iscussed in our department to continue to strengthen the security of the visa waiver program. and not to -- to give us better confidence, more confidence on the hill and elsewhere, the security of that program is as effective as it can be. >> and in terms of oversight, how is it that we ensure that every country that's part of the visa waiver program is actually keeping up with the standards we need in order for us to get the information we need? >> well, we do biannual reviews on the ground in those countries of every visa waiver country. one of the things we're discussing is whether we should do that annually, as opposed to biannually, there are other things we're discussing to strengthen our confidence that what we believe is happening in those countries is indeed happening. there will be more to come on that in the future as those deliberations continue.

>> thank you, i yield back, thank you. >> gentleman from georgia is recognizes. >> thank you, mr. chairman to the witnesses being here today, i appreciate you being here. i don't know when in my lifetime i've been more concerned about the internal security of america, not just from our safety and security, but our economic security. and on several fronts for different reasons. one of the things that i know has been spoken about here and at other times is the threat of isis. as not only being what i understand the most well funded the best organized terrorist organization in the history. but also there ability to effectively use the internet and social media. there's one thing to use social media. those of us engaged in politics, we spend a lot of time studying the effective use of social media. how do you come up and stand out

amongst billions of users across the world? and it appears that isis is doing a very good job. they're effectively marketing to our youth which is especially concerning to me. especially those that are vulnerable feel disenfranchised, even using video games as you have mentioned. and so what are we doing -- are we working with internet providers. social media providers to help combat the use of the internet and social media to spread their radical islamic idealism that is a threat to the future? are we working with those companies and are they participating? >> i'll start and ask mike to take this on too. partnership with these technology companies on whose platforms this propaganda is riding is a central part of any

strategy to counter what's going on. the president's cbe summit will have a component to it to make these companies the partners with us this partnership has a number of elements. it's in part exposing them about what is happening on platforms they control. so they understand it and they can understand when terms of service violations are taking place, they should intervene and take steps to block certain content. it's also again to deepen a partnership and make sure they understand that we need to be partners with them in going at this more systemically not simply in response to a single video or youtube posting or something, actually to think about what kind of relationship between the federal government, law enforcement and these companies make sense if we're going to tackle this phenomenon. >> i'll just add sir. social media when you look at

the volume and numbers of companies, it's hundreds of companies. we do have direct engagement with those companies that are u.s. based when you look at the totality of what the terrorist groups are using. many of these are small social media companies who reside offshore who flaunt their lack of cooperation with law enforcement. that's the problem, there's a large -- you can go to twitter or many other companies, but there's just a large number out there that unfortunately, it's difficult to get our arms around there needs to be thought toward how do we effect the totality of the social media platforms that are out there. >> obviously the dominant players in social media are american companies. they've been receptive to work with you. have you found them to be cooperative? >> we've had ongoing continual dialogue, we have a team there now talking to the companies.

they understand our viewpoint. i don't think those companies and the individuals who work in those companies want to see bad things happen they balance the right to privacy versus their diligence and requirement to keep people safe. it's a volume thing. it's not -- they try to follow the terms of agreement. certainly if they see individuals violating those terms, they shut them down. you're talking with that volume, it's a challenge for people. i would say they understand their problem. that's just one part of it. >> thank you. and i only have a few seconds left. i want to say, when i was in the military, one of the things we got to was the basic ideology behind an enemy. that's how you formed your strategy for a long term defeat. and my concern is we're not properly identifying this as radical islamic extremists to

have a long term fight a strategy against the ideology typically on the battlefield, most soldiers have a survival instinct that we know that -- when it comes down to it they do want to live in this case, ideology is that death is a reward. i would just emphasize the importance, as ronald reagan understood, understanding the ideology of extremism if we're going to if we don't, we will find ourselves responding instead of having a long term strategy. with that, mr. chairman, i yield back. >> can i make a comment on that really quickly. >> the subject matter experts, whether they're talking about organized crime or terrorism, they are subject matter experts, we spend a lot of time training toward subject matter experts to understand, have you to be a subject matter expert to engage in this fight. we have robust training programs, they talk about the

ideology, talk about the culture, the history of the radicalization, the history of terrorism. those programs and training programs under place and they're very important for my folks, and i'm sure the other agencies to work the threat. >> i think -- thank the gentleman. the chair now recognizes the gentleman from new jersey mr. paine. >> thank you, mr. chairman. to the ranking member. you know a lot of this discussion today and over the past month or so has been very interesting to me. here we are a committee with the responsibility of making sure that the homeland remains safe. but yet and still, everyone talks about making sure that that happens.

but there are a group in the congress that are willing to play politics with this country's security. and, you know politics is part of what we do. but to pick homeland security in order to make your point is dangerous. i travelled from my district in new jersey the congressional district which takes in newark new jersey the tier one target prudential insurance company was targeted several years ago about a decade ago for an attack. if you go to jersey city in my district where i went on september 12th. and the smoldering building from across the river, we cannot play

games with the funding for this department because of a policy that you don't agree with in the executive branch. it makes no sense. with that -- oh, and let me just say, mr. chairman, i had come down from my district on the training monday night and in the train station there were dhs police officers and i went over and spoke to them and thanked them for their service and the things they're doing for this country. and they asked me to send a message back to congress and it was please give us the resources and the funding we need to do this job. do not cut our legs from under us. so we can't continue saying, we appreciate their service and work, but, yeah, we will not give them the resources that they need to do the job.

so under secretary taylor, you mentioned that not fully funding the department of homeland security would have a crippling effect on domestic security. could you please explain how if the department of homeland security is not provided with the full year funding, efforts to prevent foreign fighters and their travel would be affected since that seems to be a great concern on the other side. how not funding the department will impact that ability. >> i think the point the secretary has made and i've tried to make here today, is that working under the cr limits our flexibility and investing in the threats as they evolve over time and our grand funding and our ability to respond to add emergency to the secret service for additional protection and those sorts of issues. so i can't speak specifically to

a specific foreign fighter aspect. but in the day and age that we work and live from a security perspective, the secretary believes very strongly that in order to protect the homeland we need the flexibility to invest in the new threats as they are evolving. and under the current system he doesn't have that flexibility to direct his forces to execute in that matter. >> new funding for the new programs funding for continuing grants. $2.6 billion in grant funding from what i'm reading here. >> yes, sir. >> you know it just baffle ss me how we can almost talk out of both sides of our mouths and say that we want to make sure that the homeland is safe. but because of an issue you have with the executive branch, we're going to play games and say,

maybe we won't fund the department of homeland security. i yield back. >> the gentleman from new york, is recognized. >> thank you. mr. steinbeck, earlier you testified that the fbi did not have a process in place to vet and conduct background checks for syrian refugees. what tools would the fbi need to be able to conduct these checks? >> we have a process in place, i said there's a lack of database databases, we learned our lessons with the iraqi refugee population. we put in place a wide background and vetting process that we found to be effective. the difference is in iraq, we were there on the ground collecting. so we had databases to use. the concern in syria is the lack

of our footprint on the ground that the databases won't have the information we need. it's not that we have a lack of process, it's a lack of information. >> is there ways that you could suggest we go about trying to get this information? >> i don't think you can go and get it. you're talking about a country that's a failed state, that does not have any infrastructure so to speak. all the data sets the police, the intel services, normally you would go seek that information, don't exist. >> and that raises grave concern as to be able to do proper background checks with the individuals coming into the country? >> yes. >> now, mr. taylor, thank you for your testimony as well. as a member of the -- chairman of the subcommittee on transportation security, i look forward to woulding with dhs and tsa moving forward to the mutual benefit of everyone. a couple quick questions from your written submission. real points of clarification for

me so i can better understand the foreign fighter issue. one of the things that you mentioned was that the secretary johnson, his order is conducting immediate short term review to determine if additional security measures are necessary in both domestic and overseas departures. what's the status of that review right now, and when will we be able to get some information out on that? >> the secretary will brief us this week -- the idea behind this -- the thing secretary johnson has charged us all with is thinking outside the box. >> i like that. >> we apply security directors, we see the effect of those security directors. every week when we have our counter terrorism meeting, his last question is are we thinking out of the box? and what else could we be doing too be more effective? that's what he's charged tsa to give him some ideas back that he will decide in terms of how

those things might be better implemented across both domestically and internationally. >> that's the short term. and the long and short any suggestions that would be helpful? >> you're exploring the possibility to expand preclearance operations? can you explain this in more detail why that would be more beneficial? >> simply put, we would rather play defense on their one yard line than our one yard line. right now, without preclearance the clearance happens here, in the united states and not at the overseas airport. so the extent to which we have preclearance agreements with governments across the country we can put homeland security personnel in those airports, conduct the screening, using our databases at their one yard line and be more effective we think in preventing people from

getting on airplanes coming to our country rather than finding him here and having to send him back. >> thank you for that. >> lastly. with respect to tracking the foreign fighters there is a reference in your written report to enhancing or enabling cvp to conduct travelers to determine if they have low law enforcement security risk. when he said inables cvp, what do you mean by that? >> we're really speaking to the expanding of esta and our esta data requirements is one of the earlier members asked, we expanded that by six. we're looking at whether or not we should expand it even further so that we have better data upon which to vet against our databases. >> when you use the term, i was kind of hung up. maybe my former prosecutor a little too much here.

