aumf, would you own it for three years or longer. >> chairman dempsey has testified that the current aumf is important to support the strategy. >> thank you, i yield back. >> thank you, mr. weber. the chair recognizes the gentle lady from florida. >> thank you for your service to our ken country. i have a couple questions, first, relates to the underlying conditions that led to the rise of isil. would you agree that isil is not the cause of the turmoil in the region, but a symptom of a much deeper problems and i'd like to get your opinion, is it unstable governments, poverty, desperation, radical religion what? i'd like to get your take on that. and secondly, i think the

american public somehow thinks that you can simply get rid of isil by bombs or dropping drones and could you just explain the difficulty of their asimulation, let's say, into population, and so forth, the terrain. >> one of the benefit ss is the recognition that dash is in fact not the disease it's a symptom of something big erger. it includes the base societal factors that have given rise to the attractiveness of an organization like this and

there are societal issues, political issues inclusiveness participation. social issues, associated with economic opportunity. the ability ultimately to have the opportunity to put food on the table for families, and often the result of the absence of all of those or some of those in these countries and among these populations, have created the conditions of despair and desperation which has made those populations susceptible to radicalization and then recruitment. >> excuse me, general. i assume there are efforts being done to try to respond to both conditions? >> i think so. >> we've just had this week in fact we ate dinner the other night with the president of afghanistan. ashraf ghani.

i personally saw because we're beginning to see the emergence for the potential of isil. the taliban we have our own entity where we have seen some real progress, with regard to the underlying issues that gave rise to some of these organizations, the rights of women, and the opportunity of women to have a far more prominent role in societies. the dedication to institutions or democracy, and to build capacity within those institutions, all of which has stemmed from the security efforts that we have put into the building of that force, which is holding now. and so that country is a good example. as are other countries in the region, it's a good example of how they are attempting to address and embrace an absence of capacity. whether it's social or economic or human rights or democratic institutions or governmental institutions, an absence of capacity as i said before the

combination of which has given rise to despair and radicalism and extreme violence. >> which sounds to me why syria's so difficult, there really is no government there to work with at all. >> syria's very challenging. ma'am. >> could someone respond to the question about how isil has integrated into the society. they're not standing in a corner waiting to be bombed so maybe you could just explain the difficulty of rooting them out. >> we talk about targeting. how targets have changed. >> yes, ma'am. isil is an ideological entity that through the use of terror is able to co opt the society. that is why when we look at the number of strikes that we have done to halt isil and put them

on the defensive it's very precise, and we've done it with very -- with forethought, with the understanding that this conflict is not a major force on another major force, more traditional if you will, from a counter terrorism perspective, we're in a counter terror fight. and when we engage the target we want to ensure we engage the enemy and don't create more enemies, by hitting the wrong target, if you will. and so that is why it will take time. the fact that we've conducted over 3,000 strikes in the 6 months has positioned us to continue to push for success as we move forward, but it's a very challenging environment, and a distributed enemy that our coalition tactics engender the support of the society and the government. and that's how we will continue

to pursue. yes, ma'am. >> we'll go now to mr. salmon. >> thank you. i just ask for any of your thoughts on not designating hamas and iran as threats to our national security. i was kind of shocked that in his most recent report that they're not include edd the threats to our national security. and also, when it comes to dealing with the fight against isil, we're also seeing iran and it's allies continue to invade other countries, and become more of a threat to our national

security. in this muddled mess one day the shiites are allies and the next the sunnis are our allies and depending on what country if you're dealing in yemen, the iran backed forces are enemy and they're a problem, but yet when we're fighting against isis, there are allies, and it's a very confuseing mess, and for us to -- in congress, to end up developing an aumf it becomes very complicated and i'm just curious your thoughts on that. >> confusing mess is a good term for the environment that we find today in the region it's a very difficult environment. it's one that is characterized

by long term social difficulties as we explained to congresswoman frankel it's one where there have been intern alal struggles. iran is a state sponsor of terror, it's been a disruptive influence for a very long time, and i think that we haven't in any respect changed our view that iran is one of the central destabilizing influences throughout the entire region. not just in the context of its destabilizing of our partners and allies in the region but certainly as a direct threat to our ally israel, as well. iran remains a state sponsor of terror. we still perceive it to be i don't think that there's been any back pedaling by the administration in that regard.

>> why did clapper then leave them off the list? >> i don't know. i don't know that he did. we'll do some research on his comments to ensure that we provide the clarity you desire on this issue. i'm not going to speculate here, i didn't see his comments. you deserve an answer and we'll get you one hamas and hezbollah remain fto's, foreign terrorist organizations, and have been designated by the u.s. government and remain on that list. nothing has changed in that regard. >> the other question i have is, why has the administration not designated additional veeite militias or their leaders under executive order 14438 under blocking of persons who threaten stabilization efforts in iraq since the onset of operations against isis? >> i carpet answer that. we'll get an answer for you. >> thank you. that would be helpful. >> thank you.

>> we'll go to the gentleman from florida. mr. allen grayson. >> thank you mr. chairman, general olson trying to piece together information from public sources, it appears to me that we're spending roughly a million dollar s dollars for every isis fighter that u.s. forces kill. does that sound right to you? >> the figure that we understand for the operational costs per day is about $8.5 million. >> am i right to think that we're spending approximately a million dollars for every single isis fighter that u.s. forces kill? >> i haven't done the math, sir. >> let's assume for the sake of the argument that that's correct? does it make sense for us to be deploying the most powerful military force that the world has ever seen? and spend $1 million to kill

some man standing in the desert, 6,000 miles from the american shore holding a 40-year-old weapon? does that make sense? >> the strategy provides support to a coalition that will degrade, dismantle and ultimately defeat isil. >> what about you, general. can you think of ways we could spend less than a million dollars and keep america safe for every gentleman standing in the desert 6,000 miles away whom we kill? >> congressman, i can't address the math that you're presenting i don't know if that's accurate or not. from the perspective of continuing with the strategy of developing local forces to enable those local forces with coalition support to degrade and defeat isil i would submit that is a worthy of expenditure of resources. >> let's talk about that you, of course, are all very familiar

with what general powell said about what makes for a good effective war, and what doesn't. general powell said that we need a vital national security interest that's pursued by a clear strategy, we need overwhelming force and we need an exit strategy. let's start with you on that, general allen what is your exit strategy? >> the exit strategy is an iraq that ultimately is territorial secure sovereign and isil that has been denied safe haven and ultimately has been destroyed to the point where there's no capacity to threaten at an existential level in the nation of the iraqi people. and ultimately ends up in a state that does not permit to threaten the united states or our homeland. >> general allen. that doesn't sound like a strategy to me that sounds like a wish list. >> no. >> you certainly understand the difference between a strategy

and a wish list? >> and i do the strategy in fact has a whole series of lines of effort that converge on dash to prevent it from doing the very things i just mentioned. >> what is our strategy? >> strategy is to pursue a series of lines of effort from defense of the homeland to the stabilization of the iraqi government to the countering of the dash message to the disruption of its finances to the impediment of the foreign fighters, to the empowerment of the allies to the leadership of the coalition, ultimately aimed to the defeat of dash. that's a strategy. >> none of those are exit strategies, right? >> there's no exit strategy for this, this is about dealing with dash. this is about defeating dash. the successful strategy is not about exit the success of the strategy is about empowering our partners so that they can ult ultimately restore the integrity of a count and deny dash the

ability to do that. if you're looking for an exit strategy with regard to our presence in iraq, we have said from the beginning our forces will redeploy if that's the term you are seeking in terms of an exit strategy then i would say that is the mechanism by which we redeploy our forces from iraq. but the strategy is oriented on an effect that we hope to achieve with respect to dash. >> general olson, you will agree that we're not using what colin powell would consider to be overwhelming force, correct? >> we're using an appropriate level of force. >> which isn't overwhelming force, right? >> not as colin powell would explain it. to achieve our ends from matching weighs and means are appropriate for the strategy as designed. >> general fantini, are we using what you would consider to be

overwhelming military force? >> congressman. >> i would submit that american air power against an ak 47 could be construed as overwhelming. i agree with general olson that the use of the resources and the force applied to support our coalition partners to enable the ground operations are appropriate for the strategy and for success in this fight that will take a clear eyed and long term commitment, and we've stated at least three years. >> my time is up, thank you all very much. >> there's just one vote on the floor, we'll keep this hearing moving, some of the members have left to cast that ballot. they'll be back and those members waiting to ask questions.

