not doing so is shortsighted, misguided and fails to achieve long-term u.s. interests. and it throws the victims under the bus. one way to send an important message about u.s. policy priorities is to pass the vietnam human rights act, hr-2140, which i have reintroduced in this congress and is now awaiting further action in the house and senate. i would note parenthetically past iterations i've introduced the vietnam human rights act in previous congresses had passed the house three times only to be ignored in the senate. the bill stipulates the united states cannot increase nonhumanitarian assistance to vietnam until the president certifies that the government of vietnam has made substantial progress in establishing human rights protections. the american people should not have to subsidize torture or underwrite the jailing of journalists, religious leaders,

labor activists or advocacies of democracy or internet freedom. the bipartisan vietnam human rights act will restore the right priorities to u.s. policy toward vietnam. communist party is not vietnam's future. that future lies with nguyen van dai and many other advocates of political reform and human rights who seek our freedoms more than our trade. u.s. policy must send the unmistake bl message to the government of vietnam that human rights improvements are fundamental to better relations. critically linked to our mutual economic and security interests and will not, i say, again, will not be ignored or be bargained away. i'd like to now introduce our very distinguished witness today, miss vu minh khanh, who is the wife of human rights lawyer, mr. nguyen van dai, who

as i said earlier was arrested december, december 16th to be exact, in 2015, under article 88 of the vietnamese penal code for, quote, conducting propaganda against the state. since his arrest, miss vu has advocating for his release, meeting with international delegates, giving interviews with various media agencies to raise awareness on dai's case. she's volunteered at a church in hanoi and has been doing so since 2009. the church reaches out to many vulnerable groups. including those who suffer from drug addiction, orphans, and youth. in addition to providing support and counseling to groups, miss vu assists with the daily financial management of the organization and works to promote and protect human rights through the church. i'd like to now yield to our

distinguished chairman of the full foreign affairs committee, mr. ed royce. >> i just would start by thanking chris smith for holding this hearing at exactly the right time because now is the time we have got to get the attention of the international community on these human rights abuses. and so, yes, in a few weeks the president of the united states is going to be traveling to vietnam and while maintaining peace notice south china sea and improving trade ties is an important shared goal, the administration must carefully take into account vietnam's human rights abuses as this relationship develops. and that is the conundrum because this has not gotten better. i've met with the venerable leaders as well as religious leaders in vietnam when they were under house arrest years ago. i heard about the circumstances. i check in with human rights ngos and as we all know, this situation is not improving.

human rights have got to be at the very top of the president's agenda. no matter how the administration frames our relationship, the reality, as we all know, that vietnam remains a one party communist state. with significant human rights abuses. and as we will hear today from the wife of imprisoned human rights lawyer and activist, and i want to thank chris smith for his efforts here to elevate this issue, but as we'll hear nguyen van dai, she'll share with us the reality that vietnam has a long, long way to go. in december nguyen van dai was badly beaten by government -- well, i guess we should call them thugs because they beat her and taken into custody. and since that time, he -- took

her husband into custody. since that time, he's been denied access to his lawyer and even his family. he sits in solitary confinement. his condition is unknown, and miss vu is rightly concerned. sadly, nguyen van dai's treatment is far from -- according to human rights watch, police still frequently -- human rights watch says they frequently torture suspects to elicit confessions and sometimes use excessive force in responding to protests over evictions, land confiscation because land grabbing is one of the things the party does and other social issues. so last year more than 40 bloggers and rights activists were beaten by plain clothes government agents. not surprisingly, not one of these thugs who did the beating was held responsible. vietnam's penal code

criminalizes criticism of the government and abuse of democratic freedoms, while other laws restrict freedom of religion and the media, bloggers like is it anba sam and nguyen tai and others remain in prison for their advocacy of human rights, imprisoned for what the state, what the communist party calls abusing the rights to freedom of democracy. not surprisingly, vietnam now ranks in the world 175th out of 180 countries for press freedom. now that means vietnam is behind cuba, it's worse than saudi arabia, it's worse than iran. that's why we're here at this hearing.

freedom of religion is a significant concern in vietnam as the government continues to restrict religious practice through registration requirements, through harassment, through surveillance, branches of the buddhist church and independent catholics and protestants are banned. they face government harassment for their peaceful religious practice and one religious leader who both chairman smith and i have met with has remained under house arrest since 1998 for his religious beliefs. the united states and vietnam are to build a stronger relationship, the vietnamese government must honor the basic human rights of vietnamese people with respect to freedom of speech, religion, assembly. and that's the message the president of the united states needs to send during his upcoming visit. i wrote to the president last

week asking that he carry exactly that message. we're all watching. the president's trip cannot be a replay of his trip to havana. we have to have these issues addressed. mr. chairman, thank you again for calling this important and timely hearing. >> chairman royce, thank you for your very eloquent and strong statement and consistent support for the human rights advocates in vietnam and especially today for nguyen van dai who is suffering again. he's back into prison, as i said in my opening. four years of prison, four years of house arrest. without objection, a very, very well-written appeal that ms. vu made at the time of the first arrest. without objection, i would like to make it part of the record and i yield the floor to ms. vu for as much time as she may consume.

>> translator: first of all, i would like to deeply thank chairman chris smith and chairman royce for giving me this precious opportunity to speak. [ speaking foreign language ]

>> translator:s my name is vu minh khanh, wife of attorney nguyen van dai. dai is a human rights defender now in jail. [ speaking foreign language ] >> translator: my husband was first arrested in 2007 then sentenced to 4 years imprisonment plus 4 years of house arrest for violating article 88 of vietnam's penal code for, quote/unquote, conducting propaganda against a state, unquote. my husband was disbarred and his law office was shut down.

[ speaking foreign language ] >> translator: after having just completed his house arrest, my husband was arrested again on december 16th, 2015, and charged with under the same article 88. my husband had been detained for almost five months now, yet i have not received any information about him. he has been held incommunicado and not allowed to meet with my family, myself nor with his defense lawyers. [ speaking foreign language ]

>> translator: twice a month, i am permitted to bring flood to detention center b-14 in hanoi for his daily needs, but i don't know if he has received any. in fact, i do not know if he's honestly held at b-14 because in vietnam, the public security force can do whatever they want. if they transform inmates, they do not inform the family members accordingly. for example, this has happened to a blogger and currently another. first, if, in fact, my husband has been tortured physically

and/or mentally or given false information, i would not know. [ speaking foreign language ] >> translator: my husband has not been allowed to receive a copy of the bible, a gift from the u.s. ambassador, mr. ted arsias. [ speaking foreign language ] >> translator: specifically, ten days before his arrest, he was attacked and severely injured following a human rights training session for about 60 people in the province. about 300 kilometers from hanoi. having been attacked ten days ago prior, his injuries had not healed. he was then arrested on december 16th.

[ speaking foreign language ] >> translator: throughout his human rights activism, my husband was constantly followed, threatened, harassed, and beaten. each time dai was attacked, it related to his work because the government did not like it and

had requested him to stop doing human rights work. however, my husband believes his at this time are within his rights under the vietnamese constitution and international law because the police constantly follow my husband all day, i believe that the vietnamese government would know clearly who attacked him. however, the government claims they do not who the assailant were. my husband accepted the risks that come with these activities and, in fact, this is the reality that human rights activists in vietnam have to face constantly. [ speaking foreign language ] >> translator: my husband also has hepatitis "b," therefore, i am very worried about his health condition. [ speaking foreign language ]

>> translator: my husband experienced democracy initially in germany. having pns witnewitnessed the fe berlin wall, he then returned to vietnam and studied to become a lawyer. in 1997, my husband ran for the national assembly with the hope that he could speak up for the people. in 2000, my husband officially began his activism and fought for freedom of religion. the first human rights case my husband took was in 2000 when he defended a member of the protestant church who was brought to court because she tried to stop the police when they came to disband a prayer service at the local church.

[ speaking foreign language ] >> translator: thereafter, my husband provided free legal service to the christians who were oppressed based on their religion. those who fought for democracy and human rights, victims of land grabs or home loss, and two people who were physically attacked and arbitrarily detained. he also led training courses about human rights at his law office. [ speaking foreign language ]

>> translator: since he started his activism in 2007, aside from the 4 years he was imprisoned, and right upon his release, my husband immediately continued to raise his voice to protect human rights even when he was still under house arrest. and he always fervently tried to fight for freedom of religion, freedom of speech and freedom of assembly through nonviolent methods and through providing education on human rights.

my husband always focused on empowering the youth and help many students who are human rights activists. he start classes on human rights for different people within society and wrote articles on the rule of law. my husband usually worked with many others and connected organizations with each other within the country. he also advocated with foreign governments, as he had a good working relationship with many embassies in vietnam and government officials from around the world. [ speaking foreign language ] >> translator: regarding my husband's arrest in 2007, the police arrested him at his law office while he was teaching a class on human rights to his students.

the topic of the class was based on a book on civil society, which the american embassy in vietnam had published. [ speaking foreign language ] >> translator: as for his arrest this time, it was while my husband was leaving the house to meet with the delegation from the european union who were in vietnam for the annual european union/vietnam human rights dialogue. [ speaking foreign language ] >> translator: my husband is currently facing from 3 to 20 years imprisonment. [ speaking foreign language ] >> translator: he has worked hard to protect human rights and

these activities cannot possibly be seen as criminal. therefore, i hope that congress and the u.s. government, especially president obama on his trip to vietnam, will help demand for his immediate and unconditional release. [ speaking foreign language ] >> translator: i sincerely thank you for spending time to listen to my husband's case, respectfully. >> ms. vu, i would like to thank you for your absolutely compelling testimony that will be heard by many in america and hopefully around the world. as you've been telling your story, i'm glad other news outlets have not only carried your op-peds and your very profound words and sentiments, but know that the congress as well is listening and listening

very carefully. i want to thank c-span for being here so a larger american audience will get to hear you and to realize that things are horrific for your husband. i to have a couple of questions. i'd like to thank dr. bin for doing the translation today for us. deeply appreciate that. and your advocacy as well. i have a couple questions. you know, you point out in your testimony that use husband was arrested this second time as he was leaving the house to meet with a delegation from the european union who were in vietnam for the annual human rights dialogue. i'm wondering, first of all, i believe the dialogues are essentially, but they should not be seen as a substitute for very significant, tangible impacts and consequences to countries like vietnam, the government of

vietnam, that commits egregious violations of human rights against its own people. dialogue is great. we need to talk. no one's ever suggesting that talk needs to be suspended, but it needs to be linked to real consequences in the real world like the lifting of an arms embargo, like greater trade and other kinds of interactions between the two governments. i'm wondering if any of the members of the european parliament who are here for that dialogue have raised their voices in support of your husband after he was afs rreste. again, en route to meet with them, to dialogue with them about what the government is doing on human rights in vietnam.

[ speaking foreign language ] >> translator: i am not sure what transpired between the conversation of my husband and the european union delegates who met with my husband prior to his arrest, but i do know that after his arrest, they actually contacted me and met with me and show a lot of support. >> that's so extremely

important. this is a united world. not just the united states. speaking about the universally recognized human rights. i would hope, as well, as you point out in your testimony that the continued gross mistreatment of your husband and others would become the sunbject of the huma rights council. the u.n. human rights council. where vietnam sits in a place of dignity as a member of that council. it is breathtakingly disturbing that an abuser of human rights could simultaneously be an arbiter of how well or poorly other countries are doing. first, fix your own house and get that in order. so i think we need to press the case there as well. let me ask you, if i could, about the -- how you have been treated by the authorities. you mentioned in your testimony that an attempt for your -- his

defense attorneys to get certificates has not been allowed. could you further elaborate on what that process is all about? and how you, yourself, have been treated when you advocate on behalf of your husband. [ speaking foreign language ]

[ speaking foreign language ]

[ speaking foreign language ] >> translator: so in short, when, after his arrest, when i hire three lawyers, they were refused to be able to meet with dai nor able to proceed with any legal actions for his case, to prepare for his case. at for myself, i noticed that there's a camera constantly in front of my house following all my activities in front of the house, and i have tried to visit my husband and always denied to see my husband when he is incommunicado. in addition, have requested to be able to bring him the bible

or have rights -- visitation right and/or for other family members to visit him but have all been denied. i have written complaints, but not received any verbal or written response for the government. >> can you tell us, to the best of your knowledge, how your husband was treated when he was imprisoned the first time? obviously four years in prison followed by four years of house arrest. what were the prison conditions like? [ speaking foreign language ]

[ speaking foreign language ] >> translator: so to complete her previous statement, she had also mentioned that the

harassment puts a mental stress on her, and also the fact that she knows her husband has hepatitis "b" and was beaten severely prior to his arrest. she is constantly worried about not being able to see him as he is incommunicado. in 2007, he was put in a cell with 60 other inmates. the cells were so contaminated they had to filter the water with their socks. there were harassment by the prisoners in the same cell, and also puts a lot of stress with constant observation and surveillance from the government during his jail time. >> you mentioned that he was beaten by thugs in the taxi or when he was cornered and that they beat him around the face. were his teeth broken? did it require stitches? did he get any kind of medical attention?

[ speaking foreign language ] >> translator: during the beating my husband had suffered a lot of beating to the face. especially he had sustained hemorrhage to the eye globes, so he was undergoing some evaluation then he was arrested. in addition, his body was

covered with bruises all over. >> has the american personnel at embassy hanoi been helpful? have they tried to visit him? have they been allowed any access to him? have they even made the attempt? [ speaking foreign language ] [ speaking foreign language ]

>> translator: immediately after his arrest, i was invited to the private residence of ambassador, u.s. ambassador ted arsias and he gave a lot of support and comfort, especially he also gragave me a bible to give to my husband while he is imprisoned. however, when i brought the bible, it was denied so my husband never received the bible. in addition, the embassy has mentioned that i could meet with them at any time. >> let me just make a couple of final observations and ask if you have anything further you'd like to say. i can assure you we will continue our efforts. i see dr. tan from s.o.s. is here today. i met, as i mentioned earlier, your husband in hanoi on a human rights trip in 2005 at his law offices.

and even though he spoke glowingly about his vision of a vietnam where everyone possessed fundamentally recognized human rights, universally recognized human rights, i -- there was a total absence of malice on his part toward the people in the government. i mean, when i hear that the government, as you have pointed out, has cited article 88 of vietnam's penal code conducting propaganda against a state, i was with him privately. matter of fact, some of the people who were en route were detained and not allowed to go to his law office that day to meet with me, but there was no propaganda against the state. there was a love for the vietnamese people that was very deep and very profound which i found just -- i was almost speechless how he could have endured so much, known about so much wrongdoing and yet he spoke

about human rights in the most purist of terms and had such a clarity of purpose an him. and so the vietnamese government needs to know that we're inspired by nguyen van dai and growing numbers of members of parliaments, congresses will rally to his defense, and your testimony has sent a clear message to the world not just at this venue but everywhere else where you have spoken. how can a government do what they're doing to your husband who only desires the best for the country of vietnam? so i want you to know that you have been an ins piration and h has been an inspiration. when i met with mr. dai, and dr. with dr. tanga a year later here, again, i was touched with

that absence of malice. he did not engage in tirades against vietnam or its government. he spoke about defending human rights, and caring for the disenfranchised, the people of faith, which i found just incredible, and i do hope that that is not lost. there are always reformers in any dictatorship or any repressive government. they need to know when he's away from them, when he's talking to members of parliament or congress in his office or in washington, his message is one of hope for the people of vietnam. and so i want you to know what an inspiration your presence here is today. if president obama were sitting here where i'm sitting, or if the prime minister of vietnam was sitting here, what would you say?

[ speaking foreign language ] [ speaking foreign language ]

>> translator: if the president were sitting here in front of me, i would plead with him to help the people of vietnam. when he fights for human rights in vietnam, he helps the people. the people of vietnam have suffered a lot through all these years of war, and now if the president could help to promote human rights in vietnam, that is what i ask for. the reason they arrested my husband and now i'm asking for his release while the president is there is because he

represents a symbol of nonviolent fighting for human rights and democracy in vietnam and that is why his release would be crucial for the people of vietnam and that would also be symbolic of the president's support for such movement in vietnam. and as you have requested, i have just a few more points to add, please. [ speaking foreign language ]

[ speaking foreign language ]

[ speaking foreign language ] >> translator: i would like to present to you, mr. chairman and also the u.s. congress that i'd like to plead the case of my husband. i did not understand why he was arrested under penal code 88 when he's a human rights activist for nonviolent movements and also when they came to the house they took away the issue of civil society that was published by the u.s. embassy in vietnam. they also took away any materials that my husband has from the united nation human

rights council especially even the symbol of the dove which my husband believes it represents peace and nonviolent movement for human rights. they took everything, envelopes, papers, anything that has that symbol on it. and then one particular thing that i would like to point out is all the t-shirts that has the word "hong kong today, vietnam tomorrow," were also confiscated as an artifact to be used against my husband. [ speaking foreign language ]

[ speaking foreign language ] >> translator: to share with you my thoughts why i am here and, first, thank you so much for holding this hearing. this is very important. it is because back in 2007 i had written over hundreds of complaints to different agencies

and never heard anything back. this time i have tried the same written many complaints and also visited many of the agencies just to try and see if anyone would respond to my request. and none of them had responded in any way, verbally or writtenly, to me, and i have met with a lot of obstructions and ignorance from these agency. in addition, i feel that because if i could go outside at my own risk and raise this voice to the world, then i would be able to present my husband case so that more people would know about a situation in vietnam and my husband is just one of the many people who are in similar situation. [ speaking foreign language ]

[ speaking foreign language ]

>> translator: just to recount what happened in 2007, the the lawyer only had 7 days to prepare for his trial back then. specifically when i went to the investigation unit, they had sent the papers to the judicial office but there is no clear evidence against my husband at that time. so, in fact, i'm very worried about similar situation this time. [ speaking foreign language ] >> translator: i'm really worried that if that repeats, the lawyers for dai only has a

few days just like the previous time, then there is not enough time for them to prepare the trial for dai. [ speaking foreign language ] >> translator: so, i would like to request that my husband be released unconditionally and immediately, but in case he does go to trial, i really want a fair trial and also for his lawyers to have the time to prepare for his case.