enabling the cvp to conduct vetting. is it optional for them to do that? >> it expands their capacity to do it, with more data elements. >> as far as a total mix of things they screen for? >> yes, sir. >> i would add that every person that comes to the united states on an aircraft or ship is vetted against our holdings. there is no one that comes here that doesn't get that kind of screening. it's the -- whether it's a visa screening or an esta screen that may be a bit different in terms of whether an interview is conducted. everyone gets screened against the databases that are available to our country. >> thank you very much. >> gentle lady from new jersey, miss watson coleman is recognized. >> thank you mr. chairman, and thank you mr. thompson. >> gentlemen i am so sorry i wasn't hear for the beginning of your testimony but i spent my last night reading it i found it fascinating. i'm very appreciative of what

each of your agencies is doing and attempting to identify in terms of keeping us safe here and how you've expanded your interactions and your information sharing and methodologies and creativity with other places, including foreign countries so that we can all be safe. that's very important to me, particularly struck by homeland security, and i want to associate myself with mr. keating and mr. paine's remarks. you are the protector of the homeland that you had the resources necessary to be flexible, to be responsive, to be proactive, to do what you need to do to keep me safe. whether or not we should be holding the president's foot to the fire on something he did, because congress couldn't see fit to do. but none the less, my question is more narrow. i think it's similar to mr. lauder milk's questioning. i'm concerned about growing our

terrorists here, taking who we think are every day young people, having them exposed to the way these social media resources and how, what is it that we can do to sort of cut it off at the pass? what is it that we should be doing in terms of accessing young students vulnerable college students. are there resources we should be putting in educating and counter abilitying some of this negative propaganda. this ideology that's taking place with -- how do we help our communities and our families see signs? are there any commonalities of the characteristics of people that we see -- seem to be most vulnerable that are home grown.

can you share with me where you think our greatest threat is in terms of security. is it on the southern border of the united states and mexico? is it some other borders we're talking about? for someone like me i consider myself spongebob, i'm going to soak up all the information. you're absolutely right that the focus of our effort to help our agencies to get the information. it's not going to be a federally led community that's going to be the tipper that turns someone

off from radicalization. it is that local community the families schools churches mosques, they're the ones that recognize behavioral changes at a point when behavior can be addressed and potentially not end up at the worst case scenario of a person having travelled overseas. precisely the kind of information you're asking for is what we're trying to share in a series of community awareness briefings that give people, parents, schools teachers the tools to say hey this is what is happening, and now i have to do something about it. the do something about it part has to be frustrating. there isn't a single place you can say, we need to be worried about it here but not here. unlike some of our previous episodes. during the period where a large number of americans were going

to somalia, you had a relatively defined set of communities and concern. here i'm sure mike would echo this. we do not have a profile or pattern that says i, these communities were okay. we're having to talk about the chairman earlier, scale up these efforts because the isil, iraq group propaganda is having a reach far beyond ethnicities. it's -- it can't be narrowed in that way. that's a challenge for us. >> we believe one of the empowering organizations is our fusion centers and training of our state and local police officers who are the first responders, who are going to be the first level of defense, if you will, in spotting some of

this behavior in addition to what happens within the community awareness area. so it's a combination of empowering the community in terms of what to look for, and having our police officers better understand this phenomenon and what they may see on the street on a day to day basis and their encounters with citizens, community policing officers who are involved in day to day activeityies within communities across our country. also need to have that kind of an understanding, and think it's almost like the dare program, where you have to get to the basics of everybody understanding what the issue is, and filling the knowledge base so people when they see it that's where see something, say something can really make a difference in identifying these sorts of issues before they become bigger problems.

>> the gentleman from georgia, mr. carter is recognized. >> thank you, mr. chairman. thank you gentlemen for being here, thank you for what you do to protect our homeland. we appreciate it very much. this is the kind of report you read through, and you are concerned about everything. not one thing more so than the other, one of the things that struck me was about the foreign fighter travel. i just want to know what we can do to better control that. from what i understand, we're not using all of our resources, i don't know that the administration has even identified a lead agency to combat this. is that true? >> i would say that's not true. foreign fighter travel. travel to a conflict zone is against the law. the fbi has a lead on that. the question is when you look at the broken travel as mr. herb brought up early, you look at the ways to legitimate citizens traveling abroad is not

something that we choose to curtail. if you take travel to zirngs destinations like europe. you can take them down to turkey, it's more about identifying the multitude of ways that these individuals in the u.s. are committed to travel using good investigative processes are they going up to canada, mexico, how are they getting to -- using lawful process, lawful ways to get to these locations, it's not a function of not having the tools. they have just as much creativity as we do and they have a lot of support. they reach out on social media. talk to people who have done it made it and follow the travel route. we have to stay on top of that, and use trip wires, the intel intelligence community. the 17,000 state local and tribal law enforcement agencies to develop an understanding of what the landscape is.

>> did you feel like we have that understand control or doing the best we can? >> we don't have it under control. absolutely, we're doing the best we can. if i were to say we had it under control, i would say of every single individual traveling, i don't. i don't know every person there, and i don't know everyone coming back, it's not even close to being under control. >> we have to creatively as frank said, think outside the box to figure out how to combat this, and we spend a lot of time figuring this out, looking this over, trying to develop processes, databases, automated searches to work this problem. >> let me switchgears real quick. and let's talk about the visa waiver program. as i understand that, there are certain people eligible for this and it's good for 90 days and expires in 90 days? >> actually, the period of the approval can be upwards of three years, depending on the country.

once it's submitted the period it's valid can be between one and three years. >> those countries we're most concerned with can be up to 90 days generally? >> in terms of the waiver? >> right now, we have a visa waiver agreement with 28 countries across the world and each of those cases we have a bilateral relationship with those countries about how we exchange data and for what purposes. more broadly other countries have to get visas through the state department for the purpose of traveling to -- >> let me ask you this what happens when it expires? do we have someone who checks up on these people to make sure they're not here. part of being in the visa waiver program is a requirement that

your visa overstays be somewhere in the 1% level. we're pretty confident in the countries that we have visa waiver programs with that -- the level of this type -- is minimal compared to the level of activity that may be evident in other countries where visa overstays are a bigger issue. >> as i can imagine you've got a file set up, if somebody sees that 90 days, they haven't left you go looking for them? >> we have processes to try to make sure that those people who are in this country for longer than their visa period are tracked down and that's squared away. >> okay. mr. chairman, i yield the remaining time. >> thank the gentleman -- the chair recognizes the gentle lady from texas, miss jackson lee. >> let me thank the chair and the ranking member for this very important hearing, and let me

state to the witnesses, i was delayed because we were holding a crime subcommittee and judiciary on the ranking member. this is an extremely important hearing. it is issued in the backdrop of several worthy comments. the president has now released his aumf which is a singular notice to the congress of the importance of addressing the question of isis and the potential of the united states engaging in some form of military action to be able to secure this nation. i indicated in remarks earlier today on the floor that the department of homeland security provides a domestic armor of security that is the responsibility of that for many of us on this committee, we've had the privilege of serving since the horrendous and heinous act of 9/11 often i make the comment, certainly not proudly

that i was on or at ground zero during the moments of the extended time of looking for remains. it will always be a potent and striking moment in my life. and i take seriously the responsibilities of this committee. for that reason i believe it is crucial that we do not hold hostage this department. we have actually seven days to make amends on the funding of the department of homeland security, and i remind my colleagues that the issue of unaccompanied children or the president's executive actions did not pose the kind of heinous threat that we're talking about today. i frankly think this is an important discussion and many front line dhs employees will be in essence hindered from their work without the full funding of this committee. i ask you, mr. taylor, just a

