upheld, for example, the public interest doctrine against a delegation attack. but what is the intelligible principle, to your mind, when congress delegates to the fcc and, of course, so much of its activity takes place under the public interest delegation. what is that intelligible principle there and maybe to supplement that -- >> i think we have your question and we need to move on. >> suppose congress just said -- >> excuse me. we have your question. thank you very much. >> so in terms of can i articulate what the intelligible principle is? as far as i understand the intelligible principle doctrine, it translates into whatever congress says in the delegation.

i think that the court has upheld such broad delegations that principle is simple a term it invokes. it doesn't have meaningful bite. where i think the courts do police delegation is in terms of how they read statutes. in terms of whether or not it's sub constitutional. it's statutory interpretation and administrative law when they subject something to more search and e review and require reasoned explanation that's in part to make up for the lack of the congressional delegation. and that's where i think the courts should play a role because that's where the most effective. >> i'm very sympathetic to your vision of the collective congress as a matter of policy, but i heard you to be making not just a policy argument, but also an argument from constitutional structure. and i wonder what do you make of the fact that the constitution

isn't more clear about this and that it does speak about the speaker of the house and the president of the senate. and it does speak of officers of these houses and gives them the power to make these rules that we're objecting to today. >> i guess i think of the constitution is pretty clear about this. i mean, they do mention that there will be certain leaders of the houses. but i think it's clear that it only gives congress one power. they have law making power and can only exercise that together. and i think that excludes then lawmakers kind of acting on their own. especially to influence administration or the execution of the laws. so i think it's pretty clear. it's almost the core of article 1, that's all they can do and

they have to do it together. i think one of the real questions is how do we incentivize congress to exercise this law making power. i think that is a very difficult practical question given where we are right now in modern government. >> i agree congress is undeed when investigations in going into courts and subpoenas it's tied to its article one law making function. but that also cuts against nothing that you said, but cuts against the idea that congress would kbo into court to help monitor the implementation of the law by defending federal statutes and also cuts against the notion that congress might be able to go into court as in court today to deal with the exercise of the appropriations power that congress must act in not one house or the other but with the exception of

investigations, which are left to either house under its own internal rules. >> i don't disagree with that. >> i wasn't suggesting you did. >> the very back microphone. >> today's panel as well as yesterday's prompted me to just wonder and ask for clarification. when congress did operate under the seniority system, was there a greater impetus for those committee chair to challenge the executive branch? i was just wondering what this panel would think of any reinstitution of that system to have greater addition of staff to a particular chair. >> well, i'll just jump in. you can find lots of examples of

especially because most of the chairman were democrats. they especially enjoyed standing up to democratic precedence. that was really part of what they like to do. the relevance of that is somewhat limited because that was also a time when we had had both conservative and liberal wings within both parties which we do not have today, so that i would like to see a time when a committee chairman is attached to the institutional interests of the house or the senate, even when the president is of his or her own party. i can point to it in the past, but the polarization and the emergence of the president. that is a highly partisan sort of a bunch of partisan causes is a new matter and makes things

somewhat different. it's a system of tenure. i don't think we're ever going back to that. there would have to be an internal to some degree and we have been moving in that direction. the key is to give the chairman of the committee the ability to make discussions and force people at least of this own party to go along with it. and that will be difficult. it would go back to the old system you find an enormous amount of parochial use of power of the committee chairman for parochial purposes. very much against the public interest. and i can only say that we could answer that today by publicity,

which is much faster and more kind of relentless than it ever was in the past. >> i would say maybe a little bit, but when i think of chairs back there that challenged presidents in their own party in the 19th century before they had a strong seniority system, they were doing that also. challenging presidents then and right now after all the people who rise to the top of the committees that have been there awhile it's not as if they are freshmen. they are there a long time in the senate doing defense stuff. it's not all that different from the way things were 40 or 50 years ago. maybe a little bit, but not much.

>> if we could return to the limits of delegation, if congress passed a law which just cut and pasted article 1 into a bill and the president signed it and it said we'll create a new super agency that shall exercise these powers, is your position there would be no way to declare that exceeded the power of congress to delegate its own power away? >> it's an interesting example because you're making me think of an article by eric poser in where they argue basically all the delegation doctrine that legislation has to be passed by congress. you have to come up with a hypothetical that implements their u theory. i'm willing to go that far, but not too much in terms of that's not the reality of today. those aren't the problems we have today. >> thank you.

>> to what extent is dysfunction actually driven by dubious interpretation by the other branches so to take a recent example when the executive branch or the court tells us that established by a state means actually exchange o of established by the federal government, does that make it more difficult then for congress the next time to reach a compromise if they are afraid that the compromise they reach won't be enforced as written by the other branches. >> i think it probably does. there's some dispute about whether congress take this is sbo account, but it must make some difference. often times you also have certain specific things in a statute. agencies will go around the specifics by using their broad delegated power. there's some great examples with the auto lenders. specific exclusions for auto lenders, where it just gets

around with broad authority it has in the statute. so even when congress is trying to make deals, we may like deals or not, but that's part of what they do. under broad delegations and judicial deference, those things are often just interpreted away. so that's got to affect how they view what they are doing. >> just to chime in on that, i think it really is a question that does require empirical investigation. i'm not sure that they come to a view of yours. congress does have -- it understands that agencies will be acting against certain kinds of background approaches to how it's interpreting. and of course, your particular example, the evidence that came out in the times said the decision of the court the point being more broad i can see, but

that particular example i don't think shows it. >> one of the devices for controlling delegation is the oversight hearing. if you go back maybe 40 years, a an oversight hearing would begin with the chairman asking some questions and then turning over the questioning to a council who really knew this stuff. today each member gets five minutes and the combination of the members themselves and the five-minute rule make effective questioning almost impossible. do you think changing rules at that granular level might help in controlling delegation? >> anybody? >> well, i think a lot of the question is the attitude of congress towards the administration. when john was chairing the energy committee, he was out to assert his prerogatives and

couldn't care less who the president was a party of, which party the president was. it was motivated by a particular vision of where the government should be going on the issue. so i don't know if it's an issue of changing rules, it's an issue of changing attitudes and the recognition within congress of the importance of the overnight function, the recognition within congress and the importance of congress haviits own agenda. i don't think changing rules would matter much just based on past congress. >> is that me? >> yeah. >> so the professor talked about the courts shouldn't get involved in questions of delegation between the political branches. i think a lot of us might be more comfortable if the court hadn't also said you can't as an institution keep control of what you're delegating to congress,

which is what it did. it's interesting that these three lines of cases are all based on a premise of congressional supremacy that's been called into question on both left and right, at least the law review articles are any indication. so in the conference that's been dedica dedicated about thinking we should walk back chevron, shouldn't we also be thinking about whether we should walk back chada? >> that's a great point. there's a real conflict the question becomes how do we

reinstate systems of checks. whether the veto is the right one, but thinking more -- making sure that the doctrines align at that level of design so you don't create a gap i think makes sense. i have always thought that justice white had a powerful argument in ins. >> they have accomplished far less than one might suppose looking at the case itself and why it's predicted. congress has enacted hundreds and hundreds of vetoes since then. and presidents routinely complain about this but adhere to it because they want, if you will, the delegation that congress is willing to give them with the string of some type of committee or house veto. >> but that's an important point that goes to naomi, because it's a different thing for a committee to exercise informally some legislative veto for congress to do it collectively.

>> they continue to enact them but they haven't exercised legislative vetoes. it's all informal. so i think one of the interesting things is because we have given up on all the first best solutions, having a real nondelegation doctrine or review of what agencies are doing, then we're in this realm of the sub constitutional. trying to figure out what kinds of checks we can put on things because we have given up on the original checks and balances. i think that's a very hard thing to figure out because the original checks and balances were carefully designed and then now there's a sense in which we're making it up. >> thank you so much for share ing your insights with us today. my question is related to the power of the purse. i'm wondering how many of the problems that you talked about today so the power that in are in administrative agencies and the power of congress members opposed to congress acting as a

whole is related to our budgeting process happens today. i'm wondering in an era where we have rule by continue iing resolution and also where a significant portion of the budget directly goes to agencies without consideration, how much do you think that influences or has caused the problems that we have today and what would happen if we were to return to zero based budgeting? >> that's a good point. there's a sense in which they have given up powers. they are not exercising a robust power of the purse. and that all effects this it dynamic. >> to jump in on appropriations, i think you can also make an argument that congress has been irresponsible in terms of enjoying the politics and the rhetoric of not funding while at

the same time delegating responsibility responsibilities and creating statutory laws. you want to be though row about exercising control, simply doing it through appropriations while getting cover strikes me as not living up to your constitutional obligations either. >> one last quick question. >> thank you. i'd like to continue on the theme of oversight. how does it look basically some flesh on it, how it would look with respect to an agency like the cfpb which is the executive and the legislature because from what i understand is not controlled by appropriations. it's also not a commission like some other agencies from the new deal. what would oversight look like in those agencies in. like a modern one like the cfpb versus an old one? how might that be different? >> they have a fascinating

structure. but in addition, they were created at the same time you had the financial stability oversight council, which has the power to overturn the rules. the requirements of consultation with other agencies so it's less of a direct ability to overturn but there are some checks that are there. also the way the rules can be enforced by the states. you have more of a horizontal system built in that exercises a variety of constraints on the agency despite not having the funding constraint and having the single person structure at the top. right now agencies that have the collective structure are increasingly unable to function at the point at which the chair petitions the own agency to adopt the rule.

e we might want to call into question at least when it's an even numbered division at the top. >> in the hands of a powerful congress, in the hands of a weak congress, it's academic seminar or an excuse for simply evasion and getting through the hour. >> it's part of the executive branch. so it's an executive agency. and not independent in any constitutional way. >> i'm the first woman to reach

the rank of four stars in the navy. i was only a 3 star maybe 10 or 11 months when the cno was traveling through town. he asked to see me. i presumed it was about the next job i was going to. and then that's when he talked to me about we're looking at you for being a 4-star and here's a couple different opportunities where we think you would do well and benefit the navy. >> vice chief of naval operations michelle howard. she talks about become. ing the first female 4-star admiral in the history of the navy. she discusses her career prior to her current apoint including the mission to rescue richard phillips, who was kidnapped by pirates in 2009. >> i became head of the counterpiracy task force and a few days on the job captain

phillips was kidnapped. so it was our responsibility as a task force to get him back and get him back safely. and that was, obviously, a surprise kind of mission and a challenge, but we got him back. >> sunday night at 8:00 eastern and pacific on c-span's q&a. first guest of the morning is representative robbie -- rob bishop. he's the chairman of the natural resources committee. good morning to you. >> good morning. >> to start off with events in paris, give your sense not only of the events there, but what does it mean for the united states going forward in its efforts against isis? >> it means, first of all, we have a great deal of remorse and think for what took place there. it also means, i think, our policy towards isis so far is a failure. we need to change. the status quo is not going to be acceptable.

it means that we need to be vigilant about what could happen here at the same time. it also means some of our priorities and where we have spent our money is out of step. we need to make sure that we have a viable military and defense position and that we need to make sure we spend that money on military and defense and man power as well as research and development. that's going to be a change. it needs to be a change in what we're doing from the status quo. >> do you think it's a change the congress is willing to make? >> i hope so. i think the house has signalled that very clearly. the senate signals that as well. the administration needs to get on board. >> the house is supposed to be briefed by the fbi director on events in paris. what information are you most interested in learning from them? >> well, obviously, the theory is that this may happen in the united states. they are planning on doing the same thing over here. we will be looking inwardly at that point. . what it tells me is we will have

sequestration, this administration has had four cuts in our military spending as well as a downdraft in our man power needs. it has to be changed desperately. i think we're looking to the future. this tells us the path we have been on is not the path that we should be on. we need to change. and that's the message that needs to come out of this. >> when it comes to the efforts of isis, would you be comfortable with more ground troops in this effort? >> well, yeah. the question is how many boots on the ground chuts boots on the ground? we already have ground troops over there. how many more is necessary? a simple air campaign is not going to be effective. it needs to be supplemented in some r particular way. it needs to be supplemented and it needs the united states to take a leading role for the first time in trying to organize the willing who are willing to go in there and do something. obviously, what we have done in the past is not working.

we need to have a rebooting of our priorities and our policies. >> so spending a military is part of that in your thinking. >> if you don't do that, if you don't have a strong military, you can't use the military as a constitutio solution. that's where we are putting ourselves disadvantage. clearly, we have lowered our military status. we have lowered our military abilities. that has an impact on our foreign policy ability. >> one of the issues that has been brought before this congress as authorization for efforts against isis calling for the president to come back to congress for a specific authorization. do you think that will happen? do you think that's necessary? >> it would help only to identify what our strategy is. and to try to unify this this country on a specific strategy. that would be very helpful. >> our guest is rob bishop, republican of utah, member of the arms services and natural resources committee to talk about things related to isis and

other issues. 202-748-8000 for republicans. before we go to calls, the president specifically calling ground troops a mistake. what do you think of that statement farce a mistake is concerned? >> i don't know. that's how you have to define how many troops on the ground is troops on the ground. we already have troops on the ground there. so the question is at what level does he want? he has to give the definition of what is boots on the ground before i can determine if it's a mistake or not. >> first call from john. john in tampa. good morning, go ahead. >> i agree with the representative in that we need a lot of boots on the ground, but they shouldn't be american. they should come from the rich gulf states.

i agree with the representative and i agree with bernie sanders in this area. thank you. >> take a leading role in trying to organize those who are willing to be part of this solution. just obviously it doesn't affect just the united states. it affects the entire western world. it affects the middle east as well. so we need to be a leading force and an organizing force. that's something we have advocated in the past. >> from charles in woodbridge, virginia. >> just a couple comments. i agree with john in. the fact that i don't think boots on the ground should be the u.s. also this is an obvious solution. we should have spent our time

getting a coalition of gulf states together because they are by and large run by sunnis with the exception of iran and seyri. but isis is the organization. but still unless you can get the locals to fight this fight, it will go on forever because it always has, we're never going to be able to stamp this out. the second point is about the syrian refugees. i don't understand why a situation where you have a a war torn country where we know just like the balkans and everything else the war is going to end. and at some point these people should go home. it becomes an immigration policy versus a refugee situation. i agree with some other folks that we ought to work with saudi arabia or something to set up a compound in the desert.

pump hundreds of millions of dollars in this and support these people and give them food and clothing. they are going to be needed to get things back to normalcy in the the first place. >> welcome do a lot of things in retrospect. i think the call r makes a valid point as we deal with sunni issues and factions in the middle east. for example, when we did the iranian deal, it was the west and the united states without any kind of sunni representation from the middle east. if they had been part of the negotiations, they would at least have taken a prop began did tool away from isis. so involving those is the appropriate thing to do. the united states has to take an active leading role in involving those countries and involving the western hemisphere and european allies.

or we're going to continue the same mistakes we have made in the past that we can now clearly see in retrospect. we need a little more forward looking approach to what we have been doing. >> several governors saying that at least they want to refuse syrian refugees that your governor says your state will still accept them. what do you think about it particularly the response of your governor? >> they are staying the same policy. i don't know if that's necessarily the same thing. what every kbov nor is saying is before we accept refugees to have a plan that can fully vet who these people are. we know the backgrounds from which they come. once that takes place, it would be a whole lot easier and higher comfort level of some kind of humanitarian haven. i do admit the governors that are complaining now are saying we don't have that program and admit that's true. we don't have a program to vet the refugees. so we make sure we're get.

ing those who are legitimately in need and a haven for refuge and not those that are going to be sleeper cells. >> i fully support my governor at all times. especially on television. >> hudson, florida, steve, democrats line, hello. >> caller: good morning. how you doing today, guys? can you hear me? >> go ahead, you're on. >> caller: a couple points. the past republican, about the sunnis and stuff, that area of the world has been at war months since back in the days of the spice trade. they have been doing this for thousands of years. we are never going -- even

though some of these people today are big time crazy nuts, but you're not going to defeat a point of view of people. you cannot change that of a group. you kill more, more is going to join. you can never kill them all. the second thing i want to say is it's past time that congress does a full in-depth kp comprehensive investigation of the invasion of iraq and bring don rumsfeld and condoleeza rice to the hearings and investigations along with the key components of the eight different primary intelligence agencies that the united states operates so they can give their factual information about this so the american people know what's going on. >> okay, thanks.