[ speaking foreign language ] >> translator: thank you, chairman smith, for holding this hearing. please accept my deep gratitude and also to all the staff members who have made this possible. i really appreciate all of your caring and support throughout this very difficult time for myself, my husband and my family. i would like to know as a request whether, mr. chairman, together with other members of congress, could write a letter

to president obama asking for his responses first to this hearing and also to other requests that have been put in my statement previously. thank you. >> ms. vu, thank you. we'd be more than happy to send other issues of conscious in a specific fashion, not in a oblique mention in a wide-up statement or some generalality, there needs to be specific requests made so we can engage whether or not vietnam is about to move in the right direction or continues its deterioration when it comes to human rights. there are a number of areas where human rights violations are -- are worsening. human trafficking, religious freedom and the administration could today designate vietnam as a c pc country, a country of particular concern. the facts warrant it.

and they could also be known as a tier 3 country when it comes to egregious violations of sex and labor trafficking, especially labor trafficking in vietnam. so the president has tools in his tool box -- the president of the united states. we hope that he uses them. and as per your request, we'll send your testimony and your strong appeal backed up by our strong appeal and we'll do it immediately. and again, i hope the president is specific. just some general statement about human rights doesn't cut it. it hasn't in any other country around the world. and it hasn't in vietnam. he needs to be specific. so i want to thank you again for your very brave testimony. thank you for your husband's tremendous personal sacrifice for the cause of vietnam human rights and religious freedom. he is a truly remarkable man as are others who are fighting this

battle with nonviolence and with faith. know that our prayers are with you and with him. we are in solidarity with them, i can assure you. and i would like to note for the record that we will be having a follow-up hearing to this hearing in mid-june, latter part of june, 23rd or so, and we will be assessing the president's trip and whether or not any progress was, indeed, made. so again, i want to thank you so very much for your testimony and doctor, thank you for your very fine translation. the hearing is adjourned. thank you. [ hearing adjourned ]

>> we have doa first and then

you go second. >> [ inaudible ]. >> mr. chairman, throughout the hearing today, what would you think would be the next step now for the u.s. to help vietnam on improving human rights? >> well, i think the next step is for the president to make very clear that we want deeds,

not words -- deeds, actions. and mr. dai's release and the release of other prisoners would be a very, very serious and positive step to the vietnamese government to make. and it is doable. the president has to ask and he has to demand. because the vietnamese government wants certain concessions from the u.s. the government to government. we want freedom and respect for human rights. and nothing for ourselves, but for the brave people like dai. >> through the hearing of miss dai's testimony, would you have any more facts or something that you never heard before about the human rights situation in vietnam? >> well, it is deteriorating. and that is very troubling.

after world war trade organization, the bilateral agreement as well, there was great expectation. i was, frankly, not that encouraged that things would happen but there were people who thought vietnam would turn the corner and start respecting human rights. precisely the opposite has happened. and they're in -- unfortunately, in a dive. a nose dive when it comes to respecting religious freedom, other fundamental human rights and that has got to change. vietnam -- the people of vietnam are wonderful people. they deserve better than what they're getting from their own government. they deserve freedom and democracy. >> thank you very much. >> thank you.

>> how are you? >> thanks for organizing. >> nice to meet you. i work this with guy all of the time. >> thank you. >> so we'll get back to you. >> mark. >> thank you.

this sunda night on q&a, historian adam hochs child on the american involvement in the spanish civil war in the late 1930s. >> this coup attempt happened in spain when all over the country right wing officers tried to seize power and in parts of the country succeeded in seizing power and it she a shock wave of alarm throughout the world because here was a major country in europe, the right-wing military quickly backed by hitler and muso lienee who sent

tanks and mussolini sent 80,000 troops and the spanish right making a grab for power and people all over the world felt it should be resisted. if not here, where? otherwise, we're next. >> sunday night at 8:00 eastern and pacific on c-span q&a. next a discussion on the legacy and influence of the late supreme court justice antonin scalia. a group of his former law clerks and current litigateors and law professors examine his career which ended with his death in february at the age of 79. held by the university of california berkeley, this is an hour and a half. welcome to the berkeley federalist society final public gathering for this academic year. justin antonin scalia, an exceptional legacy. i'm so han dasgupta, the outgoing president of the chapter and we're grateful for

the gracious support you've given us throughout the year. you've meant so much to us. we are endebted to our distinguished panelist who have come together to celebrate the distinguished legacy of justin antonin scalia. today's stewardship spence, mr. kevin walker and mr. david derek. today's event is an existence to the brilliant and storied legacy of justice scalia. he served on the supreme court nor nearly three decades, one of the langest tenures on the institution. marking one of the milestones on the court, chief justice roberts said since scalia came on the supreme court, the place has not been the same. indeed, kagen remarks that justice scalia will go down in history as one of the most transformational supreme court justices of the nation. his views on interpreting texts

have changed the way we think and talk about law. all interpretation and sub species originalism and constitutional construction, his principle and courageous opinions an dissent in area after area of american law and his personal decency provide a paradigm that all may aspire. we address that he served on the court with such valor and distinction. i met the justice when he came to the oxford union. we were all of 22 years of age but even then we appreciated the mind and the soul and the heart we had amidst us. the justice often acknowledged that he wrote his opinions particularly his dissents for contemporary law students and young lawyers. he's inspired several generations to think and reason critically and maintain jebber osity of spirit. our four distinguished jurist today, a former solicitor general of texas, they knew the justice personally.

three who clerked for him and one who clerked for his great friend clarence thomas who justice scalia called brother clarence in amity and admiration. we have miss skriftin myles. she is a litigation partner in a san francisco office. his practice focuses on complex business litigation. he was selected as one of the national law journals outstanding women lawyers. for many years she's been named among california top women lawyers by the daily journal and p profiled by law 360 as a female bar broker. she served as a law clerk during october term 1989 and for judge ginsburg on the d.c. circuit. douglas ginsburg. she graduated magna couple laudy from harvard in 1988 and graduated from harvard as well. and we also have jonathan f.

mitchell, who served as the solicitor general of texas until january of 2013. he is from the hoover institution at stanford and visiting professor of law at that university law school. he received his law degree with high honors from the university of chicago. during his time as solicitor general mr. mitchell argued before the supreme court of the united states, the federal cords of appeal and the supreme court of texas and numerous trial courts. after graduating from law school mr. mitchell was a law clerk to judge ladig of the fourth circuit and for justice scalia during fourth term of 2002. he served in the olc of the justice department from 2003 to 2004. profess juror ramsey clerked for scalia during october term 1990. he practiced international business law with lathe ham and watkins and joined the san diego

school of law faculty and he teaches and writing in the areas of constitutional law foreign relations law and international business law. he was awarded the law school university professorship for the 2012 and 2013 academy year and he earned his j.d. from stanford. >> and we are lucky to have john [ inaudible ] at chapman university fowler school of law and he also served as the school's dean from 2007 to 2010. he is the founding director of the center for constitutional juris prudence there. prior to joining the fowler school of law faculty in '99, he served as a law clerk to justice thomas during october term 1996 and with judge lattic at the fourth circuit. he earned his j.d. from the university of chicago law school where he graduated with high honors. finally, the federalist society for law and public policy studies is a group of conservatives and libertarians interested in the current state of the legal order. it is founded on the principles

that the state exists to preserve freedom that the separation of governmental powers is central to our constitution and that he is em fasityic the providence and duty of the judiciary to say what the law is not what it should be. first we'll hear from the panelists and then i'll pose questions and finally we'll entertain your questions. so let's begin. >> hi, my name is kristin myles. when justice scalia joined the court, i was still in law school. during those years, harvard was the home of critical legal studies and other deconstructionist theories. and constitutional law seems like a blur of fuzzy thinking and policy consideration and multifactor balancing tests. contract law likewise focused very little on the process of interpreting contract lang or applying the rules of construction in more on considerations of fairness, equality of bargaining power and similar issues. statutory interpretation was not a subject at all. it was simply not taught in law

schools, including at harvard. but already by the time i graduated in 1988, justice scalia had begun to have an influence on legal thinking even in law schools. professors -- even professors who disagreed with him which in our case made up most of the harvard faculty, assigned his opinions, if nothing else, because they were compelling statements against which the professors could then prevent their -- present their views. a quarter of a century later, justice scalia's legacy in law school is undeniable just as is his legacy on the court. as justice aigen explained at the second annual antonin scalia lecture at harvard in november of last year, justin scalia has brautd -- justice scalia has brought about a different way things were taught in law schools. before him, law school was done through the common law method, whether statutory or constitutional was not part of the curriculum. now she notes more legal

thinkers consider the word and meaning of text as the starting point and sometimes even the ending point of the a analysis. i make that last point because in chambers justice scalia used to rail against opinions that used the common expression -- we begin as always with the text of the statute. he used to say what do you mean you begin with the text. why not begin and end with the text. when i started my clerkship, justice scalia had just begun the prose of trying to persuade the other justices to rethink the way they approached legal analysis. and in particular, to -- in particular, he frequently dissented or concurred separa separately on statutory interpretation cases where the court had adopted an approach that used policy, fairness or worst of all legislative history. sometimes justice scalia in those days would write a single paragraph opinion, refusing to join either a paragraph or a foot note in the majority

opinion because it cited some house report or statement by a senator on the -- on the senate floor. in his view, the only legitimate authority as law was the law that was passed by both houses of congress and signed by the president. not a passage snuck in through a legislative report or announced on the floor in a way that could be used to manipulate the language of the statute. these extensive materials he thought are used to make words appear to come from congress's mouth, which were spoken or written by others, individual members of congress, congressional aides or enterprising lobbyist. he insisted that the text be followed despite counter veiling economic or social considerations. one case, our term, was called mace, having to do with the filed right doctrine and he said despite justice stevens' decent and the clear trend from both

congress's amendments to the relevant statutes and the regulatory developments, there was a tor -- toward deregulation, nevertheless, the core doctrine remained in the statue and he said it is that skeleton we are reading, we must read it for what it says. he was relentless that the words of the constitution controlled, not just the whims and preferences of a majority of justices. we'll get to some of the particular cases later in this talk. but this meant two things. it meant on the one hand, if the right was enumerated in the constitution, such as the confrontation clause, the fourth amendment, protection against unreasonable search and seizure, he would enforce the right despite -- despite either opinions by other justices or other social developments that made the right inconvenient to enforce. likewise in the case of

unenumerated rights, such as -- again, the other enumerated right, the first amendment which i think we'll talk about in greater detail later, but if a right implicated the first amendment, scalia would line up with the liberal justices to enforce it. with respect to unenumerated rights, he felt if the right was not articulated in the text of the constitution it couldn't be imported into the constitution through some creative use of the due process clause, for example, which provides that certain rights shall -- a person shall not be deprived of certain rights without due process. this allows justices to read right into the constitution of which a person could not be deprived at all. the justice scalia could not counter that approach which was counter textual. so in some justice scalia had a profound effect on the way both law professors, law students, on the one hand and the other

justices on the other, look at and think about law. as justice kagen said in the same comment that was just quoted, in addition to saying that he was one of the most transformational justices of our nation, she said that his views on interpreting texts have changed the way all of us think and talk about the law. so with that, i think hopefully we'll get a chance to talk later about the legacy, what does this mean for the future? i think -- i see justice kagen as someone who may be able to carry that texturalist torch forward into the future. she seems committed to that. it is very interesting to me to see how this plays out in the court over the next couple of decades and the extent to which justice scalia's legacy and the law schools among students many of whom being present here will carry that same fealty to the text forward as they go into the

legal profession. >> thank you, ms. myles. professor mitchell. >> as kristin notes, there is little doubt that the justice's presence on the supreme court has transformed the approach to statutory interpretation. if you are to pick up any supreme court statutory opinion from the 1960s or '70s, you will see extensive reliance on legislative history. today in supreme court opinions you see legislative history discussed mostly in dissenting opinions, if at all. text and structure have become paramount in the way the supreme court interprets statutes. at the same time, justice scalia's tenure on the court has been less transformative in the field of constitutional law. it is clear that a majority of the supreme court still subscribes to the living constitution mindset that produced discussions such as row against wade and the same same marriage is the same, if you read the opinion offered by kennedy it assaults precedent over constitutional texts and

departs from the original understanding of the 14th amendment and rejects effort to restrain judicial discretion through formalistic rules. so why was justice scalia's time on the court and his forceful textualalism and formalism effective in the area of statutory construction but seemingly less transformative in constitutional law. that is one of the key questions surrounding the legacy and there are many possible answers one could give. i want to suggest a couple in my remarks today. first, i think one of the reasons for this disparity in the influence of justice scalia on the way that the supreme court approaches law is the fact that so much of the constitution, by the time he got to the court, had already been interpreted in supreme court rulings that did not imply texturalist meth addologies and combined with that fact of norms makes it difficult for any member of the court, especially

someone who is he is spousing meaning textualism to reconstruct established doctrines that the supreme court has already made. a related reason is that new constitutional provisions are seldom enacted and that deprives justice scalia and others on the court to apply their textualism and original meaning to new constitutional provisions that are not weighed down by the baggage of earlier court rulings. if you look at the opinion in heller, which interpreted the second amendment, the majority and even justice stevens in dissent argued primarily based on the text of the constitution and the historical evidence surrounding the original meaning. the second amendment had very few interpretations of that. so when you see that reach the court during his time, text and original meaning took center stage even for nonoriginal jurists like justice stevens. but for the others, where there is almost so much water under

the bridge it is much more of a challenge for justice scalia and others to change the way the court does business. i think there is a second reason why original meaning textualism hasn't had as much of an impact in constitutional law even after 30 years of justice scalia on the court. and that is because supreme court justices are ultimately political appointments, to be sure the president and the senate care about the people demands they take that into account. but at the end of the day, the president and the senators are looking for jurists who issue rule gz that they approve and those who influence the judicial process do not care whether their political goals are context with the meaning of the constitution. so as a result. we have jurists being appointed through this process that do not regard text or original meaning as the touchstone of proper constitutional interpretation. so this may be an inefitiable consequence of having a

constitution that provides for the political appointment of supreme court justice. but i don't think it is inevitable and i don't think we should regard it as inevitable. the political seduction of constitutional law ultimately depends on illegal culture that accepts the idea of the living constitution as an acceptable approach to judging. if legal academy and the organized bar and the norms of our profession insists on fidelity to constitutional text, and if they denounce to the judicial creation of atextual constitutional rights as illegitimate or lawless then the president and the senate would be unable to find qualified jurists to impose their opinions from the bench. it would be akin to finding supreme court apointies who would issue [ inaudible ] and it can't be done because judges are not supposed to do that. it is an act of usurpation, that exceeds the proper and legitimate role of the judiciary. instead the legal academy and

the organized bar not only accept but applaud rulings that create dokts rin with little or no connection to the text of the fundamental charter of government and this em boulders -- emboldens political groups with other agendas, either conservative agend you or liberal and progressive agenda. so justice scalia may not have van quished that during his time on the supreme court but the challenge he put down remains unanswered to this day by any member of the current supreme court. and here is the challenge that he threw out. if the meaning of the constitution changes and evolves over time, then why does the supreme court get to imposed iz preferred enterpretation of the constitution on the rest of us. if we have a living constitution, why shouldn't the political branches disregard the supreme court past pronouncements and adopt new

enterpritations of the constitution that they think are superior. the supreme court tells us that the constitution's meaning changes and evolves, yet insists that its own precedents that interpret the supposedly involving document are fixed and immune until of course the supreme court gets around to overruling them. those stances are in considerable tension with each other. if the underlying law is a morphing and changing thing, then there is no basis for the judiciary to demand obedience to pronouncements that purport to interpret a document that is constantly in flux. those judicial constructions are up for grabs as much as the constitution itself is. so if the post scalia supreme court continues pop grating the idea of a living constitution, there is no reason why anyone should defer to the judiciary pronouncement of what that evolving document means or if there is a reason why we should treat the pronouncements as

wholly writ. the justices on the current court have not yet provided one. >> thank you professor mitchell. professor ramsey. >> thank you very much. and real quick on what you just said, not only have the justices not provided them and neither have academics provided one. but thank you very much to -- to the law school and to the berkeley federal society for having me back here. and i agree with all of the things that my panelists have said. but i'm going to take a little bit of a different tack. i'm going to tell a little bit of an anecdote that i think tells something about scalia the person and then maybe something a little bit about his legacy right at the end. so here is my anecdote. so scalia was much of a hero of mine when i was in law school, ever since i read his dissent in morrison versus olson, the separation of powers case that we may talk about later. perhaps the single most influential thing when i read

when i was in law school, i would add. it was such a great honor to go up to washington to be his law clerk. and i was a bit overwhelmed by it but i came in the first week, and it was in the summer. we didn't have much to do in the summer so it was fairly light but we did have one opinion left over from the previous term that hadn't been finished up so when i got there, the justice said, look, we have to get this done. i want to you do a couple of things on it and get it on my desk and we'll get it out of here. so i did. i came in on that saturday of that week, saturday morning. i did the things that he asked me to do. he wasn't in the office so i just went into his office and put it on his desk. and then i decided i was done. so i left and i went out for a bike ride. and we didn't have cell phones in those days so i was out of touch for a couple of hours. and when i got back many my house, we did have answering machines and when i got back to my apartment, there was what seemed like a 20-minute message

on my answering machine. it was probably 20 seconds but it seems like 20 minutes. it was like, where are you? i'm working in the office on this opinion. i need your help and i can't believe you're not here and so forth. and i said, this is bad. so i rush into the court, i live right around the corner and still in my biking outfit which was also a mistake in retrospect, but in any event, went in there and reported to the justice, he was furious, further lecture followed about how he expected his clerk to be available and told me were were getting to get that opinion done and when he said, meant sometime in the next couple of weeks but apparently he meant that day. and so i apologized as best i can but he did not take apologies real so he lectured me further and sent me off. so i went back to my office and put my head down on the desk and just figured i had completely blown it and i couldn't believe that this was the way my -- my clerkship was starting off and he would never forgive me and i

was sitting there, in this mood. and then about 20 minutes later, justice came in. and he had the draft opinion in his hand and chuckling. he came over to me and poked me in the arm and said, hey, i added another zinger. and isn't this a great one and he showed it to me. and of course, i told it was the funniest thing i ever heard. and then, he said, yeah, this is pretty good. this is a great opinion. so he slapped me on the back and said, yeah, here, do a couple more things and finish this up and get it out and great job, i'm really happy with this. and then he went back to his office. and at the time, i was a little bit relieved. and at the time, i thought not too much more than wow, i might survive and this guy is a little mercurial but we'll see how it goes. but he never mentioned that incident again to me. but i never forgot it.

and at the time, again, i guess i wasn't as impressed by it, aside from the fact that i still had a job. but later in retrospect, as i've grown up, i was only 24 years old at the time, but as i've grown up and had my own kids, and thought more about this in it retrospect, i saw that it was more than just that he was -- he was a little ameria -- a little. and he thought of us like his own kids. and i would treat my own kids when you they make a mistake. you want to let them know, this is not acceptable behavior. but at the same time you can't hit them so far it depresses them and takes the energy out of them. so you give them a hard time and then you treat them like -- like you always would, like they were your kids. and he really did, he treated us like we were part of his family, part of his extended family. and i came to value that so much

through the rest of the time that i had was there at the clerkship and then throughout the rest of his life that -- when hi the pleasure to interact with him. so i think when you ask about his legacy, part of his legacy, a large part is all of us, all of us that have been touched by him and have been made so much the better for that. in just two minutes then i'll say just one thing about the law part of his legacy and it follows up on something that kristin said earlier. when i was in law school, originalist thinking and conservative legal thinking generally was really focused on the idea of judicial restraint. it was a reaction to the warren court, to the excesses of judges making up their own ideas about what the law should be. and the idea of it was that court should step back and not interfere with the political branches. and that was reflected by the

dominant academic voices like bork and ronald burger who talked about the deference of the courts to the political branches. well, i think part of scalia's legacy is that we don't think so much that way any more. and morrison versus olson symbolized that because that is the case of the independent council where all of the judges were fine at deferring to congress and the president and creating this statute. except for scalia and he dissented alone, 8-1, early on in his tenure in the court and he said, no, that is not what the constitution said. because the constitution vests the executive power in the president. and paraphrasing, but not by much, it doesn't say some of the executive power. and it means all of the executive power. and that includes the power to control independent council which the statute denied.