simple question, that in the midst of your jurisdiction and employees you have under your jurisdiction, without funding for this department. will some of them not be paid? or some of them have to be furloughed or some issue may come up regarding their service? >> ma'am, we're in the process of review inging the procedures for an orderly shutdown. i can't say specifically the number of people since i -- the people who work for me are primarily in the national security arena. there will be an impact in terms of people who are not directly involved in national security, and also i would reinforce a comment i made earlier, they're going to be people who are working, but not paid. >> that's the point that i made. you didn't say that. >> it's a challenge in a

department that is moral challenged going-forward. >> the main point is you're in the process of having that as a responsibility which is surveying your department and determining what will happen without the furnisheding? >> absolutely. >> that's taking your attention away from important security issues of securing the nation. which i assume it's a statement that i believe is accurate is that not accurate? >> i'm not personally involved our departmental management folks are working -- >> that is staff persons dealing with those issues that would not ordinarily be dealing with them at this time. >> absolutely. >> let me offer and pursue my questioning to make this point. i do want to offer sympathy, we've come to our attention that three members of a muslim family were murdered in chapel hill. students at the university of north carolina chapel hill. we understand the culprit was arrested and charged with first degree murder, and had some issues dealing with religious

questions, one of the individuals was in fact speaking against the murder of people, meaning one of the muslim students was speaking against that. let me go straight to the gentleman from the fbi. and ask the question regarding cyber and the internet and soliciting. and what counter in terms of ideology can be best used to fight this we can fight with arms, we can fight with intelligence. there are the other ways of stopping or getting in the way of the solicitation of our young people. >> absolutely, ma'am. i think there's a variety of ways, both methods we can talk about in open session as well as information we can talk about behind closed doors in a classified setting. i think it starts to go back we have to understand the path to

radicalization and mobilization. it starts with intellectual property at some point. there's lots of community based efforts that will be made to turn people away, once an individual gets to a point where he or she has an intent to conduct an attack. it turns into a disruption or enforcement piece. there are efforts that can be made from a counter radicalization narrative. it's a multipronged approach that involves the state department and a counter messaging piece. it involves a community based radicalization piece. and it involves the use of trip wires and disruption to prevent acts of terrorism. it's a widespread approach that we have to utilize all of those. >> let me just say that i hope this committee we have overlapping jurisdiction will ramp up the dollars that will intervene in that radical ideology, i consider isis

barbaric. i want to offer my deepest sympathy to the family of kyle miller. the truest american, wanted to help people in need. the violence in this nation that warranted or brought about the death of three muslim students or individuals in north carolina, none of this should be tolerated. however we can disrupt and interrupt this, i think it requires all of our resources, working together bipartisan funding the dhs to be able to make a difference, and i for one would like to be engaged in the legislation and/or to find out more of an instructive manner, how do we stop the radicalization of our young people for something as heinous as what isis represents. and my final word is thanking

abdullah and jordan for their committed work along with our allies on this effort for the losses they have experienced throughout the middle east. >> thank you mr. chairman. thank you, gentlemen, for your testimony here and i'm trying to look at you while i'm talk ing ing. i appreciate the work you've been doing, i was 26 years in the military. my last assignment at u.s. africa command running current operations there, to include our counter terrorism operations. and i'm aware you all have been dealing with the foreign fighter issue long before a lot of people are now paying attention to it we were watching it, even back then, 2007 to 2010 where we had foreign fighters flying into many areas, but for al shabaab training camps aqip and aqim in

these ungoverned spaces, caused great frustration, as much as what we've been talking about today is mostly on the defense to use your terminology but in order to address this it needs to be a comprehensive government approach for sure, i sure would prefer to be on the offense primarily, that includes going after these people that have decided to become enemy combatants and a generational struggle against us, as well as going after the core ideology and so as a young classified level, you know this, we watched thousands of foreign fighters graduate from these training camps, quite frankly, we didn't have the political will to do anything about it on the offense. not thinking it was within our interest. or wasn't a threat to the country. god knows where the thousands of jihadists who graduated from these training camps, where they are now, who knows where we are today. we watched them, we let them go

we did nothing about it where we had tremendous opportunity to do some things we just didn't do it. so we've been focusing on the foreign fighter problem with isis, i want you to comment on the perspectives of the foreign fighter problem in other ungoverned areas we can't forget about, to include many of them in africa just like your perspectives on what we're seeing through there. >> thank you. and as i talked about it in my testimony, the thing that's -- the order of magnitude different about the former fighter phenomenon in this fighter conflict is the scale. you're absolutely right, this is not a phenomenon that was invented yesterday. individuals interested in flowing to conflict zones to participate in conflict there something we've been watching through a series of conflicts in the middle east and north africa, and there's a unifying theme in these areas is lack of governance. we're left sitting on the outside, trying to intervene using all of the tools

available, but no one tool itself being adequate to the task of reaching into a north africa, whether that's amalie or libya or somalia. it's a challenge we do not have our arms completely around yet. we're challenged in some of these areas because of an intelligence deficit. our ability to collect intelligence gives us a picture of who the individuals of greatest concern are, that is where we try to spend most of our effort, trying to determine who those individuals are that actually are engaged in plotting against our interests. because there's obviously a huge population of individuals who are there to participate in localized conflict, so we can't devote all of our resources to understanding that picture. >> the last thing i would say is that particularly concerning about the isil phenomenon they have now decided it needs to

move beyond syria and iraq. you have extremist organizations in north africa ail gear yarks egypt, in libya who now raised the flag of isil and claimed affiliate status that creates a sense of momentum and competition among extremist jihadist groups, that ultimately adds to our threat concerns. even though you like to see your enemies fighting against each other, but is creating competition amongst each other as they try to one up each other in efforts to go after us. >> great, thank you. the next question i have, a little bit of time here left. i know you talked about some community engagement. this is an islamic extremist problem. what in particular is the muslim engagement in america the muslim leaders, where are you seeing that there's obstacles to having them admit there's a problem of extremist portion of

their religion and they need to get on board in order to stop it? >> i would say that the -- within the muslim communities around our country they're concern as are all americans, about this kind of behavior among people within their community, and they want to address it, they want to understand it better, and to have the tools to address it, and i noted, i've been out with the secretary on a couple of these -- there are concerns about discrimination on the part of those communities and how they're treated in certain other ways. there's no lack of commitment in those communities to get at extremism among their children among people in those communities, they see that as inconsistent with their responsibilities of being americans and living the american dream in our country. i've noted -- i don't think we've noted a major lack of effort among those communities

to recognize this phenomenon, and how it impacts those communities and not wanting the tools to help them address them proactively. >> my time's expired. thank you. the chair recognizes the gentle lady from florida. >> thank you so much. and i apologize to the panel for giving you my back, but unfortunate circumstances of seating arrangements. i would like to go back to the question that was asked by ranking member thompson for you under secretary taylor. without a full year of funding bill, the department of homeland security cannot award -- it was my understanding -- $2.6 million, correct? billion dollars. >> billion. >> in grant funding much of which goes to state and local departments. having served both at the local

level, as the counsel member mayor and having served as a state senator in the state of california, you know these agencies are just beginning to recover from this great recession that we have had. they certainly do not have the fund funding to back bill what we send to them. they are dependent on this funding in order to help protect our communities. so what do you think is the risk assessment as it relates to these agencies not being able to pick up the phone and have someone on the other side answer to get feedback on a potential threat risk. >> ma'am, i can't speak to the specific risk, what i can speak to is the fact that grant funding and our investment in state and local community engagement efforts is a linchpin for how we have structured our

can't to do homeland security. we believe everyone needs to be in the game. everyone needs to be empowered to understand what the risk is what the tactics techniques and procedures are, that they should be looking for and to share that information with the fbi, with the ic, so we can engage before the act happens. the extent to which these grants make these agencies less effective in meeting that responsibility presents a risk for us. >> would you consider that a low risk, a high risk as it relates to not just agencies but -- i'm sorry, not just as it relates to the local agencies but the inability of the fbi or the inability of other departments to be able to correlate and communicate with these agencies? >> as i said ma'am we had built our homeland security enterprise based upon a state, local, federal model.

