck the case down under our constitution the congress cannot delegate a right to a private entity and that's what happened here in this case. that was quite a remarkable thing in the sense that a ruling like that, a ruling saying that congress had imper misbli delegated its authority to private actors had not occurred in this country since the early days of the new deal. one of the things that happened in the early days of the new deal and one of the more famous cases carter, versus carter cole was a case in which before the switch in time, let's say of '09, supreme court had held that one of the key