if some of you want to vote, and then come back, we'll work right through. empowering our partners is sort of the theme general allen that you've used with the anbar awakening, one of the real questions, though, is which partners end up stepping up to the plate. and will they do more harm than good. and i'm speaking right now, the militias the iranian led or encouraged militia's here. because that's my concern in all of this, many of our partners in that theater are already frustrated about our syrian policy, we hear from these ambassadors in the gulf states, and through the region. and i wonder how much longer the sunni states will stick with the coalition, once these shiite militia's go on the rampage that's the part i'm concerned about it. in some areas, these shiite have

bulldozed thousands of homes and sunni villages, you see the reports in the front pages of the papers about some of the atrocities committed, and this is our concern about the iranian terrain and equipped fighters stepping into iraq. i'll just give you what i recently heard about the breakdown -- this is how general dempsey described the tikrit operation. 1,000 sunni tribal folks, the brigade of the iraqi security forces that would be about 3,000. that's what we want to see happening. approximately 20,000 of the popular mobilization force which in this account seems their shiite militia. the same militia in the past that attacked u.s. forces in the height of the war. some are known to have targeted these sunni iraqi citizens during the same period, given

iran's involvement in this, how do we -- how do we reconcile their role then and now, and to what extent are iranian forces on the ground taking part directing these militias, i see some of it in the interviews, and certainly coming from the region, the iranians are trumpeting this. >> prime minister abaddi has been clear very clear actually it's not his intention there be developed any parallel security structures in iraq. to that extent the mobilization forces have been generalized in a manner that they will be subsided or under the national

guard. i think you're question and your concern is very well placed. we're attempting to ensure that we understand what it is the iranians have done and not done with respect to the militias in general. and with regard to tikrit in particular. and you are also correct that there are elements of these militias which are the ones that we have seen before, that we saw during our period of time in iraq, and large numbers, hezbollah and others that have the potential of creating a long term security problem for the central government in iraq. so we're watching this closely. we're working closely ultimately with the central government on the asimulation of those popular mobilization forces those shiite elements that came forward in the aftermath of the attack on iraq last june to try to preserve the integrity of

iraq, and ultimately it is the intention of prime minister abaddi that those forces be disbanded or go home. the longer term issue, your question, i think implies we're going to have to deal with hezbollah and those elements that are directly supported by the iranians overtime. and i think that is a security issue that the iraqis are going to have to address, and i think their time will come as this campaign continues to unfold. >> yes, and i think some of this talk about iran being a very successful regional power long term if it does this nuclear deal, that the choice of words here by the administration, i think is concerning to others on the ground who don't -- who noticed, the iranians were bragging the other day about four arab capitals now being

under their control. and talking about maybe taking a fifth. and this kind of rhetoric commence rat -- i'm bothered by three days ago, the death to america quote from the ayatollah. the middle of all of this pushing the envelope and saying we control four arab capitals now, and we're on our way to controlling the fifth and they're talking about saudi arabia. and they're trying to support a low level insurgency among the shiite there, the sunni tribes will be central to this fight in terms of ice ice, and they've been squeezed between the terror of isis on one hand and the brutality of the shiite militia on the other. and because of your experiences on the ground in an bar during the awakening, and the fact is

that helped turn the tide. i look at the resources and capabilities that were deployed then versus what we're doing to work with them now. and we've got to do more i think to fully engage the sunnis tribes in this struggle against isis as an alternative to having iran bringing in as they're doing, you know, today in syria lebanon and frankly trying to do in saudi arabia and trying to do in baja rain as we know to the extent that you can succeed at this, i think it's going to be essential. >> i agree with that 100%, chairman. the unfolding of the counter offensive in iraq needs to liberate large numbers of the sunni population.

numbers that have very few options -- >> my time has expired i need to go to mr. meeks so he has enough time to make that vote. >> thank you mr. chairman, generals i want to thank you. let me -- i mean what i appreciate is, i think what i'm hearing, some honesty, in the sense that i hope we're playing even if it's short term or having short term pain for long term gain. you know, in iraq we thought that after the shock and awe, just a few days later it was all over and we then was in iraq another ten years from what i'm hearing from you, we know that it's going to be a long term fight, this is complicated. and we're going to have at least -- i think you're saying at least three years. i hope that that then means a lot of these regional entanglements that we try to

figure out because they had to run out, i'm told that some of our troops on the ground, if we have troops on the ground that's not going so help it -- exacerbate the situation. in large numbers. we're doing what we have to do in that regard and bring it together. because in my estimation, it's going to take everybody in the region working together, and not just the united states by ourselves it's going to take the cooperation of the regions. my questions are two fold. one is with reference to courage. are they cooperating with us, you know, there's been some differences in their approach to syria which complicates things. whether or not they have the ability or the desire to cut off the financing to the terrorists and whether they -- what their

authority is. the second question would be in reference to turkey, and whether or not they are cooperating with us, in the region and how the -- you know, they add in because it's very important, i think that we have those two countries intricately involved with us, if we're going to win this thing those are my two questions. >> before meeks you're 100% correct on both of those. they're both critical to the outcome. it's -- in the case -- the amir has recently visited here, he has reinforced something that we have heard in the last couple of years, which is that he's taken measures to begin to stem the flow of donations that come from qatar. the individuals to stem the flow of that money ultimately to

organizations like dash or other organizations. and the amir has been clear on that issue, we have seen in fact that money has diminished, whether it still flows in any form or not i can't answer today. but qatar has been clear that it does not intend to tolerate the funding of those kinds of organizations. that's a positive trend. and it's a positive public statement by the amir. it's important to understand that qatar has flown air operations with us as on the wing of u.s. air force aircraft in syria, qatar also hosts aludai, which is one of our largest air bases in the entire region. the combined communications center for the region. qatar is a very important partner -- not just in dealing with dash, but also in dealing

and helping us to continue as a platform for preserving regional stability. with respect to turkey turkey is an old friend of the united states and we're an ally through our relationship with nato. i've been there now four times in the last four months, where we have had a number of conversations with the turkish leadership one of which specifically late one evening with the prime minister resulted in the turks, my direct conversation resulted in the turkish decision to reinforce cobanny by moving through turkey to do that. they've made a series of decisions to expand their support to our coalition efforts. we continue to have productive conversations with turkey. we have more to cover more ground to cover. in terms of how turkey might participate. it's not just in the military