and any capability that's taken away from that, in some way diminishes our capacity to address the risks we are concerned with in our country. >> thank you. i yield my time back. >> the chair recognizes the gentleman from texas. >> thank you mr. chairman. >> gentleman, i have very much earn joyed and appreciated your testimony today. as a former terrorism prosecutor and former united states attorney, i've had the good fortune to work with each of your agencies before on a number of occasions. and i very much look forward to the opportunity to do so again as a member of this committee. i'd like to start with you mr. steinbeck, your boss director of the fbi recently expressed concern about technology companies using the encryption methods on mobile devices. specifically in response to an apple representative statement that it would no longer be possible to unlock encrypted

iphones and ipads. the director drew an analogy to child kidnappers and said the notion that someone would market a closet that could never be opened even if it involves a case involving a child kidnapper and a court order to me that does not make any sense. as a former terrorism prosecutor, i share the director's concern, and can certainly see how the inability to access encrypted devices would hamper terrorism investigation, my question is, what is the fbi's plan to deal with this and have you engaged the technology to address these concerns? >> i'm not going to argue with the director he's, of course right. it is a concern it's not -- and i think quite frankly, it's irresponsible for companies to build products have software updates that allow for no lawful

capability to unlock their devices, to make the argument that it's on the cloud and so you don't need to have access to the device itself, is disingenuous, because as we know, not all the information is on the cloud we have to have the ability whether we're talking about gangsters organized crime or terrorists with lawful abilities, court orders to look into and take content -- whether it's a child pedophile, someone involved in the narcotics trade, or someone trying to conduct a terrorist act. we have to have that ability. we have put this message out. i know the director and his staff have gone out and relayed this message on numerous occasions, we've pushed it out, we've had interaction with the state, local and federal levels of law enforcement as well as had direct contact with those companies, and tried to explain them through use of examples, this is a dangerous press den the to go down to not have the ability atfully means, whether

it's an ongoing kidnapping or some other event, not to have the ability to get in there and look at that content or that store communication. >> terrific, thanks very much. i'm going to throw this question out to anyone on the panel that wants to take it. there are numerous reports that ask.fm is one of the common channels through which a number of american foreign fighters have forms close relations with isis recruiters. we talked today about the teenaged girls from denver. since ask.fm is operating out of latvia, i'd like to know whether there is any interaction between the state department or law enforcement with the latvian government regarding this. >> i can't speak to specific interaction. i will tell you that ask fm.com is but one of many social media

companies that we have seen in our intelligence collection efforts that's being used it's just one. there are many other platforms that reside overseas that, like i said earlier have shown an unwillingness to work with either our government or the host governments. >> terrific, last question and i apologize if this has been covered earlier i've been at other hearings today but when isis specific material is posted on facebook twitter tumblr youtube, what are the existing lines of communication between law enforcement and those entities to either provide notice or facilitate the removal of that material? >> the companies themselves have -- in terms of service agreements that in many cases violence, violate those agreements, and they have automated processes to take

those down. we're not looking at it from a service agreement, we're looking at it as a threat, when we identify a communication a radicalization node or some other piece that's being used we look to other pieces being used we look to exploit that and do it through lawful means whether it is collecting the information to see what they're communicating about or look at ongoing communications. so i guess we have an overlapping mission with regard to the companies but at the end of the day we want to stop the communication through various social medium and platforms. >> terrific, my time is expired. again, i appreciate you all being here. mr. chairman, i yield back. >> we thank the witnesses for being here today. this is a very important topic to our national security. and i want to thank all three of you for your service to the american people, to keep americans safe. and i want to thank also the

rank and file within the department of homeland security nctc and the fbi for the job that they do day in and day out without much recognition. but they are truly the patriots of this country. and just on behalf of this committee we want to say thank you. the hearing will be open for ten days for additional questioning and with that, the committee stands adjourned. >> tonight on the communicators, founder and ceo of mediacom communications corporation on the challenges facing media companies and the fallout from the latest fcc decision affecting the internet. >> i have no doubt that this

will affect rates on consumers why is that? if they're going to impose on us all sorts of regulatory fees, taxes at the local level i think utilities regulatory utilities in the states where we're operating, they're going to get into the act, i haven't found one government that doesn't want to raise more money and this gives an opportunity to raise more money. >> tonight, at 8:00 eastern, on the communicators, on c-span-2. >> the political landscape has changed with the 114th congress there are 108 women in congress including the first african-american republican in the house and the first woman veteran in the senate. keep track of the congress using the congressional chronicle on

c-span.org, there is lots of useful information including statistics, new on c-span-2 c-span radio and c-span.org. the supreme court heard oral argument last monday in a challenge to an arizona commission's authority to draw congressional district. the issue before the court is whether the elections clause of the u.s. constitution allows others, other than the legislature to have a say so in the districts in 2011 they passed a law to delegate the districts to arizona's independent redistricting commission. this runs just over an hour. >> we'll hear arguments this morning, the arizona state legislature, versus the arizona independent redistricting

commission. mr. clemente. >> mr. chief justice, and may it please the court, proposition 106 permanently divests the state legislature to prescribe the districts and delegates that to an unaccountable commission, it clear vests that authority not just in the states but in the legislatures thereof thus, they allow that to an unelected commission is plainly repugnant for the states. >> there is no question -- with arizona being able to use this commission for its state representation. >> absolutely, just ginsberg our argument only applies to the congressional redistricting. and of course that means that if these commissions are as

effective as my friends on the other side say then we will have nonpartisan districts that will elect the state houses the state representatives, and the state senate. and then those nonpartisan gerrymandering bodies will be the ones who take care of the districts. >> mr. clement, i just want to clarify your position. are you suggesting that the lack of legislative control is at issue only, or are you saying we have to overturn hildebrant and smiley, we believe they are in our favor because what they stand for, smiley in particular, i mean, the court was emphatic that the legislature was, at the framing of the constitution, that it means now what it means then that it is the legislative body of the people. >> that is sort of hard to understand because we made it very clear in smiley and hille

sps hillebrant that the defining legislature in this cause is meant as legislative process. >> with all due respect, i disagree, this court heard one side in smiley, one side was saying the legislature just means the legislative process in the state whatever that is. the other side says no, it means the representative body of the people. the court said we don't have to decide that dispute but it means it is the legislative body of the people just like five years ago in the hawk case. so the delegee is clearly the representative body of the people bringing you to the second question which is what kind of authority is delegated to state legislatures. and the authority granted under the elections clause is a granting authority. which means the state legislature has to engage -- >> but this makes no sense to

me. because i think it's an either/or. if the legislative has the power, how can the governor veto it, or the popular referendum veto it, either they have the power or they don't. the constitution says that the people hold the power and they can choose a commissioner however they want to do it because that is the legislative process. >> i disagree with you, justice, but that is not particularly important. i actually disagree that the court and smily agree with that. here it is the state legislature, the state representative body, they say the function differs so when the state legislature is told they can elect somebody or ratify something, there is no legislative effort with somebody else in that process. when they're told to prescribe rules, the court says that is a legislative body making item.

thank you if the ordinary rules deploy ss provide for a gubernatorial detail committee, then those rules provide under the elections clause. it is a completely different matter to say we're going to cut the state legislature out entirely. and we are going to revisit the framer's decision to delegate this important responsibility to the state legislatures, and we're going to re-delegate it to an entire different body and a body that has the one feature we know that a representative body does not have, which is this commission, which is completely unelected -- >> could congress do that? could congress substitute the commission for the state's legislature? >> i don't believe that congress could say that at the state level we're going to re-delegate this authority from the state legislatures to the state commissions or to independent commissions. if congress wants to do it itself on the federal level and

set up some sort of federal commission i think that would be a very different issue. because obviously congress has power under the second -- >> could congress bless what arizona has done by saying that is the manner in which the federal elections will be held? >> i don't think they could simply bless what arizona has done. because i believe that would amount to revisiting the judgment that the framers made in the first sub-clause. i believe they could, if congress wanted to they could say we're going to take those commission districts and impose them -- >> but you're saying it has to be a federal commissioner a state commission, but if it is the latter it can be only the legislature? >> i think that is right. of course it could be an advisory commission. we object not just that there is an idea of commission but we object to the permanent authority of the resting -- >> first, you have the law with