and what he -- what morrison stood for for him was the idea not just that the court should not interfere with the political branches when the constitution doesn't warrant but that it should interfere when the constitution does warrant because we live in a regime of limited government. limited by the constitution and that limit is enforced by the court. and so his role for the court was not the restrained role that previous originalists had emphasized. but it was an active role when the constitution warranted. and i think that now is much more taken for granted. but it was not taken for granted before -- before he came on the court and before he made statements like his dissent in morrison versus olson. i think that is perhaps not the thing he is most remembered for but it is a very important part of his legacy. thanks. >> thank you, professor ramsey.

professor eastman. >> so i was not a clerk for justice scalia. but for justice thomas. and during the course of the panel discussion, we'll get to some of the minor disagreements in judicial philosophy between the two because i think it is one of the most interesting things that occurred on the court in the last generation. but before i get there, i want to talk about the legacy. i'm a co-author of a constitutional text book and they could be dry. justice scalia's opinion find greater preference than any other justice on the court. maybe say for john marshall in the history of the court. and i think there are two reasons for that. the peccable logic of his reasons forces you to control the ladies and gentlemenic we are trying to teach in law school. so they are very good cools and -- tools and it matters

whether it is a majority or dissent, the logic of his opinions advance that peta logical tool. and they are so much fun. justice scalia, i think in the ordinary citizenry is best known for the quips. a church and state would not be such a difficult subject if rlg were as the court thinks it is to be. some purely personal advocation that could bein dull nled entirely in secret like pornography in the privacy of one's home. and you get these things. and the people that came under his quipping knife most directly, justice ruth bader ginsburg for example, praised him not so much for the language but for forcing them to make their own opinions stronger. i think the most -- the most memorable one of that is -- it was a love note to justice ginsburg, if i were to join an opinion like that, i would hide my head in a bag.

the supreme court of the united states has dissented from the discipline legal reasoning of story and the [ inaudible ] and the after orisms of the fortune cookie. and that embellish his opinions an make them so fun to read but it is the logic of the impeccable reasoning of them that make them such a long-standing pedagoguical rule and had a transformative effect that everybody talked about. i have my own anecdote with him and he loved the intellectual sparring of his role in the court but also his role as teacher. i remember some years ago we invited him to get a commencement speech at my law school, chapman and the invitation got lost in the mail and this is when the anthrax scare was going on and when i visited him in justice thomas and i said we never got a decline and he said i want to come out, but just not graduation. what can i talk about.

and i said you could talk about me whatever you want. and he said you are wrong about lockner versus new york and i'll talk about that. and i said next year is grethe anniversary and we'll have a re-enactive. and he said what part of due process of law do you get substance out. and i think it is the word "law", and where do you get that? and one day your successors on the court will not like citing foreign sources of authority but that was cicero. that is a good one. and he said what state does he come from? i said i think the state of sicily. but in substance there was a fundamental point to be made about the nature of the constitution and this brings me back to -- by the way, one side on there, when [ inaudible ] was handed down last year, i oftentimes in the major cases, when i see that my former boss justice thomas has written his own opinion, i'll start with

reading his opinion because i want to see what he said. and he said something in that opinion about the word "liberty" and the 14th amendment means protection against government interfering with you walking in the streets or other things. or from working up or manufacturing materials of their own growth. like lockner raising bread and justice scalia joined him and i said here is an opening, he's finally come around to joining the lockner view but then i find out both he and justice thomas themselves joined robert dissent which includes an entire section attacking lockner so it wouldn't get any worse. but the fundamental minor disagreement in philosophy between thomas and scalia which warrants our attention for a long time is on the role of the principles of the declaration of in dependence and understanding the constitution. whether it is in filling in the meaning of hard to understand words like republican and guarantee or privilege and

immunities or the back drop principles as justice thomas said that are inherent in the constitution. and this fight has been around since carter versus bull and two justices disagreed on the same terms. since the lincoln and douglas debris when they disagreed on just those terms. and justice scalia kind of stakes out his position most forcefully in a case dealing with parental rights and grand patients rights in troxel. and he said i may think their unalienable rights and they deserve to be protected but i don't have as a judge to enforce what i believe to be rights that are unalienable if they are not in the constitution. justice thomas responded in a short opinion in adderan which dealt with action against the federal government. when there is not a clause that deals with the federal government, the clauses on equal protection and what have you,

textually, only apply to states. and he said this violates the principle of equality that is inherent in our constitution. and for that proposition, he just cites simply, declaration of in dependence, paragraph two. and so the sparring back and forth on that issue between the two of them that somehow involves the issue of lockner as well and this comes to the forefront, i think most visible, in the disagreement on the grounds to getting into the outcome in the second amendment case in corporation of the second amendment to the state in mcdonald versus city of chicago. scalia had written heller. he found there is a personal right to keep and bear arms that operates against the federal government via the second amendment and does it apply to the states. and justice scalia probably from the conservative side of the bench, the most vocal opponent of substantive due process ever on the court. the most vocal critical opponent of lockner is given the

opportunity to apply the second amendment to states via the privileges immunity clause where the legislative history of that constitutional provision was quite clear that was one of the core things they intended or to -- or to accept the existing precedent of the court, the substantive due process that he criticized and left justice thomas alone on that. and so i think there is a lot of fruit for further inquiry that we could gain by looking at those areas of -- they often agreed on the outcome but got there by different routes that are very telling and worth our in inquiry. thank you so much. >> thank you professor and thank you all for your brilliant and moving statements an an eck dotes and own mag nimity. i'll start off on some questions before we open up to the audience. a famous commentator not a scalia ally said after d.c.

versus heller was decided, we're all originalists now. and professor miller opined and said it is a right to bear arms under the second amendment but it is remarkable because both of the scalia majority and the stevens dissent resorted to the public meaning of the second amendment. will originalism endure and will that be his legacy. and if you could give as short of an answer as that could generate. >> and even [ inaudible ] and that is not new. there is an opinion that thurgood marshall wrote in the 1970s zis senting upholding a jury of less than 12 jurors and he said the right of jury trial in the sixth amendment required 12 persons because that was the original meaning.

it is noting in to see his dissebts in heller, justice stevens did it on other occasions in op rentee. so everybody thinks the original meaning accounts for something. i'm not aware of anyone either in the judiciary or the legal academy who thinks the original meaning of a text is absolutely entitled to no weight at all. so at the same time, i don't think there is anyone who is an originalist in the opposite direction, original meaning that is everything and nothing else could be considered such as stereo deseiss is and other types of consideration. it is hard to answer your question. everyone thinks original meaning is something that is considered in interpreting a text, even nonoriginalist but even the most dogmatic originally like judge bourke have acknowledged sometimes you have to reach those results because you with well established precedence on the books. no one thinks the supreme court should declare money

unconstitutional. paper money is just something upheld for decades and the alliance interests are too great. >> thank you. professors. >> let me add. i think there is more to this. i suspect had it not been for justice scalia on the court and the transformation of the importance of originalism, we would have seen an entirely different opinion in heller. it would have balanced the public's interest and the threat of guns and we would have had all of this -- these brand -- these briefs from both sides about what the risks were, was it more beneficial to have gun control or less beneficial. and that would have been the end of the matter. maybe there would have been some glancing nod at the text of the original meaning. but it would not have been wholesale front to back end of both of the opinions grappling with that fundamental question. which, because of scalia, has now become much more dispositive than it ever -- well not ever

than it had been for 50 years. >> go ahead. >> i do think also that optimistic that justice scalia had an influence in causing the court to move toward originalism. i think that it is probably -- one can be cynical and say that justices will do it when it suits their purpose. but i guess i'm optimistic to looking forward to see what happens going forward. just to use an example, though, crawford was a case which upheld an originalist meaning of the confrontation clause. what does it mean to be confronted by the witnesses against you under the sixth amendment. does that mean that it is okay to introduce out of court statements as long as they comply with well-established hearsay exceptions or are otherwise deemed reliable by the court. in there you had an array of justices joining an opinion that went back and truly in an

originalist fashion and went back and analyzed the history of the confrontation clause. this is an issue kicking around my term. we had a couple of cases where the court went the other way on child witnesses who were meant to be protected by not having them have to sit in the courtroom and see the person that they were accusing of the crime. they could testify by video or behind a screen. and the court upheld those procedures over justice scalia's originalist dissent. so it good to see crawford come around where you had at least a significant majority of -- including the liberal justices adopting a view. and one of the negative articles written about justice scalia following his death was one written by jeff tubin in the new yorker. some of you may seen that. it was a negative article. he was a classmate and friend of mine and i was disappointed because i thought it was not

really intellectually honest with regard to what he described as justice scalia's quote, unquote, originalism, which he described as originalist in the sense that we have to decide what the framers subjectively thought when they wrote the relevant provisions of the constitution. which other panelists could speak to this, but i don't think that is what justice scalia's originalism is. it has to do the words written and the text of the provision and looking at crawford is a good example of what those words would have meant to jurists and members of the lawyers in the day and time they were written. it is different from saying what did alexander hamilton think he was doing in writing these words. so -- of course, jeff tubin says, well how -- he therefore dismissed the exercise because how could these people have thought about things that were new, like imaging technology

that gets used to invade the interior of a house and figure out what going on in there. that is the kylo case, which i think we'll talk about where the justice led a majority of the court in the originalist report which was that the fourth amendment protects people in their homes. and that means homes, the privacy of the home. even if new technology that the framers never would have known even existed could be used to figure out from the sidewalk what might be going on inside of the home. so any way, that is just a couple of -- and in light of those opinions, where you see not only justice scalia but multiple members of the court going along with this methodology, i'm optimistic that there is going to be a legacy there even on the constitutional side. >> just real quick, a little bit of an academic perspective, i agree there has always been the idea you could use originalist

arguments if they get you where you want to be, but i think what is -- what is different post-scalia is that it is at least credible and recognized as a plausible position to hold that the -- that originalism and textualism should be decisive in the sense that it should lead you to results even when you don't want to get to those particular results on policy grounds. and in that kind of view of originalism, at least when i was in law school, that kind of -- you espouse that kind of originalism when i was in law school and people look at you like you had three heads, or worse. and now, i wouldn't say -- i think it is a great overstatement to say we are all originalists now, if you mean it in the sense that we think originalism should be decisive, at least in the absent press and some other things that originalist would recognize as counter veiling.

i don't think we're all originalists. but some of us are. and we can be. even within law schools. even within the law school professorsh professorship. and the reason that -- when i said -- when i told my parents i was going to be a legal academic, they thought that was a bad idea. they said you're just not going to be able to survive there because you don't have the values that they have and they won't accept you. but that hasn't been true. originalists have a seat at the table, is one -- as one of my colleagues said. it is not the case that originalists dominate but it is also not the case that we are driven underground. and i think that to a very large extent that is a legacy of justice scalia because justice scalia made it impossible to say that originalism was -- was a marginal or unimportant thing to consider. and so that is the way i see it

playing into his legacy, playing into the academic conversation, which i think plays over to some extent in the broader legal culture as a whole. >> thank you, professor ramsey and alls. i'm pleased that miss myles mentioned the maryland versus craig, and i think that is what you were referring to. and justice scalia scared very much about words. and his personal humility and modest allowed him to decide case after case for flag desecraters and johnson and u.s. versus ikeman. he said in a different public gathering if is with king, i would have punished them, but i am not king. and for criminal defendants denied their sixth amendment right to confrontation in crawford, blakely, ohio versus clark, where he regarded reliability common law test as that flabby test. for the criminal defendants who had been unlawfully searched,

for administrative agencies even though he was one of the earliest editors of regulation magazine and for a lady who tried to poison her husband's para more, united states versus bond one and two. and so how do the votes and opinions impact the justice's legacy. >> well i could speak to the flag-burning case since they were decided -- at least the second one was decided my term. texas versus johnson was the state case that came up the term before i was clerking -- the '88 term. and the following year congress passed a statute essentially trying to fix the problem that the court had created in texas versus johnson. at the time johnson was decided, 48 out of 50 states prohibited the burning of the united states flag as a means of protest. that was essentially what all of the statute said. and the court in opinion by

justice brennan, justice scalia didn't write opinions in either texas versus johnson or ikeman, the one that came up my term. but he joined justice brennan's opinion which was quite expansive, along with marshall, blackman and kennedy. but justice scalia -- what brennan had done was -- an understanding of the first amendment that went back through court precedent. i wouldn't call it an original opinion by justice brennan but nonetheless it applied the historical meaning of the first amendment as the court had ex pounded it beginning with justice holmes various dissents in the first amendment cases and leading up to the court's adoption of holmes' view if words or expressions are made in protest, that is at the core of what is protected by the first management. so actually, the logic of texas

versus johnson wasn't that complicated. it was really the setting that was hard for the justices and the members of public that can't we even protect the united states flag. but the fact is the statute was written to -- to prohibit the contact only when it was -- as a former -- form of protest and not other wise since burning a flag is the way you are supposed to dispose of a flag. and so it was really frankly an easy case for justice scalia under the existing first amendment precedents. he did say famously, if it were up to me, i would put into jail every sandal wearing scruffy bearded weirdo who burns the flag but he added, i am not king. and he said to us in chamber, this is how he understood the case. that it is perfectly fine for the state to prohibit me from putting my hand out the window while driving a car. but what the state can't do is prohibit me from putting my fist out the window when i drive a car. that is how he understood.

he said it would have been perfectly fine if the state or congress for that matter prohibited flag burning altogether but that is not what they did. either in the texas case or subsequently in the case that -- involving the united states. in all of the dissents and the cases were all about patriotism and chief justice renquist included several long poems in his -- patriotic poems and songs and that is the gist of the dissent. there should be an exception for the flag. but justice scalia, no matter his feelings about scruffy bearded weirdos he was not unwilling to create an exception to the first amendment. >> i thank you for that question. because there is something of an emerging narrative about justice scalia that, while he talked big about originalism, what he did is decided cases according to the way he wanted them to come out and the originalism was a screen. and you'll find that in some

public -- some commentary and also in some more serious acade academic writing. i think it is important to push listed off indicate. and i'd like to add one case to your list, and one of my very favorite of his dissents, which is in handi versus rumsfeld where the interested party was an accused terrorist and the court held that he could be detained without trial subject to minimal procedural protections and justice scalia dissented and said he had to be tried for treason or he couldn't be held. part of his dissent, it's a great dissent, he referred to the court's quote mr. fix-if mentality and, quote, the court's taken admission to make everything come out right, all initial caps, everything come

out right. and so he rejected that idea even though it led him to the conclusion that this terrorist should be -- excuse me. accused territoryi accused terrorist should be set free or tried for treason but not detained in the way that the court and the executive branch wanted to. and i'm sure it's not because he has sympathy for terrorists as some of his other cases suggests. i think it's very important to see what he was doing here. i it guess the one part of the question i'd push back a little bit on is i'm not sure how far i'd go endorsing his personal humility and modesty. and i don't think that was really the determinative thing but i think what really made the difference to him was the idea of the rule of law. that's what mattered to im. that's what he saw him as a servant of. and the idea and therefore that links up exactly with what he criticized the court for in hamdi. it is not the court's mission to make everything come out right.

it's the court's mission to apply the law. >> i want to pick up on that theme a little bit because one of the academic criticisms of originalism as an enterprise is that it's completely unknowable. how can we put ourselves back in 1787, 1791 and figure out what they intended, what they meant. that's kind of the scarecrow version of originalism or what the original public meaning was. we're 200 years later. how can we possibly know that? it's so indeterminate. that mean it's a facade for achieving the agenda i want. these are dispositive prove that at least for scalia originalism is not a tool that took him where he wanted. it often took him to where his predispositions took him to go. the notion that we've got a number of criminals getting lighter sentences or having their convictions overturpd awl together is probably not what you would expect from a law and

order conservative jurist on the court like sa le scalia. we can't use police investigative techniques, that it would have been completely unknown to the founders if they intrude on your house even in virtual ways rather than -- i think that is dispositive proof that he was not a use originalism as a tool to advance my agenda but use originalism as the end of our inquiry to see what the rule of law requires of us as judges whose job is to interpret not to remake the law. >> it's also really hard to see how originalism can support the result in the flag burning case. the text says speech, not expression. the original meaning was far more nair error than what justice brennan said in that opinion. >> but the fact that -- you know, the fact that he may not have been perfect on his

understanding of originalism in any different case doesn't mean -- if he was going to use it as a tool, he would have come out the other direction on that. >> it does reflect that, it's odd to see the flag burning case touted as the originalism. it's not clear it can support the result in that case. >> thank you for the discourse. we were very impressed by the fact that the personal humility and decency as mr. eastman implied help him put the rule of law ahead of his own private agenda. so we appreciated that. justice scalia's morrison dissent, i think professor ramsay referred to it early had the brilliant quip, this wolf comes as a wolf. it has often been regarded as among his finest hours on the court. why did he care so much for structural matters that undergird our constitution?