>> you make some interesting points. but once again, what we need is to make sure we have a strategy of how we're going to go forward and not necessarily spend all the time looking back at the mistakes we have done in the past. there's a lot of mistakes to go around. >> so what is the long-term strategy? >> good question. >> what would you advise? >> that's another good question. first of all, i would advise the united states to be prepared militarily for what our strategy is going to be. and let's face it. we have downgraded not only our military capacity, but our military goals. we used to have as our strategy that we'd be able to have a two front conflict and support them. no longer. now we have a conflict strategy that will have one front and be able to assist in a second. that means we have changed what we can do. that has to change. we have to have the capability militarily and then you can go forward with the foreign policy knowing you have the moilitary o

back it up. but if you don't, that hampers t the hands of our diplomats and we'll never have a a long-term strategy until you make sure you have the background in research and development with our military. >> there's a story talking about the security that's heightened around the u.s. capital, specifically what is your office heard about how to handle security in light of the paris attacks? >> to be honest, this is a very secure area. we have the concerns about it. other than making sure that you stay aware and willing to report something that seems unusual, i haven't seen that much difference. >> alabama is next. this is where iris is, independent line, go ahead. >> caller: yes, my comment is, good morning, first of all. but i have seen a lot of abled men refugees coming in. why can't we set up camp somewhere and let them put their boots on and go.

over there and fight for their own country. >> that's an option. >> daryl in cleveland, ohio, republican line, next. >> caller: i wanted to make two quick points. first, i absolutely agree with the congressman when he says america needs to lead. that seems to be the big problem. president obama doesn't want to lead in this situation. it's like the last thing he wants to talk about is this terror situation. he'd rather talk about climate change and something else. the truth of the matter is if we have to put boots on the ground, send troops and lead a coalition, that's what we have to do. the leader doesn't just look at the polls. he does the hard things that needs to be done. i mean, we're dealing with an enemy that wants to disrupt the order of things throughout the

world. and maybe they just have to do the hard things. we can't always defer to the international community. that's what president obama does too much. e he always wants to defer and see what the international community wants to do. but sometimes you have to lead. and the second point is that president obama is supposed to be the internet president. where's the all the propaganda against isis. isis is on the internet. they are on twitter. they are on facebook. i just heard they did a graduation of new troops, new recruits in afghanistan. they just sit in the back, relax and living it up. why aren't we using analytics to disrupt everything they are doing. >> i agree with what you're saying. i don't want to sound like a

broke. enen record, but if we're talking about boots on the ground and not putting boots on the ground, if you're going to cut the man power that we have in the country, so we have the smallest army since world war ii. . the smallest air force in the history of the country. if your going to reduce those in uniform and those m ployed to maintain the equipment that we have, then obviously, you can't have the flexibility of putting more boots on the ground, which goes back to one of the things that before we come up with new policy we have to make sure we're at least on the path to change what we have done to reduce our military capacity in the past and that becomes essential. then we can do some of those things. propaganda war effort i understand. i agree with you. i think the united states is playing a good game as far as the propaganda. e we need to be able to back it up. >> how so? >> i don't think we're doing anything poorly in that regard.

once again, what we say has to be backed up. if people know we can't back that up and we're cutting back our own ability of making sure we have a military to do what we're say we're doing, it makes what we do with the propaganda empty and hollow. >> our guests as the committee member for the armed services committee representative rob bishop and the chairman of the natural resources committee, oneover the efforts that you're leading on that front is something called our land our water our heritage. >> the land and water conservation fund was started decades ago in an effort to increase public participation and recreation opportunities. when it was first established, 60% of that was supposed to go to state and local governments and tribes to come up with programs to control and meet. in the ensuing years, that has been diminished. last year instead of the 16%,

that is the portion of the program that we're getting how good it is. that needs to be boosted up. if we're going to reauthorize the land and water conservation fund, i need to make sure it does something good to help people. the first thing is to rebuild this program by boosting up what we originally intended for the state-led programs and making sure the money that is going now sbo federal acquisition of land has accountability to go with it. we have asked the interior department to tell us how much we have spent, they can't do that. they know how much was appropriated, but what they actually did with it, there's no accountability. plus they are using that money for eminent do maun for the federal government to take from a willing seller is one thing but to take property forcefully using these funds is totally inappropriate. i would like to increase this fund. if we do that, we have to make sure it goes to programs that actually do something good and

help people. those who are out there that say let's reauthorize it blindly, make it permanent, not until you can get some reforms. . i'm glad that the states are asking for some kind of reform. we have put out a draft copy that will have a a hearing of how to make this money do something to actually help people and help the states and help our recreation activities instead of putting into a blind fund. >> can you give an example of what type of property it's purchased? >> for the state side program, it purchases parks, recreation areas, land conveyances, areas in which we can put money aside so we can have open space. recreation opportunities, offshore recreation opportunities, all those things can be used, but it needs to come from the state side program. not just expanding our parks or inholdings for which most of the

money is set aside for. so they can buy a piece of property cheap and sell it using this money and make a profit and then roll that profit back into their organizations. the federal government should not be funding nongovernment organizations. so once again. how we allocate this money should be done so we look at specific problems we have and a way of addressing these problems. otherwise it's a waste of our time and effort. >> legislation you have, what specifics would you apply and like to see change so the money is used more efficiently. >> what we would do is the allocation. a minimum of 45% goes to the state program. so we boost up what's happening at the local level and let them be able to control it. then we'll do other things like payment in lieu of taxes. everything that has federal land, they don't generate revenue, but they have to provide services. the money is coming from

offshore royalties. but it's an ageing workforce and we don't have employees who are americans that are going to be able to take those jobs. they are looking overseas for employees. so put money into education. some of the things we're trying to subsidize the gas industry. . i like to put this this money in education to actually get people to have good jobs and make sure that this industry continues to supply this money in the future. there's a $19 billion backlog in maintenance of public lands. some into battlefield restoration. some endangered species restoration. there's a litany of things with each to solve a specific problem. my goal is to say whatever we appropriate, we will put the allocations in there so it's not just blind. it is accountable, we e know what we're doing and put a great deal of emphasis on programs that actually help people. especially those on the state side program. >> the chairman of the natural

resources committee joining us. talked to him about the efforts on land conservation. once the purchases land under federal protection after that? >> it depends. the states can manage it and do it much more effectively and efficiently. the ones coming from the state programs, we're not going to take all that away. we're going to reduce it down to put the emphasis on the state programs. that becomes a federally mandated program. but once again, we own a third of america already. that's 640 million acres in this country. why we need more money to do it when we have a $19 billion backlog doesn't make a lot of sense. i'd rather put money into maintaining before expand it. and allow state and low local government to take over where they have proven themselves

effective in doing this. >> rob bishop joining us. jean from maine is next up on our republican line. good morning, go ahead. >> caller: hello and thank you for c-span. i called in to talk about the former subject, the syrian problem. but as far as what you're talking about now i feel that the president is is acting very cautiously because syria is potentially could be the bigging of a terrible, huge confrontation. russia is in there and i am sure that putin and obama are in touch, but people are in touch with each other and are talking

about what they can and can't do. we don't know what they are up against. i think it would be like herding cats to try to take them out. >> move in where we created a vacuum. that has to be part of our equation looking forward. >>. elizabeth, democrats line. >> maybe we could invite the russians to go on our land and water conservation trips and can be happier. >> caller: good morning, thank you for c-span. i always wanted to switch gears back to the first topic. i have two questions. i have been wanting to know for awhile since the attacks last friday because there's a lot of

talk about surveillance and intercepting phone calls and picking up chatter. i wondered why the french didn't have any idea that this was going to happen. that was my first question. my second question is i also have often wondered why the passports of these people that go to syria can't just be taken away so they can't get back into the country from which they left to come back into passports can't be taken away from these people. thank you very much. >> those are two good. questions and i wish i had a good answer. i don't have it. i don't know about the chatter and why it wasn't picked up. maybe it was.

i just don't know. same thing on the passport. >> kevin in indiana, republican line. >> caller: hello, my question is since we tend to fund the government a lot and like this program like water conservation and wildlife playing into stuff like that, why can't the united states instead of just funding one big organization, which is the government, why u can't our tax dollars go to individual states like i thought it was supposed to be, and i'm only 34. why can't the money stay in the states and then you don't have one person trying to lock over 50 states. you have each individual state looking after itself. could you shed some light why the funding has to be federal funding? why can't we quit funding stuff that we know that people take

from but we can't prove? >> i agree with your premise and i'd like to move in the direction of that premise. the money that comes from here comes from offshore federal waters and royalties that are produced on federal waters offshore. . so it is a federal source of revenue to begin with. what i'm trying to do is do what you're talking about is take that source and send it back to the states so the states can actually manage it in a way to meet particular needs, not something directed from washington. that was the original intent of this fund. i want to move it back there so we're meeting the original intent. that's why simple reauthorization of this problem would be useless. we need to make sure there's accountability and those who can manage it have the opportunity to do so. but the money is collected by the federal government. i just want to make sure we reallocate it back to the local government to make those decisions for themselves.

it's important that people have the ability to reck reeuate. that's what we're try iing to d with change in reforms. to make the program do something that actually helps people. >> there's a group that put out a television ad specifically targeting you and these reforms. want to get your response to it. >> i get to see it again. >> there are many controversial issues in washington. the land and water fund isn't one of them. it's helped protect thousands of parks, playgrounds and trails in every state without costing taxpayers a dime. hundreds of democrats and republicans in congress support it. but you tell congressman rob bishop who has received $280,000 from big oil is blocking the fund, which threatens our environment, jobs and communities. tell rob bishop to get out of the way.

>> your response? >> a terrible oversimplification of what the issue actually is. it does involve taxpayer funds because someone has to administer the funds. but the issue is are we going to use this to blind ly put a bunc of money in there we will have the forest service spend without any any accountability because they don't e know what they spent or bought. or are you going to make this program do something of value and do something good. and the bit about the money i have taken from them, i don't know. how that's relevant but it's cute. >> is it true? >> probably. it's like the opposition will throw anything on the wall to see what happens. maybe that will stick. >> how much support do you have for these reforms amongst republicans and democrats on the committee? >> the committee knows what we're try iing to do. i think they see the goal of our efforts. the nice thing is the states

recognize this as well. they have already asked us if you're going to reauthorize this program, look for reform so the money that was supposed to come to the state side programs will actually come to the state side programs. that's what i'm trying to we introduced a discussion draft which means i'm not going to ram this it down anyone's throat. tae where we can make allocations. i want to make sure it does something, and does something good. my problem is i think the administration is thinking small. i want them to think they can about how we can move this country forward, and do something really good. if we are going to do anything at all, let's do it the right way. that is what i'm trying to do. if some groups don't like it -- just like i said, you can buy land and sell it at a nice profit, using these funds -- that is not the proper role of government. here is charles, virginia

for our guests, rob bishop of utah. he is on the republican line. go ahead. caller: i would like to ask a couple of questions about syria. it is about our soldiers and boots being put it's about our soldiers putting boots on the ground. i don't think we should. i think president obama, if he had some help from congress, r n they could workd ge together ant this done. now, the only thing that i haveo ever seen with the republicans isthey they want to go to war. o they ought to look at where this money is going to these people. they have businesses that they give to their friends and they are the ones that are benefitting by the war, not the. people. the peoplet the that are poor, have to fight these wars. not the rich people. not these congressmen's kids ane not the senators, and i think

obama is doing a great job. thank you.t is w >> very fitting comment. i think that's what i was sayine at the very beginning. if we're going to go to war, ar. we are prepared and we have not been doing that over the last decade. we have become unprepared, less prepared. that has to be changed. >> democrat line.go hi. are you there? >> caller: hello? >> you're on. >> caller: hello? >> you're on the air, lynn. go ahead. >> caller:yes, i would like my fellow utahans to look at the website called vote smart to see sw much rob bishop to has take from the oil companies. he says that he's taken 280,000. it's probably a lot more than that. heprobably calls it cute. it's not cute.be it's destroying our open space because he is the one who is not doing goodth things.eing

he says he wants to do good things. good things were being done with the land and conservation clean water act., and he's trying to destroy it so that he can continue to please the oil companies. that's all he's ever done, and i hope someday my fellow utahans will wake up and vote him out. >> i take it you're not a supporter of me. it is no longer in my district.i i apologizes forno that.for th but look this fund was established to create open space for recreational opportunities. so instead of creating the we r recreation opportunities for which this fund was establishedt we're simply giving it as a slush fund that is unaccountable. i'm not trying to change the program. i'm trying to make the program i work. right now it's not working. it's being abused.so i want tolves p just make sure

program solves problems, not oit just continue the statusha quo.. if i'm wrong in doing that, i'm sorry. we should be doing that. that is the approach weif y nee do. that is why the states are recommending if you're going too renew this program, reform it. >> a viewer has a question about oil driller. is it easier to drill offshore or online? why the push for drilling on ava federal land and are leases cheaper? >> the a couple of things here.u the united states has become a leader in energy production, but we have done all that on state and private lands. if we're going to be a permanent leader in energy production so we're an asset to our allies, you have to develop offshore and you have to develop on federal lands. that's the. purview of my committee, which is why i'm involved in this process. easier? no, they're about the same. if we really are going to be a

leader in energy production. if you actually develop it, especially in the west, my state is 70% owned by the federal government, if i want to s generate enough money so i can d have a good education system, then all of a sudden i need this kind of development sourcesmy t do that. k that's our potential. that's our future.nd of he my kids desperately need that kind of help and support to do it. we need to make this kind of development going forward. if we don't do it, we're cuttind off a future for our own kids in energy production as well as for the ability of expanding the base and providing jobs for people. that's why one of the portions of this money i want to go to the education system so we can d give kids scholarship so they can work in these areas. we're not looking abroad for a work force.ration >> what's the obama administration doing in opening up drilling on federal land and offshore? >> nothing. they are hampering the process by regulations aimed at

hampering the process by makingn sure that will allow permits that will guarantee to be litigated and by spreading out u the regulation approaches and spreading out the authorization. actually they have retard eed o efforts to try to develop these sources. it's not been a very productive option. it has nothing to do with the land and water conservation lpfo fund. but as far as expansion, the administration has not been helpful. >> democrats line. hi. c go ahead. >> caller: good morning, mr. bishop. my concern is about politicizing every issue that we have. every time we have an issue, wei politicize it to gain support and that's dangerous to america. i say one thing about france. i heard france didn't support george w. bush during the time of his war, but every time

something happens in another country all of a sudden americac isn't doing enoughul to help th particular country and that is u wrong. and when you talk about these t armies, air forces, and navies every one of them costs money. you need more people.yo you need more equipment. we always say we're going to balance the budget. you can't balance the budget and raise all these armies. i was there doing the cold war. you get a bigger stick, i want a bigger stick. everybody want a bigger stick.or and they always say why. those people was right there in bed -- but why didn't they knowp about it?he anything that happens in america, the first things the republicans ask is why didn't the president do anything about it.

>> if you have to use the military, you have to make sure it is funded properly. not only do we have to balance the budget and increase our military security, you can't do one without the other. if we don't have a good military security, balancing the budget is not going to be helpful in the long run. if you can't balance the budget, you're not going to be able to support it in the future. it's difficult, but it has to bt done.we could let me hit the first concept. there was a time when we had this mind-set where we could separate administration by the nasty thing of politics. huge concept, but it doesn't work in reality.oes no unfortunately we live in that kind of world right now with our bureaucratic mind-set. get the the problem is the politics is where local people get a chance to have their choice heard. if you try to separate those two out and you don't like the decision made over here, there's nothing you can do about it. it's only politics that allows t

people to have their voice heard through the political system. so what we really should be doing is trying to go away from max favor and trying to marry those two one more time so thaty people actually have some kind of role and some kind of say in, what administrative decisions are made. i want to try and let people have a voice. right now, it is very limited. if you don't like what the interior department does, what do you do?ome march in front of their windows? you need a voice. if you think things are overpoliticized, good. we need to increase that for th: right of ordinary people to have their voices heard. >> a person on twitter makes a question about the military saying, stop with the pushing for more money for our military. enough is enough. our roads andguest: bridges are falling apart. >> well, fine. if you want to have a foreign w policy that's going to bean effective, you have to back it up with something.you allhave these issues are there,

the bottom line is if you don't have an b effective e abmilitar you're not going to be able to have an effective foreign policy. make your choice. >> a member of the armed service committee, representative rob bishop, republican of utah. thank you for your time this morning. >> thank you. coming up tonight on c-span 3, the nominee to be the next fda commissioner testifies on capitol hill. then two federal judges debate criminal justice reform issues. after that, ohio governor and republican presidential candidate john kasich on his national security agenda. that's followed by the gop study committee on the role of millennials in the economy. next, the president's nominee to be the next leader of the food and drug administration testifies at his confirmation hearing. dr. robert califf took questions

on the topic of the cost of drugs. this hearing is about two hours. good morning. today, the health committee will come to order. today, we're reviewing the nomination of dr. robert califf to serve as commissioner of food and drugs. congratulations on your nominee. welcome to you and your family members. we're glad that some of them were able to come up, some of them from columbia, south carolina. if you're confirmed to lead the food and drug administration as its commissioner you'll be charge of the agency that's responsible for the safety of

our nation's medical products and protecting our country's food supply. this is a huge job. the fda affects nearly every single american all every day and regulates over $4 trillion in spending annually. as in charge of products as diverse as drugs, cosmetics, over-the-counter medications, and food and tobacco. the president has nominated you to do that job. you've been through an exhaustive process to make sure you don't have any conflicts of interest or any problems in your background. i had the privilege of coming before this committee 25 years ago and sitting in the chair where you sat. it's not always a pleasant experience. one of the democratic senators

said to me -- my family was sitting where yours is. governor alexander, i've heard some very disturbing things about you, but i don't think i'll bring them up this morning. a senator leaned over and said, howard, i think you just did. then he held me up for three months. i don't expect that would be happening with you because like every full-time nominee you've been through an exhaustive process to make sure of the conflicts of interest as i said before the president announced your nomination. there was an extensive vetting process by the white house and the fbi. you submitted paperwork to the office of government ethics. that's been reviewed including your financial information. they've found several recusals. the form you submitted is public. it includes every source of

income over $200 and every asset worth more than $1,000 and every potential conflict that the office of government ethics determined would require a r recusal. i'm going through this so people know that nominees go through this. you've responded to written follow-up questions. your responses included over 3,000 pages of articles and lectures that my staff reviewed and that any member of the committee may review. you were nominated on september 17. our committee staff has spent two months carefully reviewing everything you submitted and my staff tells me they haven't found anything that would call into doubt your ability to lead the fda fairly and impartially. you come here with impressive qualifications. a leading cardiologist. you're an expert on clinical research and you've been

recognized as an author of medical publications. you've had some experience managing large organizations, and you've been the founding director of duke's clinical research institute. you've conducted a score of important clinical trials. that's important to me because i think it helps to have people in government that actually know what they're talking about because of the experience that they've had before. so you understand how research gets done in the real world. i'm eager to hear your priorities about how you intend to manage such a large and diverse organization. i'd like to hear what you'd be able to do to ensure that affordable drugs are available to american patients. i hope you'll agree that drugs are -- your job is to see that drugs are safe and effective, but the fda can help market lower drug prices by approving jgeneric drugs as soon as

possible so there is more choice in the market. approval times have gotten worse. i'll be asking you about that and what you intend to do about it. we know more about biology and medicine than ever before. that's not likely to stop anytime soon. your job, if confirmed, will be to make sure that the fda's regulation is appropriate. too much regulation could reduce investments. too little could make it difficult for drugs to be safe and effective. there's much work to be done. sometimes it takes a decade to develop a drug. sometimes it takes billions of dollars literally. in this committee, we're working together in a bipartisan way to help get safe, cutting-edge drug, medical devices, and

treatments into american medicine cabinets and doctor's offices more quickly and we hope to move that soon. we're looking forward to hearing what you believe needs to be done to build the fda's capacity and to fix the impact of its regulations so that the fda is a partner in innovation and not a barrier. thank you. i look forward to hearing your testimony on these important issues. senator murray? >> thank you very much, mr. chairman. thank you to all our colleagues for being here today. dr. califf thank you to you and your multigenerational family that's with you here today. as the chairman said, the fda commissioner has a critical role to play in supporting health and well-being in our country whether you're in a grocery store or the medicine cabinet or the emergency room.

families depend on the fda to maintain the highest standards of product safety. as we talk about the future of the fda, i think it is important to note that valuable efforts have been made in recent years to strengthen the fda and improve services for its patients and families. last year the fda approved 51 drugs and by logid biologics. the fda has also made strides towards implementing the food safety modernization act, helping to bring our nation's food safety system into the 21st century. despite these gains, the fda faces significant challenges going forward. as someone who has seen personally the challenges that

patients and families face -- so-called super bugs are another growing threat. as we have seen in my state and across the country where medical devices have been linked to tragic outbreaks of antibiotic resistant infection, we have to find ways to prevent these infections and respond more quickly and effectively when any risk arises, especially as technology continues to evolve. we need to do more to make sure that after products reach the market the fda has effective tools it needs to monitor safety taking full advantage of information technology. we need to ensure fda continues to strengthen its drug and

biosimilar programs. in addition, our country faces urgent public health challenges that deserve our attention. we need to move forward in making sure families have access to nutritional information and making sure our food supply is both safe and healthy. we must do more to tackle widespread illnesses such as heart disease and diabetes that threaten so many people in our country. i've heard time and again from families that the cost of prescription drugs is a significant financial burden. i believe the next fda commissioner has an important role to play in ensuring all patients and families have access to the prescription drugs they need. another critical priority is ensuring the fda always puts science over politics. as some here will remember,

several of my colleagues and i fought a very long and hard to ensure that medical expertise, not ideology, governed decision making over the sales of plan "b" over the counter. as congress and the administration work together to address these and many other health challenges in which the fda plays a significant role, we need to recognize our efforts will not be successful without additional support for the fda. we must make sure the fda has the resources and authority it needs to hire top experts in a highly competitive field and manage its growing workload as it navigating our increasingly global supply chain. many of these are issues that our committee is currently debating. after careful consideration and review, i am confident dr.