the reapportion commission must submit its proposal to the legislature and the legislature has 30 days and can overturn it with a 3/4 vote. >> i think justice kennedy that could be a harder case. and however they decide this case would be either way. the question you would ask is the residual authority for the state legislature amounts to prescribing districts. you could say that either way, you could say they're not cut out completely, they have the residual authority, and 3/4 is tough, but maybe you could get it done. you could say, what you can do under smiley and hilldebrant is provide the ordinary legislature but what you can't do is provide separate rules to make it much harder for the state legislature to act. >> your phrase completely cut out -- probably answers the questions, what about voter id

laws and absentee ballots and those enacted by recommendferendumreferendum, you would say these are okay because the legislature is completely cut out? >> i think it would depend on the details -- >> i thought the legislature was completely cut out as to most of these things. i mean, you take the 2011 law in mississippi adopting voter id requirements, 2007 oregon, voting by mail. 1962, arkansas, use of voting machines. all of these things were done by referendum or initiative with the legislative process completely cut out. so would all of those be unconstitutional, as well. we could go further, there are many of these laws. >> and let me address these laws, justice kagan, and also be

responsive to just kennedy. not one of those provisions purports to delegate state authority to the legislature. and to the contrary many of them, roughly half, i counted 27, actually delegate authority to the state legislatures to implement them. so if you want to look at the north carolina provision -- >> well they're not delegations or non-delegations, they're just laws not passed through legislature. >> exactly. we don't think that is the defect here. >> my gosh i would think if your primary argument is legislature means legislature, there has to be legislative control, in none of these laws is there legislative control. there is no legislative position at all. >> justice kagan, we distinguish two situations we could be saying that the problem with proposition 106 is simply that it was done by the legislature.

we would have the same objections if this were imposed by a gubernatorial edict we know the rules imposed are not that the legislature could definitely do things on a one-off basis. >> how do you make that consistent with the text that -- the textual argument you're making is legislature means legislature, there is no two ways around that. but now you're saying that there are these many, many many laws throughout the united states in which the rules are not being made by a legislature and that is perfectly okay because the legislature is not involved at all. >> two things, justice kagan our position is that somebody else got into the legislature's lane and purported to do something about the elections. our problem is once they got in the lane they decided to rest the legislature entirely on an

affirmative basis to a more specific answer, i would invoke this case which dealt with a clause in article 2 that gives the state legislature the authority to provide rules for presidential electors. the court took a practical view of the matter, saying look if they let the states do a part of something we can sort of think of those as delegation of authorities. the legislation thereof means something in the constitution meaning they protect other parts of the state from coming in and protecting that authority -- >> the legislature could have said that is fine, we can't do anything about it. if that exists, irrespective if

the legislature protests or not. >> i would suggest -- i think the court recognized in mcpherson, i think it is the right view that nothing would prevent the state legislature from delegating its authority to one of the commissions. that is not the problem, the problem is by the law or the gubernatorial edict would be the same, from without comes in and says, no the framers thought it would be great to have this in the state legislature we disagree. >> suppose the legislature proposed the initiative or the referendum? >> i don't think that would ultimately make a differene, view. but i believe that would be a different case. >> well, that is the case which the legislature has itself made the decision. >> right, and so -- i mean that is not the situation we're dealing with here. i do think what they did is propose a referendum that then permanently rested the authority so they couldn't get it back. >> well, it's not completely

remote because the legislature in arizona protect me if i'm wrong, can seek to overturn what the commission does by putting its own referendum before the voters by saying please, voters change this proposal -- or change this districting plan and enact a different one. i suppose the legislature can do that. it has the power to submit a referendum or initiative -- i guess the referendum to the arizona -- to arizona -- >> i think -- >> i think they would have the power to do an initiative. i don't think they would have the power to do a referendum. one of the ironies is that my friends on the other side like to talk about the power of the people. but the maps that the commission promulgates are that the maps are not subject to the referendum. i think what the legislature could do is what any citizen could do which is to propose an alternative map by initiative process.

but whatever that is, that is not the primary power to prescribe congressional districts or to make election regulations, that is what the legislature on the same plane as the people -- >> isn't it okay to say if the legislature said itself it is okay to establish this commission? >> i would take the position that this is case because that is a delegation of authority. you may disagree with me but i think my position is consistent with what this court said in the mcpherson case about the authority of the state legislature to prescribe rules for electors. they can delegate that to some commission and come up with it that way but if they want to take the authority back as they did in the michigan piece of legislation as in mcpherson, you bet they can do that. if the state stopped them from taking it back that is a constitutional problem. >> so if the state accepts the independent commission and the

independent commission has a veto power on the state's redistricting. in other words the state can do redistricting and then it submits it to the independent commission. and the independent commission can say no go back, do it again. >> i guess it depends a little bit on the details of how that works and whether -- who has the ultimate last say in the matter. >> they have the veto that is who has the veto. the independent commission. >> and is it a veto that can be overridden or just a permanent veto -- >> does it matter? >> i believe it does, or at least arguably it does. one, it would give the legislature a lot more authority than allowed here. it is a different case, the principle that allows you to decide that case is to ask yourself whether or not it allows the state legislature to prescribe the congressional districts. >> but it doesn't -- right -- >> kind of -- it does. it is a hard case that you -- >> i'll take out the kind of.

it doesn't, there is a veto at the end of this. >> if you think it doesn't, then you should decide that case in favor of the state legislature. >> so this is what we're going to have to do for every time that they set up some process in which there is some independent commission involvement. what we're going to have to ask is what, exactly? >> whether it is consistent with the constitution -- >> no, tell me how we're going to decide all of these cases in which an advisory commission plays some role. but not just some role, a very very serious role. but there is a little piece that is left to the legislator. >> i don't think it is going to be that hard, justice kagan and let's look at the commissions that exist in the world. you have some that are purely advisory, no law that indicates they are a problem. if the legislature because

there is a stalemate, one house is the democrats, one the republicans, they just can't get it done so a backup commission comes in. >> what if the legislature says we're going to give you two maps, they have to pick one. >> i think that is probably constitutional -- >> but why is that unconstitutional and an impasse in the legislature, and leaving it then to a third party that is not the legislature, why is that constitutional or unconstitutional? >> the reason i say that, if the legislature has the primary authority and they can't get it done then we know as a matter of fact somebody else is going to provide that rule. now if the legislature gets stalemate, what happens in the real world of course is you can't use the existing maps. because they violate the one person, one vote principles. and so the state courts come in. >> so that bypasses together --

>> everybody i think wants to bypass qac, because everybody knows at the end of that rainbow -- >> can i ask you a question i know you're going to say it is a constitutional requirement but if i read hillebrant and smiley differently, and i think there is plenty of language in there to indicate what i read it to mean is thelegislative clause is the legislative process. isn't that simpler why is that of federal interest? >> the federal interest is because the framers thought long and hard about this issue. >> well, they didn't, actually, when you look at the legislative history on this. the federalist tapers, not a lot

on this particular clause. >> well, if you're making the point there is less about the first sub clause, then the second sub clause i suppose i would grant you that. part of the reason it is not part of the first sub clause it seems so obvious if this is was going to be done at the state level by anybody of course it would be by the state legislative body of the people. it is not like they didn't have the conception of what a referendum would be or an initiative would be, they simply said we like representative government because that way -- >> i thought the initiative and referendum came in later. that at the time of the founding, the initiative was not used -- >> the initiative and the referendum as we came to know them in the early 20th century, late 19th century were not in use at the time of the framing. but direct democracy was. i mean, the framers themselves

said there ought to be conventions to approve the constitution. they should not be approved just by votes of the state legislature. the framers, when they formulated article 5 and had alternative mechanisms to provide ratification they gave the choice to the legislation and the convention. they understood the difference between direct democracy and representative democracy. and they made a conscious choice. and indeed, it's really hard to argue that the framers didn't know the difference between the people in the state legislatures and the context of the federal elections. because there they are creating a house elected by the people. and a senate appointed by the state legislatures. and when they get to the voter qualification clause, they say well, the people are going to vote for the congress. and how do we define the people that get to vote for the congress? the same people that get to vote for the numerous bodies in the state house. so at various points -- >> mr. clement, that suggests

very pure rule. and on occasion you said something like this, the legislature means the legislature and that is what it means, and so a legislature has to do all of these things but you've made many, many exceptions to that over the last course of 20 minutes. you said to anything that is not re districting it can be done by referendum or initiative without any legislative process whatsoever. you said that all of these sorts of different schemes between the interaction of the committee and the advisory are going to have to be viewed on a case by case basis to determine whether the legislation has primary control. and when you get through with all of that the sort of purity of the originalist argument that the legislature means legislature, well we are miles away from that aren't we? >> i don't agree with that, justice kagan, i think we're channeling what is in smiley which says the delegatee is the