>> well, i guess i'm a separation of power scholar so maybe i should answer that question. >> please take it away. >> well, i think that part of it is the rule of law in that the framers wrote the constitution with particular attention to separation of powers and federalism, which they regarded as the fundamental protections of mrliberty. the original constitution didn't have a bill of rights, had minimal protection for rights in its text. but as the federalists argued during the ratification debates, the reason was they saw the separation of -- provisions as sufficient protection for liberty, that they didn't need a bill of rights. now, of course, that ultimately that argument was ultimately rejected by the adoption of the bill of rights. but that didn't take away from the proposition that separation of powers and federalism are

themselves protections for individuals. and so that was funtdmental to the framers as they wrote the constitution and justice scalia seeing himself as the enforcer of the constitution thought that it is essential for him to adopt that view and to take it very seriously because that was what the constitution said, notwithstanding the fact that the court had been very loose in its interpretation of separation of powers and federalism in the 50-plus years before scalia came to the court. i think that's what morrison symb symbolized. though i've got to say as a parenthetical that i think morrison is not an example of scalia struggling with the rule of law against where he'd like to come out. i think he completely bought into the framers' proposition. so i think that made morrison an easy case for him. >> i would add also i think it's not surprising that he was passionate about separation of powers given his views of the limitations on the judiciary.

just everything about his jurisprudence consistently says that the role of the judge should be a very limited one. and put another way, the judge doesn't exercise legislative power, for example, or executive power for that matter. and when it does so, it's acted illegitimately and it's also diminishing the rights of the people to enact their own laws. so it's in that way diminishing the freedom of the people that is preserved by the separation of powers. he also, you know, parenthetically also worked in the executive branch, worked at loc and had strong views i think from that experience of the importance of a singular executive and of executive power. so he came to the court with very fully formed views on the executive power as well as legislative and judicial. >> i want to pick up on that because one of the things that most of the cementary about justice scalia's passing has not

focused on was he himself changing his views in anything. and the idea that flows out of the separation of powers in morrison also contributed early on to justice scalia's full embrace of chevron deference to executive agencies. and i think that grows up out of his disregard for the activism of the warren court in the 1960s and the early 1970s when he comes of age. the court kind of answering every question. he said, if we defer to the executive agencies we're at least deferring to a political branch that, however imperfectly, owes its direction to an elected official, the president. and in recent years, though, he came to the realization that that itself was a pretty dramatic violation of separation of powers because we were allowing unelected executive agencies to effectively write massive amount of law when the lawmakering powers vested in

congress and the accountability for that law making power and the cost that's go along with it are supposed to be vested in congress. so he started in recent years, even backing away from some of the deference doctrines that he had himself authored once he came to the realize ailation th they themselves might be violated this core separation principle. i think that was a very significant aspect of justice scalia's intellectual journey on the court, that he would be willing to reverse course even on something that he had authored if he saw that it kind of bucked up against the understanding of the constitution ultimately. >> i'd have to disagree with one aspect of what professor eastman said. i don't think justice scalia was ever a big fan of chevron, at least when i was clerking. i think he grudgingly accepted it. he didn't author it for sure. and i think he and justice stevens often had disagreements because i think justice stevens did see it as an open-ended

deference to the executive branch and embraced the idea that this meant that the executive was going to be writing law. i think justice scalia always bristled at that. i think he felt bound by the precedent and maybe it was the only solution. certainly it wasn't a solution for the judges to make up law. but i know he and justice stevens had a very distinct difference of opinion on what chevron had step one and step two. step one says oh, it's the statute imbig use and step two says okay if it's ak big euless, then the executive interpretation can kind of figure in the blanks as long as that's something we can infer congress meant to allow the executive to do. and justice scalia always said between he and justice stevens the difference was he would almost never find a statute ambiguous because he would say, you look at the statute, you interpret the words, you apply traditional doctrines of statutory interpretation, and i justice scalia doing those

things, i think believed the court can come up with the correct interpretation. only rarely would i be deferring. but whereas justice stevens was quick to find ambiguity and therefore quick to defer. >> i don't disagree with that. the one doctrine -- the additional deference doctrine that he did author, what we call our deference, is the one he was backing away from toward the end of his term on the court. >> professor mitchell? >> justice scalia went from calling himself a faint hearted originalist from eventually calling himself a stout hearted originalist. if words in an instrument had meaning then he contended those means had to be honored, judges substituted in new meanings or diluting the meanings already extent made the judge into an extra judicial creature. other than the fact that this might generate normatively

disagreeable results from different political circles or -- why does the justice's philosophy provoke such a reaction in some quarters? >> well, let me take up the fainthearted originalism point first. the constitution gives congress the power to create an army and a navy. it doesn't say air force. and nobody would say therefore there's not the authority to create an air force. and if that mean that's you're a fainthearted originalist, so be it. i think that part of it was a response to the kind of more silly charges of what originalism means. the more difficult one for him was an eighth amendment case where something that would have been perfectly acceptable as a punishment in 1791 when we adopt the eighth amendment, capital punishment for horse thieving, for example, would be completely unacceptable and i think he would have no problem saying it violates the eighth amendment to do so today. and that's why he claimed it made him a fainthearted originalist. but i think those are marginal

cases and, you know, don't go to the heart of what the true originalism enterprise is. i think that's why he first responded the way he did and then came back and said, no, no, i'm a stout-hearted originalist. >> there's also a difference to use originalism to strike down legislation and using it more as a shield to uphold it. when he's talking about faint hearted originalism, there's two ways to describe that. one could be the example you were giving about the eighth amendment where the court would strike down a policy, another way to think of it is given way to -- there are a lot of nonoriginalist precedents that justice scalia adheres to even though he seem to be manifestly contrary to the menning. one is the size and scope of the commerce power. another is one person one vote. he hasn't argued for overruling that. incorporation of the bill of rights. he went along with the majority opinion of mcdonald far from clear incorporation was -- there

are many examples like that where he has gone along with precedent in the name of -- that the parts in the original meaning without arguing that every single nonoriginalist precedence should be overruled. in that sense i think he's still a faint hearted original aist and not a stout hearted one. >> i can say one thing about that. he had a reason for doing that, and that is i think he wanted to be able to have an influence on the way the legal scholars, judges and the american public thought about the constitution. and incorporation is a great example because the text of the constitution couldn't be clearer that the first amendment does not apply to the states. congress shall pass no law. not the states shall pass no law. and the idea that that somehow was incorporated through the 14th amendment to the states following the civil war is not very historically -- there's

no -- it's not support really as an historical matter. but he was not willing to go back that far and turn back the clock partly because it would make -- it would refrnnder him incapable of debating what the first amendment should mean since most cases come up come up from states and in every such case he would have to say, not applicable. of course there would still be federal cases but i would wager the number of first amendment case that's come up from the states is greater than the number that come from the federal government. >> well, i just have to quickly note that i don't think it's true that the incorporation doesn't have any historical basis. i think incorporation through the substantive due process clause doesn't have any

historical basis. or textual basis. >> he went along with it. >> he went along with that, but kristen was making a broader point i had to push back on a little bist. but i wanted to take up the question you asked us directly by i also wanted to push back on that. so you asked us, other than the fact that this might generate normatively disagreeable results why does the justice's philosophy generate such controversy? my argument is it's exactly because it generates normatively disagreeable results that people don't like it. not that it always generates normatively disagreeable results and more than that it would take away from the justices and it would take away from elite lawyers and it would take away from us as us as academics and -- to argue policy, which is what we love to do.

and we harbor in our mind the idea that we could persuade a justice or five justices to adopt the policy that we think would be best. isn't that a feeling of power? you might not be able to, but there's the chance you could. and that's why i think it's so -- the nonoriginals and living constitutionals and whatever you want to call them is so appealing because it's a feeling of power. and that's exactly why people hate originalists. >> thank you so much. now, almost a herculean task for each of you. you know justice scalia liked to say, i don't attack people. i attack ideas. and some very good people have some very bad ideas. so if you could each share a thought about his personal decency and his relationship with his colleagues or with his clerks, his larger family, that would be wonderful.

>> i can start. justice scalia did have an amazing ability to appreciate in other people their best qualities. he loved the other justices on the court. i had the good fortune of clerking the last year that justice brennan was on the court, and justice marshall was also still on the court then. you know, people often talk about how justice scalia's relationship with justice ginsberg, and that is a famous relationship and quite a remarkable one that was formed when the two of them were judges together on the d.c. circuit. they got to be friends and they spent every new year's together and they loved opera and loved to go together, and he was thrilled when she was appointed to the court. because now one of his best friends would be his colleague. they also famously were able to disagree on substantive matters

pretty well without getting personally annoyed with each other. they actually loved that sparring. but also, you know, justice brennan and justice scalia got along famously. i just remember seeing them come out of conference and just walk down the hall with their arms around each other, both of them rather on the short side, both about the same height. they'd be roaring with laugh te over something occurring in the kfrnls. judge stevens likewise. i saw justice stevens at justice scalia's funeral just recently and we talked a bit about how justice scalia and justice stevens were both passionate about administrative law. he said to me, you know, there wasn't very much that nino wasn't passionate about. and the two of them, though, loved sparring over administrative law issues because no one else on the court cared. but the two of them also sat next to each other on the bench because they were two apart the

entire time they were there together. so they always sat next to each other the way the court configures the seats on the bench. it's by seniority. so oftentimes we would see them disappear because the chairs would swing back. so the two of their heads would disappear from view and then you'd hear this raucous laughter coming from behind the bench where they were sharing anecdotesor or whatever jokes about whatever was going on in court. but i'd also say that justice scalia had an amazing admiration as well for justice marshall. he'd always come back and say that justice marshall was the only justice on the court that really had criminal justice experience, that had seen the unfairness that occurred within the criminal justice system. i don't know the extent to which that at all influenced justice scalia's, some of the outcomes in the criminal justice area. as mentioned before, he used textualism and originalism to

enforce a lot of criminal justice rights that had been diluted. i don't know if justice marshall influenced him on that, but he definitely influenced him on how -- on justice marshall's own experiences. and finally i'll just say justice thomas and he -- well, maybe john can speak to this more. justice thomas did a reading at justice scalia's funeral and also gave a beautiful tribute at the memorial service the following week saying the two of them came from different places. he said, i came from an uneducated family. he came from a family of educators. but we met, and we walked together for 25 years. and he just had the whole room in tears with his recollection and the feeling of loss that you had about the loss that he was experiencing and felt he would experience going forward without his brother on the bench.

so those are just some examples. >> thank you, ms. myles. >> he was liked and respected by his colleagues. it was very evident. but it was also remarkable when you think about how the supreme court got along in previous decades and iterations, chief justice rehnquist told me when he clerked in the 1950s there were horrible animosities on the court. you had justices who didn't speak to each other. bob woodward's book talks about the problems. it was remarkable during his entire tenure on the court not just with justice scalia and his colleagues but relationships across the members of the court were pretty good despite the vigorous disagreements over legal issues. >> i don't have much to add to that. i agree with it all. you've got my anecdote already. i think it shows the side of him that was so important to see. but i guess the only thing i

would add is that i think, again, this is another narrative that's being pushed about the justice by some of his detractors, that, you know, he was mean, that he was tough, he was a bully, that he went after people in a mean way and so forth. and, you know, like a lot of narratives, there are grains of truth in that in the sense that he was tough on arguments, not on people but on arguments that he didn't accept and he wrote some tough things in his opinions. but his ability to get along with people that he didn't agree with i think is what is very remarkable and something that we should remember in these days where it seems like it's increasingly hard to get along with people that we don't agree with. so he should be a model to us in his friendship with justice ginsberg and justice kagan in particular, should be a model for us going forward.

>> he was human, though, and his ability to do that wasn't perfect. it sometimes took a while. after planned parenthood versus casey and the lack of logical reasoning in that opinion, holding a grudge is too long a word, but three years later when i was on the court we wrote our court skit at the ent of the year that still reflected some of the tension that still lingered over that case. but he liked you to push back when he was sparring with you. i'll close with this anecdote. it's a tradition at the court that the justices would take the clerks from other chambers out for lunch at some point or what have you, and he would always take the clerks to av's pizza. and when he took the thomas clerks out my year, we went there. he would famously order pizza with anchovies and demand that everybody eat it. i refused it. i don't like anchovies. so i wouldn't it. he said, eastman, real men would eat an choeys on the pizza. i said, no, a real man would say no if he doesn't like it, even

to a supreme court justice. he said, touche, mr. eastman. that's how i liked to live and i think that's why people felt so highly of him in his congeniality. >> thank you all. we now have time for one or two questions if interested members of our audience would volunteer. >> i wanted to know what the justice's opinion was about the u.s.'s leadership in international justice and specifically rule of law institutions like the international criminal court and whether he believed that this somehow infringed on our own constitutional kind of framework. thank you. >> i think he saw the american constitution and the way that our founders did and the way many of our leading -- leaders

over the years did, which was a beacon on the hill that other people should follow because it was so well designed and right. but the notion that we would interpret provisions of our constitution by what some other court and the european human -- whatever, was bizarre to him and really undermined any notion of sovereignty. he was probably one of the most vocal opponents of this notion of looking to other courts' decisions to infuse meaning back into our constitution. it was contrary i think to everything he understood what the rule of law and the originalism project that he was engaged in meant. >> i agree with that. but i think at the same time it's important to see the justice as having a real internationalist bent. he traveled very widely. he talked to people around the world about legal issues. and he was very interested in international matters. but i think he wanted at the same time to be sure coming out

of his rule of lawor orientati that embraces of internationalism by the united states were consistent with the constitution. so i think you have cases which might perceive as being anti-internationalist such as -- versus texas and -- versus oregon that i don't think they were anti-internationalist in that sense. i think they were -- they were protective of the u.s. constitution and u.s. sovereignty to engage with international institutions. they were not hostile to international institutions. so i think he was something of a middle ground on that. he didn't fully embrace it because he understood that there were constitutional restrictions on what we could do. but he was also sensitive to international concerns in other areas, for example, he was a leader on the court in thinking that other courts -- sorry, other countries' interpretations

of treaties should inform us as to what the treaty meant. now, as john says, he didn't carry that over to the constitution because the other courts that were interpreting their constitutional provisions were not interpreting our constitutional provisions so it didn't make sense to rely there. but in areas where there was a shared interpretive enterprise which particularly comes out of situations where there's a common treaty, then he was actually one of the leaders on the court saying that we ought to take into account, at least for persuasive, what other countries are doing. so i think he was an internationalist in his own sense. >> thank you. that was an excellent question. and we have time for one last question, if we have -- i saw that hand go up first. yes, sir? >> -- how justice scalia can

square his pro -- that america had a pro-religious -- with his decision in smith versus oregon? >> i can speak to that because that decision also came down my term, smith versus employment division. and what smith did most controversially was held that there isn't a -- where you have a generally applicable criminal law that is in that case law prohibiting the ingesting of pay quoty or listing pay quoty as a controlled substance without an exception for religious use. there's not a need for the court create a religious exception to the application of that generally applicable criminal law. so that was essentially the

holding of smith. it was perceived as being contrary to at least some precedents i learned about in law school, sherbet versus verner where it seemed as though there was an exception where an administrative agency doling out, say, unemployment benefits would have to take into account whether the person was fired or otherwise wasn't performing their duties because of a religious obligation of some kind. so we all grew up thinking that that was an exception. the court held otherwise in smith. so that led -- that was a very controversial decision. i remember the petition for rehearing that came in, and i think you're quite right that you can say, well, gee, how is that protecting religion? you can say, well, payote, who really smokes that anyway? it's a small minority of gic wo

states, per se, prohibit drinking alcohol. i think one of our states does that, kansas is that a dry state? with no exception, say, to pick a topic near to justice scalia's heart, catholic mass where you would be celebrating the eucharist with bread and wine. so the state could say, no, that's not okay in our state it's prohibited. and under smith that would be fine. so i think his answer to that is that the protection against that lies in the political process. it lies in the legislative process, that if there's -- in fact, he says this in smith. subsequently as you may know the congress passed a law called the religious freedom restoration act that attempted to revive the sherbet versus vernon doctrine. the court then struck it down in the subsequent case. in that case, justice scalia

really took on the historical case against sherbet versus verner and similar cases. but ultimately saying that the protection is with the people, that people are the ones that are going to make religious exceptions to otherwise generally applicable criminal laws. so i don't see it as being contrary to -- i don't see it as being contrary to any personal belief of justice scalia. he was fully aware when smith came down that its logic would apply to a lot of very core -- could be used to prohibit core religious activities of both christian religions, jewish religion, you name it. it could be the subject of a generally applicable criminal law. but i don't think that -- i don't think it violated -- i don't think it was contrary to a view that he had otherwise expressed that there needed to be such exceptions. obviously if there's a law that's directed to religious

activity such as, you know, no wine shall be used in religious ceremonies, that would be prohibited. and he would say that violates the free exercise clause. >> i've got a pretty distinctly different view on this question. my litigation hat it through the clairmont institute which is probably the leading proponent in the country of the view that the natural rights foundation in the declaration of independence has to inform our under understanding of the constitution. this is one of the cases where that disagreement between us and justice scalia i think comes out most forcefully. and i think it actually when you kind of peel the onion layers away from it actually disagrees with other principle that's justice scalia elsewhere argued. so he was a strong opponent of the notion that political process was sufficient to protect the federalism provisions of the constitution,

political process, federalism we call it. he opposed that. yet here in smith he adopts political process accommodation. if you want an accommodation for your religious exercise, your remedy is through the political process. that kind of turns the notion of the bill of rights and unalienable rights upside down, which are there precisely to protect individuals, particul particularly minority individual groups against the political process. if the only people who can get a political accommodation are those who can gain majority support, it's no longer the unalienable right to the -- and that closing paragraph an employment division versus smith kind of seeds that as the cost of democracy, i think gets it just wrong. so it will be very interesting to see now that justice scalia is not there whether there will be an attempt to revisit that question and the way that probably it wasn't going to

happen as long as he was there. >> my view on this is i think somewhat different than my fellow panelists. first of all, i think that the -- although i was skeptical of the smith case when it koim came down, on further reflection, i think the historical case for it or rather the historical case for the opposing side is somewhat weak. i think that it's -- you can make some big picture arguments as john just did. but if you look at the actual historical practice, it's hard to identify a founding era practice which granted these kind of exemptions. it's not impossible. there is some evidence for it. but it's not overwhelming. and if you have a view which i think justice scalia did, notwithstanding his view of the importance of enforcing the constitution, that the court should not intervene against the

political branches unless it was confident that it had the history and text behind it, i think here there's a strong ambiguity and i think that's the opinion really rests on that, that the case for the other side is not proven. but i do also think that this is another example i would list it at least on your list of cases where he comes out differently from where you'd think he probably would tend to come out. because as kristen said, i think surely of course he knew the implications of this, and i think that gave him some pause. of course, i wasn't there at the time, but i heard discussions of this case with him later and i think he did have some pause, but i think he nonetheless thought that's where the constitution led us and therefore that's where we would be be -- that's where he had to go. and i'll just on this point relate an anecdote from professor paul cassell at the

university of utah where jonathan and i were doing a panel out at utah on a similar topic, and professor cassell said that he was present when someone asked him about the oregon/smith case and asked him about, what would happen if congress passed a law prohibiting all consumption of alcohol and didn't have an exception in the statute for catholic mass? and scalia said, according to paul cassell, they would burn in hell! but it would still be constitution a constitutional. >> it's one of the hardest questions in constitutional law. partly because the text doesn't give a clear answer at all on whether the freedom of religious practice -- congress shall make no law respecting an establishment of religion or

bridging the free exercise thereof. there's no exception for compelling interest sherbet balancing test. i can see why scalia was comfortable with the approach he took in smith because is it a text that's phrased in absolute terms, and limiting the protection conferred by that text to loss of target religion is a way of being respectful to the fact that the text is phrased as an absolute command rather than a balancing tester for the court. so that may have been partly why he was attracted to the approach in smith but that said it raises some very difficult questions as my co-panelists have pointed out. what about wine at communion, what about antidiscrimination laws, so on and so forth. >> thank you all. thank you, zach. great question. this fittingly concludes not just our event but the chapter until fall 2016. thank you all for your generosity and support to us throughout this year and please join me in thanking our panelists.

c-span's "washington journal" live every day with news and policy issues that impact you. coming up saturday morning, amy goodman, co-author of the book "democracy now," ten years covering the movements changing america and host and executive producer of democracy now.org will discuss independent media and its role in campaign 2016. then tom fitten, president of judicial watch, the group has filed multiple lawsuits in the clinton e-mail case. he'll talk about the latest

developments in the investigation. be sure to watch c-span's "washington journal" beginning live at 7:00 a.m. eastern saturday morning. join the discussion. book tv has 48 hours of nonfiction books and authors every weekend and here's some programs to watch for this weekend. on saturday at 10:00 p.m. eastern on a afterwards," don watkins author of "equal is unfair". >> the reason i say inequality isn't a problem is what we're concerned with is not how much money do you have but how did you get it. did you get it through something that was fair or did you get it through a process that was unfair? and when you try to equalize people who earn their money honestly, that's something that we're challenging and saying, that's not a fair way to treat people. >> in the book, mr. watkins says the american dream is threatened not by income inequality but by limiting success. he's interviewed by manhattan institute's diana ross. on sunday afternoon at 4:30, pete hegseth, iraq and afghan

veteran talks about theodore roosevelt -- talks about his revisions for americans today. >> this isn't about me or roosevelt or litigated where he is on the political spectrum. it is a call to action. to me, it is meant to inspire, motivate and remind americans of every generation what makes america special. and that it is worth fighting for. and some of us carried a rifle, and many in this generation still do. but you don't have to carry a rifle to be in the ra arena. it's our job to instill in every generation the principles that perpetuate what is what you all know is an experiment, an experiment in human freedom. >> then at 10:00 p.m. eastern, erin mchugh and her book "political suicide". >> what should be be a series of thoughtful activity is instead filled with budgetary tightropes, routines, ethical disappearing acts and most certainly clowns.