califf would contribute leadership and expertise as we work to find new ways to advance medical innovation for patients and families and improve health and well-being across the country. he is a strong nominee for the fda commissioner. dr. califf has an impressive resume in leadership. our review of his record demonstrates a long standing commitment to transparency in relationships with industry and working to ensure academic integrity. the doctor will continue to uphold these values and prioritize a strong, independent fda commissioner. from drug and device approval to ensuring that a child's peanut

butter sandwich is safe to eat. i believe dr. califf would be a powerful partner. i look forward to working with all of you to strengthen health and well-being for the families and communities that we serve. thank you, mr. chairman. >> thank you, senator murray. senator burr will introduce dr. califf. >> dr. califf, welcome. thank you for sharing your family with us. your bride is here, your children are here, and your granddaughter is here. welcome, brooke. hope you're getting extra credit at school for being here. the doctor is a north carolinian whose career has been distinguished by his unwavering commitment to patients.

as a respected clinician, researcher, and adviser. he's been nominated to serve as the next commissioner of the food and drug administration, and my colleagues and i look forward to hearing from you today. it is the -- he is responsible for overseeing and directing the centers for drug evaluation and research, the centers for b biologics and research, the centers for tobacco products, the office of special medical programs within the agency. prior to his work at the fda, the doctor was a professor of medicine and vice chancellor. during his time at duke, the doctor held a number of positions, including the director of translational medicine institute, the director of the clinical research

institute. he worked to move the promising field of translational science forward as the director of clinical trials transformation nish initiative. the doctor is distinguish eed aa researcher and author with over 200 publications. he is a graduate of duke university school of medicine. he received his residency training at the university of california san francisco and completed a residency in cardiology at duke university. dr. califf is a great father, a great husband, a great grand dad. he's a great doctor. he's a great man. i think that stands out the most in his qualifications. how well the fda fulfills its mission touches the lives of americans each and every day from the life-saving treatments

patients receive to the safety of the food we feed our families. the challenges facing the next commissioner are great, but also the opportunities are as well. dr. califf, congratulations on your nomination to serve as the commissioner of the food and drug administration. i urge my colleagues to thoroughly get your questions answered and expeditiously move this nomination so you can get to work on some very serious problems within our system. i thank the chair. >> thank you, senator burr. senator scott has a point of clarification. >> thank you, chairman 2(y1t alexander. senator burr referred to dr. ca califf as if he were from north carolina. while he could not get into the medical university of south carolina, he got into duke.

he's actually from south carolina. you realize that his parents were also from south carolina. therefore we know he's a southern, but he's from south carolina. the north is a yankee, north carolina. i want to make sure that point was made clear that you didn't insult his parents on the front row from st. george, south carolina. >> i welcome his parents and congratulate him on his ability to outperform the academic requirements in south carolina. >> those guys are still exchanging words, i want to welcome dr. califf because fda is in my state. you're from south carolina who lived in north carolina, but

you're our guy too. i ask that my statement be in the record. >> it will be. >> dr. califf, you can see the interest the committee has in the work you're about to do. virtually every member is here. each will have five minutes to have a conversation with you. i'll try to give you time to answer the questions, but we want to stick pretty closely to the five minutes so everyone be involved. you have answered a number of questions to the committee staff. in any senator has additional questions, there will be a few days after the hearing that they can ask them and we hope you'll respond promptly to them. we'll begin a period of a round of questions of five minutes in length. dr. califf, around the country and here in congress, people are talking about the high cost of pharmaceutical drugs and what can be done to make these drugs affordable.

do you -- excuse me. i got so excited i didn't give you a chance to make your comments. dr. califf, we look forward to your comments. >> thank you for your kind comments. i want to thank you and the members of the committee for inviting me here today to discuss my nomination to be commissioner of the food and drug administration. i'm honored to be accompanied by my family today as you have noted. sitting behind me are my dad, a world war ii veteran, and we're going to visit the monument later this afternoon, my mom an activist teacher, and my wife of 42 years and high school sweetheart lydia. my three children and my granddaughter brooke are also here with us. the support of my family and

their feedback have been essential to my career success and sustaining my moral compass. i'm honored to have been nominated by president obama. my primary goals if confirmed will be to work with you to build on the excellent work force, relentless focus on the completion of priority projects, and continue to develop the science base that we need to give consumers confidence that their food and medical products are safe, and give patients a and -- amid ongoing revolutions in biological science and information technology we must continue to strengthen the fda's vital work. if confirmed, it would be an honor to lead the work force in this remarkable time. i've dedicated my career to advancing the public health.

but like each of you my understanding of our health system was shaped by more than just my professional life. our daughter was born with serious congenital heart disease. i still vividly remember the inspirational work of her doctors, nurses, and health care team. we experienced firsthand as a family how important it is to find a critical balance between innovation and safe guarding patients. when i started in cardiology, heart attack was the leading cause of death in america and our understanding of it was limited. it was agonized that one of six patients that i saw in our intensive care unit died during the first hospitalization. it drove us to relentlessly

invent and develop effective treatments. i had the privilege to serve as the leader of global networks of doctors, nurses, researchers, computer scientists who joined forces to evaluate drugs and life-saving technologies, kl including stints and defib r rillatoril l rillators. indeed it's not enough to develop new treatments. we must prove they are safe and effective. our initial quality registration for bypass surgery have become global standards, including adoption by cms to improve the public health by reducing medical errors. a successful fda is a critical

factor for better public health in the changing world. the fda must be prepared to set policies that channel policies for safe and effective use. the best way to make this progress is for different sectors to collaborate. more recently, i've had the pleasure of jointly leading a number of projects with patients, consumers, and community leaders to the benefit of public health. while fda scientists make decisions every single day about hundreds of products, as technology advances these decisions are becoming more complex. it is essential that we keep pace. my next priority as commissioner is working with you to fulfill the ambitious agenda that we set

together. the food safety modernization act will help ensure americans their food is safe. and of course, the user fee programs are entering a period of renegotiation. my third and final priority as commissioner would be to further develop science -- by taking advantage of extraordinary advances in biomedicine and information sciences, we can unlock evidence about food, tobacco, and medical projects that would dramatically lower costs. in concert with our global colleagues, we must continue to develop sophisticated systems for monitoring the safety and quality of products produced outside our borders. the fda is poised to move to a new era of enhanced safety and new treatments.

i would be honored to lead the agency in this exciting time. thank you for lallowing me to testify before you today. >> dr. califf, around the country and the congress, there's lots of talk about the high cost of drugs. do you think it's accurate to say that the fda's statutory mission is to promptly and efficiently make sure that drugs are safe and effective? >> as you know, senator alexander, that is our primary mission, but we can have an impact on the cost of drugs by performing that function effectively. >> let me talk about that just a little bit. do you agree it is not your job so set the price of drugs. >> it is not our job to set the price of drugs. >> if generic treatments can move more rapidly through the fda process in a safe and

effective way, that would be one way to create more competition and presumably lower the cost of drugs. despite getting about a billion dollars in new funds over the last three years, generic manufacturers estimate the fda's median approval time has increased. is that accurate or based on your knowledge or can you explain how the fda with availability of a billion new dollars could have actually presided over a situation where the approval of generic drugs has gone from 30 months in 2011 to 48 months in 2014, especially since a more rapid approval if safe and effective might have had some effect of lowering drug

prices? >> senator alexander, bear with me. bear with me for just a second. 88% of american prescriptions now are generic. we have made tremendous progress, but we can do even better. you also know we're well ahead of the generic drug user fee act goals that were set, but we can still do better and i'm all in favor of that. we started with a huge backlog. thousands of applications that were waiting into the user fees came in. the ones that were good went through quickly. the new ones, the ones that are pertinent to getting the first generic on the market, are put in a fast line. we have this backlog because we want generic drugs to be just as safe and effective as the innovator drugs. i'm confident you'll see over the next several years as that

backlog is cleared the new applications are going through very quickly. >> thank you, dr. califf. this question will require just a short answer. will you take a look, if you're confirmed, at the fda's policy of issuing documents instead of rule making? i've talked to the director of the budget. it has some pretty strong policies and firm views on the difference between rule making, which involves consultation and is legally behinding, and guidances which are not legally binding. there is a bipartisan concern that agencies of the federal government, including fda, are issuing guidances as if they were legally binding. >> senator, i will commit to working with you on that and taking a careful look at that. >> i want you to comment on a management issue at fda.

we hear even when products are similar, experiences of applicants varies quite a bit. regulated parties ought to be treated in consistent and predictable ways. why do you think that even with similar products the experience of some applicants is so different, and what could you do to make sure regulated parties are treated in consistent ways? >> i have spent several decades on the other side of the fence working on new therapies. i can appreciate people's concerns, but the primary reason is that each individual medical product is different. the clinical trials that need to be done, even if they're similar, can have nuances that are critical, but we are committed at the fda. dr. wo-- we're going to do

everything we can to produce a more even template across the fda so the standards are the same. you've got to treat each one differently. >> thank you. senator murray. >> thank you, mr. chairman. doctor, in contrast to some of our previous fda nominees that have come from the public health sector you are a physician and a researcher. as a result throughout your career, you have partnered extensive with pharmaceutical and other industry companies. i want to ask you some questions about that. during your past clinical trial how have you ensured industry views have not biassed your work and what do you plan to do to ensure you will lead the fda without any undue influence? >> the clinical trials we do that were done at duke during my

tenure and still being done there, if funded by industry, remembering that many of our clinical trials were funded by foundations, we were one of the largest nih grantees, but we have an ironclad contract, which i believe your staff as a copy of, that guarantees the independent right to publish, guarantees access to the database, and in the majority of cases we have the database. we're running the trial. we publish the papers with input from the companies, but they have absolutely no right to change what we say. we have the final right of publication. these trials are also done usually with international steering committees. yes, industry funds the trials because they need to have their products evaluated, but we have an independent voice guaranteed by contract. 100% of the studies i've been involved in have been published,

so they are in the public record for people to view. >> what do you see as the appropriate role of industry in working with the agency on key challenges like trials and surveillance? >> i think it's critical here to separate the role of industry for individual applications first as what we call the pre-competitive space. how do we streamline the clinical trial process? how do we share information to make sure we understand the risks that may only be seen in the post-market phase? in the individual applications, there is no role for industry other than to present its case that it has a product that meets the criteria for safety and effectiveness. i think the american public completely depends on having confidence that the fda is independent and those reviews and judgments about individual

produc products. but in that space, we have to work together. nih is a minority funder. i'm pleased to say we're working closely with the nih now. we'll bring industry into what i think will be a dramatically lower cost, but much more effective clinical research system. >> very much appreciate that. i do want to turn to an issue that i have raised a number of times this year. we know that patients across the country, including in my home state in seattle, got serious antibiotic resistant infections from scopes. as i have investigated this issue further, it seems to me we need to make significant improvements in how fda monitors medical devices on the market to identify safety issues more quickly and prevent the tragedies that we have seen with this. what steps would you take to improve the post-market surveillance system for devices and better protect patients? >> thank you for bringing that

up. personally, let me say as a cardiologist and someone with administrative responsibilities at duke hospital, when the procedure you're referring to was first developed, i was in the united kingdom. those doctors came over to duke and we were one of the first places to do it. i have firsthand experience on the importance of that procedure, particularly in people that are critically ill. i think we really need to work on our post-market surveillance on devices. i hope that you'll really help us with this. industry has to, but develop by the fda is a model in drugs. we have 170 million americans claims data so when there is a problem with a drug, we can look almost in realtime. we need the system on the device side. we have to figure out how toget

figure out with you how to fund this. industry could contribute to that, but we could it independently of industry and act on it much more rapidly. >> this is something i'm very concerned about as we move forward, so i appreciate your response. thank you, mr. chairman. >> thank you, mr. murray. the next four senators or burr, whitehouse, isakson, and warren. >> thank you, mr. chairman. as you know the animal rule was finalized on october 27th this year after significant and in my opinion inexcusable delay given the importance of the rule. i'm pleased that the rule has been finalized as it will provide more certainty for those developing countermeasures to protect the american people in the event of a public health emergency whether it is natural or the result of a manmade attack.

how would medical countermeasures be prioritized within the agency and how would you ensure the fda is advancing the development and review of these products towards the goal of a timely approval? >> thank you for that question. i'm amazed at the attention and intensity you all have today given the fact we're all worried about the issue that bringing up. it can be manmade or something that's totally unanticipated, for example with an infection. i was pleased to be able to get the guidance out from the animal rule, which you had requested, but it's going to take a concerted effort not just by the fda. but as happens with the ebola crisis, when the federal agencies work together, a lot can be done to quell a crisis and deal with things. i do want to refer to the really brilliant work that's been done in the outside community, but also within the fda.

the animal rule says in cases where we can't do human studies, when there's an emergency, what's a way in which we can extrapolate in animal studies to human situations in these studies? we're committed. we're going to be there 24/7, if needed. >> thank you for getting that rule out. there have been reports that the tobacco deeming rule did not change the date for newly regulated tobacco products. many noncombustible tobacco products which may have a public health benefit compared to traditional tobacco, would not be available to consumers despite their potential benefits to a more traditional tobacco product. as commissioner, how would you improve the performance of the fda's center of tobacco

products? >> as you know, senator burr, there was a new creation just a few years ago. it started with zero employees. it's now up in the multi-hundreds. there were no rules by which the tobacco applications could come in, so those have had to be developed. first of all, let me say that you bring up a general issue of weighing the overall health risks of tobacco products graded from most serious to less serious. there is a pathway for doing that. we're committed to reviewing them in the time frames that have been agreed to, and we have funding to carry out that activity. so we're committed to get it done. >> i thank you for that commitment. i often hear from constituents in north carolina about the importance of laboratory developed tests. for researchers, it means the next step in creating precise therapies for providers, ldts

help to determine accurate diagno diagnosis and the means for more targeted therapies. under your leadership, how would the agency collaborate with labs, other existing government structures, and the full range of stakeholders in this space to ensure that regulation of laboratory developed tests is carried out in a workable way that moves these promising tests forward without inappropriate regulatory burdens or delays for patients? >> i'm well aware of the importance of laboratory developed tests. it is sort of the place where home brews are made to make the tests better. it's an important activity. on the other hand, this has become a big industry with major implications for patients, especially with precision medicine where you have a test and it tells you what therapy to give that can be either really good or really bad, depending on whether it's right.

we're committed to work the whole ecosystem so there is a standard for tests, so they'll have analytical validity and clinical validity. there's a hearing going on in the house right now about this issue that involves jeff sheeran from fda. >> thank you. mr. chairman, i do have additional questions. i would ask that those questions be allowed to be sent in writing to dr. califf. i would conclude by saying this, not a question, the fda has over 150 guidance documents at the agency in limbo. some of these guidances remain in draft form, and others have yet to be issued. my hope is you will take that very seriously because without guidance, i don't know how the downstream effects are ever going to be felt of investment and development if they don't have the guidance as to how to

move forward. >> senator whitehouse? >> good morning. there are increasingly products emerging on the market that combine a pharmaceutical component, a drug, and a delivery component, a device. the fda has basically broken into one path for pharmaceuticals, the drug path, and another path for devices. i've spoken to the people who lead both the drug side and the device side about this question of the drug device combined products. both have said the same thing, which is that my pathway is not suitable for that. if we're going to do that, we need to create a new pathway for that drug device combination. could you let me know, a, what

your thoughts are about that pathway for the drug device combination products, and what you think a reasonable time frame would be for fda to have such a proposal ready for us to consider? >> as a cardiologist, i sort of live and breathe this kind of work because often we give live-saving drugs systemically in acute situations. if you could deliver them through a catheter, you could deliver a much lower dose and do better. maybe that's the best example to think about here. when you have a drug that's given in full dose systemically, you don't want to go through the whole thing as if it were a totally new dose. but you can't assume that you know the risks and benefits of the lower dose. and so we do need -- there's a strong view at the fda that we need another pathway that will give the fda the flexibility to

acquire the data that's needed to assure the public that the proposed treatment is safe and effective. >> do you agree that we need the other pathway? >> yes. >> what is the time frame for  pathway? >> i feel like within the next year the fda's opinion can be adjudicated back and forth. we have opinions on this now. >> great. i think there is probably going to be legislative action that's going to be required to do this. both sides of the house think it can't be done under the existing regulatory authority, that it would require congress to act. do you agree with that? >> i think we need some help to get the right balance here. >> great. the last thing i'll mention is that i hope as you go forward with your responsibilities in the space of apps and

communications technology that are adapted to measuring health effects that you'll recognize that in many respects this is a very valuable and robust industry that could well be overregulated if the fda's authority over those sorts of devices extended too far. what do you see as the boundary between informational apps that the fda should and should not regulate? >> well, i had the privilege of going back to my old home heart association meeting just last week, and we had a whole session on this issue. i'm wearing my own device here that has a number of apps on it that is like a whole different world than what existed six months ago. there's a good statement last year that came out from the fda

and the office of the national coordinator to states the full intention to regulate based on risk. you know where to draw that boundary. for example, a health related app monitoring my heart rate. i'm healthy and i want to exercise more. that's not something we want to be bothering with. if this was attached to my internal defibrillator, that would be something we want to deal with. we have to find that middle ground where there will be adjudication as we find out how these things work. >> you'd be along the lines of regulating technologies that could have a direct physical effect on the human body as opposed to getting information that causes you this think, oh

my heart is much better, now i can run more? >> that's correct. i would just like to add we're going to learn as we go through this because there may be cases where, for example, heart failure patients using the same app may be more life and death decisions. >> there's so many of us. i don't want to trespass on other people's time. >> thank you. very courteous, senator whitehouse. >> following up on the senator's statement regarding guidance letters. fda has two opportunities. there's substantial differences. under rule making, you have to do a cost-benefit analysis. yet fda continues over and over again to try to implement policy through guidance letters. you're going to talk about

regulating laboratories and bringing them under the fda. fda continues to try to regulate parties more often through guidance letters than rule making. i have really two questions to ask. one why is fda grown so reliant on non-guidance documents for rule making and do you think that's a problem? >> senator isakson, i appreciate your concern with this. one thing that's been really evident to me in my time at the fda so far is that everybody wants to know what the fda is thinking. so i think there's a tremendous value in guidance documents to let people know what the fda is thinking and the demand for these is actually quite high. but there are other situations where you need to full force of rule making. i understand there is a difference. i will have to work with you and look forward to doing it when

things come up so we can discuss it and work through it. >> well, specifically to that offer, let me ask you the following question. will you commit to require fda staff to go through rule making when it intends to legally bind regulate partied or change their behavior in a burdensome way? >> i believe the statement about guidance documents says they are not legally binding. they're a statement about fda's thinking. people would be wise when they see a guidance to consider that thinking. i've often taken a different path from the fda, but i'm committed to work with you to try to deal with this tension that you're feeling. >> their thinking is a subjective thing. rule making is an objective thing. you ought to have the rule making procedure in my judgment rather than just a guidance letter that could effect some and not others. on sunscreen, november 26th is

the first anniversary of the sunscreen innovation act which this committee passed, which was designed to expedite the approval of ingredients in sunscreen. as you probably know, there are sunscreens that have been available in europe for years, in some cases decades, that are still not available in the united states because the fda has refused to make decisions on some of those ingredients. will you commit to work with us to try to bring those ingredients forward and do the proper due diligence to get the products to the market? >> i do look forward to working with you on this. as we discussed earlier, i have a family history of melanoma myself and a number of moles that should be looked at more frequently than they are. let me also say part of what we need to work on is actually developing the evidence. we've asked the companies involved for specific information, which i believe they can develop, and we're very open to moving as quickly as we

can if we have the right evidence. i would point to what'smelanoma. the patients who have melanoma -- is a death sentence for which there is no cure. i had melanoma and survived two of them. next march, april, spring break. the kids are going to hit the beaches of america, and a lot of georgia's beaches getting sun and having fun. hope they will have the best sunscreen available. my last comment, make it quickly, a long question. i know my time will be up. the fda sent mixed signals to

pregnant women with regard to seafood. you're in the process of determination on seafood to make recommendati recommendations. using results from your net effects report. that steams abeems abandoned. will you expedite the recommendations the fda makes. >> yes, sir. >> thank you, senator. >> thank you, mr. chairman. >> doctor califf, at duke university to received significant financial support for you personally and for your research. i know it is common practice for principal investigators on clinical trials. it naturally raises questions about your relationship with the drug industry. and one particular concern with industry funding of academic work is that drug companies may be able to exert influence over the conduct of those studies.