state legislature, when they get to do something the question of the constraints that are put on the legislature actually drawing these lines there may be hard questions about that. but there is no hard question here, this is not in any of your hypotheticals. if the election clause means anything it means you may not completely cut out of the process -- >> suppose that if the legislative districting plan is challenged either under the one person one vote rule, or under the voting rights act and it goes to a state or federal court. and it goes a year before the election does the state court have an obligation under the constitution to simply pass on the validity or invalidity of the plan and if it doesn't pass send it back to the legislature? or can it do its own -- >> as i read these cases justice kennedy, what they say

in that instance first of all there should be a preference of the state court over the federal courts and then the state court favors the legislative process. so what they do if there is time for the legislature to go back and draw a new map -- >> you think that is constitutionally required? >> i do think that ultimately it is required. if it's not constitutionally required, it is prudent. the reason it is prudent, it goes from this court time and time again -- >> we're talking about what is required. so if we vote in your favor we're going to have to tell every court involved in the redistricting problem that it will have to submit it to the legislature. even if the court made its own plan for one election i believe it would have to submit it back to the legislature for the next eight years. under the reapportioning scream.

>> white v wiser says if there is time you let the court do it -- >> you mean, a redistricting plan approved by a court has to have a fixed deadline? of course the legislature can i assume pass a conforming plan but the courts plan to stay in place until it does. it seems to me that is as much a displacement -- >> it is a displacement, not as much. there are two different circumstances, right? one is when the redistricting plan is challenged early. and there is still time for the legislature essentially to take a second crack at a constitutionally compliant plan. i read white v wiser, if there is time for that plan then you allow the state legislature to do it because it is their primary task. then the second question is, there is not time and there is a jooshl plan and let's say the first cycle of elections take

place. i read this as generally saying there is nothing to prevent the state legislature from going in and redistricting. and in this court, the perry case rejecting the idea. one shot at this. you're done for the census. there is at least one state in colorado that says if you get into that situation then you have to live with the judicial plan until the next census. then the legislature still kicks in and has the primary role. now, i'm inclined to think that what colorado does is in position with that -- but our argument here does not ordain the answer to that question. i am happy to address the hypotheticals. but it is worth remembering this is about the most extreme case you will have. so if the election clause means anything at all in terms of the delegation of the responsibility to the state legislatures maybe we can talk about taking part of

it away. but they can't take the entire thing away on a permanent basis and give it to a commission. the defining feet -- >> if i may reserve the balance of my time. >> thank you, counsel. >> thank you mr. chief justice and may it please the court. i would like to make one standing before i address the issue. on standing, this is an extremely unprecedented, unusual lawsuit in which the state court is asking the federal court for assurance that if it passes a legislative law which has not even said it will pass we don't normally conceive of

legislatures as having an sbrks let alone an interest recognizable under article three in enforcement of laws they may pass. there is nothing in the constitutional and in the arizona courts to interpreting that constitution. >> so this is the demonstration of the power, not of a particular plan or of a particular law and plan this is the removal of power from the legislature? >> no, it is not, your honor because i don't think there is anything that actually as a practical matter prevents the legislature from passing a bill that would redistrict the state which they believe in good faith they can do under their view of the elections clause. there are numerous cases, some cited in our brief on page 13 where they have laws that conflict with the popular initiative or the arizona constitution. and the arizona courts do treat them as laws, and the consequence of their passage and their unconstitutionality or

their conflict with the initiative is simply that they are not enforceable. and their enforcement is enjoined. >> so you want the legislature to pass a law that is not enforceable and suggest they don't have standing to challenge what the referendum has done in this case, until they go through that process? >> well, your honor i think just as in luhan -- luhan against the defenders of wildlife, the second one. the plaintiff had to allege they were going to buy a plane ticket to see the nile crocodile in order to complain, the legislature here suggests it should do everything in its power to bring everything to its head. >> don't they have to under that theory just allege they planned to exercise what had up to this point been their normal authority to engage in the redistricting, respect the fact they're litigating it implies they have some effect in doing

it. >> it may be difficult to work on some redistricting plan, but i don't think it is reason to excuse them from the normal standing requirements. if i could just put the absence of the allegations they pass the law to one side for something, let's assume they pass the legislative redistricting plan, present it to the secretary of state. the secretary of state said no i'm going with the commissions plan because that is what the state law requires me to do. i don't think they will have standing here because they don't have the interest in the legislative laws that they pass. >> they have an interest in the constitutional powers that they have. >> let's suppose that congress passed a law that preempted state regulation in some area. and let's further suppose there were a colorable constitutional challenge to that law. now, i don't think anybody would believe the state legislature acting in its own name would be the proper party to bring that constitutional challenge on the theory that the police powers

have been preempted by the federal statute. although this case arises under the elections clause, the elections clause doesn't give the state anymore lawmaking power than it would have. >> are you saying nobody would have standing because it means the legislature, if anybody has standing, they are as an constitution effective? >> i think there may be people who are much more directly affected, such as people who may be put in one district versus another if somebody were to bring a voting right challenge and had enough of an injury -- >> it is part of or jurisprudence that it is likely that another person is directly affected that that goes into the balance and we say well, the legislature doesn't have standing because there are other people out there more directly affected, do we say that -- >> your honor i think it says quite the opposite even if nobody would have standing that is not a reason to find they

don't have standing. if the court were to reach the merits i want to make a couple of points on the statutory section. the first is i think the statutory issue in this case is relatively easy because the court decided all the relevant issues in ohio against hilldebrant in construing the word for word -- >> but i think it applies to when the state has under its law redistricted. there is no doubt the state redistricted under the law, the question is whether the law is valued. >> sir i would like to turn back to hilldebrant a neighboring federal statute, 2 usc 2 c, requires that as a matter of federal law states will provide for redistricting under the federal representatives. that makes it statutory under

federal law how that is met and whether it is met. that is the question that section 2 ac answers, one of these will apply until the state is redistricted in the manner applied by the law thereof. i think the magical corollary of that's correct that. it is hard to believe the court would expect that. hilldebrand said first of all the statutory language had the express purpose to provide the democracy features -- >> it would be one thing if congress passed a law that said a state may apportion congressional districts in any manner consistent with the law of this state. >> but that is not what this

statute says. now this statute may have been enacted on the assumption that that would be constitutional. but it is not the exercise of congressional authority implementing that. it's just an assumption in which the statute is otherwise completely irrelevant in this case. may have been enacted. >> well i do think it is quite important that congress is legislating in the backdrop of hilldebrand. it had the express purpose to provide that democracy procedures could be used in redistricting. that congress is exercising the power to effectuate that, in so far as it does have the power to do it. and congress went on to say it did have the power to do it. >> i guess the bottom line is assuming that 2 ac had the bottom line, which is that they

require every state to pass redistricting by referendum. that would -- is it your position that congress has the power to override the constitution? >> well, your honor i don't think it would exactly be overriding the constitution. if there were such a law we may defend it. but i don't think we have to go that far in this case for two important reasons, first, congress is not trying to impositionimpose on the state some process it doesn't want. they are trying to submit that they are satisfied when the state decides to redistrict under its own procedures. i would think that the power of congress should be at its apex when the state and congress want to do the same thing. in this circumstance -- >> no no not if the same thing violates the constitution. i mean, just because congress agrees with the state that they can do it does that make it constitutional? the objection here is a

constitutional objection. >> well, your honor, i do think it is within the authority of congress. let me come at it a slightly different way. my friend just said that if the state legislature wanted to, the state legislature could have given this power to the commission. now, under the second sub clause of the elections clause, congress can do anything that a state legislature can do. which means congress could also give this power to the commission. the only difference between my friend's scenario and mine is that my friend's scenario the state legislature would obtain the authority to override what the commission has done. that is always a consequence of the congressional legislation versus state legislation. when congress passes the law of a source that it is allowed to pass, the elections clause, it's not something that a state legislature can override. and it is simply a consequence of congress' authority under the election clause. i also think -- >> the second clause be used to revise the first clause that is