context, turkey is now co leading the coalition working group. it's in turkey's interests to do that, they have embraced that as a responsibility within the coalition. so we'll continue to work closely with both of those countries as your question implies, they're critical to the outcome. >> thank you. >> yes, sir, thank you. >> thank you mr. meeks. i now recognize myself for five minutes. we're going to start off by thanking all the generals who are here for your service to our country, dedicating your entire life to protecting our freedoms and liberties. being responsible for making critical decisions that not only impact the welfare of the men and women under your commands but also their families back home, so thank you for a lifetime of service to our country. i was in iraq in 2006 with the 82nd airborne division, toward the end of the year, general

petraeus was taking over part of this surge strategy taking over all of the surge strategy, and i remember a counter insurgency model coming out at the time where a lot of his vision for what we need to do in iraq, was articulated on written form, you can find on the internet. he would say things like give flexibility to local commanders so they can adapt to changing circumstances. in many cases, not showing up to work. how do we embed forces to ensure they're going to be there in the morning. my first question is i apologize if it was answered while i was away. who's in charge on our side on the ground in iraq? >> the campaign fund has been written. >> there's a three-star general

who is the commander of the joint task force for operations inherent resolve. headquartered in the aor. on the ground in iraq is an american two-star commander who joins the land forces effort there. >> general austin is the three-star. >> the four-star. >> who's the two-star. >> major general funk. >> major general funk. >> now, so i remember. >> 82nd's coming in by the big red one by the way. >> good decision. >> as far as major general funk goes or the three-star that is over him whose vision? i saw -- one of the things in my analysis and the analysis of others is, who's in charge and are they being given the flexibility and resources they need to accomplish their mission? when the president sent the authorization for the use of

military force accompanied with that was a 5 paragraph letter from the white house to congress. and in one of those paragraphs, it is indicating an understanding that use of special operations the use of ground operations would be important. the white house was careful not to word it where specifically saying it was going to be u.s. special forces or u.s. ground operations. but one of the things in my analysis of whether or not we're going to be able to defeat isis is that we are driving the recommendations from the ground up. you have a very talented two-star or three-star or four-star, a lot of combat experience. they understand the enemy, the government, the culture. without their hands being tied behind their back. they're able to say exactly what

we need to do to defeat isis. is that two star -- does he have the flexibility he needs to -- if he wants -- in his minds if he wants to send an army ranger unit or marines or navy seals or delta force or green berets to do a night mission in syria or some part of iraq. they come under the cover of darkness, take out a high value target or get very important intelligence, does that two star have the ability to execute that kind of admission. >> being cautious about operational security what i would say congressman is that the chain of command has been empowered by the chairman and the central command commander to make the appropriate recommendations for what we immediate to do to carry out the strategy. >> so when secretary kerry was

here, he -- one of my colleagues was trying to interpret whether or not the authorization included offensive operations. the secretary's initial response indicated that it did not authorize offensive operations, with my question he had the opportunity to clarify that it did not involve -- he was not referring to kinetic air strikes, the one thing that was left unanswered from that back and forth due to a lack of time, was whether or not the authorization for the use of military force allows for the use of u.s. special operations forces to be able to conduct that kind of admission does the authorization for military force the president gave to congress, does that authorize that commander on the ground to execute that kind of admission? >> the president's transmittal letter included examples of things that are not enduring

offensive ground combat operations. such as rescue operations -- use of special operations forces to take military actions against isil or the use of u.s. forces in a situation where ground combat operations are not expected or intended such as intelligence collection and sharing. or the provision of operational planning or other advice. >> just so i understand, general, my time is expiring. just so i understand would that commander on the ground be authorized, if congress was to pass this authorization with the use of military force, will that commander be authorized to conduct that special operations mission to take out a high value target. >> the commander will be able to make the recommendations for the appropriate military operation to match the appropriate means to the appropriate outcome. >> thank you, general. at this time i'd like to

recognize mr. sherman of california. >> thank you. we're talking about the aumf. keep in mind the president has total power to deploy our forces outside for training. they have the right to engage in a series of ground operations lasting 60 or 90 days per operation without any act of congress. and then finally, unless we repeal the 2001 aumf, the president has total power to do just before everything he wants against not only al qaeda but organizations once affiliated with al qaeda which has the president has included. our focus is on isis, because they have forced us to focus on them through not only their territorial acquisitions but because of their gruesome youtubes, they are the only

group in the middle east that has in effect asked us to bomb them, we have obliged. >> another area where we -- well, i think that the shiite alliance is more dangerous than isis, they've killed far more americans, including the marines in the 19780s in beirut they have conducted operations on every continent including hezbollah, and of course they're trying to develop a nuclear weapon. so the total destruction of isis is probably not available to us, but even if it was, we would have to ask who's going to fill that ideological -- that territorial and cyberspace and i'm not sure that we would see an improvement in the middle east. i'd like to focus a second on yemen. i'll ask general lafontaine are we assisting the saudis in the military actions that are taken

by air over yemen. >> yes we're prying support to the gcc in saudi arabia in particular. >> okay. and do we know whether former president assala is in the country of yemen, do we know whether former president hadi is in yemen. >> because of the classification? >> do we know in a way that you can disclose in this room? >> no i would not feel comfortable answering that. >> okay. general allen we've all seen the world war ii movies, the french government in exile didn't exactly send checks and money to those living under nazi occupation. but in iraq we've got the government in baghdad paying

people in mosul, the money then goes to isis to the extent isis wants the money, they can grabs amuch of it as they want. but my concern here is, does the iraqi government generate from facilities that it controls such as mosul dam electricity, which then goes into isis occupied areas? >> i'll take that question. there's been some work on the mosul dam recently. >> we save the mosul dam. we have no credit for it in the iraqi press for the iraqi people. and at any time in the last few months, have the -- has the iraqi government allowed electricity to go from -- >> yes, they have. >> does isil pay for it or do they just charge the civilians for it? >> no, they don't pay for it

obviously. >> while we're bombing isis we're giving them free electricity. rather iraq is giving them free electricity, sending them money gratuitously, it's an unusual way to wage a war. one suggestion i made at the last hearing, i'd like to run it by you is, should there be a change in the color and design of iraqi currency, so as to make invalid and worthless the currency that isis was able to seize. this will anger those who are corrupt, those who are evading taxes, pretty much those in control of the government in baghdad, is there serious discussion of making all that currency that isis seized worthless by doing a currency replacement? >> sir you have posed these questions before. >> yes.

>> they are i think very important questions actually for how we would envision this counter offensive ultimately. what i would ask is you permit us to either come to you in a closed session or permit us to provide you a classified response. >> i look forward to getting a classified response, but this isn't sources and methods of intelligence, this is what color will the currency be. but you're right, we wouldn't want to -- if -- we wouldn't want to disclose those plans in advance. i look forward to getting an answer to these questions which i've been proposing for quite some time. >> if we could plan on doing that after we return here in the house, how much time do you think would be necessary to access that information so we could have a briefing with the members of the committee. >> when you return? we could do that pretty quickly

when you come back sir. >> it would be my request. >> it would be helpful to update you on how the tikrit operation has unfolded. >> i would like to follow up on that. >> we go to mr. darrell issa. >> thank you. marines are pretty straightforward, so i heard your answer to the earlier question, when asked do you have -- does the two star have the ability to perform x, y or z combat mission, you answered the chain of command has the ability to beg for the opportunity through the chain of command, you answered, do i have the ability to ask? is that correct that you have the authority to ask, was your answer to do you have the authority to do? >> the commander on the ground's mandate in iraq right now, is to advise and assist and build partner responsibilities. >> he has the ability to ask. >> yes, sir. >> they don't have combat command authority, they have the

ability too go up the klain of command and ask. something similar to the way vietnam was fought, where, you know, you had to go practically back -- not just to the pentagon, but to a coffee table in the white house sometimes before you could get a go ahead do you think that is it the way the war should be conducted? in other words, do we need to in short order provide our combat leaders, whether they're in an assisting road or quite frankly of its air strikes and targets and so on. the normal ability within a combat arena to make decisions based on predetermined if/thens rather than almost always have having to go up the chain which can cause a target or an tune to the disappear? >> the way i would characterize the strategy, is that we are executeing by through and with our iraqi partner ss.