instead it becomes three rings of horror. we're so fatigued by the time the mud is slung the stexcel ta have come out of the closet and the election is over, we're often exhausted by the new legislate rz before they've had a chance to start their jobs. >> they recounts political missteps in american history. go to book tv.orgor for the complete schedule. on american history tv on c-span3 -- >> there has never been a full public accounting of fbi domestic intelligence operations. therefore, this committee has under taken such an investigation. >> -- on "real america "oishgs the 1975 church committee hearings convened to investigate the intelligence activities of the cia, irs and nsa. saturday night at 10:00 p.m. eastern, the commission questions staffers detailing fbi abuses including attempted intimidation of martin luther

king jr. >> king, there's only one thing left for you to do. you know what it is. you have just 34 days in which to do it. this exact number has been selected for a specific reason. it is definite practical significance. it was 34 days before the award. you are done. >> then associate fbi director james adams admits to some of the excesses while defending a number of other fbi practices. then at 8:00 on lectures in history -- >> the rest of this may in a bad life see a death or two, they see hundreds. so they're the first to sort of see patterns or shifts in how people are going out of the world. so they are the ones who sound the alarm. >> university of georgia professor steven berry on the role of a coroner and how they shed light on the emerging patterns of death within a society and spot potential threats to public health. sunday evening at 6:30, secretary of state john kerry who served in the vietnam war

and later became a vocal opponent of the war shares his views on vietnam at the lyndon b. johnson presidential library in austin, texas. >> our veterans did not receive either the welcome home nor the benefits nor the treatment that they not only deserved but needed, and the fundamental contract between soldier and government simply was not honored. >> then at 8:00, on the presidency -- >> one other person sitting at home watching tv watched reagan deliver the speech. was dwight eisenhower. he immediately called his former attorney general and said, what a fine speech ronald reagan had just delivered. he then called a former special assistant and said what an excellent speech ronald reagan had delivered. dwight eisenhower wrote back a multi-step political plan for ronald reagan to follow. reagan would end up following eisenhower's advice to the letter. >> author gene cope ellison

examines dwight d eisenhower's behind-the-scenes mentoring of ronald reagan and the pivotal role he played in reagan's political evolution. for the complete american history tv weekend schedule, go to c-span.org. earlier this week, the house oversight committee held a hearing on management practices and leadership challenges at the transportation security administration. we heard testimony from tsa administrator peter neffenger who has said his main focus is on counterterrorism and security issues. this is 2 hours 50 minutes. >> we will come to order. without objection, the chair has authorized to declare a recess at any time. an important hearing today, the public comes in regular contact with the transportation security administration. we have a fairly new administrator who i've had a chance to visit with, but it is

important as the oversight committee that we continue to take a look at what's happening or not happening at the tsa. so today we're going to have our second hearing examining the management practices and misconduct that we have heard about and seen and investigated at the transportation security administration. this time of year, the traveling public picks up. kids and families and people are traveling sometimes at record levels. people get frustrated. they go to airports. there are long lines. there's frustration. but at the same time we have to find a balance to make sure that those airplanes are properly secure because the enemy terrorists and whatnot, they only need to get by once. they deal with millions of passengers on a weekly basis at the tsa. we have a lot of good men and women who serve on the front lines who are trtrying to do th

job they can when dealing with the public. sometimes it's hot and sweaty and they're late. there are a lot of issues to deal with. last summer, the indepartment of homeland security inspectorer general performed covert testing of tsa screening and found, quote, failures in the technology, failures in tsa procedures and human error, end quote. there were very alarming rates of success for penetration beyond the lines and being able to bring something nefarious on to an airplane. although some of the inspector general's recommendations are still outstanding in the wake of that testing, the tsa claims they're making progress and training its employees to be more thorough in resolving the security concerns. yet the progress may be undermined if tsa employees continue to quit at the current rate. the agency loses around 103

screeners each week through attriti attrition. as the administrator has told me, a lot of these are part-time employees but nevertheless it's very expensive to get somebody trained up and bring up to only have them leave later on in the process. in the year 2014, the agency hired 373 people but had 4,644 departures. you can see where if you think of it as a bathtub if you're pouring waur ining water into i drain is going out faster than you can keep people in the tub, there gets to be a trouble. very concerned about the morale at the tsa. the government does do i think a good thing. it goes out and range ranks and surveys and comes up with a scientific way to assess the agencies. of the 320 agencies, the tsa ranked 313th. this is an alarming trend throughout homeland security not just the tsa. there are a number of these agencies, including the secret service and others, that are

near the very, very bottom of agencies that are ranked. it's something that has to be asession asse assessed, and there are probably within reasons for this and we have a duty and obligation to our federal employees. you worry that people in a security type of situation with low morale, you don't necessarily get the best security and the best product out of that. two weebs ago, one of our witnesses testified that he believed, quote, while the new administrator at the tsa has made security a much needed priority once again, we remain an agency in crisis, end quote. he attributed poor leadership and oversight of senior leadership appointments in the last several years as major contributing factors. testimony before this committee alleged a double standard within the tsa. we've heard senior leaders in the agency are treated with far more leniency than tsa's rank and file employees. now, we have one situation. i don't know this man. i don't believe i've ever met him.

if i did, i don't remember it. but he is a very senior person, the assistant administrator of the office of security operations. there's a gentleman named kelly hogan. he receives a base compensation of $181,500, a very healthy salary. since his promotion to that position in 2013, security operations at tsa have been abysmal. again, the inspector general i think we'll hear testify today the penetration tests that were done previously were nothing close to successful. they were successful in getting objects and items through security, but they were from a security standpoint absolutely rock-bottom in terms of their performance. yet during this time in september 2014 the inspector general found that despite

spending $551 million on new equipment and training the tsa had not improved its checked baggage screening at all since the nig report found vulnerabilities in 2009. last summer, covert testing by the inspector general revealed an alarming high failure rate that was widely reported by the media. yet whistle-blowers reported that instead of being held accountable for those failures, mr. hogan received an amazing amount of bonuses, beginning in 2015. i want to show you a slide here. not to pick on this person, but this is what's so frustrating the rank and file sees. he ae's earning a base of $181, and in 13 months he gets $90,000 in bonuses. that's just his bonuses. nine times he's getting bonuses over a 13-month period. that's in addition to his health care and all the other things retirement that he'll get.

people don't understand that. let me go to this next slide. so here you have john ha lynnski who i don't believe works at the administration anymore. he makes a recommendation to the person at the bottom, a guy named joseph salvatore who makes a recommendation that kelly hogan get a bonus and then helenski who makes the recommendation, helenski gives him the bonus. it happened four times. go back if you could to that first slide. so you've got rank and file people working hard, trying to do the right thing. we're having massive security failures based on what the inspector general is doing, and this person at the senior part of the food chain gets $90,000 in bonuses. i don't understand that. this didn't even necessarily happen during this administrator's watch.

but we want to know what's being done to clean this up. then go to the next -- you can take that slide down. thank you. so how did he get this done? in the normal scenarioor, the president has to approve any bonuses over $25,000. opm has to approve bonuses over $10,000. and yet title 5 and opm regulations don't apply to the tsa and that's why i think we're going to have to go back and review this. when the ig investigated that after a whistle-blower tip it found in july of 2015 tsa had no clear policies prohibiting an arrangement such as we had just seen and only, quote, loose internal oversight of the awards process, end quote. i hope we are going to hear that this has been cleaned up and going to be more fair and equitable and truly rewarding those people that are having success.

the frustration is it's not as if we've had success. those bonuses were given to somebody who oversees a part of the operation that was in total failure. this is contributing i think to the massive problems of morale and other challenges that we have. administrator neffenger has many challenges to overcome in restoring the confidence of the rank and file and even the perception that some current leaders have have been part of the problem can continue to harm morale within the ranks of the tsa. more significantly, it can deter tsa employees from speaking up about security challenges which ultimately impagts the core responsibility of the agency to keep america's transportation safe. last november the inspector general testified, quote, creating a culture of change within tsa and giving the tsa work force the ability to identify and address risk without fear of retribution will be the new administrator's most critical and challenging task and something i'm sure we're going to talk about today.

we have somebody on our panel who has spent considerable time dealing with the tsa and transportation, the chairman of the transportation committee here in the congress, and i'd like to yield some time to mr. micah of florida. >> thank you, mr. chairman and ranking member for conducting this part two. there are some very serious concerns about performance of tsa. the first hearing that you held just a few weeks ago, we had for the first time since we created tsa people who came in from responsible positions and were willing to testify to the almost sheer chaos that exists both in the management and also the operations. of course, i expressed my concern about the meltdown that we've had to date,nd and i had prepared yesterday and staff had

gotten me like one figure during the break. we had 6800 american airlines passengers miss their flights due to checkpoint delays, and that sort of -- you know, we hear that, members of congress and others. last night i had the night from hell. i had three people who i invited to washington who came to washington, spent most of the day with me, all of them missed their flight standing in a tsa line. i'll tell you what, i am so livid. wednesday night is a particularly bad night. traffic was bad. they were late getting there. the tsa people wouldn't have the courtesy to accommodate people who could have caught their flight even though they were somewhat late, the plane was there. i was on the phone for hours. one of the individuals whose family is leaving on vacation today had to get back to orlando

to accompany his family, i actually had a staffer drive him to -- bought him a ticket home last night. i can put a face on it. you can't get ahold of a damn person in tsa even as a member of congress, nor would they take your calls. i'll tell you what, it's just unbelievable. the operation. you've got your $100,000 people standing around accommodating members of congress to get them on a plane, and you can't get a passenger on a plane who has to get home to leave with his family. i want a list of all of those people standing around that chauffeur members of congress and vips up to the front of the line and you can't get three people, one lady with some physical disabilities -- i'll tell you what. i am so disgusted with this

mess. it makes you, mr. charror chairman, lose your focus. but let me go back to, you can delay these people and then here's my gao report. 17 known terrorists have flown on 24 different occasions passing through your tsa. what's the very most troubling of the testimony that i heard, and you can fail and you will fail and your attempts on the training and recruiting and all will be a failure. i can tell you that. i told you that on my cell phone when you came in. because you cannot recruit. you cannot train. you cannot retain. and you cannot administrate. it's just a huge failing government program, and it will fail. but the most troubling thing was the testimony from mark lifk ston former assistant administrator for tsa's office

of intelligence and analysis who testified, it's my testimony today that we have a non-intel professionals running our office of intelligence and analysis. that's the core of the government responsibility. connecting the dots. and he's telling us -- and i questioned him about what was going on. and he's saying that that important government function, the most important government function to find the bad guys, not stop the innocent 99% of the travelers that we have chaos in that operation. i yield back, mr. chairman. >> thank the gentleman. we'll recognize the ranking member mr. cummings. >> thank you very much, mr. chairman. there have been a few times that in my 20 years on this committee i have felt so strongly about an

individual. administrator neffenger is a person who i have a phenomenal amount of respect for. when i was the when i was the chairman of the subcommittee on the coast guard and maritime matters, it was mr. neffenger, admiral neffenger, who cleaned up a mess called deepwater horizon. where the coast guard was buying ships that didn't float, radar systems that were supposed to have surveillance of 360 degrees with 180 degrees, radios that when they got wet they didn't work. he cleaned up the mess. and saved this country and the

coast guard probably hundreds of millions of dollars and sir, no matter what happens in this hearing, i if ythank you. i really do. last month our committee heard testimony from three transportation security administration employees. they raised troubling allegations about personnel practices that stretched back several years in some cases. the employees who came forward deserved to have their allegations thoroughly and fairly investigated. and i emphasize that. it's one thing to allege, but we need all the facts so that we can be about the business of not only hearing testimony but bringing about the reform that is necessary. i'm sure you would agree with that, mr. roth. unfortunately, the committee has not yet had the opportunity to

fully examine or substantiate their claims. and let me pause here for a moment. mr. roth, in your testimony i want you to do me a big favor and i want you to do a big favor for this committee. i want you to distinguish between what happened post -- pre-neffenger, admiral neffenger, and post. the chairman spent, and rightfully so, a good amount of time talking about the $90,000 bonus. there's probably nobody in this congress who has railed against bonuses going all the way back to aig than i have. and so i want to make sure that we are putting responsibility where responsibility belongs. i hope you'll do that. nevertheless, during our previous journey i was struck by how highly those whistleblowers spoke about our witness today, vice admiral peter neffenger,

the administrator of tsa. despite their understandable frustration about what they endured, these whistleblowers repeatedly told the committee that administrator neffenger was taking positive steps at tsa. they made clear that he is setting a course for the agency that puts the top priority exactly where it should be, on security. for example, mark livingston, a program manager, in the office of chief risk officer testified that administrator neffenger is "a man of integrity." he also said, and i quote, "tsa is not going to compromise our mission to expedite passengers though at the expense of our mission." end of quote. he went on to say what we're going to do is we're going to get better, we're going to keep

pushing precheck, we're going to keep pushing a better process, we're going to get more people and we're going to get better at this. mr. neffenger has made it his priority, end of quote. similarly, jay brainard, a federal security director in the office of security operations in kansas testified, and i quote, that he's a whistleblower. certainly since mr. neffenger has been in there has been a shift in security in trying to get that pendulum to go back so we strike a balance, end of quote. mr. brainard also said, and i quote, "it's important for us to make sure that we reassure our offices so regardless of the fact that somebody's going to have to wait a few extra minutes we still have their back."

and we have an administrator who fully supports that. and that is part of the culture he has established with tsa. that's a very difficult job. it's certainly not the most popular job, and we certainly appreciate it, end of quote. i have to say that during my many years on the overside committee i have rarely seen employees simultaneously come forward to report what they believe to be abuses while at the same time commending an individual who is in charge of the agency for his efforts to address them so vigorously. i can never remember that in these 20 years. and i've been at just about every minute of the hearings. admiral and administrator neffenger testified last november that tsa faces, and i quote, a critical turning point,

and i agree. he cannot turn around this agency on a dime. i don't think anybody up here could. but in the ten months he's been on the job, and i emphasize ten months, he's taken bold action to address the challenges he inherited. for example, in february he -- all directed reassignments currently in process. if you remember a committee where a lot of the complaints were about people who felt that they were being punished and being retaliated against by being moved from place to place. the wife would be sent to the northeast and the husband would be sent to the southwest. and all kinds of mischief. and so i'm glad you addressed that, and i hope you'll talk about that a bit today because that was a large part of our hearing. in march the issue of a memo

that requires new reviews and approvals whenever a directed reassignment is requested. he strengthened tsa's controls over special achievement awards. brought transparency to the executive resources council and appointed a chief operating officer to oversee the assistant administrators in charges of agencies operating divisions. critically, he has worked diligently to address the security shortcomings identified by inspector general roth, who is also with us today. and i certainly have a tremendous amount of respect for you, mr. roth. he retrained all screening personnel, including managers, and created a new academy to train newly hired screeners. inspector general roth -- inspector general roth testified last november, and i quote, he has deactivated certain risk assessment rules that granted expedited screening through

precheck lanes." however, despite all of these positive changes, the number of screeners has dropped by nearly 6,000 over the past four years. and i agree with the chairman. that's something that we all should be concerned about. we all need to find, get to the bottom line of why that is happening. we want to retain our folks. and i do not -- and i'm hoping it's not a situation that the chairman and i found with the secret service where people had gotten to a point where they did the same job over and over and over again. i at least concluded that they had moved into a culture of complacency and sadly mediocrity. of course the tsa has to do its job. congress has to do ours as well. congress wants to ensure that this agency has the resources it needs to accomplish the security mission, and i want you to let us know whether you do have the

resources. including right-sizing the number of screeners. i look forward to hearing from administrator neffenger about what more he needs to continue the improvements he has put in motion. 'll and i anxiously look forward to hearing from mr. roth about the work he is undertaking to assess these changes. i do believe we're well on our way to making the tsa a better organization. and if it is a morale question, i'd like for you to address that forthrightly, mr. neffenger, admiral neffenger, and let us know what you plan to do about that. with that i want to thank you and i yield back. >> thank the gentleman. we'll hold the record open for five legislative days for any members who'd like to submit a written statement. we'll now recognize our witnesses at today's one panel. pleased to welcome peter neffenger, administrator. transportation security administration. and mr. john roth, inspector general of the department of homeland security. we welcome you both.