so, let me ask -- for the clinical trials. can you detail what input sponsors had, did not have, in the design of the trials, analysis of data. >> glad to do so. whether it is devices or drugs done through our institute, the design of the trial is something done jint ointly and publicly tt an indication from the fda. it actually involves industry, academia, now patients involved in the design of the trial. and the fda. very public process. the protocol is developed. has to be submitted. both to irbs but to the fda, before the trial starts. so the design is something that is done joint me. the final say comes from the

steering committee of course. which is the academic leadership. the database is the critical factor here. all of our contracts are required, that we either have access off to the database or we actually have the data bass onsite. that's been ironclad. i would say 70% of the studies i wanted to do we couldn't do. the company was unwilling to grant the right. we had to walk away if that was not done. so that lead to publications. publications are in the purview of the steering committee. and the authors from the steering committee. industry has a right to make suggestions no right to censor or no right to change any of the writing done unlisa gress it isd to by the authors. same hold for public presentations which are in the field that i work in are very important because evidence moves very quickly. and it has a large input. so, keeping that academic independence we think is a critical part of the effort. >> good. if i can, i just want to

underline this. so important. want to make sure i got this right from your question. i hear you to be saying there is no instance during your career or any instance involving duke researchers at the duke clinical research institute during the time that you were supervising it. in which a pharmaceutical company provided any input into the analysis or the publication of the clinical trial that they paid to conduct. is that -- its that right? >> let me clarify one more time. by input, you know they can, could make suggestions. that's perfectly allowable in our contract. >> on analysis and publication. >> on the publication. and on the analysis. this is another, sorry to get into details here. >> it's all right. >> the way we do analyses, the company has to submit the data to the fda. it is typically will have an analysis done by the company. analysis done by our statisticians. then we compare results to see if they match and resolve

discrepancies. in no case did we allow the scum pan to do analysis -- company to do analysis and we were resip yen yents. >> i know we are pressed on time. i will follow up with questions for the record on this. so we can get a detailed written account of any such instances. i have also requested copies of the contracts that the pharmaceutical industry sponsors signed. with the duke clinical research institute. in order to get a better understanding of what is happening here. and i look forward to reviewing them before this committee moves forward with your nomination. these agreements typically spell out in detail the relationship between the researchers and funders. so i think it will help us better understand what is happening here. in the little bit of time i have left. can i make one other point. that is your financial relationship with the industry also raises questions about what your priorities will be. if you're confrirmed for this

job. many in the pharmaceutical, device industry spent tile and money arguing the fd after is just too tough. we should lower the fda standard on safety and effectiveness. unfortunately they have a lot of friends in congress. doctor, do you agree with the arguments and recent efforts by some lawmakers to lower the standards for fda approval of drugs and devices? >> i think if you look at my record. you will find i have never been a proponent of lowering standard. i have are gaud fgued for raisi standards for the time a treatment might be used. that doesn't mean we couldn't be quicker or something else. in no case would we are gu to lower the standard. americans depend on safe drugs and devices and that are effective. device or drug that is safe not effective, actually can harm someone then they don't use what is effective. i think i have been staunch in that regard. >> thank you, doctor. we can abolish the fda tomorrow.

we see new products on the market. if they're not safe and effective, no one its better off. thank you, mr. chairman. >> the next four senators, roberts, cassidy, mikulski, senator roberts. >> thank you, mr. chairman. one of the committees in the first place, thank you for coming by to my office. made a very nice visit. my wife is from south carolina. i learned a long time ago you can take the girl out of the south but not the south out of the girl. one of your responsibilities is to make sure the fda is committing resources to most important work. for example the fda has been in some cases a little hesitant to implement key food safety goals while putting resources toward proposals for regulating sugar, salt, caffeine. i would refer you to the new dietary guidelines. that indicate now that salt intake and in place of salt

intake. caffeine is six cups of coffee. my third one. so i think i have throw to go. sugar, however, no. they have proposed to expanned your -- your, the fda proposed to expand jurisdiction by regulating laboratory developed tests and e-cigarettes and cigars for the first time. i just want to make sure that the fda used resources -- to make sure the agency stays focused on accomplishing core objectives as directed by congress. just a comment. you didn't have to respond. food safety modernization act, the acronym for that, fsma, a wonderful acronym. i wear two hats. chairman of the committee. and the requirements that farmers, ranchers with which they have to comply. we need to make sure the fda working with the department of

agriculture to ensure these new regulations and requirements are harmonized with those on the books. will you work to that end if confirmed? >> yes. >> i want to follow up on the senator's comments with regard to draft gad ansuidances. i am apprehensive of the guidances. what are your thoughts about setting a maximum period for which draft gad ans can be left outstanding without finalized or revised. secondly when commentators expressed concerns shouldn't the agency be required to publicly respond to the concerns or at least how the concern has been addressed when a guidance is finalized or the agency rejected the concern. >> senator roberts, i am kind of a big advocate of transparency. i do appreciate what you are

bringing up. it has been noticeable to me. the issues you raised. and noticeable as i mentioned every time we give people an opportunity to interact with the fda they seem to want to do it more. our user fee situations for example. the number of meetings requested always greatly exceeds the number that we have. so, the critical thing to me is getting whatever the -- the correct format is moved along as quickly as we possibly can through the process. so that people understand what the fda is really thinking. in the case where it really needs to be a role they understand what the rule is and how to implement it. so to get to the details. i ned to come by and spend more time with you to completely understand how you see it. would be glad to do so. >> appreciate that. my final question. where is duke ranked now with regards to the basketball situation. i'm just glad you didn't ask about football. but i think duke is some where

around 4 or 5. >> think they're number 5. would you be interested in knowing who is number four? >> i think that might be that school in the midwest that we often beat up on when it comes to tournament time. >> the university of kansas. i just want to point that out. i might add south carolina is number one. but we'll take care of that. >> you mean north carolina is number one. >> yes. awe all. nc. i would rather have kansas number one than unc. that's a different story. >> i have no further questions, mr. chairman. >> thank you, senator roberts for your illuminating inquiry there. senator baldwin. >> thank you, mr. chairman. ranking member. so, pleased to have you here today and was pleased to have an opportunity to meet with you prior to this. we all agree that it is critical

for the -- for the products that are approved by the fda to be of the highest safety and efficacy standards. and that the public must also have meaningful access to accurate information about treatments so they can make the best health care decisions. i share some of my colleagues' concerns with the -- ever-increasing drug prices, there has been a little bit of dialogue about that already. and i think that we can do more and should do more to -- to improve drug accessibility, affordability and transparency. so i want to start with -- transparency. doctor, the public still lacks comprehensive access to information about medical products. for example, come pans do not consistently report clinical trial outcomes for drugs in the

public databases as a number of recent studies have noted. and generics are not yet able to initiate a change in their patient labelling. if they learn of safety information because the fda has not finalized the generic labelling rule. so in your new role, should you -- receive, when you receive confirmation, how would you improve access to accurate information on drugs -- for patients, doctors, researchers. how would you ensure that the fda maintains patient safeties once these medicines actually reach patients? >> well, i will try to be as quick as i can with this. that's a very important question that you are asking. first -- i will point out again. every study that i was involved in has been published. i think that is a mandate. when you ask some one to

participate in a human experiment. informed consent says you are doing it to create generalizable knowledge. if we dent like the study, result was lousy, we need to publish it. secondly, beavfore i left duke, was part of a paper pointing out the track record of the clinicaltrials.gov reporting. one side issue. industries are doing better than nih funded investigators. working with the nih. they have a policy. you won't get your next grant. so it has been very good working with kathy hudson and francis collins on, on making this happen. the third element the surveillance system that we about. sentinel. equivalent on the divide side. this is needed. dealing with generic drugs on the market. 30 years. still learning about them. we can't have a system where it

depend on the innovator company to figure all this out. somehow make it public. give them a lot of credit. we have an approach. just had a meeting two weeks ago with federal agencies. there is general agreement that we need to have a national evaluation system. which is publicly really a public good. and the companies can develop the best products that's fine. but we need to work toward this. i want to switch gear. given the role of the fda in -- in food labelling. you and i had a chance to speak about one of -- wisconsin's products where the number one grower of cranberries. and i know that a couple of other members of the health committee represent states that have a robust cranberry industry also. now i am concerned that recent fda proposals to update food nutrition labels with added

sugar information. may cause confusion for customers and others by categorizing cranberry products which are clearly highly nutritio nutritious -- nutrient dense fruits. that need added sugar for palatability. as some how comparable to, to foods that they shouldn't necessarily compared with. for example, should you be comparing cranberry juice to other fruit juices or to soda pop? should you be comparing dried cranberries, craisins to raisins or candy. so as commissioner how would you ensure that these and other fda food policies appropriately account for the unique health benefits of food like cranberries and ensure that consumers are going to have the type of information comprehensive and accurate that will allow them to make healthy and nutritious decisions. >> senator, i appreciate that.

i noticed cranberry juice has been in our refridge rj refrige home. may have to do with health benefits. good example of the balancing act. we have the epidemic, obesity, diabetes, huge amounts of sugar are not good for you. don't think there is disagreement. we have to preserve nutritious foods, with sugar that make it better. talked with senator warren and you about the fact that we need to work on the cognitive psychology of labelling so that when we do take actions, and, put information out there it is interpretable and helps people make good decisions. ultimately, up to people to make their own decisions. but if we don't present in a way that is clear to them. it could lead to the wrong decision. >> thank you. >> thank you, senator baldwin. >> the next senators are senators cassidy, franken, kirk, bennett.

senator cassidy. >> enjoyed your meeting. thank you for coming by. several questions. first. going back to the drug pricing. clearly we have seen companies kind of abuse the social contract which gives you've a reasonable rate of -- of return for a drug marketing. and they have gone way beyond reasonable. now i have been told in the case of turing that an approval of a generic would take several years because clinical trials will be required. to prove the generic competitor was the equivalent to that which turing has a sole source provider. now this is a, you know, we know this is a 60-year-old drug. so it comes to mind because -- i'm reading now on premise, on a compounding component would make the same drug available, of course, compounding, a doc has write the prescription.

in a sense compounding is doing what generic can't do. so i guess my question is -- if we know that the, presume that we know the compounded drug, being sold for $1 a pill. as opposed to $750 from turing. take that as an advertisement for anybody who wants a reasonably cost drug. if it is a dollar -- why can't we do this in the compounding space but not in the generic space. why does it tke so long to work this through the generic when we get, you see what i am saying? this is cognitive dissonance. >> i know you are a doc. you have understanding of all this. let me point out. every drug is different. the whole goal of generics in most cases is not to have to do major clinical trials. it is showing that you have something that is equivalent. i believe you spent a lot of time with the doctor on this recently.

>> yes. >> a lot we can tell about molecular structure. we are working on the compounding. we had disasters -- >> infection control. fungi entering an injectable. obviously an oral drug. liability involved. would not be selling it if it were not bioequivalent. >> i will have to get back to you. i've don't know the details on that drug. glad to do that. >> just because i see now that folks established the business model works. again, something a fellow paying $55 a prescription, now $5500 a prescription.exploitation of a

because of these folks' frankly, greed. if we are going to somehow circumvent that. we have to come up with a way to do generics. looking again to make the editorial comment. so clearly is working with compounding. that, it seems almost like -- it should work as well with generic. >> well, i have to get back with you on the specifics. i did have a pharmacy compounding operation that, at duke hospital required for some medicines. i am very aware of the complexity of compounding. not as simple as it may sound. i would have to look at specifics. get back to you. >> that's fair. >> secondly. which is related. going, going to the chinese, the drugs manufactured in india and china. i gather that -- the fda sent out a warning that said investigators went, looked, observed holes in the walls and

roof which allowed pigeons access near production equipment. in multiple manufacturing areas. there is evidence, or at least suspicion that somebody was hiding audit trails, et cetera. and on the cognitive dissonance. on one hand allowing folks to import even when good manufacturing procedures are obviously not being followed. yet it seems look we are putting roadblocks up for those producing domestically. who could give us some relief from the exploitive practices. >> yes, i understand what you are saying. i did have the privileges in academia to do work in india, china, over the last decade. it is going to be a focus. it will have to pay a lot of attention, to a large part of our food and our drugs and device supplies are coming from india and china. so, we do not want to

disadvantage americans in that regard. >> if we find they they're not being followed will be shut down that component of the sa ply chain. >> we can't shut down something in india or china. we can shut down importation. >> the ability of that to be used? >> we do that. yes. >> got you. i yield back. >> thank you, senator. >> thank you, mr. chairman. i note that you and senator baldwin and, and now senator cassidy have all talked about what we are hearing when we go back to our states. about pharmaceutical costs. i think that's something that -- we really have to deal with. and the ex-ply tags of positions that -- that come pans have gotten. want to talk about probably, the bas basic -- the basic question you

face which is the delicate balance that the fda plays in -- in making sure that products get to people. who need them quickly. at the same time, making sure that they're safe. that is -- that's what you deal with every, every day. i have tried to promote this balance in -- in legislation that i have introduced with senator burr, the accountability act of 2015, given your experience as an outside adviser and now as an internal leader at fda, how can fda use the tools at its disposal to strike the balance? >> well when it comes to cost we do have some tools we can use to help out. the first we have discussed. doing everything we can to -- do a good job with generic drugs

situation. we are at 88% now. and that's a good thing. but we now also have biologics which, biosimilars are now coming up. we have got over 50 applications in the works. we need to do a good job with that too. that is a big s xeexpense the w want to make sure people have access when it is appropriate, safe, effective. criteria are stringent there. one other that is very important to me which people wouldn't normally think about that much. but i think it is going to come up more and more. is that if we really fix our evidence generation system. streamline clinical trials. get the data that we need. people wouldn't spend money on expensive drugs when they're not needed. we need to have better information for people. several senators have brought that up today. i think we can do that. in a fairly dramatic way. and then finally, we do keep track of -- of shortages.

we prevented 100 shortages every year for four years. one year up over 200. constant surveillance that goes on. requirement that people notify us when there is going to be a shortage problem. but the new area that we have got to work on is when some one gets a monopoly. which is what aefseveral of you have referred to. understanding who the competi r competitors are making sure they're doing the right things to be able to compete and get their products on the market. those are things we have gone through that we can do in the fda. >> quickly i want to turn to the different issue which is -- making sure that products continue to be safe. once they have hit the market. once they have been approved for the market. this is, you mentioned postmark it surveillance. the fda have adequate authorities here to do -- what you need how to, to do -- to do

this adequately or you need additional ones from congress? >> i would have to, i would have to get back to you on the specifics of what you might be thinking. the thing we clearly need is a better system for postmark itting. on the drug side, revolutionary. and fantastic. on the device side, we are doing better and better. but we have a plan that i hope we can really enact. because i believe when we fiend a problem for the most part we can deal with it. but we have got to have good data in order to, and quickly to identify the problems. >> i want to talk about -- generic drug labelling, and the generic drug labelling rule. this, this -- this has to do with, the rule making that you are -- that, that you are doing. on a generic drug manufacturer and requiring them to -- to

update. their warning labels. and provide safety information. this came out of the supreme court. the decision. what is the current plan for finalizing the generic drug labelling rule? >> thank you for asking. that is a very important issue. we need to make sure there are problems with generic drugs that come up later and they dupe with better surveillance systems. there is a way of making sure the labels are up to date and consistent across similar products. so as you know we got a lot of comments on the proposed rule. they're under consideration. i can't talk about decision making. we're in the middle of it. it is a very high priority to get this finished. >> thank you. >> thank you senator franken. the next senators are senator hatch, senator bennett, senator

scott, if he returns, and then senator sanders. senator hatch. thank you, mr. chairman. i'm very please to support your nomination. very impressed with what you have been able to do. >> let me say this. i am concerned about data exclusivity. as you know when we did hatch-waxman. we made sure there was data exclusivity time so that they could rekucoup the money and costs. average cost what i have been told for pharmaceutical drug is $1 billion. up to 15 years or more because of the pace at fda. biological drug about the same. average cost is $2 billion to

come up with biological therapy that is approved by fda. i am very concerned. if we reduce the data exclusivity time with regard to bio. you are talking about having to charge a lot more. you are talking about our industries. subs digs subsidizing countries all over the world. and paying really so they could have the therapies, biotherapies, really at our expense. at the same time to recoup the amount of money across -- it costs to go through fda, they, they -- the cost of -- of these therapies, it is continually rising. i just want to know if you, if you feel that we can move ahead quicker.