>> our shiite partners on the ground with iranian operatives. >> we are not assisting any government that is not under the control of rack. >> if shiite zone under the control of iraq, with iranian operatives next to them call for a strike or assistance, ultimately you're responding as an iraqi response, correct? >> i don't want to get too far in the weeds but we'll just take -- i'll give up on that because i think the associated press has made it clear you are doing it. >> let me get back to what this committee's primary jurisdiction. the use of military force, the president is asking to retain one and get rid of one prior use of force. additionally, he wants worldwide ability to go after isil correct? isil isis dash, depending on what name you want to use. that's essentially what it is.

just tell me if i'm wrong. >> that's accurate. >> okay, so that begs the real question. in yemen today, the president is currently and i think appropriately assisting gulf allies led by saudi arabia in trying to stabilize the situation in which iran backed opportunityists are in fact trying to take that country by force, turn it into a shiite controlled nation, similar to iran. that is not in the use of force request. it would not be covered, is that correct? >> yes. >> okay, so as we speak. we are in fact in a situation in this we have combat operations support, that is likely to need -- it certainly doesn't fall under the normal war on terror, as a matter of fact, unless i missed my prep for

this, we just took hezbollah in iran effectively off the terrorist list. didn't make them good guys but took them off the list, and we now are in a situation in which we're using them in iraq, maybe not as directly we're using people in iraq we're using people in syria that are formally on a terrorist list, we are fighting them in yemen, and the president is not clarified under what authority he plans to do that, and for how long. am i missing anything there? >> sir, i think first we believe that hezbollah remains on the list. number two, you hilt an excellent point, it's an extremely complicated environment. and we are pursuing this counter terrorism strategy with the precision strikes to halt isil and additionally as you hilt to support our gulf partners as

best we can. >> based on -- and my time is expiring, based on the fact that we have a two -- not a two front, but two distinctly different groups isis, sunni extremists and a myriad of shiite extremists in different areas, mostly if not all backed by iran we are now as a committee being asked to consider the authorization for use of military force only against half while in fact we would have to rely on vague past authorizations for the future. and we do not have a plan for situations like yemen so i'll close with don't you believe that any authorization use of military force has to envision the ability and a plan to deal with the fact that in some places, we have two enemies isis and iranian backed groups and that we will be effectively on the ground fighting them in places such as syria. and that there currently is no new authorization for that,

shouldn't be an authorization for that, or shouldn't there be included in the authorization that we're being asked to render to the president? >> i believe the intent of the aumf was to afford the geographic flexibility as well as the responsibility to respond across the globe to these types of threats. the issues that are associated with yemen, i would estimate further need to be adjudicated in terms of what the houthis truly mean or in terms of what they truly represent in terms of their affiliation to isil dash and the shiite challenges within the region. >> so general clapper former general clapper's list did not list iran or hezbollah where they were near the top at the last time. i want to make sure the record is clear. we flow there's a terrorist, a

nation backing terrorist, we know hezbollah is a terrorist organization. they dropped from the list and i always assume that there are too many good people double checking things for that to be a clerical error so mr. chairman i want to thank you for your indulgence indulgence, yield back. >> yes, and we're going to go do mr. ricen. >> how many countries have we asked to provide air support to actually execute strikes against isis in either iraq or syria? how many countries have we asked for that kind of support? >> well when we talk to -- i just have to -- we'd have to go to centcom on that. >> i'm going to suggest a second round of questions. let's go to mr. jeff duncan and then we can go to our second round. >> thank you mr. chairman,

we're going to reset the clock here, i hope. >> general olson, i was apolled when i heard about elements of the state department asking the united states marines to leave their weapons behind to be destroyed in yemen i told secretary kerry in this hearing a couple weeks ago, never to disarm united states marines ever again. i apologize that that happened. and that's how i feel about, i want to make sure that the men under your command have the weapons to defend their colleagues and defend this nation and our liberty. thank you all for what you do. i visited iraq in november of 2012. and i'll say that general austin executed the withdrawal of u.s. forces from iraq and a very professional manner and i'm a huge fan. his goal was to not lose another american life in our with draulg. while we were there, we were concerned about the premature withdrawal of u.s. forces, there was a lot of uncertainty about

the readiness of the iraqi security forces, the ready nfs of their border security, there was concern that iran would fill the void after u.s. troops left. isis wasn't isis was not on the radar screen then, but al qaeda was, and al qaeda was in iraq and i bereavelieve they were waiting for u.s. forces to leaving with so i disagree with letting the enemy know a time line. i want to make sure we give commanders the ability to do their job. the ability to, with the rules of engagement to defeat the enemy. but we still have a lot f lot of threats in the region what is

going on in yemen, just opposing a legitimate regime in yemen. we still have aqap, hezbollah, hamas, i'm concerned they're all going to be joining forces. let me ask what are we doing with the turts? how do they play into our overall goal? they're the only ones doing heavy lifting on the ground in my opinion. how do they fit into this dynamic? >> well, they play a very important role. they are an example of an area where the social factors and the

relationships between and among the people they have been able to achieve a level of prosperity in example for the region. so they play a very important social role for iraq and for the region. at a military level kurdish forces have been successful. as you correctly point out through the use of coalition airpower in recovering all of it's previous holdings and then a bit more. in that respect, without getting into specific operational plans, with regard to the counter offensive, my strong suspicions is the platform of kurdistan

will play an important role as the counter offensive unfolds in the north and the northwest. so we would amendment they would play an important floel that. >> did any of theweapons from libya make their way to syria? >> let me take that question and come back to you with a classified answer, please. >> let me my time is about up. >> i would preferred to answer in a in a classified environment. >> let me ask you about yemen how do they play in the scope for combatting isis? is it a completely different group? are they interconnected? and i'll expand on that because i mention the other terrorist organizations around the globe,

how does that fit into what we're trying to do here to defeat this enemy. >> we have three principal forces at work in yemen. we have a shia element that is supported by iran, and we have al qaeda, which has been a problem for some period of time, aqap it is called. those three forces are ne contention at this particular time to restore the territorial integrity and sovereignty of the state. so to your point, at this juncture, al qaeda, which is not isis, in fact they are at odds with each other, al qaeda is the

principal sunni extremist element on the ground in yemen. and then we have the state, which we still support we are calling on all parties to come to an agreement that supports the central government and it is a central government that the saudi led coalition -- >> wouldn't you agree that the arab spring combined a lot of those elements? >> i think it was an effect that created incivility in yemen in particular. one of the realities i know

with respect to yemen, is as they grew in prominence and capability, it drove them to the arm's of al-qaeda. and al-qaeda is by no means an ally of the sunni states in that region that we support as well. so that is one of the reasons that yemen is so important to us in terms of dealing with the dynamics there. that is the existt of the red sea. so yemen is a very important area for us geopolitically. >> mr. duncan, we will do

exactly that. we will incorporate those together, is that -- mr. duncan, does that make sense to you? >> let me just say, chairman, this is about isil. we'll come ready to talk about isil, but tell us what you want and we'll work to make sure we have the right people in the room. >> we will work to have those questions submitted in advance. >> let's go to our chairman ameritus. thank you, mr. chairman and gentleman for our service to the country. general fantini you testified that the syrian opposition train and equip program is set to take place next month. ? the past, the purpose was to have the forces tend off isil, not to go on the offensive.