what we're talking about here. the second clause can certainly -- congress can do something on its own. but can congress use the second clause to revise what the first clause says? >> well, i guess your honor, one thing i want to emphasize, i think the court settled the issue in hilldebrand when they said they were simply doing something that the constitution gave the express right to do. i think the thing to think about, congress here is using the second subclause to do something that a state legislature could otherwise have done as my friend acknowledges, thank you. >> thank you, counsel. >> mr. chief justice may it

please the court, if the people quote, usurped a power of a legislative body that they created, both raises a claim that the framers would have been astonished to consider that federal courts have jurisdiction to adjudicate. and more fundamentally is simply misconceived. arizona defines its legislature in its constitution to include both the people and two representative bodies. and the appellant's argument concludes that the framers intended to ignore a state's definition of its own legislature. it is deeply inconsistent -- >> whatever the state calls the legislation suffices under the constitution -- if the courts

say they're the legislature -- >> justice scalia, the federal constitution, by using the word legislature, in conformity with the unity of the term in the founding generation and we've cited both noah webster and sam houston's dictionaries, but it was understood that legislature meant the body that makes the law. >> give me one provision of the constitution that uses the term legislature, that clearly was not meant to apply to the body that -- of representatives of the people that makes the laws. >> there is no -- >> one provision of the constitution that clearly has your meaning. i looked through them all. i can't find a single one. >> well, the one that most clearly has our meaning, which

accords with understanding is the one that this court has said in hilldebrand and in smiley -- >> this is the only one -- >> this may or may not be the only one. >> it's not for -- until 1913 for close to 100 years many states wanted to have direct election, and they had all sorts of proposals. they had primaries and not one state, not one state displaced the legislature. took the 17th amendment to do that. >> that is correct. >> and it seems that that history works very much against you, because the term legislature, not in the constitution now taken out by the 17th amendment, the senators should be chosen by the legislature thereof. and there was no suggestion that this could be displaced. >> so justice kennedy there is no question as this court has

explained repeatedly first in smith versus hawk which distinguished hilldebrand and the legislative power that is addressed in article section one from the election of senators in article one section three. and again in smiley, that made clear that the meaning as this court reiterated just last week in yates, that the meaning and the term of enactment may differ depending on the function that the term is serving. >> now you're going to the statute. but under the constitution you're saying that legislature the first article of section 3, the now repealed section that talks about choosing senators -- means something different than what it means in the following section -- >> and as this court explained in smith versus hawk, which was decided -- which was an article

5 question of the meaning of the word legislature for purposes of ratification, in smith versus hawk, this court said that in the article 1 section 3 election of senators by the legislature, and in article 5, the ratification power what was at issue was a power that is the power to elect and the power to ratify that specifically comported with the elected representative body. and it used those as examples the court said where often justice kennedy, often the term legislature in the constitution has that meaning. but smith then goes on and distinguishes hilldebrand on precisely the grounds that we are urging that what was at issue in hilldebrand under the elections clause is not under a

particular body, a brick and mortar necessarily, it is the legislative power of the state. >> i understand that hilldebrand is very helpful to you, but to get back to justice scalia's question, is there a means by which it means anything other than the usual meaning, how about calling on the troops to suppress domestic violence, creating a new state out of part of arizona, for example, all of those provisions use the term, legislature. does it mean anything other than the conventional meaning of legislature? >> i don't know the answer to that question. >> you might, do you think it might? >> well, this court has never said that it doesn't. it has never said that it does. it has focused a lot of attention on three particular uses of the word legislature in the constitution.

the article 5, ratification power. the former article one section three power to elect senators in the legislative body. in the article one section four power to make the laws in the provision that is at issue here. and i think it's particularly important. i want to get to the language of smiley which my friend embraces. >> i would like you to. because as i read those two cases they don't help you very much. i mean, hilldebrand is talking about a particular statute that was passed in 1911. and it helps the government with its statutory argument because a different statute uses similar words. we don't know if it was with the same intent. smiley talks about a sitting legislature and asks whether its exercise of map-drawing power is a legislative exercise or say

more like an impeachment exercise. it doesn't talk about what is at issue here, where you have people outside the building making the legislative decision. so i didn't see those two cases helping as much, though argument to the contrary what happens here is when legislative power over time expands from the group of people sitting in the state's capital to those people plus a referendum. and there i don't find much help in the cases one way or the other. >> well justice briar, i think that both hilldebrand smiley, hawk, and also this court -- a case that this court decided a few months after smiley and that was block quoted in the court's opinion last week in yates, the atlanta cleaners and dyers case all strongly support the meaning of the word

legislature that we advocate, and that was in fact the consensus definition of legislature. and i agree with you that -- >> the consensus definition, although you cannot give us a single evidence in the constitution inform it which it is clearly used i don't think it was a consensus definition at all. >> you plucked that out of a couple of dictionaries -- >> it was referring to -- >> well, the dictionaries i take it are your support. they say how a word is used and noah defines the dictionary legislature as the power, we don't use that word power in the sense as much anymore. but the power that legislates. the power that legislates in arizona is the people in the capital plus the referendum. >> i will address the cases, justice power -- if i may

respond to justice scalia's assertion. one thing that is for sure, if there were any other dictionary that had a principal meaning we would have seen it in the briefing in this case. we only have to look at the framer's own use of the term, if i may. charles pinckney, for example, these are collected on page 39 and 40 of our brief. charles pinckney, who wanted to do away with the second part of the clause that gave any power to congress because he thought it was an impairment on the state's rights said quote america is a republic where the people at large either collectively or by representation form the legislature. madison made clear in discussing the constitution that when he referred to quote, the legislature of the states he meant the existing authorities in the states that comprise the

legislative branch of government. james wilson repeatedly interspersed legislature and the states and people -- >> okay, but let's say that legislature means the body we normally can think of as the legislature. however, at the time there was no such thing as the referendum. or the initiative. so when the dictionaries referred to the power the power that makes laws, it was always the legislature. it was never the people at large, because there was no such thing as the referendum. now that there is such a thing as the referendum what about saying okay, legislature means what everybody knows the legislature is. plus, the full citizenry the

level higher of democracy, but what we have here is not the level higher of democracy it's giving this power to an unelected body of five people that you know -- that could that -- could that body as it is constituted here, two of them that are selected by the majority party, two selected by the minority party. what if arizona decided all four would be selected by the majority party? >> justice scalia any delegation question -- the issue in this case is what is the word legislature? my friend concedes that whatever the legislature is, it can delegate its authority. so the delegation questions i mean, i'll endorse whatever i believe my friend would say. because the arizona legislature has delegated all manner of time, place and manner

regulations to a single person. both the secretary of state and executive officer in the individual counties that set the policing places, the places where you can vote where you can register et cetera. so delegation i don't think is in this case. the question is what is the legislature? and if your question is, well you know now we know that there is something called an initiative. or that we knew this. you know, 120 years ago when the first states started referring in their constitutions legislative power to the people by initiative. but just to echo something that justice kagan referred to in the earlier argument, we're talking here about a construction of the word, legislature, as to all time place or manner of regulation -- >> why doesn't your

interpretation make the words by the legislature thereof entirely superfluous, in other words, why don't they just say that the rules will be prescribed by each state? >> because as the court explained in smiley, what the framers wanted was for it to be done by a legislation. that is it wanted a quote complete code of holding congressional elections to come enacted. >> but i understood your argument to be as long as as it is an exercise of legislative power that it is satisfied. and if you have for example, a governor doing it it presumably would be pursuant to a delegation either from the people or from the legislature. but it way, nothing happens until there is a legislative act of power by the state. so the drafters of the constitution, saying it would be simply prescribed by the state whether they do it by

initiative, or legislation, or committee, whatever, it's up to the state. and then saying by the legislature seems as i said, totally superfluous. >> it is entirely up to each state as it makes the laws. and as justice scalia has said, up to each party, and each one to choose, there may be other constitutional problems with that coming out of either the first amendment or the 14th amendment. but i think that -- i believe that mr. clement would agree on rebuttal that if the legislature, whatever the legislature means if the legislature decided look, we are going to delegate this responsibility to the governor that would be a constitutional delegation because it would have been a decision made by the lawmaking body of the state. if i could just make one point

and then address justice briar's question about smiley, hilldebrand and hawk it would be deeply deeply inconsistent with the enterprise in philadelphia to harbor, and to effectuate the notion that our framers intended to set aside both a cornerstone principle of federalism in their aim to beside the people as closely as possible to the national house of representatives. >> yes, it is true that all of the storm drawn over this clause related to the second part giving congress authority and that is because no one questioned the fundamental principles that the sovereign states could choose to allocate their legislative power as they wanted. if there had been any