make it so come pans have a chance to recoup their monies that they invested. >> senator hatch, i do understand your concern that we want to make sure that if someone invests in the development of the drug there is a return on investment. otherwise people won't invest in our kind of society. >> you also understand that, that the more it costs, the more difficult, difficult it is to recoup the funds. and the longer length it takes to recoup them as well. without, you know, charging even more than -- than we do now. >> well as you know, the fda doesn't set the length of data exclusivity. but, what we can do -- that you bring up is the cost of development is largely driven these days now by the cost of clinical trials. and we think we can do trials that are actually bigger and include more patients and more representative for a much lower cost. hope you work with us on that. >> i will work with you on it.

it is an important issue. even become is a major issue with regard to our -- to our trade promotion authority bill. and also the transpacific partnership. if we don't allow enough data exclusivity time. we will not develop these therapies. especially in bio. because bio is -- one of four or five places, four or five techniques, where we can actually find treatments and cures. if we find the cures that over time will save us trillions of dollars. so i am very concerned about this system working very well. >> i have been fortunate to be -- a leader in the devel development of several biological therapies that have made a difference. appreciate what you are saying. >> also, hatch-waxman made a real difference as far as getting, remember we did hatch-waxman. it was like -- 1 years 8 years

a -- a jen generic through. today, and it was very, very difficult. now it is kind of automatic. >> we are doing better. 88% of prescriptions are generic. it has been a tremendous success. >> one issue that affects many n entities in my home state. the guidance on the regulation of ldts. developed tests. there has been rope bust conversation between stake holders. members of congress and the fda ever since the announcement. does the fta plan toer to guidance or allow for further comments and feedbacks on the next steps proposed? >> as you may know this is an eco system issue. we want university to continue

to in nnovate and patients are getting test results for analytical and collateral. and we are collecting feedback. we just had two days at the fda. talking next generation sequencing. advanced form of the testing. we are still collecting feedback. we want to find something that stimulates innovation and assures patients. >> may i ask one other question that would not, just requires a yes or no answer. >> sure. >> thank you. >> do you believe as prior commissioners have, one of -- told me this. that the dietary supplement, health and safety act, provide authority to regulate the dietary supplement industry and protect consumers from unsafe products? >> we are fully aware of our authorities. and you will see action where the authorities are pertinent in future. >> do you agree you have enough authority? >> well are well aware of our

authorities. plan to use them as congress has directed. >> all right. thank you. >> thank you. senator bennett. >> thank you, mr. chairman. and doctor, for your willingness to serve. delighted you are here today. in my view, the fda has been successful implementing the breakthrough therapy pathway which led to the approval of 32 life-saving drugs and 100 in the pipeline. when first working on the bill with senator hatch and startups were sag to me, that all of the venture capital in the country was moving to asia and europe because of the regulatory uns uncertainty at the fda. i think all of us want to keep jobs here. we want to give patients, safe effective drugs as soon as possible. looks to me like the break through pathway may be achieving both. wonder if you could talk about it a little bit. what have we learned about regulation. and can this approach be modeled in other places, the fda,

including the device. >> thank you for the comment. my two sons from colorado are listening carefully to your thoughts on this. but breakthrough. >> barbara mukulski is not here. we gladly well move the fda to colorado. that would make the family closer together. >> the concept of breakthrough is where things look valley promising early on. going to make a dramatic difference. there is an unmet need for life threatening condition. fda works closely with the industry to move things along as quickly as possible. a whole series of cancerer use in particular that have just delighted the cancer community. and people who other wise would die. my mom back here has multiple my low ma. on third, fourth chemotherapy treatment. it's been a tremendous success to have the community working with the fda and with industry and academia in a concerted effort. we don't need this for chronic

common problems where there is already effective treatment. we want to make sure we don't rush things to the market that aren't safe. so the real key is having the criteria to identify where, where this kind of activity is needed. >> well, want to say from my perspective. it is fashionable to criticize the agencies. this is a place where i think the fda has gotten it right. how about on the medical device side of the equation? >> as you know, there have been issues with medical devices moving to other parts of the world. they're beginning to come back. one of the reasons is the early device research program developed by crh together with the community. that is working with the big centers that can do the early device work bringing those things back. there is also an issue with devices that you have, you know a lot about. which often a device is useful in a very unusual disease. it is a very niche activity.

not an adequate market. we do have a program for that successful. a topic we need to think about and discuss more to define ongoing criteria. >> i should also say that the cancer community was vitally important in getting that piece of legislation passed to begin with. so it is into is to see some of the early drugs drugs have, drugs that fight answer. i wonder if you could switching gears wonder whether you take a few minutes to discuss with the committee how we should think about invest. in life science and innovation. not just domestic priority but global economic priority to keep us competitive with nations. we are seeing resources in this country amrid to basic science. wonder if you could help us understand why that is important or whether it is. it its the case everyone is c

conconcerned about. living longer and mr. functional in their lives. the way we do that. public health. medical products. case of tobacco, reducing it hopfully. as we -- the development of medical products does require investment. it is appropriate that there is a law that says you have to show you are safe and effective before you come on the market. this requires time to do the development. and it requires that you really show that you are not producing an inferior product before you come on the market. really a critical issue. so we have got to invest. on this note in our, i work with the nih. we are focused on the use of biomarkers. surrogate imputs. not using them inappropriately when they're not going to work. this is really hard work to set the conditions that would excite investors to put money into biomedical science. ultimately the united states is saving the world through investment in the nih. want to put in a plug for

continuing with the nih investment if not for the science funded. we wouldn't have science to translate into effective medical products. >> thank you, thank you for your testimony. thank you, mr. chairman. >> thank you, senator bennett. i want to thank senator mikulski, senator casey for allowing senator sanders to go next. he has been waiting patiently he has extra couric lar activities he is attending to. senator sanders. >> thank you, senator. doctor, as you know, you and i chat aid while back. i told you that i would not support your nomination. because i believed you are not strong enough on the most important issue american people are concerned about with regard to prescription drugs. that is, as you know, in our country we pay by far the i%aq%=9 drugs. one out of five americans cannot afford to fill the prescription that their doctors are writing

for them. mr. chairman, with your permission. i would put into the record. a comparison of drug prices. in the united nations and canada. and would show that on major and important drugs. the prices in canada are far, far less expensive than they are in the united states. that's true all over the world. my concern, mr. chairman is that while last year the top four drug companies in this country, pfizer, johnson & johnson, and two others they made $50 billion in profit one year. i heard concern drug companies are not doing well. they're doing quite well. you have millions of americans who cannot afford the high cost of prescription drugs. while all agree that clearly we want great new products out on the market to save lives. for millions of people doesn't matter what the products are they just cannot afford them. we needen my view, fda commissioner who is going to be

aggressive. and understands that very simple principle. i'm not clear, what i heard today confirms that i don't think you get that. here are some of the questions i would lack to ask and make out the point. i think it is not a coincidence that -- that last year the pharmaceutical industry spent $250 million on lobbying and campaign contributions and employs some 1400 lobbyists. do you think, doctor, that type of expenditure has any impact on the fact that we pay by far the highest prices in the world for prescription drugs? >> senator sanders the ideal would be if money to the picture of adequate risks and benefits of treatment. that was made available. >> why do we pay the highest prices in the world by far for prescription drugs? >> i'm not an expert on the price of drugs, senator sanders, i am sensitive, in a field of

cardy vascular medicine, we need drugs available. >> doctors have writ in to us. doesn't matter the drugs are available. their patients can't afford them. >> let me ask you this. very simple question. as head of the fda, you will oversee importation of food products, vegetables, fish from all over the world. we can import lettuce and tomato, vegetables from farms all over the world. somehow we cannot reimport from canada brand name prescription drugs manufactured by the largest drug companies in the world. can you explain to me and do you support the reimportation of brand name prescription drugs from major companies from canada and other main your industrialized countries, yes? no? >> senator, as you are aware do?

>> we have capability. it would add additional cost and systems would have to be put in place. >> this is why the american people are paying by far the highest prices in the world for prescription drugs. it is beyond my comprehension you are saying we can bring in vegetables fish from all over the world, but we cannot bring in brand name drugs, manufactured by the largest pharmaceutical companies in the world from a country look canada. i just do not accept that. let me ask you another question. the reason, one of the reasons we pay the highest prices in the world, today as you know, i could walk into a drugstore and tell me the medicine i use the price is double because we have no regulations do. you believe, will you support the right of medicare to neg

gesha -- negotiate drug prices, currently not allowed by law, should medicare negotiate drug prices so we can lower the cost of medicine. >> it is the administration position, spelled out in the president's budget that negotiation on medicare prices should be done. it's not the fda's to set the prices as we have discussed. >> the issue of affordability is within your jurisdiction. let me just conclude, mr. chairman and thank again senator casey for jumping over him here. that we all want great medicine to come on to the market. and i respect the work that you have done. but at the end of the day, people are dying, people are not buying the food they need because they have to pay outrageous prices for medicine. because we have been extraordinarily weak in taking on the pharmaceutical industry that is ripping off the american people. i believe that we need a commissioner and i know that's not the only responsibility of the fda. i believe we need a commissioner

who is going to stand up to the pharmaceutical industry and protect the american consumers. and i have to say to you, with regret that i think you are not that person. thank you very much. >> thank you senator sanders. senator stepped aside. senator, thank you for being here. >> thank you, senator alexander. doctor, welcome. senator sanders, broached the issue of fish. bring in fish around the world. i want to suggest to you that perhaps bringing in fish from all around when it is mislabeled, misnamed is not something that we want to do. and i would ask you, again, to look at the issue that we have raised repeatedly before the fda regarding the pollack know man clay tuman -- nomanclature.

we contend you have the regulatory authority to change the acceptable market name.

>> it's been a privilege to knowing mike. he's been doing this for years. a dream of his to get it put together. we're now moving to implementation phase. i think the key, it's a massive food, it's just a lot of things. high quality analytics what we're implementing to target insprekzs to where the high risk is. using genomics, as you know, for bacteria to figure out where they come from by doing complete gene flotyping with people. it's moving science along.

realigning workforce to preempt problems before they occur rather than reacting. >> i'll submit for the record a question about issue raised about independence. pressure what you said about the contract as well as your own steps since being at fda on recusa recusal. i'll develop a broader question. >> appreciate it. in light of senator warren's questions, duke university agreed to make contracts available. i think either in the staff's hands or on the way. it will be good for you to look at those. also to know consulting money abided by principles but made a personal decision to donate to not for profit charities, it's just a sign work is something i thought important, not money in this case. >> thanks for the extra time.

>> thank you, senator casey. thank you for willingness to serve. >> it's great to be here with a fellow south carolinian. >> thank you, especially since senator byrd's gone. >> doctor, i'm the co-founder of the sickle sell caucus, we focus on making sure people appreciate the devastating impact sickle cell has particularly within in african communities. while rare, devastating to communities and families. one of the most expensive diseases to treat given high incidents of hospital readmissi readmission. we haven't had new treatments introduced in the market for 20, 30 years. how can we address this and create an environment incentivizes investment, research and development and diseases that affects smaller segments of the population.

>> thank you for that question. one of the regrets about the wonderful opportunity at the fda, i was glad to do it but left behind things i was working on. one is the issue of diseases that affect minority, particularly poor minority people differentially. we had a project looking at population base using electronic health records. one thing that pops out, sickle cell disease, while people are children, well covered by the medicaid system. >> yes. >> with first-rate care. when people become adults, they're on their own, frequently live in rule cases can get to big centers and this creates disintentidi disdi disincentive. i work working with him and i think there's a comprehensive plan including designations for

moving therapeutics more quickly. i'm aware of new things in development and they look good. if i wasn't here, i'd be working with new things. >> excellent. two diseases affect my state at a rate higher than national average heart disease and diabetes. 2013 heart disease was the leading cause of death in south carolina and accounted for 3.1 billion in hospitalization costs. 2013 as well, 11.3% of south carolinians had diabetes. we are in desperate need for cures for two chronic conditions. however the high risk and cost of trials, particularly phase iii trials, seem to create an incentive for researchers and investors to avoid working on medications that could help many americans and south carolinians suffering with chronic diseases.

what ideas do you have for reforming the clinical trial process to incentivize researchers and investors. >> i'm tempted to ask how many hours you have. first in the studies with the innovation grant in north carolina, not south carolina, west virginia, mississippi, what it's really devastating. this is focus on diabetes. we need to get it under control. in addition to cures, we need to deliver good health care to people close to where they live. that is what our project was doing, using electron ex-health records to set up systems in make ithoo hoohoin neighborhoods. it's a problem related to something we discussed earlier, for disease like heart disease, we have effective treatments we don't want to let something on the market that's not safe and

effective. we have do adequate clinical trials. we're committed, as are all federal agencies, to work with industry and academia to develop a national system that delivers better trial results with larger populations at a lower cost. i would say dramatically loyer cost. key using electronic health records. we have to over come terminology. we can do this. and that would enable people to develop new therapies at a lower cost but with better information about safety and efficacy. >> in september i had an opportunity to ask about labelling of vial similars. she stated trade-offs in various labeling decisions but did not provide clarify what industry, physicians, patients to expect, when they can expect, primary

part of the question is the when. i continue to feel there's a serious risk and not providing notice a product is a vial similar considering small differences between vial similars and branded counter parts unlike with gone nairics. can you provide any update where things stand with labeling of vial similars. >> we're working hard on it. it is a very tough, complicated issue. much of my career in cardiology developing biological products highly effective. molecules are complicated, difficult to work with. you have to understand them, dr. woodcock one of the world's authorities oop i ha authority. the labels have to both encourage use of biosimilars where they're as good and enable providers and patients to understand when there are differences. we're working hard to come up

with and fit in with global standards nomenclature that exists as these are on the market they can be tracked. if there's a safety problem we can keep up with it. those are all of the factors. i can't tell you went we'll be done. everybody's interested in this. it's a very high priority. >> record will remain open for statements for ten days. i ask senators submit written questions by 5:00 p.m. november 24th. thank you for being here today. next hearing on mental health wednesday december 2. committee will stand adjourned.

next washington jum"washin, how congress is reacting to the syrian refugee crisis. then the paris attacks and u.s. strategy against isis. a discussion about treatment for ptsd. "washington journal" live with phone calls, tweets, facebook 7:00 a.m. eastern on c-span. 6 house and senate transportation negotiators meet wednesday to discuss highway and mass transit funding, work out differences between the two bills. you can see that live 10 a.m. eastern on c-span3. sunday, on q&a. >> i'm the first woman to reach rank of four stars in the united states navy. i had only been a three-star,

gosh, maybe 10, 11 months when the cno was traveling through town, i was in norfolk, he asked to see me. i presumed about the next job i was guying to. that's when he talked to me about we're looking at you for being a four-star and here's a couple of different opportunities we think you would do well and benefit the navy. >> reporter: >> vice chief of naval operations michelle howard, first female four-star admiral. the navy's mission to rescue captain phillips in 2009. >> i became head of the counterpiracy task force. few days on the job, captain phillips was kidnapped. so it was our responsibility as a task force to go him back,

back safely. that was a surprise kind of mission and a challenge, we got him back. >> sunday night 8:00 eastern and pacific q&a. >> next, two federal judges debate criminal justice issues, mandatory minimum sentences and overcriminalization. hosted by the cato institute. 1:40. . >> i think we're ready to get started. good after noon, i'm timlin. director of cato's project on criminal justice. glad you could be with us. today we're going to be hosting

a debate on the question of whether or not american criminal justice system needs an overhaul. we have two distinguished judges from our federal appellate courts that are here to share their point of view with us. what's interesting is that both guests were appointed to the bench by president reagan. this is not your typical left/right debate here in washington. it seems to me judges are in a unique position to contribute to improvement of our law and improvement of the administration of justice by writing articles, giving lectures and debating ideas that have an impact on our legal system. i between thank both guests for taking time out of their busy schedules to give us benefit of their experiences from the bench and suggesting ideas that might improve our legal system. before i introduce our speakers i want to lay a foundation.

before i do that, let me ask those who came with cell phones, double-che double-check, make sure they're silenced as a courtesy to our speakers. thank you. i should note we could hold a three-day conference and still not adequately cover all of the important issues that pertain to the american criminal justice system. but i would like to take -- put a few questions on the table. if our debaters want it address questions, fine. if they do not want to, if they want to use their allotted time to focus attention on other issues they think are important, that's fine. maybe we can get to questions when we open up the floor and take your questions and comments after the debate. here are four questions to consider.

first, do we have a problem with overcriminalization? do we have too many criminal statutes criminalizing too much activity? second, is our sentencing system too severe? are we incarcerating people longer than is just or necessary? this is something congress is debating, both in the house and senate. third question, do we have a problem with police and prosecutorial abus? we do hear from time to time innocent people getting released from prison because of dna testing. are these mistakes inevitable in any criminal system, or are they indications of deeper problems concerning misconduct by government officials? fourth, what about the level of crime in our society? over the weekend "the washington post" reported that baltimore

recordsi its 300th homicide ofe year. what, if anything, can be done to minimize violence so we'll have fewer crime victims? going first today judge alex kaczynski, serving on the 9th circuit of appeals for 30 years. as a matter of fact, last week he marked his 30th year on the 9th circuit. congratulations for that milesto milestone. >> judge kozinski known for many thing, magic tricks, strong romanian accent, humor, well-reasoned and sharply worded opinions and articles. over the summer he wrote a scathing critique of the criminal justice system for the georgetown law journal "criminal law 2.0" arguments have caused quite a stir in legal circles. over the past 10 or 12 weeks

talking with either public defender or prosecutor, i start telling them about this interesting article that they should check out and they stop me and say, we're aware of that article. so it is definitely has been making rounds. george will wrote a column on it last month. give a warm welcome to judge alex kozinski. going second today will be judge jay harvey wilkinson, serving on the court of appeals for the 4th circuit more than 30 years. engaged in debating our legal system especially big cases that have been handed down by the supreme court over the years. judge wilkinson has been widely published in all major newspapers and also written several books on the law. we had a book for him -- forum

at cato. most relevant work is an article he published last year in vanderbilt law review "in defense of the american criminal justice system" he responds to various critics and makes the point our system has virtues not always acknowledged as much as they should be. he's spoken here several times. glad to have him back. welcome judge wilkinson. format is simple, each judge is going to give presentation of 15 to 20 minutes. after that, a brief second round, each speaker will be given five minutes to respond to what the other person has said. after that, open it up, take your questions and comments. and then adjourn for a reception upstairs. the floor is yours. does our criminal justice system need an overhaul?