what will the mission be, will it include fighting assad's forces, and will they be vetted? >> congresswoman, yes to the vetting. the vetting process is very riggous and essentially continuous. to your question of i'm sorry can you repeat for first question? >> will it be fend off isil? >> the mission is to train and equip, provide security counter and engage -- >> it will be to go on the offensive against isil? >> eventually, correct. but that will not be until we have enough combat power and

they see the conditions are right to move. >> thank you one of the most important issues that this committee and the entire congress can consider is the aumf, authorization for use of military force but isil is not the only threat that we the people of the nation face. and if we're not going to defeat isil we need an approach that confronts them and other terror groups we're fighting in syria and iraq, assad and assad's allies. do they have the ability to use force against assad's regime, hezbollah hezbollah, any other fighter active fighting in syria and iraq, or is it just limited to isil and anyone fighting along

with that terror group? >> it does not give authority to use force against any regime. we believe that the aumf the combination of the 2001 and the new aumf would afford and provide the flexibility for our forces and friendly forces to the u.s. government to be successful. >> and it was reported earlier this week that hezbollah is creating an offensive against them. there will certainly be a level of coordination with he haszbollah, and the patron of the group that is always iran. what can you tell us about their alleged planned offensive?

is there any known ties between hezbollah and the lebanese armed forces? is k you confirm that information we share with the amf will not be shared with hezbollah. that iranian generals and tanks are being used in the iraqy campaign in tikrit and if the united states is on any level coordinating our plans against isil with iran. >> i can confirm that we're not coordinating with iran and there is no intention to. to the other specifics that you're questioning you deserve specific answers, let me take that please and come back to you. >> i look forward to that. e want to work with our allies, but if they're sharing information or in cahoots with terror organizations, we end up

coing more harm than good. i know you will handle that in a careful manner. >> very important question. thank you. >> thank you for your service again. >> thank you, we go to ted in florida. >> thank you, mr. chairman. i think that is a great idea having that classified briefing. generals, i appreciate you being here and your service to our great country. without the service and leadership of you guys the military, our servicemen and women, we would not appreciate the liberties and freedoms that we experience every day. thank you. you being the experts and i think when we started there was only single digits going on to degrade isis in the beginning.

and you being the experts, the recommendation for a tactic to reduce and zero out isis to where it is no longer a threat. and you look at naziism. this is more of an ideology without a nation state. what is your recommendation? can we pursue it with what we are doing. you were telling me how you were doing -- >> remember it was a classified briefing. >> and we should not talk about those things, so i won't, that's why i look forward to the next one. can it be done with what we're doing without u.s. assistance? >> u.s. assistance is being applied. >> how much do we need of u.s.

assistance. with that coalition, if we're directing it and strategizing, or as president bush would say, the strategy. how much can we rely on the coalition partners? >> that is very important, the coalition partners in ways that i think we should all be proud of have stepped up in areas that are obvious. some of their trainers are training some of their potential operators are risking their lives just by being in the battle space. those are obvious ways in which the coalition stepped up. there are other ways that are less obvious but very great as well. we can go after their finances finances -- >> and we have cooperation with

other countries doing the same thing, correct? >> we do and it is quite impressive. it is building stabilization capabilities, it is quite impressive. >> i guess the question that i have is how do you break that ideology. how do you break that? i know we can do it militarily and nobody is better than what you guys do than you but what i am bonder ing erwondering going back to books i read to my kids, the green spot that you can't get rid of, it's the ideology that people are bringing into -- >> you said countries that isis is going into. that is a very interesting

point. what we're discovering is it is more about the movements locally seeing an opportunity to leverage a relationship with isis to accomplish their objectives. and that is important because it gets to a larger issue here. they have come together to deal with it as a symptom of a bigger problem. the coalition is also evidence real interest in getting under the broader factors that give rise to this. it is about political capacity democratic process, human rights, economic opportunity having a hope of being successful in your lives. and in many of these countries where we find organizations like

boko haram. it's because they have no hope. people have no hope and they're easily susceptible to radicalization. so the coalition is really seeking to understand what these under lying factors are so that as individual states and as a coalition, we can begin towards removing some of those factors that have given rise to them. >> i have one more question that i will submit and then i'm out of time. >> thank you mr. dos santos of florida. >> thank you general allen, how much u.s. service members were killed when we were in iraq by iran backed forces and shiite militia. >> i will have to get in a number for you. it's not insignificant. >> hundreds, correct? i saw estimates that said maybe

up to 1500? >> we'll get the number for you. >> and the cuts force commander he was involved in directing a lot of those operations during that time period, is that correct? >> that's correct. >> so we know that he is now directing some of the shiite militia, and maybe working with the shiite militias. my question is if we were conducting air operations would someone like sullimani be a target? >> we don't at this time intend to target him. >> why is that? >> we're here to assist the iraqi government in dealing with dash. not to go to war with iran. i think it is important for us to keep that in mind.

and i will leave it there. >> when the shia forces are clearing areas, how are they interacting with those left are they oppressing them are trying to have a unified country? >> we have seen reports of massacres and atrocities. those reports are under investigation. they have been condemned by us. they have been condemned by the iraq government con dumbed by grand iatola. i was just in iraq last week. and we didn't know there was shia elements part of the clearing force, and i met with sunni leaders the province that is under way, and i asked about what do we know about the

repetition of these atrocities and acts. at the time they were satisfied that this was not happening. but they also recognized that in the end when you transition from a clearing operation to a holding operation, so that the clearing force can keep on going, the holding force has to look like the population or derived from the organic population that will be ultimately held. to that extent the minister of interior has asked for assistance in helping recover the sunni police. ultimately to follow behind the clearing forces to become the force on top of the sunni population so we don't end up with that dieynamic of a force

sitting on top -- >> in fact, a sunni arab that sees the alternative to isis they will be more likely to want to psi with sunni backed terrorist groups if they don't think there is a future for them apart from being oppressed by shiites, do you agree with that? >> i would. i think there are measures that fundamentally give them an opportunity to coexist inside the government and inside iraq. that is why a shia interior minister is very interested in the provinces. i think that is port. >> do you believe that iran has

provided weapons to iraq -- >> and if they are, we do have authorities on the books both at the u.n. and under u.s. law that i think would be imply cased. and if we do think that iran has been doing this what would the administration's response would be, i would definitely like to know that. thank you, we will recognize for three minutes. >> president obama touted him as a success story, but today it is rapidly imploding. so much so that there is an intelligence loss of u.s. information according to several

news outlets and i was wondering if you could tell us how serious that breach might be. is it serious? the intelligence services of yemen which is over run and our files were not destroyed fast enough. and also, while i deeply appreciate and am encouraged by your statement that the allure of the calafate has been lessons lessons, i hope that we are making progress -- i offer that unsolicited, and i'm concerned it has not been. you also testified about disrupting the flow of foreign fighters. i wonder if you might elaborate briefly on what new best practices are being contemplated so these killers, these

terrorists will become hardened in this battle and don't return to the united states and of course to europe to kill americans and europeans. >> to the potential intelligence loss, we will take that and come back to you with an answer. for foreign fighters the commitment by the coalition has been impressive in that regard. we're not where we want to be. but it operates at several different levels if is countries adopting, and italians fighting traffickers and legislatures that are directly coalition activities.