pursuant to committee rules, all witnesses are to be sworn before they testify. you've each testified here previously, but if you would please rise and raise your right hand. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? thank you. let the record reflect that the witnesses each answered in the affirmative. as you know, we like to limit oral testimony to five minutes but of course your entire written statement will be entered into the record. mr. neffenger, administrator neffenger, you're now recognized for five minutes. >> thank you. good morning, chairman chaffetz, ranking member cummings, and distinguished members of the committee. thank you for the opportunity to appear before you today. i sincerely appreciate the committee's oversight of the management practices at tsa. this issue has been of great concern to me as well. i commit to you and the american people that under my leadership tsa has established high standards of performance and accountability. i also want to thank inspector general roth for his support. i greatly value the oversight

that his office provides to improve our agency and i have been working closely with him during my tenure. my leadership perspective is shaped by more than three decades of national service in crisis leadership. throughout my career i have emphasized professional integrity and duty to mission as foundational elements of service for myself and for the dedicated civil servants and military members i have been entrusted to lead. since taking the oath of office on july 4th of last year i have traveled throughout the country and throughout the world to meet with employees at all levels of our agency. i've been impressed by their patriotism and their sense of duty. these are servants who every day perform demanding tasks under difficult circumstances, and i deeply respect and appreciate their work. they have risen to the challenge of service to a mission and have taken an oath of office and loyalty as a condition of employment. their success requires the utmost professionalism from all of our employees from front line officers to the most senior

leaders. my overarching priority is to fulfill the core mission of tsa to secure the nation's transportation systems. in just ten months we have undertaken a range of transformational efforts. i immediately prioritized our counterterrorism mission. i set a renewed foekts on security, revised alarm resolution procedures, made investments in new technology, and retrained the entire workforce. we are holding ourselves accountable to high standards of performances and supporting our front line officers in their critical counterterrorism mission. we have reinvigorated our partnerships with the airlines, airport operators and the trade and travel industries and are working closely with congress to address our security mission. we simultaneously undertook a broad evolution of the entire tsa enterprise with respect to that mission and our people. i am systematically and deliberately leading this transformation and i have made it clear we are focused on our security mission. most importantly, i'm investing in our people. with congress's help i directed a complete overhaul of our

approach to how we train our workforce at all levels of the agency. we established the first ever tsa academy on january 1st of this year. this intensive training will enable us to achieve consistency, develop a common culture, instill core values, and raise performance across the entire workforce. establishing a culture of mutual respect and trust between leaders in the workforce instills confidence and pride and is a prudent investment in the future of the agency. i also ordered a review of all personnel policies and practices. this led to a number of significant changes. among which are the elimination of the arbitrary use of directed reassignments, restrictions on permanent change of station relocation costs and significant controls on bonuses at all levels. we are overhauling management practices. i've conducted an independent review of the acquisition programs. we're building a planning, programming, and budget execution process. and we're building a human capital management system to address recruitment, development, promotion,

assignment, and retention. to ensure the effective reintegration of our leadership team i have brought in new leaders from outside the agency. a new deputy administrator, new chief of staff, a chief of operations, a new head of intelligence, and other key positions. and with respect to the intelligence i want to note that our intelligence office just received a very prestigious award from the national countar terrorism center for the work they have done to analyze recent attacks on the aviation system. i assure this committee that under my leadership tsa treats its employees fairly and affords them every legal and available means to exercise their due process rights. we review management controls regularly, revise them when needed and fully investigate and adjudicate misconduct at every level. and i hold those who violate standards appropriately accountable. with respect to leadership my experience tells me that good leaders set high standards and inspire people to perform at their best. i have demanded much of my leaders over the past ten months. i have set high standards for

them. i expect them to work hard. and i supervise them closely. finally, we must deliver a highly effective intelligence-driven security capability every day. to do so we must have fully trained, highly motivated professional employees supported by a mature and efficient agency with a common set of values. my guiding principles which i expressed in my administrator's intent are focused on mission, invest in people, and commit to excellence. we are pursuing these objectives every day. as administrator i will continue to do so until we achieve and sustain success in every aspect of this agency, in every mission, in every office and location where we operate and with every single employee. thank you for the opportunity to appear before you today and for the committee's support of tsa's mission. i look forward to your questions. >> i thank the administrator. we will now recognize inspector general roth for his testimony. you are now recognized for five minutes. >> chairman chaffetz, ranking member cummings and members of the committee thank you for inviting me here to testify this

morning. one year ago i testified before this committee at a hearing on tsa's programs and operations. during that hearing i testified that we remain deeply ker7bd about tsa's ability to execute its important mission. i noted that ts. had challenges in almost every area of its operations. at the time i testified that tsa's reluctance to correct security vulnerabilities that our audits uncovered reflected tsa's failure to understand the gravity of the situation. six months ago i testified before this committee and stated that i believe the new administrator had begun the process of critical self-evaluation and 5ided by the dedicated work foshs of tsa was in a position to begin addressing some of these issues. i predicted that the new administrator's most critical and challenging task would be to create a culture of change by giving the workforce the ability to identify and address risks without fear of retribution. today i still believe that to be

true. however, we should not minimize the significance of the challenges tsa faces and the grave risks that failure brings. the task is difficult and will take time. in the meantime my office will continue to conduct audits, inspections and investigations and bring an independent look and professional skepticism to our reviews as we are required to do. in light of part 1 of the committee's hearing i would like to discuss our office's work in investigating misconduct within the tsa workforce. as you know, we are organizationally independent from both dhs and tsa and as such have a crucial role in ensuring that crimes and serious misconduct will be investigated by an independent fact finder. the department employs more than 240,000 employees and an equal number of contractors. we have fewer than 200 investigators on board and available to conduct investigation. so this amounts to approximately 2,000 employees for every oig investigator. in fiscal year 2015 we received

almost 18,000 complaints. about 350 complaints per week. a substantial number of those complaints allege that dhs personnel engaged in misconduct. last year we initiated 664 cases and our investigations resulted in 104 criminal convictions and 37 adverse personal actions. some of these investigations involve tsa personnel. in the last fiscal year we received about 1,000 complaints either from or about tsa employees. we typically accept for investigation only about 40 of those cases per year. our criteria for case selection involves an assessment of the seriousness of the allegation, the rank or grade of the individual involved and whether oig's uniquely independent role is necessary to ensure that the case is handled appropriately. we value the contributions that whistleblowers make in identifying fraud, waste, and abuse. federal law provides protections for employees who disclose wrongdoing. specifically the agency may not retaliate against employees by

taking or threatening to take adverse personnel action because they report misconduct. the i.g. act also gives me the absolute right to protect the identity of our witnesses, upon whom we demand to expose fraud, waste. and abuse. in tsa, for example, we investigated a whilstblower's allegation that a notorious felon was granted ex-pooitded screening through precheck. the traveler was a former member of a domestic brup and while a member was involved in numerous felonious criminal activities that led to arrest and conviction. after serving a multiple-year sentence the traveler was released from prison. the tsa officer gave us the tip because the officer recognized the traveler from news coverage. we investigated it and found that the officer was correct. because of tsa's policies at the time this traveler was given expedited screening. we were able to write up a report and give recommendations to both congress and this committee.

thanks in part to this whistleblower's xhant we were able to illustrate the dangers of this policy and tsas ha since rethought the issue of managed conclusion. i would also note that the chairman's description of the bonuses mr. hogan received and our investigation of it was as a result of an alert dhs employee who notified us of that situation. when i arrived at oig about two years ago i was concerned about how we had been managing our whistleblower protection program. my goal is to make sure we have a whistleblower program that is good or better than any in the federal government. to that end we have instituted a number of changes in the last six months to enshire that whistle blowers who have claims of retaliation are listened to and their claims are fairly and independently investigated. mr. chairman, this concludes my testimony. i welcome any questions you and members of the committee may have. >> we thank you. now we recognize mr. mica of florida for five minutes. >> i'm sure, administrator, you heard or watched the proceedings

when we had three tsa officers in here. as i said in my opening remarks, one of my major areas of concerns this year, intelligence and analyst office in that capability, i'd never heard more damaging testimony than i heard under oath from -- on that matter. we have detailed information we've acquired about some of the personnel that are there. and obviously the qualifications and the background are lacking. what do you want to say to this? >> congressman mica, thank you for the question. i had questions about the personnel when i first came in. >> are you currently reviewing the qualifications and the

allegations -- >> i have a new chief of intelligence that i brought in who is an intelligent professional. he's here. i can report ---ed. >> i think i would like an outline to the committee -- i mean, the screening function is fine and you may find some knives and some guns. they're not going to take down an aircraft. but intelligence is government responsibility. we don't have good intelligence and again, i cited an older gao report where known terrorists are going through the system. this was a risk-based system. so can you provide us with an outline of what you intended to correct the situation? >> yes, sir. and i'll also provide you with an example of how we have built an intelligence enterprise which i think is one of the best in the country. i can say that. it's been recognized recently by the national counterterrorism center with one of their prestigious awards with analysis they've done. >> again. it's just most troubling. the other thing tsa has been

giving this line, i've seen it in the press, that it's a lack of funds that right now create some of the problems and the lines. that's been put out by tsa, hasn't it? >> no, sir. i have not said that it's a lack of funds. >> well, i've seen it from tsa. it's actually staffing. last night like at reagan at 7:00 they closed some of the lines. tsa cannot staff to traffic. i mean, we have -- i've seen it all over. i had an anecdotal report last week of a member that told me that at one airport they were backed up, lines forever, the other side of the airport there was a concourse and there were not thousands standing around but everybody standing around and someone can't shift them. and in the lane that the individual was -- the lanes that the individual was leaving two were closed.

i've been at national airport. i've seen the same thing. people can't make a decision to staff to traffic. the other thing, too, is we've got to look at the money that you're spending. the last account i had we're spending $1.1 billion on administration and 1.9 billion on screening. that's a lot of administration. we need to pare those numbers down. the bonuses that the chairman said, $80,000. i asked the staff, how much can we pay screeners? you're losing 30% of the screeners and 38% of the non-tso employees leave their jobs within one year. you could be training these people and like the chairman said you've got a boat, you know, with with a leak in it, it's going to sink. but again, how much is -- let me ask this question. how much is the bonus you can

give to a screener? i'm told $300 a year. >> no. it can be higher than that. i don't have the exact number for you. >> can someone tell us the exact amount? >> yes. >> but i'm told it's about $300 a year. that guy got -- we'll knock off the one month, sir. he got $80,000 in bonuses. and i've got people that are doing the work. not sitting in an office. and i want a full accounting of all the people working in the washington area. at one time there were 4,000 people within like ten miles of here working for tsa making an average of 103,000. i'd like that figure into the record. can you provide us with that? >> yes, sir. we'll provide that. >> and finally, i'm not a management analyst but these folks testified too that you went from a risk-based system to the system we see out there with these long lines and everything. we've got the summer coming. they said if you think what is,

it the day after thanksgiving was bad, we're going to see that every day. what is plan b? we've gone from a risk-based system now to shaking and thoroughly examining everyone and no plan b. can you tell us about plan b? >> we're still a risk-based system. we still have tsa precheck. we are growing that population. we're doubling -- we've doubled the enrollment of that population over last year. and the risk-based approach is the more people i get into trusted traveler programs the more i can move them through expedited and the more we can focus on those who aren't. we discontinued the praf arbitrarily assigning and randomly assigning people from an unknown population into that expedited population. that was called managed exclusion. that pushed a lot of people back into the standard screening lanes. we have a significantly larger population of travelers this

year than we had previously and it's grown substantially. it grew faster, at a higher rate than was predicted by those who set the predictions for our budgets which have been built as you know in the past. when i came into this organization last year i found an organization with 5,800 fewer screeners than it had it -- and front line officers than it had four years previously. that was in the face of significantly higher traffic volume. one of the first things i asked congress to do was to halt any further reductions to the workforce because it was my suspicion that we did not have enough people to staff our lanes. my suspicion was correct. we do not have people currently to staff our lanes. and eph bewe have been sichlt economy systematically -- >> i respectfully disagree and yield back. >> ms. maloney for five minutes. >> i thank the chairman for calling this hearing, and nothing is more important than securing the lives of the

american people. and i want to thank admiral neffenger and i.g. roth for your work to really make the tsa security system more effective. i would like to remind my colleagues that tsa was built not for speed or created by government but to protect our citizens. almost 3,000 people just in new york city alone were murdered on 9/11 merely because they woke up and did what each one of us are doing today in this room. they went to work, sat at their desks, and they were murdered. not on a military site but at their work site. and this happened at other sites around the country. and if you remember, i would go to the airport just to see what was going on. it was closed down. no one would fly.

our commerce was crumbling. our air system was totally dead. everything was dead. until government came in and started putting security measures in place to protect the american people. 500 of my constituents died on 9/11, and hundreds of friends and acquaintances of mine merely because they were americans going to work. this is horrifying and we know that our airlines continue to be a terrorist target. we know. i talked to the pilots. they tell me they continue to test the system all the time to see if there are weaknesses. and they find it often after they leave the plane and see where they were meddling. i want to thank both of you for your focus on security. i would also like to remind my colleagues that when we created tsa it was hotly debated for months. there was a division between both sides of the aisle.

some thought if should be privatized. others thought the government should have this responsibility since our main responsibility is to protect our citizens. if our police and our fire are maintained and supported by the government, surely the tsa that plays a vital role of making sure that an american doesn't get on a plane that is going to blow up should have the same type of support from the federal government. so i want to thank mr. neffenger for your statements, before this committee, where you -- and i'm going to quote you, i thought it was such a good line, you said you were re-adjusting the measurements of success to focus on security rather than speed. and i will say to you, i don't see tsa pandering to any

passengers. i get stopped all the time. sometimes i say why am i being stopped? they said it is a random number, you're that random number. sometimes the bells go off. like every other american, i have not seen anyone protest the fact that they were stopped. they realize that they're there to help make it more secure for us. and i study the lines like all of us, i travel every week, back and forth, and we have long lines. tsa has really helped. the precheck. sometimes the precheck line is longer than the other lines. the precheck line is really growing as you said. but i study my fellow residents, and i don't see them angry. if they lose their flight, miss their flight, they should have been there earlier. we're all supposed to be there an hour earlier. we rarely are there an hour earlier. and they're not upset, they realize that they're stopping people to make sure they don't get killed when they get on that plane. so i for one just want to support the oversight strength of our nation, the ig's office

came out, saying it wasn't strong enough for security. the admiral has responded. he has ten points he's implementing. and i just want to ask admiral neffenger, what adjustments have you made to ensure that screeners are assessed on the security results that they achieve? and i want to reiterate, i have never, never, since 9/11, it's been 15 years, i have never seen a resident or foreigner, whoever is in that line, object that they are being stopped or that someone else is being stopped and because of their feeling that there's an emergency they may miss their plane. the one complaint i hear is is it secure enough? what's the oversight? every now and then someone gets on a plane with a knife or weapon and gets all over the papers and people start calling my office, how did this happen? if people don't believe their planes are secure, they're not going to fly.

commerce is going to hurt. the country hurts. and the fear is a terrible and undermining the american spirit to get things done. i want to know how are you -- what are you doing to improve security? if you need more people, let us know, and give us a report on how you can keep the security at the top level, but you may have to have more people. i just know in new york it is a busy place, but oftentimes there are only one or two lanes open because they don't have the people to staff the other lanes. but no one is complaining about a pressure on security. you know, i want to thank you for the job you do. if anything, it should be tougher in my opinion. >> gentlewoman's time expired but the gentleman may anser. >> i'll provide a fuller comment for the committee's record, but let me highlight a few points we're doing. as you know, following the

results of the i.g.'s tests last year, the first thing we did was a true root cause analysis, what actually happened. what i found was systemic problems from in agency focus, in agency training and the way in which we deployed our equipment. first thing we did, we did a retraining of the entire workforce. that took two months. rolling stand-down, eight hours at a time, every single employee, including myself, i made all my senior leaders go through it as well. we called that mission essentials, we have followed up with a quarterly version of mission essentials and we now focus on various aspects of the checkpoint. we have dramatically increased our covert testing, internal covert testing, and we do immediate feedback into that. we provide -- i work from -- as i say, i work from the positive side of the equation, we provide rewards for those people who perform well, and then we turn those people into trainers for the next round of folks. we do immediate feedback and that consistently. i get daily measures of performance.

workforce readiness, workforce performance, and workforce accountability. we changed that. it is no longer based upon how long the lines are that you're working -- that's a separate issue, and we deal with that at the management level. but from the front line workforce, i want them to know that i want them to focus on the mission, i will support them in doing so and will provide them the best possible training. we also train them on the equipment, how it operates, and we gave them hands on understanding of what the limitations were. there is a more fuller answer for you, which i'll provide, thank you. >> thank you. >> i'll now recognize gentleman from tennessee, mr. duncan, for five minutes. >> thank you, mr. chairman. admiral neffenger, can you tell me how many tsa employees make 100,000 or more a year? >> i'll have to get that number for you for the record, sir. i don't know it off the top of my -- >> can you make a rough guess? >> i can make a rough guess, maybe -- i don't really know, sir. i'll have to get that for the record. >> let me ask you this, do you know how many tsa employees got

bonuses in the past year? >> there were -- as i said, i restricted the number of bonuses that we do. i'll get you the exact number, it was a significantly smaller number and it was based upon performance, wasn't based upon special act awards. >> can you tell me, have you -- have you personally fired any employee -- tsa employees for misconduct or rudeness or incompetence since you've been in office? >> there have been a number of people who have been fired from the agency at all levels over the past year. i came in, and one of my first -- one of my first tasks was to determine what my agency looked like. i hold my leaders to high standards and i have demanded a lot of them. i have been -- i'm confident in my current leadership team. i'm certainly confident in the people i brought in to help lead that team. and to date i've been -- i've been satisfied with their performance, though we have a long way to go.

>> when you heard mr. mica say you're spending almost as much on administration as on actual screening, what is your response to that? do you think that's -- is that accurate? >> well, i agree that any leader needs to look hard at the way in which its resources are being spent. i have done so. as i mentioned, i've done a systematic review of our entire agency and the management practices of this agency. we have taken a hard look at the budget and in fact i moved a lot of resources around and i've been working with my -- the appropriators and other -- my oversight committees to ensure they understand where those savings can be found. i think there is more savings to be found in my budget. some of that administrative oversight is required to manage the contracts that tsa has, but i think there is always room for examination of that. and i intend to do so. >> were you surprised when inspector general mentioned the 18,000 complaints and 104 criminal convictions? >> i think that was across the

dhs enterprise, not all tsa. we're a subset of that number. i'm always dismayed by misconduct in an agency. we're a very large agency of about 60,000 people. it doesn't surprise me that we occasionally have people who don't act well. i'm concerned about the -- its effect on -- mostly concerned about how you deal with it when you discover it. i've committed to the inspector general will work very closely with him on understanding what the nature of those allegations and misconduct are. >> i've served on the aviation subcommittee since i've been in congress and chaired it for six years and i can tell you that you have more -- well over twice as many screeners now as when it was privatized and yet there are more complaints and longer lines now than when it was privatized. do you have any explanation of that? >> i think there is a couple of factors there. one, there are significantly more people moving through this,

ravelers now than -- >> not that, not that many more percentagewise. >> yes, sir, actually -- >> there has been an increase, i can tell you there has been a big increase, but not a 2 1/2 times increase over when it was privatized, i can assure you of that. >> we'll get you the exact number, i think you would be surprised at how much more volume we're seeing and there is a lot more to worry about at a heckpoint than we had before. a lot more threats to the system. this is one of the most dynamic threat environments i've ever seen. so the nature of passenger screening is much more complex than it was 15 years ago prior to 9/11. >> have you review ed the testimony of the witnesses we had a few days ago, in particular the testimony by the one administrator that you spent $12 million on a restaffing of a floor that should have cost $3 million at the most? >> i have reviewed the testimony. and as i mentioned, i put significant controls over expenditures, over costs associated with those

expenditures at all levels of the organization. >> now, also i heard that there were just about as many contractors as numbers of employees. and yet i have read and heard that many small businesses feel they're having trouble getting meetings set up or getting phone calls returned. do you have or would you be willing to set up a small business ombudsman or small business outreach office to help so many departments and agencies when they become so big just the big giants are well connected enough to get meetings and get phone calls returned. and i'm wondering if you're doing something about that. >> yes, sir, thank you for that question. i have good news to report on that front. that's one of my concerns too coming in. my time in the coast guard, i spent a fair amount of time on the acquisition side of the house and we had great concerns about small business participation, it is a particular interest of mine. we do have a small business outreach office and what'm pleased to report is that we met our small business participation

targets last year for first time ever. and we continue to do so. i don't think there is enough competition in the current marketplace and i think there is a great deal of entrepreneurial and creative ideas in the small business world. >> thank you very much. >> i thank the gentleman. i'll recognize the gentlewoman from illinois, miss kelly, for five minutes. >> thank you, mr. chair. administrator neffenger, you talked about the idea that more people are traveling. and that tsa needs more workers. i wanted to concentrate a little bit more on precheck. how many passengers are currently enrolled in precheck? >> we're currently at about 2.4 million people enrolled in precheck. >> and how -- what number do you think that can grow to? >> well, we have done a lot of work with the u.s. travel association and other

associations connected with the airline industry. and we think we can get the number to 25 million by calendar year 19. >> and what are you doing to encourage passengers to join? >> well, we have done a lot more to advertise the program. you need to continually advertise something for people to be aware of it. and i think in my opinion, failure to do so over the past few years consistently has reduced its -- the awareness of people for it. so there is two factors. one, you have to advertise and it has to be available and you have to have places where people can sign up for it. those were the two areas i think that we needed to do a lot of work on. we have been working very closely with u.s. travel association, individual airlines, the airline associations and airport associations to increase their advertising. pleased to report that all of the major airlines are doing their own versions of advertising. some of the major airlines offered the opportunity to exchange miles for precheck.