>> thank you, tim. good afternoon, ladies and gentlemen. i have been observing this process for 30 years, the same time as jay, and the conclusion i've come to is troubling signs on the horizon. we have had -- we've been doing the same thing, doing criminal trials for quite a long time for basically hundreds of years but the way we do them now for a couple 0 hundred years and we make certain assumptions about the way the system operates. it turns out many assumptions are based on guesswork, what we think is experience. and what much of what we see has been undermined recently by science and common sense.

there's trouble signs on the horizon. let me point out, i don't think a lot of people focus on, and that is that the united states is an outlier, outlier, in the number of people it has in prison. look at numbers above, the united states with 319 million people has over 2.2 million people behind bars. that's a rate, number on right hand column of 69 8, almost 700 population. compare to china, next country that has a large prison population. they have about four times number of people we do but have fewer people in prison. so they're rate is 119 per 100,000. only one that's close to ours is russia. but then you get india, brazil,

mexico, united kingdom canada. take a look at this, china 90% of the global population, 16% of prison population india 17% of population, 4%. united states 5% of population, a quarter of the world's prison population. that means that here in the home of the brave and land of the free resides one out of every four prisoners in the world. one out of every four prisoner. now we must ask ourselves, is our country that much more lawless than other neighboring countries, more lawless than canada or mexico? are we -- do we get better policing? are we safer than, say, canada or united kingdom? in some places in the united

states, take a look at bottom figure, there is louisiana, state of louisiana with 5 million people has far more prisoners than canada with 36 million. rate there is 1,000 per 11 -- 100,000 more than one ut of every 100 louisianans is in prison. i find that surprising and shocking. now trying figure out why the case, we impose much harsher sentences for the same crime as a lot of other countries. the question is, is it justified in terms of the cost to the human beings and to families. >> to the fact longer people stay in prison, less likely to be integrated glo back into soc?

in terms of running prisons it's $8 billion running federal, $80 billion for running a state prison. this is -- it doesn't -- it puts things in perspective there may be something wrong. we have quoot a bit of scientific research that cast doubt on various aspects of the trial process, things that we always took for granted, perception, memory of witnesses. variety of other processes we use during trials. i don't have time for everything but let me focus on scientific evidence. we have -- we attack for granted somebody in lab coat comes and gives a report and says this is the case, that is the truth, that is the reality. but much of what science goes in the courtroom is not tested by

dalbert standard, should be employed when deciding whether to admit scientific evidence in sever civil indicates. much in criminal cases done get put to the test. we assume it's valid. in fact, when various kinds of scientific evidence is put to the test, actually is a flown sample and unknown sample and test how often the experts are right, there are tremendous error rates. you see numbers up above. spec toe graphic vice identification 63%. hand writing identification, bite marks. fingerprints, you get the fingerprint, they've got you.

turns out fingerprint, rolled prints when they test -- not latent prints left at the scene but ones where they roll them and make sure they're perfect samples, there's a significant, nontrivial error rate shown -- that shows up. poster child case of this is when the fbi a few years back announced 100% match to fingerprint found on a bag linked to 2004 madrid bombings and said guy whose fingerprint it was was brandon mayfield, oregon attorney. well, it turns out that two weeks later the spanish investigator identified a different person with 100% match of fingerprints. the fbi had to go back and apologize to mayfield for having branded him an international criminal. some of the stuff -- at least

mayfield got an apology. not everybody gets an apology. some of the stuff that gets admitted in criminal trials, because again it doesn't have to pass dalbert's standard, no validation necessary, somebody gets up, says i'm an expert in how fire's spread. well cameron todd willingham charged with setting fire in texas, to his house and his three children were killed and they had expert, so-called expert, come and testify that the fire had to have had a accelerant, gasoline or kerosene, to would have burned in a different way. turns out it's nonsense. turns out that that technique, then widely used by people who are not experts, people who were firefighters and drew certain conclusions based on their

experience, not on scientific research, many cases where testimony was given. in mayfield's case, he lost the race to try debunk evidence. he was executed in 2004. almost certainly wrongfully executed. studies done afterwards have unanimously said testimony in his case stuff that hung him was just complete voodoo science. now that is -- deals with an area of simply mistaken or confused forensic science. one of the big problems many forensic office that do work for police view themselves as part of the prosecution team. they're not out there to

determine in their minds, determine a justice result or correct result. they are there to help build the prosecution's case. that's just a very bad structure having forensic offices supposedly who are objective really being part of the prosecution team. there are lots of examples. a few of them on the slide, cases where people in those offices either falsified reports, simply been careless, or just not bothered to do the work, and come up with a report pointing the finger at somebody. meloncar from montana, at least three people stoent prison based on what he turned out to have done that was not seen tifrically sound. and dookhan, look at two things, yeah, those are the same without testing them that implicated

34,000, i think number has gone up closer to 40,000 people whose criminal convicts implicated because annie dookhan said, yes, those were the same substances. you say, what about dna? we're safe with dna? my word if we get a dna match we know that is safe. well it's only as safe as the people who handle the dna, as safe as they are honest, competent and willing to be objective. lots of examples. i have a list of the latest san francisco police department facing accusation dna crime technicians were filling gaps for poor quality, incomplete genetic evidence and passing them off as definitive test results in the database. right now it's an accusation but there's quite a bit of substance to it. but lots of instances including

fbi where dna, they muffed the dna analysis because nobody either didn't pay attention or favored the prosecution. there's inspector general report involving the fbi where they looked at hair sample matches. once thought to be -- they said, hair came from somebody's head. that must be it. turns out that they admit, fbi, supposed to set standard for the country, in 95% of 268 trials they have reviewed so far, they overstated the match, either lied or overstated the match including 32 in death penalty cases. they're not done looking. 95% of the cases they took the

side of the prosecution rather than coming up with an objective standard. specifically focused on examiner michael malone, whose conduct was set to be problematic and they admit, but for malone's testimony, one defendant would not have been death eligible, not convicted of a death eligible offense and three other prisoners who depended on malone's convict already exonerated, and they served, each spent more than 20 years in prison. now that is dealing with the evidence. let me tell you about talking about prosecutors. i had this opinion, it caused an up roar. there was an epidemic of brady violations in the land. most people are lawyers and understand what brady is. for those who might not be lawyers and plight not know

brady, brady supreme court opinion, simply if the prosecution has evidence that helps the defendant, they're supposed to turn it over, required to turn it over. and the in case after indicate i saw this was not being done. and it is -- must have hit a chord because the phrase i use in this little opinion way out in the east coast, other side of the horizon, quoted in "new york times," la. times, "the washington post," "forbes," it must have struck a chord, and it's with good reason. now i should say, and i'm going to repeat at the end, i'm not accusing all prosecutors. i've known, i know many prosecutors who are terrifically scrupulous, civil servants.

they do their job honestly, fairly, try to get a conviction only where there is proof overwhelming proof of guilt and they live by ethical standards. but it doesn't take very many who due to ambition, sloppiness or just being misguided wind up breaking rules to create a real problem. not only for defendants but also creates a problem for the office. if one guy's getting ahead because he lies it makes it harder for everybody else to be honest. this is directed at the few bad apples. remember what happens with a few bad apples. i was challenged, both by colleagues, i said how do you know there is an epidemic of brady violations? i can't be sure because by their nature most brady violations don't get find out, the

prosecution has exculpatory evidence and don't reveal to the defense in most cases it never comes out. but we have most cases it comes out ought to cause us to worry. a case of senator ted stephens tried here in washington, d.c., you know what happened there. the prosecution failed to provide exculpatory evidence and he got convicted, convicted a week before the election, lost the election, longest member serving member of the senate, lost the election because conviction came in before election. eventually fbi agent blew the whistle and evidence was discovered and conviction was set aside. whole episode is detailed in sidney powell's "license to lie" excellent book with superb forward.

if you read nothing else, buy the book, if you read nothing else, forward will mesmerize you. i guarantee it. but she talks about, sidney talks about the stevens case and also about some other case including one of the enron prosecution, u.s. versus brown and arthur andersen prosecution. various aspects in which there's overreaching. i don't want to brush with the broad brush, too broad of a brush, because there are many, many, honest and fair prosecutors in state and federal court, but there are enough to worry about. there is another one high profile case, duke lacrosse case where the attorney of the duke lacrosse case. dna tests taken.

they found dna of four people, none of whom lacrosse player. the district attorney hid evidence leaving the defendants hanging to be vilified and to be stand accused and having lives wrecked, the d.a. did other terrible things, eventually nifong got disbarred. plik t michael morton case convicted and served 25 years killing his wife, in texas, and the reason this happened, one of the reasons it happened the ken anderson, prosecutor, hid evidence, it was evidence of another man lurking out there, came from the victim's son. the prosecution hid the evidence. now this was before dna came along and when dna came along, morton said, look i would like to have some of the evidence tested because of blood splatter and semen, some dna evidence that could be tested, and said i

would like to be tested because i know i'm innocent, i will be cleared. ken anderson, by that time a state judge, importuned the current dna not allow testing go forward. he did not want to have michael morton exonerated because he knew it would reflect badly onp him and he would be revealed. it took six years of the court of texas to get the evidence that exonerated michael mortgage. what happened at that point discovered dna pointed to norwood. norwood was tried and convicted. the tragedy is while michael morton is in prison convicted of killing his wife, another murder happens in the neighborhood. now norton -- norwood has been charged with that crime. case is pending, i don't want to

say anything more about it because it's a pending prosecution. let me just say, there's now very strong suspicion that norwood committed this other murder and the police and the prosecutor had not hidden the evidence and had not focused on michael morton to exclusion of anybody else, it is entirely possible that woman would still be alive today. let's talk about the scooter libby case here. it's another way in which prosecutors can overreach. scooter libby convicted based on information of a phone call that happened four years earlier, disputes, woman on the other end of the phone line was judith miller, she talked to the prosecutor and, fitzgerald, he persuaded her that scooter libby

has -- was the one who gave her the information about valerie plame being with cia. now how did we know he did this? just this year, just this year, judith miller published a memoir in which she goes back and rethinks the event and she raises a horrifying possibility, horrifying to herself, read the book, where she says, was i manipulated? was this really facts i remembered or did the prosecutor put them in my mind? chilling stuff, folks, because that was only evidence. i'm going to have to go quickly for my time is running out. overcriminalization, tim has talked about that. i will skip over that. too many crimes, cases brought on very thin evidence or things

that turn out not to be crimes at all. it happens all the time. i want to talk particularly about the case of steinberg. steinberg was one of the newman chi alt son defendant. you needed to get an instruction. turns out that newman and chiason were convicted and they brought indictment against steinberg, who was another defendant in the case. now they could have brought the prosecution by filing it in separate case. instead, and this is a quote from the second circuit opinion, second circuit knows instead of doing that, they filed superseding indictment in the newman chiasson case, after the case tried and no longer any possibility of trying the cases

together. normally you file a superseding indictment to bring cases together for trial. the reason they did it because other judges in the southern district would give the distributed instruction, one that second circuit said was required but judge sullivan did not. they found themselves a judge they liked, found a judge that they thought would give the law which turns out incorrectly. instead of filing the case in the normal course, they file this superseding indictment to bring it before the judge. now that manipulation is sort of sleazy, sort of low. i'm surprised that the judges in the district have not brought discipline against lawyer whose do this.

>> arrested a portfolio manager. looking at raw footage the "wall street journal"'s jenny strasburg shot. she was there. >> quickly put into a car and he was -- had his hands cuffed and you know, all pretty quick as far as i could see. they were in the building before that, obviously. >> so michael steinberg knew they were coming for him and through his lawyers offered to surrender. offered to go some place in terms. the prosecutors refused. instead. come out at 5:00 in morning and haul him from where he's living and how do they happen to be cameras and reporters on the scene to film this? it was because michael steinberg called and said, hey, i'm going to be arrested, come and see me? no, prosecutors did it because they relish the perp walk.

why? it infects the jury pool, because it punishes people who have yet to be found guilty of anything. and because it gives them leverage, because people are intimidated and more likely to plead guilty. >> federal bureau of investigation -- >> other -- they use other charges. read the 5th circuit opinion, bowen, federal prosecutors blogging about cases, making defendants out to be dirt. look at duke lacrosse case where the prosecutor is holding forth -- hold be press conferences before interviewed the defendant. sorry, the victim rather. what is the point of all of this? well, this is the lawyer who is

nonprivate practice who was a prosecutor in the studentburg case. if you go online from this morning, she proudly lists having convicted michael steinberg on her resume. no doubt this was not considered when her law firm hired her. seems she needs to do to show convicted michael steinberg of something that is not a crime. glenn ford served 30 years in prison. 30 years in prison for a crime he did not commit. we know for sure he did not commit. and he did it because his prosecutor and the police did not look deep enough, did not search for evidence and withheld ex-pu exculpatory evidence. here is the prosecutor after released.

>> marty straud says, quote, in 1984 i was 33 years old. i was arrogant, judgmental. i was not as interested in justice as i was in winning. he says the physical evidence was, quote, pure junk science at its evil worst. quote, i apologize to glenn ford for all of the misery i've caused him and his family. and in an extraordinary interview with a local paper, stroud said the entire criminal justice system was broken. >> out to win, do whatever the cost. they don't really care about the victim. they don't care about this or that. they care about their record. and back then i was in my early 30s i was caught up in that insanity. that the end justified the means and we didn't try people who were innocent.

>> i submit to you that the answer to the question presented is yes. thank you. [ applause ] >> judge wilkinson. >> i want to say what a pleasure it is to be here, to be with my friends at cato, once again. tim, thank you for everything you've done to arrange this discussion. and i don't many times agrees with what cato say everybody sometimes i don't. but i'm appreciative of the wonderful contribution that this institute makes to national

policy dialogue. i want to thank my friend judge kozinski for his presentation and stimulating article which i read with the greatest interest. it's a wonderful thing to have a jurist of legal ac /* accumen o the bench and his commentary and questions are helpful to us all. >> i dime position of seeking and writing in defense of people of the american criminal justice system because it occurred i might be the only one who was going to do so. and i read with greatest interest academic studies and discussions from this quarter and that quarter and there was a relentless assault on the

criminal justice system and nobody had anything much good to say about it. alex's presentation was on the criminal justice system was very interesting, but i didn't notice that it was overflowing with compliments. so someone has got to speak and write on behalf of the system. but don't get me wrong. i don't think for a minute -- i would never try to persuade you, this is a perfect system without its flaws. it's run by human beings and a system that is human and depend enon human judgment, is going to produce, unfortunately, some examples of behavior that no decent person would ever condone. it's not perfect, but the question i kept coming back to is, what do we replace it with. what would you do instead?

and that's where i think some of the critics fall short, is what is the al tternative. i'm overpowered by power point presentations. i don't bring them to talk myself. i can throw statistics around at you, just in the past couple of weeks we have heard some very sad and sobering news about the number of homicides in baltimore for this year, reaching 300, which is a great many more than that the fine city has enjoyed, has had been flicked with fo to many years, a recent article in the "the washington post" indicating 2014 the violent crime in adams morgan increased

32% over the previous year on capitol hill. had increased 26%. but these are sobering statistics. but i don't mean to make my case on them. i would simply say when people say we suffer, that we're an outlier and suffer from race of overincarceration, advance the modest proposition that some individuals thoroughly deserve to be incarcerated. so many criticisms levelled last year by esteemed academics that i'm hard pressed to answer them all. one of the most frequent is that the system is overly dependent on human memory.

that may be so, but again, how are we going to get around that? how do we -- how could it be otherwise? we can't simply impanel a jury outside the yellow tape on a crime scene. it takes time to appoint counsel. it takes time to interview witnesses. and so inevitably, in the time that it takes to do a thorough and decent job at trial, it's going to be done after the criminal event itself, and we inescapable and unavoidably are going to rely upon human memory as imperfect as it may be. my friend, judge kozinski says the prosecution enjoys unfair advantage because it gets to present its case first. and that's the case that sticks in the jury's mind. >> i'm not sure that's because

the word you hear last is the word most influential with you. how else, again, could we do it. you can't have a defendant defending himself in trial before accused of anything. having the defendant go first is so inconsistent with presumption of innocent we would never accept it. this is unfair knock. my opponent says the system is unfair because the police have the ability to widely investigate a crime. and of course in the course of their investigation they acquire a familiarity with evidence that the defendant doesn't have it's

right because the party bringing suit almost always or enjoys investigative advantage. and so they do investigate because they are charged with initiating. it's not an unfair advantage or something that we can get around. believe it or not, i feel more comfortable that they are investigating. i would not want them to cut corners and not investigate. i would not want the police and prosecution to go forward with a half-baked case. sometimes the investigation here decried as unfair advantage actually turns up exculpatory evidence and officers who may have first thought somebody who

did it think, no, further investigation proved that not to be the case at all. judge kozinski envisions a different role for criminal juries, perhaps than they've played so far. he suggests they go into the jury room with written instructions to accompany them. this is an argument that i think has two sides. one on the one hand you might -- written instructs can serve as a good reference point. on the other hand we don't want jurors acting like a bunch of amateur lawyers and poring over written instructs rather than asking themselves basic commonsensical question, is so-and-so guilty of a crime? but this -- that question has two sides. what i don't think has two sides

is, as alex's suggestion, the jurors, member of the jury, discuss a case among themselves while it's going on. i think that's dangerous simply on a practical matter. it lengthens the trial, it's going to lengthen a trial a great deal. and we have to remember that when we asked jurors to serve, we are asking them to cut out time from their day and to give of their time and things that lengthen and elongate that service are a further imposition upon them. but even more fundamentally, do you really want jurors talking with each other about their impressions before all of the evidence is? i think it's much better that jurors, in order to be fair minded, wait until each side has a full chance to present its evidence.

alex suggests, we ought to bring juries in to sentencing. let's have jurors sentence. again, i disagree. sentencing is fundamentally different from trial because presumption of innocence has faded away. and if you have juror sentencing, i don't think that they possess the day by say familiarity with a wide variety of cases that a sentencing judge has and it -- having jurors as sentencing is going to make it more and more like the trial itself and in that situation we're going to have more evidentiary objections, more assignments of error, more assignments of error on appeal. what is happening in cumulatively we are trying to move closer and closer to a trial model on everything.