we're starting to see the activities of the e.u. hoping to create a unity of purpose and vision on this issue. we have seen, and will continue to see, best practices being applied on border patrol measures. the shares of information and investigation intelligence. the sharing of personnel and passenger records. that will improve overtime. our nations especially the western european states, states where privacy is extraordinarily important aspect of who we are as a nation and our population. >> thank you, general allen. i know that since your time is limited, we are -- >> yes ma'am. >> if you could finish that thought. >> we'll continue the best practices associated with working with indigenous

populations and at risk populations to reduce the attractiveness of dash and similar extremist organizations legislatively approaches, individually and across the entire effort, and also to strengthen the work of the counter foreign fighter working group which is chaired by the netherlands and turkey and we will be meeting for the first time. >> thank you very much. >> thank you i want to build on a question they asked before. finding the right language is obviously difficult. republicans and democrats fought what was sent up. how important is it for congress to pass and what would be the consequences if we did not do so and how would our troops and

coalition partners view it if we did not do so. >> very important question. there are three major areas of discussion within the aumf. and we obviously welcome the robust conversation associated with those. the size of the force that could be committed. the nature of the force, the duration that that force might be committed, and where that force might be committed. those are all issues that deserve a very thorough conversation and coordination. there is a fourth area that is very important and that is that whatever it looks like at the end. where the administration and congress have agreed that this should -- whatever the measure should be fulfilled a strong bipartisan support of the aumf is extraordinarily important outcome of this. because it reinforces the

reality and appearance of leadership, and it sends a message that their days are numbers. that is an appropriate platform for us to have the kind of conversation with the congress that the people deserve. but the approved aumf strengthens americans strategic leadership and butts d.a.s.h. on notice that an end is in sight. >> thank you i want to ask a question about syria and assad. in an interview about foreign affairs, president assad said that when the u.s. trains syrian opposition fighters back into

the battlefield will assad target these fighters. and it is not a hypothetical, it is a real situation. will the u.s. or other members of the coalition target assad? >> i would like to present the answer to that in the closed session if i may. >> thank you, general. we now go to two minutes for mr. sherman, and then our witnesses will have to depart. >> i did work in vietnam in 1967. i was not in the military, but my father was a retired lieutenant colonel in the marines. i remember talking to him about what a confusing mess that was in vietnam.

and which we described earlier the challenge that you face and my father said if you think that is a confusing mess you should have seen what it was like when i landed the first dc 3 -- we have faced these confusing messes before. it was important for us as my father described that if we had not been successful, japan would have been neutralized, it would have changed the cold war and the soviets may have won. i this what we're doing now to confront d.a.s.h. will either basically eliminate or deal with a challenge that is of that magnitude, because if we don't, and if president el cici does

not win and egypt is trying to destroy and replace him, and you folks don't succeed, we may have a world in which a huge chunk is controlled by radical islamists who want to destroy western civilization, so we wish you success. i believe that the strategy of using insurgencies as we did in afghanistan works. your success reaffirmed that. i hope that our attempt to assist the iraqi government does not get in the way of successfully implementing that strategy that we know will work. thank you very much. >> thank you, mr. sherman? >> thank you i know we will get into it in closed session but i will reiterate that i'm confused and on the one hand we tout the

failure of isis to provide governance, their inability to provide for the people under their control, and at the same time the iraqi government helps them provide governance with free electricity and so on. but what i want to deal with in open session is whether the aumf should include assad or if it should be limited to isis. this country want today have as little military involvement in the east as possible. now americans see this as a problem that we have to confront and we have to confront it carefully. on the one hand we have to go after isis for what they have done. on the other hand there is a war between shiites and sunnis and it is not our role to be on one

side of that or the other. the most evil is assad. he has not beheaded anyone on you tube, but he has killed close to 200,000 innocent people. should, and general i realize there will be others at the state department that will give us input on this, but should the aumf authorize the president. should he go after isis, but to also go after assad, perhaps just mowing the grass of both of these evil elements. >> thank you so much you have ten seconds. >> the answer is that this -- the aumf will submit it as a counter d.a.s.h. measure.

they do not envision dealing with bashar al assad, but that is an important conversation to have, but in the draft legislation, that is about d.a.s.h. >> madame chair i ask to have just one minute to plant a question so it could be answered, quickly. >> yes, we ask for unanimous consent to put something on the record and make a statement. >> very quickly, generals, when we go into classified session in two or so weeks the president called for regime change in syria, he also has refused to participate in a no fly or buffer zone for humanitarian relief. as a result turkey is very well known, not cooperating with us in providing the normal air cover that would shorten our

distances. so during the classified session, i ask you provide us with what the lo gisgistical changes would be. rather than the millions in lebanon and turkey. if you would provide that in the material brought to you by the classified briefing that would be helpful. >> thank you, we appreciate the time of our witnesses today. we look forward to following up when we return, particularly in the area of the tikrit mission and iran's role and with that chairman weiss's committee is adjourned. >> thank you ma'am.

tonight we bring a week long series of congressional freshman. he talks about his life in the army and childhood experiences. with congress on break this week, it is american history tv in prime time starting at 8:00 eastern with daniel ellsberg. he consulted the white house on matters of the vietnam war. that will be followed by an interview with john dean. part of the nixon white house in 1970 as counsel to the president. he talks about his early assignments, watergate, and the

1972 break in at dnc headquarters. that started tonight here on c-span 3. last month the supreme court heard three consolidated cases on epa regulations for mercury emissions. they are trying to decide if health risks are the only consideration required under the clean air act. first they require powerplants to cut emissions of mercury. the rules are a key part of the obama administration's environmental agenda and they go into effect this month.

>> michigan versus the environmental protection agency and the consolidated cases. >> mr. chief justice, may it please the court, the epa's few whether or not they can regulate, the text sets out two distinct terms and directs the epa whether or not it is appropriate to regulation and whether it is necessary to regulation. the e.p.a. found it is necessary to regulation because of the existence of public health harms, and to regulate for the reason -- >> i'm not sure that is quite what epa said. my understanding of what epa said is that it is necessary because of public health harms and it is appropriate because there are technologies that can remedy those public health harms. so on the one hand it said that

the phrase went to the nature of the arms. the phrase appropriate went to the existence of technologies. >> when they relied on the availability controls they did that after having said we must find it is appropriate if the health hazard exists. so they already determined that the health hazard is a necessary and efficient -- >> can you give us a citation to their opinion. what are you referring to? >> for example if you look this is in our replied brief -- >> replied brief? >> yes your honor. i think that points you to the final rule, volume one of the u.r. petition index. let me find the volume.

if you turn to the u.r. petition appendix volume 1 -- >> good lord. >> this is the text of the final rule. page 206. i misspoke the first time, page 206 says we must find it appropriate to regulate e.g.u.s under clear air act if we dhaerm a single half poses a threat to environmental and public health. then there is nothing left to be done. you already said that we have to do it. the availability of controls is not doing any additional work --