we have gone out to a number -- to the u.s. chamber of commerce and to a number of the large corporations, microsoft corporation, vice precheck for all of its travelers, frequent travelers. those kinds of things are helping considerably. our enrollment right now is running about 165,000 per month. which is more than double what we saw this time last year. we think it needs to get a little higher. but between that and the other trusted traveler programs of the government, such as global entry and nexus and century, we believe in the associations agree with us that we think we can get this up to 25 million, which would dramatically change the way we can operate the system by calendar year 19. >> i typically fly in and out of o'hare or sometimes midway. and what my colleagues said about sometime the precheck lines actually are longer than the regular lines, but the other thing is all of the carry-n luggage, because of what the airlines charge, people are carrying more and more luggage on and stuffing more and more

things in the luggage and according to the new york times, the big four airlines, american, southwest, delta, united, made $22 billion in profit from their charges. and i wanted to know, that's one of the sources of growing profits in the airline. and what portion of that goes from the airlines goes toward paying any airport security? do they contribute in any way? >> i think currently the airlines do not make a direct contribution to airline security. there is a passenger security fee that is charged on every ticket. it's capped on a round trip. we are seeing more baggage come through the checkpoint. i will say that the airlines now are being very diligent about enforcing the one plus one rule. that's helped considerably. we're also experimenting in a number of the large airports with what we call travel light lane that has travellers who have a simple carry on, brief

case or purse or something, the opportunity to have a dedicated lane which allows us to move significantly more people through. it is the carry on baggage that is one of the major slowdown points in a checkpoint. >> i wonder if we should do more calling on the airlines to help address the consequences of their business decisions on the tsa screening process because the more they charge, the less people are going to check their bags. i think american is $35 for a piece of luggage. what do you think about that? >> well, it's a decision of the airlines to make those fees. i can talk about the impact of people carrying a lot of baggage through the checkpoint. i will say i think the airlines

are aware of this. i had a number of conversations with the ceos of each of the major airlines. i understand why they made that business decision. i tell them what the impact can be upon us and they committed to working with us to ensure that they find ways to reduce that stress at the checkpoint. >> and it's something they should look at because if everyone carries luggage on, that slows everybody getting on the airplane and the on-time record and on and on and on. i yield back. >> i'll now recognize the gentleman from arizona, mr. gozar. >> thank you, chairman. mr. neffenger, tsa employees report that directed reassignments have been used improperly to force out disfavored employees. do you believe this is an ongoing practice at tsa? >> i discontinued that practice explicitly and in fact put strong controls on it. i will say that i think an agency, an operating agency needs the ability to move people periodically to places where their skills are needed or for

ex-igent circumstances. but you need strong controls over that. and it needs to be done in an open and transparent way and needs to be done in a way that is not used for retribution or punitive measures. >> i'm glad you went that way, because i would like to illustrate mr. brainerd who testified before this committee that he was issued a directed reassignment from iowa to maine in 2014 with no apparent need or justification even though they -- the move caused him significant financial hardship. his placement and the person he was replacing were issued similar reassignments. in your opinion, was this an appropriate use of directed assignment and if so, what is your justification? >> in my opinion it was not an appropriate use of directed reassignments, and that's why i changed the policy. >> so now mr. brainerd has also testified he had an excellent performance evaluation. he was reassigned to a smaller and less complex airport. the person he replaced did not want to leave and the person reassigned to replace him reassigned because accepting the reassignment would cause him hardship. can you explain the decision to move forward with this reassignment? >> again, that happened before i arrived --

>> it may have happened before but you're responsible, are you not, sir? >> i'm responsible now. and as i said before, i am not conducting directed reassignments in that manner. if i have to -- in fact, i have not directedly reassigned anyone under my leadership. >> now, andrew rhodes was issued a directed reassignment in february of 2015, which was stayed by the office of special counsel due retaliation for whistle-blower activity and rescinded by the tsa. can you explain how mr. rhodes' reassignment was approved? >> i would defer to the person who made that decision. i don't allow that policy under my watch and we're supporting mr. rhodes in his complaint which stands before the office of special counsel now. >> now, part of the justification for mr. rhodes reassignment was to sever past loyalty due to suspicion he was a source for the media which he denies. do you consider this an appropriate justification? >> again, that matter is being

investigated right now by the office of special counsel. if they find that to be true, then, of course, it wasn't appropriate. >> is mr. rhodes' directed reassignment approved by the executive resources counsel? >> i believe it was brought before the executive resources counsel under its then mandate, and then recommended to senior leadership beyond that. >> have you disciplined anybody at tsa for their role in this reassignment? >> again, i'm waiting for the results of the office of special counsel investigation. depending upon what they find, it may point to appropriate discipline. >> if there is -- in many cases with law enforcement, people are put on administrative leaves. is anybody going to be put on administrative leave or anything like that? >> i have not placed anybody on administrative leave. >> do you stand by the validity of these reassignments or do you have any reason to believe they were improper? >> with respect to the ones you're talking about, again, i'm

going to -- i will await the office of special counsel's review. it is important we look at a review of that to determine whether or not there was improper use there. i'll tell you, i don't think the manner in which we were doing directed reassignments was justifiable. and even if -- even if it was appropriate, it wasn't done in a way that was open, transparent, fair and otherwise -- and otherwise controlled. which is why i changed it and we put significant controls on that process now. >> do you -- on updates on reassignments, are they periodic or are they daily basis? how are they done in your office? >> i get a report on those -- i'll tell you, i've not done any directed reassignments. so right now the update is that we aren't doing that. and i've created a process by which someone can recommend a reassignment, someone can

request a reassignment, and then it goes through a series of checks and reviews, that includes the office of human capital, the chief financial officer, the executive resources counsel and comes to the office of administrator for decision. >> thank you. i'm just running out of time. i'll yield back. thank you. >> i thank the gentlemen. now recognize the ranking member mr. cummings from maryland. >> admiral, i want to get down to the meat of what happened the other day when the whistleblowers came in. there was a theme running throughout their testimony and they were very forthright, really good people. and they came to us begging almost for fairness. but one of the things they said was that there is some leadership folk and they said,

it is not a lot of them that try to undermine the things that you are trying to bring about. and they felt very strongly that if these folks were not there, things would run a lot smoother and so i want to ask you, one of them said this -- this workforce is waiting out mr. neffenger because they think the elections are coming. other whistleblowers expressed similar concerns. administrator, have you heard this type of concern and hear you're doing a great job, but that the problem elements at tsa are just waiting you out and how do you put in systems that go beyond this tenure. i know you're used to doing

that. you did that with deepwater horizon and the coast guard, made sure we had procurement officers that were trained properly. now they're doing fine. so how do you do that here and keep in mind what they said. they weren't so much complaining about you, they were complaining about some folks under you. how do you deal with that? do you have any idea who these whistle-blowers are talking about? >> i don't know who they were directly referring to, mr. cummings. let me tell you how i -- how i approach leadership at this organization. the first thing you have to do is set very clear standards which i've done since i've been there and very clear

expectations and define a vision and mission for where you're going. it is directly related to getting our security mission done. and then i hold people accountable for reporting back to me. i sat down with each of my leaders, the people who report directly to me at headquarters and who are responsible for collectively for the performance of tsa and i looked each one of them eye to eye, and i've done it repeatedly and i do this weekly and i do this sometimes daily and i said this is what i expect of you. if you fail to perform then i will hold you accountable. and i hold them accountable by requiring them to report back to me with very specific measures of performance. i will tell you to date. and i've driven them very hard. i know that. because i know how hard i -- how hard i'm working and i know how long they're there. and if i'm there at 8:00 at night and i call somebody, they're there at 8:00 at night and then we do that until we get it done. so what i'm seeing is a leadership team that if driven and pointed in the right direction is doing what i'm asking them to do. now, how do you ensure that that stays there in the event i'm not here after the elections? first of all, you inspire the

workforce to the mission that they first took the oath of office for. you can remind people of the oath of office they took. and i remind everyone that this is a workforce that committed themselves to one of the most challenging missions in the country. and then you have to build the institutional controls. and you put them into policy and then you get that policy stamped by the department of homeland security and you turn to people like the inspector general and you turn to people like the secretary of homeland security and you asked them to review your policies and then you put controls at the department level over this. then you bring in leaders below you that are career employees that will survive you that are on the same page you are. which i've done. i have a new deputy administrator who came in from outside the agency and she has a stellar reputation in the federal government. and then you bring in -- i brought up in a chief of operations, again, a stellar operator, who is a man of superb integrity and responsible for encouraging that going forward. i will provide for you a list of those kinds of actions we're

taking, but i think the way you ensure that it survives is you don't let it be the decision of one individual anymore. which i don't. >> let me ask you this, one of the things -- i think, first of all, i think every member of this committee and i know for a fact that the chairman feels this way, and certainly -- we talked about it a lot, if there is retaliation, we have a major problem with that. and we will do everything in our power to protect whistle-blowers. i guess my question now is when i heard about this reassignment, and i know you're not doing it anymore, i mean, some of that stuff really upset me. because basically what they were doing was -- sounded like intentionally tearing up families, dividing them, and, i mean, really putting some hardship on people which was, i mean, unbearable. they were spending, one case,

spent $100,000 to do a reassignment that didn't even make sense. except to retaliate. i want to know what your position is with regard to retaliation, what you -- how you deal with that? and we want to be assured that there are people who are doing that, and i'm telling you, i think you will get -- i think i know, you'll get every member of our committee backing you up, but we want to know what your position is with regard to that, and have you found any of that so far? i mean, yourself. you may have heard some things, but go ahead. >> well, i don't tolerate that. it's illegal. it's unethical. and it -- it's in all the categories of the kind of people you don't want in the organization. the people who were doing the most of those direct reassignments are no longer with the agency. they left before my arrival. i'm very interested in the

results of the office of special counsel investigation into the existing cases with the individuals who appear before you depending upon the findings i'll take immediate action against that. it will not be tolerated. i don't tolerate it. it is why i stopped the practice. i don't know how extensive it really was because we know that people that have come forward, but i can tell you that it doesn't happen under -- i made that very clear to everyone. i also directly support the rights of individuals to come forward. that's valuable information you get from people who have the courage to step forward and tell you what they think is wrong with the organization. >> so -- i'll finish with this, mr. chairman. so you're saying that if there are people watching this at tsa who feel that they are being wrongfully retaliated against or some action taken against them that is illegal and improper, you're saying you have an open door? >> they can come directly to me,

exactly. i will then in fact turn directly to inspector general roth and ask his -- i will ask his assistance in investigating. >> thank you very much, mr. chairman. thank you. >> i now recognize the gentleman from south carolina, mr. gowdy. >> thank you, mr. chairman. i will be brief and then i will yield the remainder of my time to the gentleman from florida. mr. chairman, i think we're probably all prisoners to a certain extent to our own personal experience, so while i'm open and interested of the experiences and expectations of others, i've never had a problem. and any of the airports i've ever traveled to. i use granville spartanburg. i use charlotte. i use dca. the folks are professional. my friend from florida mentioned that there may be some members of congress and perhaps other people who consider themselves to be dignitaries who either expect or accept preferential treatment. the members of congress that i travel with don't expect it and they wouldn't accept it if it were offered to them. a member of congress has a little bit of obligation herself

or himself to say no, i'm going to stand in the line like just everybody else. i'm quite certain that your department can do better. i'm quite certain you have a plan to do better. i'm also quite certain congress can do better. us and i trust you have a plan to fix tsa and my experience with them -- you have a hard job, with zero margin for error, that's not much margin. with that, i'll yield to the gentleman from florida. >> actually i want to take a minute and compliment mr. cummings. sometimes he and i disagree, but rarely, but his line of questioning, mr. neffenger, i'm not here just to bust your chops. but his line of questioning was from the other side of the aisle, and it -- what we heard

raised great questions and it was documented by staff, the amounts of money that were used to pay to transfer people in retribution, it was -- it was -- and then the other thing too, sometimes -- i think -- i was telling the chairman, i think you're a good guy. i think you were a good guy to be sent in to clean up the mess. but sometimes the leader is fed mushrooms and kept in the dark. i'll put that as politely as we can. and mr. cummings described to you what we heard is going on that you're being fed this information by these people who are protecting their rear ends. i'm trying to put this in terms that can be transmitted on c-span, the family community. but, again, this is our concern. i help create tsa.

i'll never forget mr. mineta and i went out and we, i think it was, like, we had a goal of 20 or 30 minutes from curb to the gate. that was our -- that's when it was under the transportation committee. and we actually went out and did a thing. and it can be done. we don't have to hassle the 99% of the people. we're supposed to be looking for the ones that are getting through. and, again, you have an attrition rate of average of about 10%, right? for screeners? average, across the board. if you can't tell me now -- >> i don't know the average, but it is higher than -- >> you have 4500 full time -- 45,000 as your cap, you have 4,500 vacancies at any time, 30% of them dropping out after you train them.

38% of the non-tso. that's what we have from you. again, it is a -- the water is draining and we're not going to get. it is hard to administer all those people. and staffing to traffic, they can't staff to traffic. and you heard your -- one of your defenders, sometimes the precheck line was longer than the others because no one adjusts. it is not a thinking organization. and i don't know how you get it. i'm an advocate of private screening under federal supervision of which hopefully could make better decisions, but i want to also know the total number of bonuses that were paid in 2015, 2014, i want to know how much that -- that's for management personnel. and your highest level. then i want to know the maximum and minimum amount for the screeners. these guys do work hard and the staff is telling me their max is in the range of $300, and this guy is getting $80,000 and we're

screwing the guy that is doing the work and the job? if we paid them better, maybe we could retain them. some of the private screening companies pay more than the tsa schedule. they have to pay the minimum, not done on the cheap. you're aware of that, aren't you? you have that flexibility to pay more? >> i have some flexibility. i don't have much. >> maybe you need more. thank you. i'll yield back. >> thank you. >> would my friend from florida just yield for one second? >> the gentleman's time -- >> i would do anything -- >> the c-span word for -- >> thank you, inspector general. good to see you again. you realize this is an equal opportunity committee, so when we criticize you today about having long lines and taking too long to screen people, next week if there is a breach, we'll haul you up here again and lambaste

you for not being more thorough, so we have that flexibility up here. and you do not. but i think based on what i've seen and i've been a critic at times, based on what i've seen, admiral, the work you're doing and inspector general, you continue to do, i think we're going in the right direction. we got a lot of work to do. the question we had at a previous hearing was regarding -- let me ask you up front, we seem to rely a lot on the whistle-blower and i'm wondering in the aviation and transportation security act, it says that employees may be hired and fired, you know, basically on the will of the management at tsa.

any other law in existence notwithstanding. so as i understand that, they do not have protection under title 7, civil rights act. they do not have protection under anti-discrimination law, by the language in the law. it says notwithstanding any other law to the contrary. they could be fired. and i'm just -- want to speak to that, admiral? >> they do have protection under civil rights under the equal opportunity act. we have explicitly put that into the -- into the way in which we govern the agency. they have all the -- all the due process rights and protections -- >> have you adopted that? because you just had a case in court where they threw the case out because they said employees were not covered by that. >> i'll have to look at that case but i believe they're fully covered and that's one of the questions i asked.

>> not covered by the statute. >> the nature of the statute. it was adopted by previous administrators. >> okay, okay, i'll take your word for that. that's helpful. if they're not, if they don't have statutory protections, they have to rely on the whistle-blower protection or the 40 cases that mr. roth is able to take up each year. and that's not nearly the protections that they would need, right? let me go back, we had a case a while ago, i think there were, like, 70 or 71 employees who were on that no fly list, terrorist watch list, that were actually working at some of our airports. and you came in and you changed that system and i want to ask you, were those employees, were they removed and i realize, let me fully explain, the reason that was given was that tsa was not privy to those lists on which those employees on the terrorist watch list, the no fly list were allowed to be employed in airports and secure areas.

but when you went in, i understand it from our last conversation, we cleaned that up. i wanted to know how it was cleaned up, were they fired. >> they actually weren't on the no fly or watch list, it was the tide database. this is information that may or may not indicate a direct association with terrorism. so one of the first things we did was, i wanted the fbi's read on every one of these individuals. and the answer back was none of them met sufficient information to actually directly call them a terrorist or associated terrorist. that said, we look back at it, many of them no longer hold their credentials, two of them had their credentials removed and the remainder have been scrubbed out of the database on the advice of the fbi. but it was very valuable to get -- what it did for us, though, it allowed us then to

get automated access to the categories of that separate database, which then ultimately could feed into the terrorist watch list or the terrorist screening database and now we do a full automated review of every single credential holder against that database and if anybody pops up in any category, it allows you to take a harder look at them, which we do and then go back to the intelligence community and the fbi and we do a scrub on those. >> there is a higher level of sensibility here, allowing these folks to actually work inside secure areas. >> yes, that was exactly the question i had about that. i've been working very chose there i with director comey and the initial counterterrorism center. >> mr. roth, you did a great job on the screening tests at the big airports. and, you know, we had very high failure rate the last time you used that test. i'm not sure enough time has

gone by to lou admiral neffenger to adopt a new protocol among the screeners. has that happened yet? have you done any new tests to sort of take a measurement of how we're doing? >> sure. when we have done is two things. one is the natural follow-up that we would do in any audit. for example, with regard to the penetration testing, we have review ed tsa's 22-point plan to increase security at the checkpoint. additionally we're planning more covert testing this summer of a similar scale that we did last summer, so we'll be able to tell exactly how we're doing. >> great. great. thank you, mr. chairman, for your indulgence, i yield back. >> now the gentleman from north carolina, mr. walker, for five minutes. >> thank you, mr. chairman. i have been amazed to know how much money has actually been spent in some of these previous

relocations. reassignments that nearing $200,000 per location. have you directed any of these reassignments during your tenure? >> no, sir. >> mr. brainerd reported there were relocation expenses for his reassignment to maine exceeded $100,000. is that true? as far as you know? >> that's my understanding, yes, sir. >> and would you agree that that's illegitimate use of taxpayers dollars? >> it is an in excess of what should have been spent. i capped any reassignment or relocation costs. now the process is first and foremost has to be looked at by the office of human capital. i want them to see is there a need for the relocation? second, has the individual that they're thinking about relocating, is that something the individual desires, wants, what is the skill set, why would you do that? i need a cfo, a chief financial officer has to sign off on the ability to pay for it and reasonable cost and we set limits on the reasonable costs.