suggestion, the anti-federalists would have been screaming bloody murder that the states could not do so. now smiley specifically said that -- i'm quoting from page 367, as the authority is conferred for the purpose of making laws for the state, it follows in the absence of an indication of a contrary intent that the exercise of the authority must be in accordance with the method the state has chosen has prescribed for legislative enactments. >> they point out, the legislature in both smiley and hilldebrand, remain the prime mover. and what he has objected to is taking the legislature out of the picture entirely. >> yes, justice ginberg we can see that in neither case was the initiative of power. but that distinction was never

made by the court or in hilldebrand, in fact, smiley says we find no provision of an attempt to endow the legislature of the state with powers to enact lawyers other than which the constitution -- >> that is quibbling in a sense about the case. the case is not about as they say, the body. i mean what is the body? everybody agrees it was the legislature. but when the legislature acts in this instance, is it acting as an elect orl body or legislative body. that is the answer they give. in the form of legislation. here, the question is about the body -- >> that is right, the question is are the people by initiative a legislative body are they the

legislature, as they themselves have chosen? and in smiley, again discussing hilldebrand, this is what the court said. and it was because of the authority of the state to determine what should constitute its legislative process that the validity of the requirement of the constitution in its application to congressional elections was sustained. >> legislative process there means the process in the legislature. if what it takes for the legislature to enact a law, once you -- assume legislative, refers to legislature, your whole argument for smiley just disappears. >> the state of arizona, like the states of a near majority -- the constitutions of the states of a near majority have defined the legislative power to include the people by initiative. and again, you know in atlanta

cleaners and dyers which was decided a month after smiley and which this court quoted last week in yates it said it is not unusual for the same word to be used with different meanings and i'm quoting, and thus, for example, the meaning of the word legislature used several times in the federal constitution differs according to the connection in which it is employed depending upon the character of the function on each body is quoting smiley -- >> you said yates, am i -- >> yates just to be clear, it doesn't talk about this. it was the decision in yates. >> but my point only is that the -- this supreme court in the months following smiley, again interpreted smiley in the --

>> i was not quoting from yates i'm quoting from atlanta cleaners and dyers, itself citing smiley. >> thank you. >> >> thank you, mr. chief justice, and may it please the court, let me start with the definition of legislature. obviously, we can point to our favorite quotes from the framers. there are 27 and 34 and 35 of the blue brief. the critical thing though, is not what the framers meant by the legislature when they were talking broadly about political theory or the swiss canton of zugg. what matters is when they were talking about assigning particular authorities in the constitution to particular components of the state government. and in that context as a number of you have pointed out there is no doubt every time they assign an authority to the state legislature they were assigning the authority to the representative body of the people.

now, that takes us to the smiley case. and if the definition of legislature in the smiley case is what this case turns on then with all due respect to my friends on the other side, we win. because smiley specifically talked, as justice breyer alluded to the body question people in the bricks over there that are making this law.

but the question is are they legislating when they're doing it? so nobody denied they were the legislative power. here we have a different question. is this the legislative power you receive by referendum, and the reason i say smiley might help is simply because it says be a little flexible about that. >> i think it says a little bit flexible about the lawmaking authority of the state legislature. so don't think you've been given some new key that allows you to make laws without the process of the governor being involved at all. i do think smiley's very helpful because not only does it answer the body question but the parties disputed this and the other side in smiley said oh we win this case because legislature means the lawmaking authority. and the other side said no it means the body. and this court said you're right, it means the body, but critically, it's a lawmaking function, therefore it's subject to the gubernatorial veto. i think they would have been flabbar gated to find out that the legislature which they just defined as the representative

body of the people could be cut out entirely. >> i would think, mr. clement, that the overriding principle of smiley and hoda brandt and hawk is when it comes to this particular provision and this particular provision as compared to the 17th amendment which is the comparison in the contrast that hawk sets up, when it comes to this particular provision we need to show a lot of respect to the states' own decisions about how legislative power ought to be exercise edd. and that seems to me the overriding principle of the three cases. >> i think what you have to show is respect for the way the state says the state legislature can go about lawmaking. but it is completely different to say it's okay to cut the state legislature out of the process entirely. let me refer briefly to the 1911 act which of course is since repealed. i think the questions show that the actual statute that's now on the books has nothing to do with this case. but the irony with my friends on

the other side relying on the legislative history of the 1911 act is the whole point of the legislative history in 1911 is people in 1911 could read. the statute on the books then said you're going to have the federal default rule kick in until the state legislature redistricts. they realized in 1911 that the state legislature meant the state legislature, so they'd better change that law if they wanted to allow the referendum process. so the 1911 legislative history, not that i think you should spend a lot of time with it but it cuts against them on the constitutional issue. it shows there's a fundamental difference between the legislature and the people. and as the chief justice pointed out if there weren't then the framers could have stopped the election clause in each state. they wouldn't have had to say by the legislatures thereof. vgs on the other side -- >> you can turn that around and say what that provision shows is really exactly what i just said-s that congress was also on board with this idea the courts

had, that when you look at clause a lot of respect a lot of deference has to be given to the states' definition. >> i'm happy with give deference to what the state legislature does. and if that's constrained in the state by the rule that you have a gubernatorial veto override by referendum, something has to sit in committee for 30 days, then the restrictions on the state legislature are fine but it has to be the state legislature. >> thank you counsel. the case is submitted. tonight on "the communicators," rocco camiso, founder and ceo of mediacom communications corporation, on the challenges facing media companies and the fallout from the latest fcc decision affecting the internet. >> i have no doubt that this will increase rates to the consumers if it stays on board. why is that? they're going to impose on us all kinds of regulatory fees additional hall rental fees,

taxes at the local level. i think utilities, regulatory utilities in the states where we operate are going to get into the act. i haven't found one government that does not want to raise more money. all right? and that's going to give an opportunity to raise more money. >> tonight at 8:00 eastern on "the communicators" on c-span 2. on the next "washington journal," associated press state department reporter matthew lee on negotiations over iran's nuclear program. and we'll talk with christine leonard of the coalition for public safety, a group with backing from the aclu and the koch brothers that is seeking to reduce the u.s. prison population. also, nick juliano of environment and energy news, on the state of oil drilling and coal mining amid lower crude oil prices and the growth of renewable energy. "washington journal" is live on c-span every morning at 7:00 a.m. eastern with your phone calls, tweets, and facebook

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facebook, and follow us on twitter. the president's task force on 21st century policing was established after the police shooting of an unarmed black teenager in ferguson missouri. the group's mission is to improve the relationship between law enforcement and the communities they serve. the task force held a public meeting late last month. this part of it is an hour. thank you, sir. and welcome back everyone. panel 3 will focus on voices from the field. we're going to begin with another distinguished panel. we have one on skype. again, this is -- and we'll start with chief zachery the public safety director woodway, texas, and immediate past president of the international association of chiefs of police. yost, good to have you. >> thank you, sir.

>> 21st center policing. thanks for inviting me to testify today. my name is yost zachery, i am the director of the woodbury texas public safety department and immediate past president of the -- i'm sorry i was unable to join you in person today. i intended to but my flights were canceled. i began my law enforcement career as a dispatcher in woodway in 1979. i am still there today and currently serve as a chief and director of the public safety department. one of my main duties as a chief is to ensure the safety and well-being of my officers is there. this means making sure they have the proper training and equipment they need to do their job safely so they can return home each and every day to their loved ones. during my time as president of the iecp officer safety and wellness was one of my top priorities. and it's always been a top priority of the iacp. it is the position of that

organization that no injury or death to a law enforcement professional is acceptable. being a law enforcement officer has always been a stressful and dangerous job. currently the law enforcement community is up against even greater pressures, challenges and violence. police officers face profound danger on a daily basis. each year there are more than 50,000 assaults on law enforcement officers which result in more than 14,000 officers being injured this past year. this past year 126 were also killed in the line of duty. violent ambush attacks on law enforcement officers also increased in 2014. fifteen officers nationwide were killed in ambush assaults matching 2012, the highest total since 1995. it's imperative we provide the training and equipment to our officers to prevent fatalities and injuries from firearms. officer safety is an all hands on task. such program is the bbp