>> is the government going to say that if the predicate for regulation exists, either emissions -- that it is appropriate to regulate. that's what government will say. appropriate is a capacious term. and it will be that the government says it is appropriate to regulation or if there is -- >> there is a capacious term, but i think that cuts against the government. one of the things encompassed in the term "appropriate" is that it looks at all of the circumstances, and whether or not you will regulate cost is a relevant circumstance. the fact that they said we must find it is appropriate to regulate means that this other -- >> well i thought -- >> they didn't look at the availability of technologies? is that what you're saying? they thought the availability of technologies was itself ir --

irrelevant. they said regardless of whether or not controls are availability, if a health hazard exists, we have to regulate. >> i'm sorry, i thought they said only if it was necessary. congress was motivated in most listing these sources because it didn't know whether the technology that would be put in place to control acid rain would reduce the reduce, perhaps sufficiently. i had a different understanding of appropriate and necessary. appropriate if there were, but necessary only if those haps were not sufficiently controlled by the other technology. >> the necessary, both of them looked at whether or not there would be an ongoing hard.

necessary and appropriate turned on utility study. it examined what hazards would remain after the other regulations -- >> it could have been low enough so that no standards were necessary. >> well they determine how severe, the severity of a health hazard. the severity went into determining the health effects at all. so they looked at the health effects. once there was enough health effects that there was a public health hazard, they said we must regulate. it is necessary to regulate which is exactly the same as what they said -- >> can you step back for a minute, general lindstrom. it seems like the quest for particular meanings attached to all of these adjectives.

if we step back, that language is used all over the u.s. code and indeed in our constitution. as i understand what courts have done with that kind of language they have not insisted there be separate defined meanings for each of those words. when john marshall was doing this, he starts off with the word necessary and he says this is a phrase and we have to understand what the phrase as a whole means. and where shouldn't we similarly say that catching them in a redundancy, or super fluidity is an inappropriate clause. >> it recognized that something might be necessary, but not necessarily popular. >> we have we have separated out

the two words and said it could be necessary but not proper, and that means it is not necessary. or useful to the federal government, and yet not proper. so i mean -- >> so why do you get to pick what it means? i thought that in our agency we repeatedly say if a term is ambiguous, and there is no legal definition of appropriate it is con techtext contextual, but if you have to look in context, it is ambiguous. >> i don't think it is, you can use it in such a way that everyone understands what you mean. if you say i want you to behave in an appropriate manner and i

said we're going to the library everyone would know to be quiet. >> i see the first part and the very next provision says in four years, instead of three do a mercury study that includes costs. i'm looking at it, i can very safely say one study doesn't use the word cost the other does. the first one doesn't necessarily intend costs to be looked at. what is irrational or not plausible about that reading. all we have to find is a plausible reading to uphold the epa's interpretation. >> it's irrational because they're taking the key statutory word. they're reading a word out of the statute, and it doesn't extend to far as to say we can

violate an ordinary rule. >> the word appropriate is often a signal that discretion is -- you have an expert agency. so the word appropriate, i think, is commonly used to indicate that the expert agency will do what it finds fit based on it's expertise. so you're saying that appropriate necessarily embodies a cost calculation, and yet this is a statute that uses costs, directs epa to consider costs ultimate multiple, multiple times. is there in case in all of our decisions where we said even though there was no instruction to consider costs, epa is

required to consider costs. is there any such decision? >> i don't think -- no, i don't think this issue has arisen the same way, and the agency said we'll ignore what is an important part of the problem. that is why this is a problem under the state farm doctrine. >> but i think what justice ginsburg is getting at is sometimes we have looked at silence and we said give than silence, cost considerations are procolluded. sometimes we say it still allows allegation discretion, they can do what they want with it. but it is so far from our most

closely related case we're saying it is required when there is silence as to that subject. if congress wanted to require something, and clearly congress required this in other places, they know how to require consideration of costs. to get from silence to the notion of a requirement seems to be a pretty big jump. >> and i don't think is silent when it tells the agency to look at all of the circumstances. the question is should we regulate under this session. costs are part of the relevant materials -- >> i'm not sure i even agree with the premise that when congress says nothing about cost, the agency is entitled to disregard costs. i think it is classic arbitrary action. it is outrageously expensive and the expense vastly exceeds

whatever public benefit can be achieved. i think that is a violation of the administrative procedure act. even without the word appropriate. >> i think that is where there is overlap between what the state -- >> sorry, the study at issue that congress commanded was simply a study -- the administrator shall perform a study of the hazards to public health, really health, reasonably anticipated to o care by puckly unit steam generated units. and then it says that the administrator shall regulate these entities after, under this section, if it finds regular ration is appropriate and necessary, after considering the results of the study.

so it if the study is only directed at public health hazards, doesn't talk at all about costs why in the world would one assume that congress was thinking about cost? why didn't it do as it did with mercury? and it didn't tell us. >> it didn't limit the considerations that the epa should look at, only the study. >> but it it says -- >> it says the administer should regulate if the administrator finds such regulation is appropriate and necessary after considering the results of the study. >> yeah. >> after considering the results of the study. the only thing that the study

requires is a evaluation of hazards to health. and now we get to then having to do another step. when the only step that is a prerequisite to registration is studying public health hazards. >> even the epa doesn't think it is limited. they rely on harms. >> they say that saying considering only the results of the study. >> you're correct. >> it doesn't say that have to it doesn't say they can't consider everything else, and the word appropriate makes it seem -- >> there is a study they're supposed to look at but that is not in the analysis. that second step is to figure out whether it is appropriate and necessary to regulate. so you didn't stop at just the

study, and the epa agrees to look at the findings of the study. >> it seems to me that a very salient feature of the statutes that we have to interpret, is that congress chose to treat powerplants differently from other sources. it could have treated them the same way. if it had not done that, the listing decision would not have taken into account costs. it would have been based on emissions, if it was an area source it would have been on effect of health alone. so what, if anything, can we infer from that. from the fact that congress pointedly decided to treat power plants differently. >> i think we can tell they're trying to do something different here -- >> they're trying to create a different regime, but the reason

is clear. they thought the acid rain program might have a real exact on what electric utilities were doing. they said wait and see and we'll see how the acid rain program works and if we still have a problem to solve. that's the reason why they put the electric utilities in a different category, correct? >> and it was an economically bait based approach. >> but the acid rain program didn't do what congress thought if might have done, and it was left with a continuing issue, and then once that happened it seems to me that it is natural to take a look at the rest of the statute and to say let's regulate in a similar way to the way that all other industries are being regulated. >> but if they want today do it in the same way they would not

need to use the phrase, they could have gone to a ten-ton initiative. the fact they use different criteria here -- >> they could have, but that might have thought let's take a look at the acid rain program. let's look at the problem that still remains, if anyway and give that problem to the agency at that point. it will be years down the road -- >> but the discretion includes looking at the entire problem. the language says looking at the material circumstances and this ties into the state farm test. you can't ignore an important part of the problem. >> if the reason for the separate treatment was the belief that the acid rain program would be sufficient at some point in time to bring

emissions for power plants below a level -- why would it be necessary to ask if it is necessary and appropriate to regulate them. >> yes, you're honor there could have just been a three year delay if that is what what they were trying to do. they were going to wait and see how the industry responded to the regulatory requirements or the program. >> that still doesn't explain why they chose to use different criteria as opposed to reiterating the criteria under the ordinary thing that applied to every other source. they are still trying to treat public utilityies differently. and if you're addressing a program that is targeting electric utilityiesutilities, it makes

little sense, and then to say in this area of diminishing utility, we're going to say costs are irrelevant, that is backwards. >> when the debt refers to the emission standards for the 12% of the best performing plants will the government say that is a cost consideration? >> i expect -- >> if so how do you answer it. >> i would say the plants are across the range of how old they are. so plants in 2005 may have been built in such a way that makes it -- imposing those same control measures on a different plan would be more expensive. it is different from renovating your house to -- >> mandated base from which the

government must operate, and it seems to me like there is a coast there -- do you still say that is insufficient buzz -- >> yes, because it is not -- i'm explaining why it doesn't necessarily take costs into consideration, the fact that some were able to impose things that doesn't make it effective for other ones to do it. >> that isn't taken care of by -- you have to act for costs somewhere. so the other side says there is room for that. say that 25% of electricity waterwatt generators are near water falls. it is easy for them. the others go out of business and we have no electricity.