we're saying, grand juries are handmadens of prosecutions we aut ought to have grand juries become a more adversary proceeding, let's not have secrecy, let's have juries getting into sentencing act. on collateral attack let's have evidentiary hearings that rehash in many instances trial evidence. and if we keep going in this direction in fake of amake of t proceedings, grand juries, collateral attacks, sentencing, events that more and more resemble the plain event of a trial, we're going to have the democrat of ours collapsing of its own weight. there have been so many accusations at the criminal justice system. you know how sometimes when

somebody disagrees with you they throw so many arguments at you and you really say, gosh, i don't know where to begin? some of these things that are under fire, these days, are actually defendant-friendly practices, in my view. we're pursuing a counterproductive path in trying to do away with them take the question of preemptory challenges, i think most of you are familiar with those, it gives a criminal defendant and a prosecution a right to strike jurors from the jury for practicely any reason they want the case was made by justice thurgood marshall a long time back that preemptory challenges

ought to be done away with, that they ought to be abolished, and that particular position has been taken up, i don't think by my friend here, but by other critics. let's just do away with preemptory challenges to jurors altogether because there's too much of a chance that they're going to be used racially in order to disqualify african-american jurors that has some validity to it. there's a case before the supreme court where the race of the juror was actually marked down by the prosecution, used as a basis for preemptory challenges, and that seemed -- that case is not before my court -- but it seems to me that practice goes way beyond what we should be prepared to accept. but do we really want to abolish

presemptory challenges altogether? in most jurisdictions the defendant gets more of the preemptory challenges than the prosecution does. and the defendant's exercise of the challenges, exercise of the challenges is rarely challenged. but preemptory challenges fill in an important gap in the criminal justice system because challenges for cause are never likely to eliminate all-biased jurors from the system, a challenge for cause is when you have somebody and you say, well, he's a prosecutor's first cousin, we can have him or her sitting on the jury, as indeed we can't. but challenges for cause are simply the tip of the iceberg. you have to have preemptory challenges to fill them out. and a defendant certainly should be able to say, i can't really put my finger on it but i think

this juror has it out for me, has it in for me. i don't want this person sitting on my jury. and a defendant should be able, no questions asked, to strike that individual. so i part company, and again i'm not sure alec has made this point, i don't think he has, but i part company with a large number of critics who say that because they can be misused, as they can, that we shouldn't really use them at all. i want to deal with so much of what alex had to say dealt with prosecutorial abuse. and there are undoubtedly instances about where prosecutors have behaved in a shameful way. alex has highlighted some of those. ted stevens trial outrageous.

my friend is correct on that in every way. but alex, tell us you really didn't mean it when you said that you were you were going to, abolish absolute immunity for prosecution, for prosecutors. does your, does your position really take you that far? your article seems to suggest that we should do away with absolute immunity for prosecutions. and i disagree on that. i think it's very damaging to have a civil damages action brought against a prosecutor every time there is an acquittal. sometimes when you, and that's what would happen if we

abrogated this community, this immunity. and sometimes you can create, when you create a cause of action for civil damages, you run the risk of having five substantial suits for every one that might conceivably have merit. but you say, well, if we did away with the absolute immunity for prosecutors, what would we replace it with? and the answer i get most often, well, you don't have to have full absolute immunity. you can have qualified immunity, but qualified immunity really does turn out to be no immunity at all. because qualified immunity runs up against the summary judgment standard. and a summary judgment standard says that all inferences have to be given to the non-prevailing party, which we would never be

prosecutor in the event the prosecutor moved for summary judgment. and so the summary judgment standard would draw these cases into trial. and it, it, in the supreme court has said many times that an immunity is essentially lost if someone has to go through a trial to, to prevail on it. you can tie up prosecutorial resources in this way to an extent that more and more, we're going to have prosecutors doing everything but prosecuting. and the defendant, i mean, the supreme court has been absolutely firm on this question that we not overdeter prosecutors from bringing prosecutions that do need to be brought. sometimes prosecutors decline, for various reasons, to

prosecute cases that should be brought. sometimes it's easier to simply pick the low-hanging fruit. some case are easier and less risky to work up than others. and so you run the risk of going from one end of the pend lum to another, which i think would be the case of if we did what my esteemed colleague is suggesting. there's an attack on plea bargaining. leveled by some very sophisticated and thoughtful people. and the idea is that it's nothing but an assembly line, and because of the huge volume, people are just run through without any sensitivity to their rights. and we have guilty people

actually pleading guilty because of the risk that they might face a more serious punishment at trial. this picture of plea bargaining, which is at the heart of so much of the attack on the criminal justice system needs to be qualified. certainly, public defenders are correct when they say that they, that they're in need of more resources and that they have too many cases on their docket. but you can't deny somebody the right to cop what may be a very advantageous plea, because nowhere in the criminal justice process, nowhere does a defendant have more leverage than at the plea stage. prosecutor doesn't want to go to trial. he doesn't want to expend those resources. he's willing to plead. and rule 11 in the plea

bargaining process provides the criminal defendants with all kinds of options, having charges dismissed, having charges not be brought, having a judge accept the recommended sentence if the judge agrees to the plea bargain. after trial, those options are generally off the table of the defendant just doesn't have the leverage anymore. and the prosecutor's already spent those resources in trial, and he says, well, you have nothing to offer me now. i've already done this, i've already gone to trial. maybe they shouldn't be thinking that way, but that's the way it plays out sometimes, and a defendant, by going to trial, risks forfeiting a three-level reduction for acceptance of responsibility or, if he's patently lying, he's going to get a two-level increase for obstruction of justice.

i don't want to be misunderstood, because trial is a crucial right. people have every right in our country to exercise it. it would be wrong, incredibly wrong to pressure people to do away with it. but here's the thing. i talk to criminal defense attorneys, and they say, you know? i do have some regrets in my career. and some of those regrets center around plea bargaining. i should have encouraged my client to take a plea. instead, he went to trial and got clobbered. and they say, you know, trial is fun for me. it's fun for me as a criminal defense attorney. but i'm not the one doing the time. it's my client that's doing the

time. and i just, if i had encouraged my client to take this plea, he would have got and much better deal than he eventually did. prosecutors, we can go on for many, many more minutes, but i don't want to do that. i want to just, if i may have the time, summarize here something that is frankly very close to my heart. i commend the innocence project. talking about the horrible wrong that is done to an innocent individual. it's just horrible. and we can't really sugar coat that. it's wrong, also, in a lesser

sense to society, because it leaves the true offender at large. so you do a double injustice. and i don't want you to get the idea -- you might say judge wilkinson, you are a real stick-in-the-mud. that's what my wife and my friends tell me, so [ laughter ] you wouldn't be alone. join the crowd. is there anything you're for? yeah. a lot. in terms of reform of the criminal justice system. i think suggestions of body cameras on police are a good ideal. i think it's absolutely crucial that police and prosecutors who are conducting a lineup or a photo id, they should not know who the suspect is. because if they foe wknow who t suspect is, they're going to nudge and push them toward that individual.

so we need to have blind photo i.d.s which are much less, in my view, subject to manipulation of the suggestion that we have open files. we should move in the direction of prosecutorial open files, and i think the idea of video interrogations is something that should be discussed as well. i don't think these are constitutional values, but they're the kind of values at that ought to be brought up in the states and discussed among individual trial judges and they're the kind of things that may lead to some useful reforms. once we see how they work out. and different jurisdictions. so i don't want to constitutionalize them that introduces too much rigidity in the system, but i do want there to be dialog about these things and experimentation. and there's one last little

thing, and this won't take me long. i think it is sad today that the criminal justice system has become a scapegoat for all the different ways in which we have failed our disadvantaged communities. we have failed to provide opportunity, educational opportunities, opportunities in jobs and occupations and school. opportunities for a decent chance in life. and so many, so much of what we find to criticize in our criminal justice system is simply a reflection of this larger difficulty in not providing our disadvantaged communities what they're due. without the criminal justice system, though, it would make a bad situation even worse. we would not have, we would not have safe treats without a police presence. drug lords and gang leaders

would rule the inner city more than we already do. people would prey on the most vulnerable, and addiction would destroy more lives. after 9/11, people flocked to the criminal justice as a far better alternative than military tribunals. and when i talk to people who have come back here from abroad, they tend to respect the american criminal justice system more than any other with which they've been acquainted. so i urge you not to move from one extreme to the other, but let's recover this sense of balance as we view our criminal justice system. what i'm asking you to do is please give american institutions and this one in particular a fair trial. thank you. [ applause ]

>> queewe're going to have a ve brief second round, five minutes each. judge kaczynski? >> well, i'm grad to see judge wilkinson's come along to my point of view. i won't suggest that we need to tear down the justice system and start from scratch. he says well, there's nothing to do about the fact that trials take time and memories fade. but there are things we can do to preserve memories, and there are things we can do to keep memories from mis-chapin. and the judge has offered one thing, if you have a lineup, they shouldn't know who the lineup is. if they know who they are, they can communicate that to the defendants, to the victim. stuff like that, that kind of

change, that kind of incremental change can happen in all these areas. having to do with memory, having to do with conception, investigation, so on. judge wilkinson says we should move towards open file discovery. i'm with him. i think this is wonderful, and i think he and i agree on this point. that is an incremental change that really needs serious consideration. and i'm so glad to hear that he's on board. i mean, not at all ironically, i'm very pleased, and i thank k cato for bringing us together. judge wilkinson has spent some time talking about reforms i do not endorse. i do not think we should do away with peremptory challenges, and i certainly don't think we should do away with plea bargaining, everything he said on that subject i agree with.

and there are critics who make those suggestions, but i'm not with them. i will come out and disappoint judge wilkinson on absolute immunity. yes, it needs to go. just to make sure you understand what it means, absolute immunity means if you are a prosecutor and you manufacture evidence and you put it on trial, you went home, you create a document, you then go to court and present it as a document that has been, you do it on your photo shop machine or whatever it is, to make it look like it's in defendant's handwriting, introduce it at trial, you can, and defendant gets convicted because of that, you cannot be sued. you are absolutely immune. you do perjury, you are absolutely immune. you do anything to threaten witnesses, you are absolutely immune. and the reason the supreme court said don't worry about it, don't worry about it, because you give

absolute immunity to prosecutors, they will get prosecuted. because those things are crimes. well, for all those defendants and all those instances we have seen where prosecutors have misbehaved and have done far worse than i've suggested, when they manufactured, they intimidated, they have provided hidden evidence, they have concealed evidence of ex-pullen tory, knowingly kept it out, that resulted in 10, 15, 20, 30 years of people, sometimes people going to their execution, the total time that the prosecutor spent behind days has been six days. two prosecutors. ken anderson got nine days, nine days for the years that michael moore spent in prison. he spent four or five of them. five of them. and there's one prosecutor i can't remember his name who spent one day. prosecutors don't prosecute

other prosecutors. it doesn't happen. i just don't think it's a possibility. qualified immunity? i don't know. i'm glad, i'm so surprised to hear in the fourth second it's so easy to survive a motion for summary judgment in a qualified immunity case. we are firm, we are firm summary judgment for defendants in qualified immunity cases all the time. and what's more, and as judge wilkerson knows, if you file, if you see qualified imfunity, and you seek summary judgment on it and don't get it, you get an immediate appeal. nobody else in the federal system gets an appeal. but if you are subject to qualified immunity like a policeman or other officer you get an immediate appeal. so it's not like you have to wait to the end of trial to see whether that is done. so i think qualified imnunity is personally fine, and if prosecutors thought that being

actually held personally liable, even if it's paid for by the employer, by personal liability, maybe they wouldn't worry so much about coming off prosecutions where the only purpose is to put it on their resume so they can shop for a fat job afterwards. thank you. [ applause ] >> judge wilkinson, five minutes. >> we could go back on absolute prosecutorial immunity for a very long time. one of the things that troubles me about my good friend's presentation is that we, we do, when we talk about forensic evidence and when we talk about prosecutal, prosecutions that have never been brought, we always talk about things that misfired. but what you never, ever hear about are the prosecutions where

a prosecutor, in the exercise of good judgment sim briply says, the evidence here is too ambiguous to go forward with the cake or there are mitigating circumstances that should not, we should not go forward with the case. in other words, there are many, many, many cases where prosecutors decline to prosecute. and not one of them makes for the kind of vivid anecdote that the cases of ill-founded prosecutions do. but when you read these stacte -- statistical studies, please understand, that cases where there's decline to take action or inaction, they don't make the statistical studies, and they don't make the highlight reels and power point presentations, but they're real, and they save many, many individuals who should not be in the toils of

the criminal justice system from being swept up in it. and it's the same thing with forensic evidence. there are many times when that evidence is not introduced, because it's too iffy. and yet, when a lab doesn't introduce those things, are you ever going to hear about it? no. you're never going to hear about it. so i'm saying that those instances where evidence is not put forward because it's tainted or situations where prosecutions don't go forward, those are the great silences, but they often work in the defendants' favor. if i have just a minute or two, i'd like to talk briefly about sentencing, because it's a huge issue, and it's on everybody's mind. yeah, we've overdone mandatory minimums, but there were reasons congress put in mandatory minimums, and that was congress was very distrustful of judges granting such things as

probation for very serious crimes. if there was some judges who seem very intuitively incapable of imposing punishments. they do serve their purpose in some instances. mandatory minimums. because it's the fear of the mandatory minimum that encourages someone to turn state's evidence. now, do we always need a mandatory minimum to encourage someone to turn state's evidence and cooperate with the prosecution? no, we do not, but the prosecution has to have some sort of stick in this situation. why? because the small fry who are going to testify against larger drug lords and drug leaders, that takes guts. that takes courage. and there's likely to be retaliation when the, those higher up the chain of a drug

organization hear that you're cooperating with the state. and so without that, without a stiff sentence to balance the equation, you're h are not goin get cooperation and move up the chain in these gangs and drug organizations. why do we go after the small fry sometimes in why not just head to the top? well, because the leaders of an organization are far more skilled sometimes in covering their tracks and minimizing their risk. and pushing the smaller fry who get paid the least and bear the greatest risk. and you just, there's no practical alternative than to begin at the bottom sometimes when you're trying to crack a large organization, a very violence and ruthless one. and move up. i want to say something about whether sentences are too severe

and talk about sentencing guidelines. we moved from a wholly discretionary system, which is what we had. i want to tell you one little story back before 1987 when the sentencing guidelines weren't in effect. there were two wonderful judges in charleston, west virginia. and they were both friends of mine, and they were both honest and hard-working judges who wanted to do the right thing. they were at the opposite ends of the hall of the courthouse. and one judge, one judge is very often gave probation and a nice, sweet avuncular lecture. and another judge brought down the hammer, and it was perfectly clear that the lawyers' one task, paramount goal was to get the client before the right

judge. that was what needed to be done. and that is why the sentencing guidelines came into effect. we now have, we went too far and curbed district court discretion too much, but now what we have is gaul v. united states is a system which calls for guided discretion. at the same time, it gives district judges the ability to take the human individual before them into account. so this is an example of where the criminal justice system, after swinging from one extreme to another, the pendulum, god bless the pendulum that finally arrives in the right place and strikes the right balance. and this is what happened here. and maybe, alex, maybe alex and

i can close on a truly harmonious note. maybe you agree with me, here, alex. you're not nodding. [ laughter ] >> it depends on what it is. we still have mandatory minimums. if we do away with those -- >> i'm not for doing away with all of them. >> i guess the answer's no. [ laughter ] >> okay. [ applause ] we're going to open it up and take your questions now. die have three requests. when i call on you, please wait for the microphone so everyone can hear your question, please make your questions brief. and identify yourself. >> thank you, my name is steven keat, i'm speaking for myself.

judge kaczynski, i found your presentation very convincing. >> thank you. >> two slides in particular at the very beginning i found impressive. the one on prison population and the number of people in the world, the great number here in the united states, but i was wondering, two countries in particular, iran and china. only china was on the slide. they have a tendency to go into execute people fairly quickly. is that, you know, factored into your statistics at all ? i'm not trying to discount your statistics. i'm just wondering. >> i don't know. those are statistics i didn't consider. i do know they have executions in china. i dons thi't think they're in t millions or hundreds of thousands that would affect the figure significantly, but i don't know. >> yes, down here. >> thank you, wonderful

presentation, clark nealy from the institute of justice. sydney documents in her book that the debacle in d.o.j., systematic misconduct by the attorneys involved. i brief the worse punishment handed down was a transfer. ken anderson cost a man 25 years in jail with contempt of court he got less than a week in jail. should americans have confidence in a system where prosecutors regulate themselves and show such lenience in the face of such indefensible conduct? >> you want to start? >> i am not trying to create contempt for our criminal justice system. i do agree with much of what judge wilkinson says. it's a good system. it's a system that is made up,

largely, of people who try to do a good job and try to do it fairly and scrupulously. what i've pointed to is the fact that there are enough glitches, enough problems with the system that we as a society, ought to be worried. so when you say lack confidence, we should have confidence in our system, but i don't think it's inconsistent to have trust and doubt. trust but verify. our system in which we do have confidence and a long track record has problems with it, has issues raised that challenge that confidence, i think what we do is not develop contempt for the system but what we are to do is find solutions, be flexible

enough to take the criticisms into account and make the system better. >> i should warn you, i have a hearing impairment. and the harder your questions get, the worse my hearing becomes. [ laughter ] i was only making the point about hoping i could bring alex along, but i seem not to have succeeded. >> keep working at it. >> but we shouldn't abrogate absolute immunity for prosecutors, because what we're talking about here is a private civil action for damages. with probably very few restraints on it. and those will very quickly multiply and tie down resources to a great extent. now alex makes the point in

rebuttal that well, the prosecutors aren't going to prosecute prosecutors. but that seems to me to fall short, because it doesn't answer the question of why a private civil action for damages against a prosecutor is the remedy we want to choose. there are many other options on the table. and one of those options would lie within the department of justice. and you can have some sort of an integrity unit within the department of justice. is that infallible? no. but there are sanctions sought, short of prosecution. that's one idea. another thing is that the prosecutors who brought the ted stevens case which is just one of several examples of where

they way overreached. there are sanctions such as they should lose their jobs. that, that is quite a blot on your resume if you are kicked out of your job by superiors or others within the department of justice. all i'm saying is that there are a range of remedies that congress can consider every time it enacts a law. and it doesn't always have to be a private civil action for damages. that action will be abused and used every time there's an acquittal, whether the prosecutor proceeded in good faith or whether he didn't. >> well, what you see is actual promotions of prosecutors, not sanctions. remember, what we're talking about here is constitutional violations. we're not taking about making an error. we're talking about some

prosecutor doing something that is known to be contrary to the constitution, like failing, concealing evidence. now the poor schmuck cop on the beat who didn't go to law school may not even have graduated college is expected to know the constitution. and god knows if that cop does something that is established in the law to be a constitutional violation, he can be sued. now why should a prosecutor who went to law school presumably and presumably nows the criminal law much better, why should that prosecutor get better protection than the cop on the beat? i don't get it. it's only elitism. it is because prosecutors are like judges, and prosecutors sometimes were judges, in that just like us, we're out to protect ourselves. there's judicial immunity too.