you want to say the answer is no but you talk about the 12% rule, the administrator may talk about pipes and sizes of sources. if you had the situation, you could say look, 75% of the generators in the united states have old technology and they all go out of business and the epa can say fine, that's a different class. if that was really true. so don't they have through that provision, the 12%, and the next one, the ability to take into account at least serious cost bubbles. >> assuming that have the ability to take that into account -- >> no. >> no, why not. >> it's what i was explaining about the 12%. as the example you gave shows

that some might be able to be a more cost effective approach because they're near a water fall. so relying on the fact that 12% news this -- >> in the imaginary situation that i've imagined. 20% of the generators for whatever reason can meet this pretty easily. the next 80% will require the entire gross national product to meet. suppose that were the situation. you i guess could go to epa and say create of that second group a separate class, a separate type. for that's the reason it's so expensive. and therefore the 12% doesn't apply to them. because they're in a separate class. now, my question is can you legally make that argument? and they will take it into account. and that's what i want a yes or

no answer to. >> and i think the answer might be yes in the future. but now we can't do it because -- >> did you make the argument here now? >> my point is -- >> you're saying yes in the future. let's now go to this case and say did you make this argument? >> i don't believe can either side has made that argument. costs into account crudely, or did they all say we

want a cost benefit analysis? i would like your characterization on that point. reading what they said it's about cost benefit analysis, that paragraph. that gave me the idea that maybe everyone interested in cost asked for a cost-benefit analysis. >> i think the answer is we asked them to consider cost. we thought a cost-benefit analysis is the ordinary way decision-making happens, not through some vague sense of what the costs are but through doing an analysis. and they have said their entire position here is that we don't need to do that because costs are invite. that's not something we have to consider under the -- >> as i understand what happened, listing and standards are the only thing that you can generally appeal from. it's only a final agency action when the standards are issued. and i thought it was at the

issuance of the standards that the government sometimes breaks up the sources and the amount of emissions that each type of source that justice breyer's talking about can have. so i think the listing is just of a broad category because we've had plenty of cases in this court where we've looked at the agency saying this type of source meets these standards, that tupe type of source meets another standard. isn't that the way it works? >> they did both at the exact same time here, same time they made the necessary and appropriate finding they also promulgated the emission standards and that shows us it isn't a typical listing standard. >> once they're listed they are subject to standards, aren't they? zpts not up to the agency to calibrate the standards. once they're listed minimum standards aplierks right?

and the agency can have discretion as to whether to lift the standards further but the mims apply, right? >> that's epa's position is we must regulate. if i could reserve my time for rebuttal. >> thank you mr. lidstrom. mr. brownell? >> mr. chief justice may it please the court. i would like to make three points to supplement my colleague's argument first regarding the nature of power plant regulation under the clean air act. second the language of subsection 1a and third the broader clean air act context. to begin power plants are the most regulated category after the clean air act and the 1990 amendments. the court has talked about some of the programs, it's not only the title 4 program but the retrofit technology, pollution transport programs targeted to power plants and a variety of other control programs both

control and air quality. >> mr. brownell, i would think that cuts the other way, that every other significant industry in the united states is subject to this program except for electric power plants. >> your honor, what it shows is for the other industries epa estimated in 2010 that for all other industries this program would impose compliance costs of about $840 million. all these other programs for power plants would impose compliance costs epa estimated in 2011 of 10.4 billion. this single regulation on air toxics imposes annual costs of 9.6 billion. and what does one get for it? there are three standards edition here. and i think this is important to understand some of the questions that have been asked. there's a regulation for mercury. there's a regulation for non-mercury metals. and there's a regulation for acid gases. most of the costs 450er the

majority about 5 billion annually, are associated with the acid gas regulation which the agency has concluded presents no public health risk, no public health concern. the agency said that our modeling has consistently showed that power plant-related ex- exposures are at least an order of magnitude below the conservatively safe level. the title 4 program congress addressed pollution with acidification potential and required reductions of 9 million tons a year at about a cost of 1 to 1.4 billion. the acid gas program is projected to result in reductions of acid gases about 40,000 to 50,000 tons per year at a cost of $50 billion. what that background shows your honor, is that when congress treated power plants differently it asked whether it is appropriate to impose further regulation of a specific type. whether it's appropriate to

impose regulation under this section on the most aggressively regulated industry under the clean air act. now, what the statutory -- >> can i take you back to justice breyer's first question? and the first question was about the way these categories work and how the categories enable the epa to mitigate certain dramatic or onerous costs on certain segments of the industry. that's not an unknown provision of any kind. and indeed it seems to me that the provision very much cuts against your argument because epa in some ways can't even figure out the costs until it makes those categorization decision that the aggregate costs obviously depend on how epa categorizes and subcategorizes. so you would have the epa make the cost calculation before it really can given the structure

of the statute. >> your honor, the cost does factor into a variety of determinations that are made as part of the regulatory process. when epa issued its notice of regulatory finding in december of 2010 it said this is non-final. epa confirmed again, and this is at page 555-a of the u.r. petitioner's appendix, that there is no final m-1a determination or listing and we are going to take comment on that as part of the rulemaking to examine section 7412-d emission standards. as part of that the agency addresses issues related to level of control subcategory h, subcategorization, and at the end of the rulemaking comes out with a regulation that has certain characteristics and consequences. and here this regulation -- what m-1a says is in light of the study address whether such regulation under the section is

appropriate and necessary for power plants. now, it may be necessary to regulate something like mercury if there's a public health risk and that's the only air pollutant for which epa has calculated a quantifiable public health risk. but that may not be the appropriate regulatory regime if as epa has explained here their view of the statute is not to focus on whether such regulation is appropriate but whether list of power plants under subsection c is appropriate just like every other -- >> can i ask whether that listing is -- and the minimum standards that that imposes are subject to the categorization device that justice breyer was asking about. could the agency say, well, you know we're going to divide these into categories and since it's too expensive for certain -- 80% of power plants

that don't have waterfalls nearby we're going to exempt them from these minimum standards. can it do that? >> no, your honor. not at the listing stage but once the source category is listed at the standard-setting stage, they could consider subcategorization. >> reduce it below the minimums? >> not below the minimums. your honor is perfectly right. >> the minimums depend on the categories and the subcategories subcategories. you can categorize in a way that the minimums will be up here or you can kathize in such a way that the minimums will be down there. >> and during the rulemaking subcategorization, epa ultimately subcategorized the power industry with respect to one limited set of sources. lignight sources with respect to the mercury standard. but otherwise, epa's position is once listed it triggers an obligation to issue emission standards under the -- >> an obligation as to some standard. but again, the minimum standard can vary dramatically depending upon how the