if a judge does something, qualified immunity, why? because judges write opinions. what do you expect? [ laughter ] >> yes, sir, gentleman in the blue shirt. >> ian moses, my question is about the institution of plea bargaining. both of you said that you don't think it should be done away with, but now i don't know the statistics of how many of the people in prison are there for plea bargain, but i know it's a pretty large percent and, and there's certainly a lot of room for abuse in the process of plea bargaining and having to prosecutors pressure a defendant into giving up his right to a trial. so since you don't want to do away with it, i was wondering, can either of you make suggestions about how you think

the system could be reformed to make it less prone to abuse? >> jay, you take it, since you're so -- >> well, start with the supposition that everybody should be able to waive a constitutional right. and we allow people to waive their right to a jury trial. and that's just a fundamental right of choice in our system. so i think a person should have a right to strike a deal that's advantageous it ouous to him o. now there's some things that can be done. and one is to provide public de defenders with resources so they don't have too many clients. they say we simply can't give

people the punishment they deserve because we don't have the prosecutorial resources, and we have to bargain way down beyond what we think is necessary for public, public protection. now the question is, does plea bargaining induce someone, is there some sort of unfair pressure on somebody to plea bargain. and here i can only say that, yes, there is pressure. but more often than not, that pressure is exerted by the fact that the state's evidence against an individual is very, very strong. and we see the same thing in contract negotiations that one side may be pressured in a sichl contract by the fact that another side may be holding all

the cards. and we see this, you know, in a criminal trial, too. maybe somebody doesn't want to take the stand, but the state puts on a strong case, and then the criminal defendant says, wow, i better get on the stand and respond to what the state has put on. now, is that, is that pressure to take the stand? yes. is it a violation of the fifth amendme amendment? i don't think so. because someone has the right to take the stand or not. and the fact that the state has assembled a strong case may put pressure on you to plea bargain, but that's not, that's what's present in a great, great many cases, and it's not an illegitimate pressure.

what i do think your question points toward is if we can possibly provide more resources so that a public defender has not so many cases to deal with, that might help. >> okay. >> i have one -- >> let's move on -- >> i think this is important. there are two things that need to be done for plea bargaining. a lot of time prosecutors insist on bargaining before they provide exculpatory evidence. i would personally say that no bargaining be allowed until the pros security comes up with the materials so that the of defendant will not be bamboozled, will not give away evidence when in fact the prosecutor has exculpatory evidence. oftentimes, defendants get charged with something that may not be a crime, and they have no way of testing it, because the judges in the federal system will not dismiss indictments for

insufficientsy. now my law clerk, james berman has writ and piece suggesting that district judges take close look at indictments, force efficiency and that be apeaable so that the defendant will know in fact whether he's facing a crime. so i would make those two changes. and at that point, the defendant can know in fact what he is being charged with is in fact a crime and second that he has exculpatory evidence. >> okay, i see paul larken in the back. wait for the microphone, paul. >> paul larkin from the heritage foundation. i want to ask judge wilkinson a question, because i think a lot of the arguments you're making go to blue collar crimes where there is clearly a question that the defendant may or may not be the one who committed it, but there's no question a crime occurred.

in the white collar area, there probably is no doubt that everybody agrees what happened, but it may not be a crime. the rules that you're talking about may work very differently in the two systems, because if you're talking about the reasonable doubt standard helping the defendant, it doesn't help him if the question is whether what everybody admits happened is a crime. no judge decides whether this is a crime by beyond a reasonable doubt. they decide whether this is or is not a crime based on a more likely than not standard. what seems more persuasive so them. and when you have crimes defined by regulations issued by administrative agencies, you hardly have judgments that reflect deep-seated norms and retribution. that's what you wrote in your article. anytime you're talking about the white collar area, i think you have to look at this very differently, and i don't think your arguments always work in that area. >> i think you raise a very

interesting point. i really do. they are, they're different, they're different species to be sure. and one of the main differences, of course, is that the, what you referred to as blue collar crime, the vast majority of defendants are, are indigent. and they're going to be represented by appointed counsel or by public defender organizations. when you get to a white collar criminal situation, you have a different scheme of representation, which is that you're dealing in the main, very often, with retained counsel. whom the criminal defendant has, has chosen. now the problem with the blue

collar crime was a public defender may have too many cases. the problem with the white collar crime area, just because the lawyers have been retained and had chosen that doesn't necessarily eliminate the resource disparity. and the difficulty, often, it seems to me in the white collar area is that the agency, for example, and this relates to civil infracks as well as to criminal prosecutions. but the agency, because it's working on the public trust or the public fisk may have the resources to simply outlast you. and you're paying, you're paying for your counsel in that case. and the state can drag the investigation out. it can drag it on. it can drag it on. it can drag it on and bleed you.

and that's, it seems to me a problem both civilly and criminally that you have public agencies with large amounts of appropriations and resources and private defendants with limited ones. so i think it's, it's really a different paradigm, and i think it's something that really needs to be addressed, because there is a good amount of agency abuse. i've seen so many cases where they've kept people on the string for years and years and years. and i'm glad you raised that question, sir, because it does indicate that not all these situations are the same. >> yes, sir. no, no.

down here. first row. >> stewart doerson. i'd like you to comment on overcriminalization, both at the blue collar level where oftentimes plea bargaining is fueled by multiple charges, very lengthy indictments that oftentimes have mandatory minimums or would subject a convicted defendant to substantial sentences under the guidelines, and on the white collar side, paul mentioned the myriad of regulations that have criminal overtones. but more and more in the environmental crimes area, in the health care area, we're seeing congress pass laws or attempts made by prosecutors to charge crimes where mens rea

yeah is either not required or is virtually absent. can either or both of you comment on that? >> you wrote an article on this subject of overcriminal -- >> for cat ofte tchcato. >> and the article is "you, too, may be a federal criminal", yes, you, too. the reality is it's very easy to criminalize and to write very broad statutes, and even easier than implementing for federal agencies so that a lot of stuff that happens, that people take for granted, winds up being criminal or arguably criminal. and you add to that that very often the for whatever reason they want to go after somebody

they can stretch the terms of the law, or they can refuse, you know, as they did in various cases in arthur anderson, so on, argue whether or not there's an intent requirement. if you stretch these things far enough, there's really nobody you can't get. and nobody you can't put behind the eight ball and then force to the grim choice of going to trial and risking huge penalties or taking a settlement. and lest you be too worried that oh, the rich do better because they get big lawyers, they're taking care of that now because the federal government is going in and pre-trial seizing the money you were going to use to

hire a lawyer. so they not only want you fighting a crime where the risks are huge to you, where the terms are ill-defined, where they refuse an instruction to, they take a position that you don't get instruction as to scienta, but think want a lawyer who's willing to do it for nothing. this is the kind of abuse i think, this is the kind of stuff that worries me. i'm a little surprised at my friend jay wilkerson is so complacent about me. me, it gives me the willies. >> you want to comment? >> it's, the word overcriminalization is one of those that's thrown around. it's a very broad kind of phenomenon. i think part of, some part of it has been brought about by the fact that we have different species of crime, such as

cybercrime. and we have the internet, which is made possible all kinds of different crimes. and made more serious different crimes that probably didn't exist or didn't exist as a federal question beforehand. so i think when you're looking at the proliferation in criminal laws, you have to, you can't divorce it from some of the underlying changes in society that are taking place. criminal organizations for example are becoming more sophisticated. and many of their operations are cross state lines. and they do. and so that's an invitation for the federal government to criminalize those things if they cross state lines. so part of it is a response to

electronic crimes. part of it is a response to interstate crimes. that's part of it. another part of it is that also laters legislators like to take credit for enacting crimes. so that seems to be a lively political question. they feel they would answer this is horrible behavior, we're responding to the wishes of our constituents. people don't feel safe, well, that may or may not be true. and the point is, i think that what you raise is a good question, but i think it's more of a question for a legislative hearing and the political system to work itself out. as to whether prosecutors stack crimes and stack charges, yes, to some extent, they do. but can, can we, can we really

fault a prosecutor from enforcing laws that are on the books in and a lot of times they bring multiple charges because they don't know which ones the jury is going, the, a judge is going to dismiss. and they don't know which ones a jury is going to acquit on, and so it's a matter of hedging bets. all i'm trying to suggest to you is you're on to something, but i think there's a reason for the phenomenon. and i think that the fault may lie more with the impulse to criminalize for political credit, at the political level, but i'm not sure that can you go after prosecutors, because i'm not sure they can predict the fate of all the different crimes

they charge. >> i am afraid we have run out of time. but would you please thank both of our speakers. [ applause ] everybody here's invited to a reception that we'll be having in the winter garden, and we can continue the discussion there. thank you. on the next washington journal, we look at how congress is reacting to the syrian refugee crisis with congressman earl blumen hour. and then lou berletta. washington journal is live at 7:00 eastern on c-span. automaker executives and federal transportation safety

officials testify witness on the future of connected cars. the joint hearing of two house oversight committees will be live at 2:00 eastern here on c-span 3. a signature feature of c-span 2's book tv is our feature of book fairs and festivals across the country with non-fiction author talks, interviews and call-in segments. they will be live from the miami book fair starting on saturday. authors include peggy noonan. judith miller joins us to discuss her book. and newsman ted koppel on "lights out", surviving the aftermath. on sunday, speak with the authors live.

first, p.j. o'rourke takes your calls on "thrown under the omnibus." join us live from miami on c-span 2's book tv. be sure to follow and tweet us your questions #book tv. louisiana governor bobby jindal suspended his campaign on tuesday. the governor released a statement that says in part, now is the time for all those americans who still believe in freedom and american exceptionalism to stand up and defend it. mr. jindal's term as louisiana governor ends this year. the number of major republican candidates in the raice is now 14. next, ohio governor and

republican candidate john kasich on his agenda. he took questions for about an hour. good afternoon, and welcome to the national press club. my name is thomas burr. our guest today is ohio governor john kasich who is seeking the republican nomination and he hopes, eventually, the white house. i would like to welcome jerry zeremski. thank you, gentlemen. [ applause ] i'd also like to welcome our c-span and public radio audiences. can you follow the action on twitter using #npc live. that's #npc live. last weekend when the world learned of the attacks on paris,

john kasich was the first to call on nato to invoke the article v clause. we need to stand shoulder to shoulder with the french people. this is a moment to stand together. today kasich comes to the national press club to outline his national security strategy which includes rebuilding the u.s. military, revitalizing diplomatic alliances and recommitting to fundamental western values. the paris attacks have quickly turned the focus of the presidential campaign that had largely been concentrated on domestic affairs to questions surrounding u.s. foreign policy, especially the approach being taken towards the middle east. a week ago in the republican debate, governor kasich forcefully inserted himself into the dialog on a few occasions. today at the press club, the

second-term ohio governor has the stage to himself. [ laughter ] you can still interrupt if you'd like to. [ laughter ] kasich last month achieved an all-time high approval rating of 62% among ohioans. the state of ohio has turned an $8 billion budget deficit into a $2 billion surplus. his budget-cutting enthusiasm was demonstrated during 18 years in congress where he served as chairman of the house budget committee. prior to coming to washington, he was an ohio state senator, a native of pennsylvania, he moved to ohio to attend ohio state university where he graduated in 1974. at a time when polls show americans have a disdain for public officeholders, kasich has tried to turn the long experience into a positive by asserting that can he fix washington. we will see over the next few

weeks whether the paris attacks will put a higher premium on the experience or increase frustration with voters. please welcome john kasich. [ applause ] >> you did such a good job that maybe you can stand in for me at the next debate, what do you think? >> i'll give it a shot. >> okay. last friday in paris, it was made obvious to the world yet again, that there is an enormous chasm between the world view of civilized people and the world view of those who committed these acts of horror. we believe that life has value and meaning. they see no value, even in their own lives, let alone others. we believe the different views and ideas should be respected and these make us stronger. they believe the answer to disagreement is death.

we believe men and women are equal. they believe women are property. we live in the light of god's love for all creation. they pervert and hijack one of the world'sworld's principal re. we live in a world of respect for liberties, they live in a world of darkness, devoid of even the basic understanding of humanity. we forget these differences. it's at our peril. unless we want to see the bloodshed of paris visited here in america and in the streets of our allies' capitals, we need to get serious, immediately, about dealing with this threat. there can be no negotiating and no delay with this darkness, we must simply defeat it.

we cannot wait on a resolution to the syrian crisis to deal with isis. i'm not convinced that the talks a few days ago will be implemented on any schedule. and i doubt it will lead to any certainty over syria's future leadership. a cease-fire is supposed to occur within six months. and elections within 18, paving the way for a potential political transition in syria. i believe these are empty promises. what is more, with isis having directly threatened the u.s. homeland, we can't afford to wait. we must act now. we must invoke article v, the mutual defense clause of the north american treaty and bring nato together to assist our ally, france, in its defense. i agree with president hollande that friday's attacks were an act of war by isis on france.

and therefore, they were an attack on america and every other nato member state. nato came to our aid after 9/11. nato must now do so for france. we must be swift. we must be decisive, and we must be absolute. [ applause ] we must intensify international intelligence cooperation by identifying exchanging information on, tracking and if necessary arresting the thousands of foreign volunteers currently fighting with isis who then later return to their home countries. end to end communications, incrypting technology is leaving us in the dark. we need to illuminate these

technologically and we must invest more in human intelligence assets with which to terminate and neutralize these groups. our signals intelligence do not exist separate from one another. they accent and compliment one another and every effort should be made to leverage each for the other's benefit. we also need to reassess our domestic counter terrorism resources to ensure that our joint fbi, cia, counter terrorism task forces have the personnel they need to track potential domestic terrorists. we need to provide far more support to the kurds, both in syria and iraq. the kurds, who are fighting to defend their homeland fight like tigers. and they are one of the few groups friendly to the united states who really have shown that they know how to take the fight to isis. we must arm them much more, much more generously than we have

done so far. turkey has legitimate concerns about arming the kurdish ypk in syria. we must work to address their concerns, as we insist on addressing a threat to the vital national interests of america and the rest of the world. we must create safe havens, protected by no-fly zones, i first called for no-fly zones early last month in order to relieve the suffering of syrian refugees and reduce their need to travel to europe. these sanctuaries should be located on the turkish and on the jordanian borders. our jordanian and kurdish allies should provide protection for them on the ground, while the united states provides protection from the air. we must arrest human traffickers, prosecute them. put them in jail and confiscate their ill-gotten gains. we must create an international could i ligs to defeat isis in syria and iraq.

we must join with our nato allies, and importantly, with allies in the region as well. that would be the turks. the jordanians, the egyptians, the gulf states, the saudis to organize an international coalition to defeat isis on the ground in its heartland, experience, of course, has shown that an air campaign on its own is not enough. we must be more forceful in the battle of ideas. u.s. public diplomacy and international broadcasting have lost their focus on the case for western values and ideals and effectively countering our opponents' propaganda and disinformation. i will consolidate them into a new agency that has a clear mandates to promote the core judeo christian values that wian our friends and allies share, the values of human rights, democracy, freedom of speech,

freedom of religion and freedom of association. and it should focus on four critical targets, the middle east, china, iran, and russia. sophisticated strategies will be developed to communicate with each of these hard target countries. the challenge posed by isis in syria and iraq is a symptom of a broader weakness in america's national security policy. failing to advance our values in the battle of ideas, not doing so against the threat such as isis or if plan places such as and iraq is interpreted by others around the world as weakness. the administration's desire for an iran nuclear deal at any cost is another example. in weakness invites challenges, and attacks of the kind that we have seen from nations that do not share our values, such as china and russia. by invading georgia, annexing

crim crimea, fomenting a proxy war in ukraine, building out its base structure in belarus, russia has once again become a threat to european security. russia's leadership today does not respect the basic tenets of the international order. namely, territorial integrity and the rule of law. those are basic values of international relations and russia's failure to respect them is simply not compatible with constructive relations with the west. we must work together with our european allies to defend a free ukraine. that includes training and arming ukrainian forces with the weapons that they have asked for and which congress has already approved. it also means focusing on the defense of new nato member state the on the front lines with

russia, such as poland, lats via, lithuania and estonia. nato must be vigilant and protective of its easternmost states who live every day in russia's shadow. we must focus on supplying and equipping them in achieving interoperabili interoperability. increasing cooperation with finland and sweden and building a new, strong, integrated air defense system on nato's eastern border. we must also learn the lessons of crimea and develop an exercise contingency plans for dealing with future russian provocations. you know, there are no such t n things as little green men or volunteers. if they reappear, i will take

u.s. forces in europe and around the world to heighten combat readiness in order to be able to intervene in support of our friends and our allies. while russia's actions are forcing us to take tough measures to achieve peace through strength and safeguard our friends and our allies, i will make it claear that the dor to negotiations remains open. i am confident that by sitting and talking together with our allies, russia and america, that we can forge a new european security architecture that accommodates their interests without damaging those of nato member states. the same is true for our relationship with china. the weakness we have shown toward russia is really no different than that we have shown towards china. its efforts to control the south china sea and seabed resources to which it is not entitled are blatant violations of international rules and norms.

these are bold-faced efforts to do nothing more than bully its neighbors. because of those efforts, we must now stand by our western pacific allies who rightfully feel threatened by china's blinl rinse. that means working with our regional allies to significantly increase our military presence in the region, to ensure freedom of navigation for the 5.3 trillion in annual trade that passes through the western pacific. we must forward deploy our pacific combat commander to guam and station additional marine force and marine corps units in the west pacific. we should increase pacific navigation and submarine patrols. we should conduct regular amphibious landing exercises. we should help our japanese allies defend their territorial waters by installing seabed acoustic systems, rocket launch

torpedos. to deal with the nuclear threat posed by north korea, i will work with south korea and our other regional allies to revitalize counter proliferation activities and to build ballistic missile defenses. the u.s. does not seek confrontation with china. we should remain open to working responsibly with our allies and with china as an equal stakeholder. together we should be able to forge innovative solutions and institutions that respect and accommodate the national security interests of all pacific powers. the same mistakes in judgment and strategy that have left terrorism flourish in recent years and wrongly signal weakness to russia and china are found throughout national security policy right now, and it all comes down to this. we have not led, because leadership has not been a priority.

we have been contempt to let the tools of leadership, our military and alliance relations become weak and frayed. we've even hesitated to express and live bit values at the core of who we are. it's time for change before it's too late. we must rebuild our nation's sorely neglected military from the bottom up. this doesn't mean like some we rush to fund every general's wish list. instead, we must assess our combined allied capabilities and identify the needs and gaps in dealing with threats that we face in each region of the world. this means being strategic about rebuilding our military, matching it to the threats that we face and complimenting the capabilities of our allies. we must also be more careful in how we spend our military dollars, especially on weapons systems. we can make our dollars go further and get our troops the

equipment they need faster by rewarding on-target cost smipt estimates. insentivizing contractors and program managers to be ahead of schedule and under budget. using off the shelf technology as much as we can and putting in place criteria for design changes. likewise we must ensure that sc scarce resources reach those who need them most by streamlining the pentagon bureaucracy. we need to provide greater flexibility, both to hire the talent we need and part company with consistent underperformers, and we must recognize that cyberspace is a battlefield as well that deems our attention and resources. we must not shy away from turning to the private sector for much-needed help to protect

ourselves and to take the battle to the enemy. we can and we must take out of the resources that our enemies use to wage war online. not only do we need strong, decisive, multi-lateral agreements to respond to anyone who attacks our governments and private sector and allies, but we need an aggressive strategy to go after the cyber resources of our enemies.