and finally after it gets reviewed by my executive counsel, we make the final decision in the office. >> it sounds like you're trying to develop or implement a plan for the future, which is part of a cleaning up from some of the things in the past. probably the biggest thing that concerns me is the issue with mr. hogan. do you believe that mr. hogan's performance, bonuses of $90,000 is justified for the taxpayer? >> i don't think that level of bonus was justified, period. >> okay. i'm glad to hear that. as the leader of the oso, didn't mr. hogan have a key role in directed reassignments? >> he had a role in directed reassignments. it wasn't the only role. those came out of a different office. >> you said a role, can you expand a moment for me? >> moving the office of security operations ultimately has to get the people moved from one location to the other and perhaps has to carry out the order to make the movement happen. >> is it fair to say he can a

key factor in this? >> he had a role in this, yes. >> in looking at that, his situation and his involvement, i'm sure you've considered replacing mr. hogan as the director of oso given his responsibility for screening failures, rolling directed reassignments and his question of bonus payments. is that fair to say? >> i would like it back up a little bit, and talk about -- >> i would like -- i appreciate it, but i want you to answer the question. you're welcome to expound, but i asked a direct question there. >> everything i asked of mr. hogan since i've been here, he's done that. i look at all of my leaders and determine whether or not they're -- >> i appreciate it. but there has been some past violations, have you had discussions? is there part of groups that say, listen, this is a decision we may have to make as far as removing hogan for these past transgressions. >> the inspector general looked at the situation with respect to that. i think there were people responsible for that, who -- >> i'm not asking -- with all

due respect, you're doing a great job, but i'm asking about you, what is your role in mr. hogan's previous indiscretions here when it comes to some of the spending expenditures? have you had discussions or is there any plan to remove him or put him on probation? what is the decision here? >> i do not currently is a plan to remove mr. hogan. he performed to my expectations since i've been there and i've not seen any indiscretions on his part in the time that i've been in tsa. >> so even though we acknowledge there has been some, do we put -- >> i don't acknowledge he had indiscretions. i think he carried out some orders and those orders results in people being reassigned, sometimes for good reasons, sometimes maybe for ill considered reasons. >> even carrying out orders, reminds me of the movie a few good men, these young marines were still in the fictitious movie, carrying out the code red. if he's following orders, but still doing something wrong or

going after people, there is still some accountability. is that not fair? >> i think some of those issues have been investigated and they were recommended. we have filled out those recommendations as necessary from the inspector general. i have not seen any direct misconduct on the part of mr. hogan in the time that i've been there. >> no, i appreciate that. our concern with the facts we have is before you arrived and it was not -- not so far distant past there were some indiscretions and reviews going on. my time is expiring. i hope there will be some kind of looking into mr. hogan, as far as some of the things that went on, especially these involuntary relocations. i do think there is responsibility on his part, even if he was carrying out orders. i got ten seconds left. i want to compliment inspector general roth. with that i yield back. >> thank you, now recognize the gentleman from virginia, mr.

colleen, for five minutes. >> thank you very much. and welcome both of you. admiral neffenger, let me start by saying really appreciate the management reforms you have undertaken and the spirit with which you've taken them. this is a big enterprise. a difficult enterprise, a critical mission, with a lot of unsatisfying aspects to the job. very few human beings are going to make a 30 year career out of telling people to take off their belts and shoes yet it is critical to the mission. security of the american people. and so not easy, keep you motivated, to have a salary structure that makes sense, and i for one very much appreciate what you've done and i hope you don't leave with the new administration. and as a matter of fact, if you do, i hope you will give paul wiedenfeld a call at metro and

join his team because we need the kind of management reforms you're undertaken at tsa. one little plug that i always make and i have seen in my own experience a big change, which i appreciate, in how we're treating the public. but we still got work to do. but i have really been impressed at different airports i've gone through where -- and i just think when you create a more hospitable, friendly climate that invites people's cooperation, you get it. and there is always a risk if you get a hostile public or resentful public that something can go wrong. why not go the former if you can? and i just thank you for that. and i hope you'll keep that sense of the culture present, we're not dealing with cattle, we're dealing with people. and we need their cooperation and want them to feel good about the experience, as best they can. and i think we do have a long suffering public that gets it about the security mission and is willing to put up with more

than i would have guessed. but we should make it as easy as possible without compromising the security and that ought to be the ethos. so i commend it to you and thank you for the progress that has been achieved. let me first ask by having said all of that, i think there is a growing concern, a management challenge, what is happening in terms of wait times. so, for example, 600 passengers missed their flights in charlotte, north carolina, on good friday because of wait times that exceeded three hours. now, miss maloney said she doesn't know anyone who complains. my guess is there was 600 people that day on good friday in charlotte, who did. it is one thing to understand, i'll be disco-moated and inconvenienced to get through a security line to protect me and everybody else, it is quite another, the price of that is moving so slow and i'm going to miss my flight. american airlines says 7,000 of

its customers miss flights in march alone. the month of march, due to long waits in security lines. seattle and atlanta have indicated they may seek authority to try to privatize passenger screening to expedite this process. could you address that? i think we have to agree, that's not acceptable. it may happen. but if that becomes routine, that just doesn't -- now we get real public resistance. >> yes, sir. thank you for the question. the -- we have seen huge increases in passenger volume, there is no doubt about that, and at peak times we're seeing more people moving through the system than we have ever seen before. just to put it in perspective, four years ago, a big day in this country was about 1.6 million passengers going through screening checkpoints. we're well above 2 million passengers daily right now. that's just -- it is just a follow increase.

i do think we need to grow the staff slightly to do that. we have been working hard on that. once we got our appropriations bill passed in december, we began accelerated hiring because as you know, if you reduce by another 1600 or so people, we cut into that number well in advance of the fiscal year. so we're hiring and we're meeting our hiring quotas, i think the good news is we have people who actually want to come to work for tsa. >> it seems to me, and i know you know this is a good management principle, we got a priority set of metrics, three hours is not acceptable. we got to be accepting for ourselves a time frame that is acceptable, we don't go beyond that. and whatever the staffing required, i mean, mr. mica correctly talked about staffing to traffic. this is part of that. >> that's right. and we have been working very closely with the airlines, the airports, to understand when those peak loads are coming

through and make sure staffing meets that. i think we have improved significantly just in the past few weeks. i'm not aware of any wait times of the length you're talking about right now. i track them daily. and i look at passenger volume daily and look at across all of the airports. >> you may want to check good friday in charlotte. >> i will do that, according to this report. one final question if the chair will indulge me, a quick one, inspector general roth, do we have an anonymous hotline within tsa that people can call when they feel something is untoward? under the broader whistle-blower category? but in my county, there is a hotline you can call if you think someone is doing something untoward and you're protected within anonymity and followed up by our inspector general. >> yes, absolutely we have a hotline that is manned as well as a website so you can use either of those ways to complain or give us information that we will -- >> guaranteed follow-up? >> we will take a look at it the we get 18,000 complaints a year.

we can't guarantee that every single one of those complaints will be thoroughly investigated, but we certainly look at them and evaluate them. >> fine, thank you, mr. chairman. >> thank you, mr. connolly. the chair now recognizes the gentleman from georgia, mr. heis. >> thank you, mr. chairman. i think we have got a very great facility for the federal law enforcement training center. i think the tsa frankly is not utilizing it to the full potential. certainly not to the potential that would be helpful. but how long on an average does a new hire have to wait before they begin training at the tsa academy? >> i've got good news to report on that. as you know, that academy stood up for the first time ever on january 1st of this year. this is new for us. and we are pushing now eight concurrent classes about 200 officers a week. we -- it takes about four months to on board somebody new. and during -- and we typically bring them on board, and they have to get their security background checks and the like. and then we get them right into a training class shortly after that. we're actually seeing the

ability to move people right in and -- >> four months is the average wait? >> it is on average four to five months, but during that time, you're going through the background checks and the like to determine if -- >> so how many -- what percentage of tsa go through -- >> now it is -- we're doing -- >> 10%? >> now we're putting 100% of new hires through flat -- we used to train at various places around the country. we're going to make a couple of exceptions because of the need to get some more officers out in front of the summer travel season, so we're doing -- we're taking the flat seat curriculum and doing it locally in a couple of key location, but we are -- >> is that local training as effective? >> we're using the same flat seat -- >> the curriculum, is it -- >> from my opinion, it is not ideal. i would like to do everything, if we're building out capacity and flat seat has been working with us -- >> how many airports requested the authorization to utilize

local training? >> i think i've got two airports now that have asked the authorization. >> two. okay. have any been denied? >> what we have said is we will do it on a as needed basis. we're able to -- we have been working with flat seed to increase the class offerings there. >> is there a clear policy to determine the as need basis? >> there is a clear policy. >> can you submit that to us? and let us have a copy of that? >> yes, sir. >> in regard to the bonuses, i'd like to ask a couple of questions regarding mr. hogan. you're aware that the $90,000 in bonuses were broken up in increments of $10,000 each. could you explain why the agency did it this way? why it was broken out that way? >> as i understand it, and as you know that was done under previous leadership, but as i understand it, it was because the maximum amount allowable at any given bonus was $10,000.

>> okay. so this is some sort of scheme to give him -- could you explain smurfing? >> i'm sorry, say it again? >> smurfing. >> smurfing. i'm not familiar with the term. >> so if there is $90,000 broken up in $10,000 increments, is that the type of thing that would need approval from dhs? >> it does now. i will tell you that there is nothing in my experience that finds that justifiable. it is why i stopped the -- it doesn't matter if it didn't violate -- >> why do you say that? why is that not justifiable? what does that appear to be to you? >> it doesn't pass the front page test. >> like something is being hidden. >> i just don't like it. i don't think it is right. and i stopped that practice and i made -- i make sure now all of our -- all of our bonuses have to be approved at the department level and i severely restricted them within tsa.

>> mr. roth, i would like to hear your comments on all of this. >> as we looked at our report, it was clearly an attempt to circumvent the department of regulations on approval. smurfing is breaking up financial transactions into something below the reporting requirement, which is what happened here. >> right. >> the individual responsible for that, by the time we did our investigation, was no longer employed at tsa. and the regulations that existed at the time were so loose that it was technically permissible even though clearly the intent was, i think, wrong. >> so the intent is to hide. >> absolutely. >> absolutely. and that's what smurfing is. i appreciate you bringing that. is there anything currently preventing the agency, back to you, admiral, from disguising these bonuses in forms of payments, be it relocation or any other method where it is really just a disguise for bonuses? >> yes. i especially prohibited it and made it very clear in policy and

happy to provide that policy for the committee's record. and i require oversight from the department before any bonus can be awarded to a senior executive. >> i would like to have that policy submitted. so you're saying your testimony here is that there is no disguise taking place? >> not under my leadership. and i made clear that we put that directly into policy. and i made sure that even -- that no single individual can approve a bonus award for senior executive without oversight, and has to be approved by the department, even i don't -- i've not even given myself the authority to make the final approval. it goes through the department for oversight. >> okay. thank you, mr. chairman. >> i thank the gentleman. now recognize the gentleman from missouri, mr. clave. >> thank you, mr. chairman. thank both of you for being here. we all agree that security must be the top priority and there is no disagreement about that. mr. roth, when you testified

here in november, you were critical of certain programs that granted passengers access to expedited screening lanes when they had not undergone risk assessments. you also commended administrator neffenger, you said he, and i quote, deactivated certain risk assessment rules that granted expedited screening through precheck lanes. is that correct? >> yes, sir. >> okay. on march 24th, the bureau of transportation statistics issued a report that said u.s. airline and foreign airlines serving the u.s. carried an all time high of 895.5 million system wide. so administrator neffenger, passenger volumes have been increasing.

increasing. but the number of screeners in the tsa workforce has dropped by nearly 6,000 over the past four years. is that right? >> yes, sir. >> and why did this occur? >> i'm sure there were good reasons for people before me to reduce that. i think it was predicated on a prediction of higher numbers of people getting into expedited screening than we have seen. it is just a fact that we're a smaller agency on the front line workforce than we were before and that we have significantly more people moving through the system. >> and you know i heard my friend, mr. gowdy, from south carolina talk about he doesn't encounter much trouble. i traveled through st. louis, lambert field weekly. and it seems to have a shortage of employees, especially for the precheck line. probably 90% of the time that line is closed and each time staff gives me the excuse that they don't have enough personnel, enough security officers to check people.

so it is very stressful -- frustrating to my constituents who have paid the extra fee for precheck. is there a shortage of staff for airports like lambert? >> i think we have a shortage of staff across the system right now. we're moving people into the areas of greatest volume and greatest need. we are hiring back the people that have been slated to be traded out this year. and we have -- we're pushing out about 200 new officers every week. so what i'm hoping to do is build back a sufficient staff to meet the peak staffing that we need. we currently cannot staff effectively across the system to the peak volume periods. >> so in your opinion, was tsa screener workforce sized appropriately to handle increasing passenger volumes? >> i think the work for the budgets were predicated on what was predicted to be 2% volume

growth. i think we used the bureau of transportation statistics predictions and remember these budgets were built a couple of years ago. the actual volume growth has been significantly higher than that. so in my opinion, we're not at the right size. that said, i appreciate all the great comments about our workforce because we have a really dedicated workforce and they're doing a very challenging job out there. and doing it quite well. i'd like to get them some more help. >> okay. perhaps you can help me. i'm annually giving a career fair in st. louis, the largest one held. would love to invite your local staff coming out and talking with potential candidates. i'll follow up with you on that. >> yes, thank you. >> on may 4th, homeland security

secretary johnson issued a statement responding to increased waiting times and he said this, tsa is increasing the staffing of tsos to help expedite the checkpoint process without sacrificing security. mr. neffenger, what is the size of the screener workforce tsa needs to handle projected passenger volumes while ensuring that only passengers who are -- who are subjected to risk assessments are sent through expedited screening procedures? >> well, congress just approved a reprogramming request which will allow me to hire another 768 screeners, screening officers, this summer. we'll get them out in the workforce, we hope, by the middle of june. rye neffenger. . . might meana. micah mica. . . . neffenger.

. now recognize the gentleman from georgia, mr. carter for five minutes. >> thank you, mr. chairman and thank you, admiral and mr. roth. thank you very much. would you agree that having expert and standardized training like we have at fletc in georgia, that's important that we have person will that's fully prepared it keep our airports safe? >> yes, sir, absolutely. >> i bring that up because had mbz federal law enforcement training center, i know you've been there it's in my district. i'm proud of that. i look at that as being one of the areas that we are getting right in the federal government. to go down there -- i want to

invite the other -- my colleagues here on this committee, particularly, to visit. because -- we'll try to schedule a trip down there for everyone to see just what an outstanding job they are doing down there in the way of training. and i mention that because i want to make sure that we're not confusing these well-trained employees with the problem we're having that i consider to be more in performance and more in management in particular. when you talk about having a shortage of employees, that's not because they're not well-trained. that's a management problem. when you talk about employees not showing up on a holiday and having a shortage during the busiest travel time, that's a management problem. so i want to make sure that we understand there's a difference here. that they are being trained well. it's a great facility. it's used by 94 different agencies in -- so training's not

the problem. the problem is a management problem. and a performance problem. >> thank you for that. and thank you for recognizing that our front line work force, i believe it to be one of the best in the world. i really do. i've seen their dedication, talked to them. i've been down to fletc multiple times. i meet with as many classes as i can when i go down there. that's a world class institution which is why i was really excited about the opportunity to stand up a full time academy down there. and connie who runs it is one of the best in the world. and we're looking forward to continuing to develop that. my goal is ultimately to train every single employee of tsa through that academy. that's the plan in the future. we've got a pretty aggressive plan, a pretty ambitious plan. i'm getting a lot of support from congress on that. i really appreciate that. >> i want to make sure we differentiate between the training portion of it and the management. >> yes, sir, that's exactly right. >> we obviously, as you can tell, a lot of upset people here today. obviously we have a management problem at tsa.

and we're depending on you -- >> that's what i've been tackling, yes, sir. >> let me pivot for just a second. a different subject. a couple weeks ago we had some employees of tsa here who had testified before us, you're familiar with that. they talked about the involuntary directed reassignments. some of these that we had to testify before us had gotten excellent marks, in fact had gotten awards, being recognized for their outstanding performance. their job performance, and yet, they were reassigned against their will. and the thing that concerns me is not just that -- the upheaval of having to move somewhere else for these people, obviously, that is a very trying time for families and for employees. but the cost in it. what we were told is this relocation costs were well over $100,000.

is this really happening? >> i believe it did happen. i stopped that policy completely. we don't do directive -- that said i think it's important for an operating agency to have the ability to move people periodically. you have to do that. >> i think they understand it what their concern was they were being disciplined. >> and that's what my concern was, too. i put some very strong controls over that process. i will share with you the nature of those controls so we don't take up too much committee time. i will tell you i'm as concerned as you are about that. those reports greatly distressed me. i stopped that process, it's not going to happen again. >> good, so we can take your word that it's over with? >> yes, sir, you can absolutely take my word on that. >> okay. thank you i appreciate that. again, thank you for your dedication to fletc because -- again, mr. chairman, i'm going to try to get that together.

but i want everyone to understand what a great facility this is. this is an example of the federal government working. >> yes, sir. >> thank you, i yield back. >> we now recognize the gentle woman from michigan for five minutes. >> thank you. i would like to examine the hiring and the role of human resources at tsa in more detail. in 2008, during the bush administration, tsa awarded a $1.2 billion human capital service contract to lockheed martin. under this contract known as hr access, lockheed administered the agency's process for recruiting and hiring. and it's also responsible for personnel and payroll processing services such as position classification administrator, is that correct? >> yes, ma'am. >> many of the improper personnel practices that the whistle blowers alleged at the last hearing including improper

hiring and directive reassignments, would have occurred while lockheed was providing these services to tsa, is that correct. >> it was during the same time period yes, ma'am. >> on january 29th a report was issued about tsa's contract with lockheed martin. among other performance deficiencies there were incidents in which lockheed martin failed to handle personally identifiable information properly. is that correct, mr. roth? >> yes, ma'am. >> the report also found that lockheed martin, quote, failed to consistently refer the eligible veterans on job announcement ultimately the report stated lockheed martin hiring team and i quote, report a total of more than 150 veterans who were not referred on six different job announcements. mr. roth, is that correct?

>> yes, ma'am. >> so if lockheed martin failed to follow federal regulations in regards to the competitive service hires, particularly veterans preference, this is simply intolerable. so administrator, are you familiar with the inspector general's report? >> i am, yes, ma'am. >> okay. when does the tsa's contract with lockheed martin end? >> it's coming to an end this year. we're completely restructuring our approach to that. i would like tsa to own more of its hiring recruitment and personnel policies. so we're restructuring that completely. it's part of the plan to overhaul the human resource management program of the agency. >> in lieu of the contract ending with lockheed martin, is this going to be put out to bid again or -- when you say assume, do you have a capacity and the

resources as far as budget to be able to take on more of these responsibilities in hiring? >> we don't have all the capacity we need. if i can get back to you with a fuller answer for the record we can show you what the plan and strategy is for moving forward beyond the hr access contract. >> i want to be on the record that the issues that were brought forward in the hiring process and we being a federal agency is totally unacceptable. i -- the fact that we are ending a relationship with an industry or company that did not meet our benchmarks is refreshing. but i don't want to hear that we're taking on the responsibilities ourselves and come back later with concerns. because you weren't able to handle the capacity. >> yes, ma'am, i share those same concerns.

and we have to do this in a deliberate way in a way that protects our work force as it currently exists and our potential work force for the future. >> mr. roth, did you make any recommendations based on your findings on what tsa could do to improve their hiring practices? >> yes, ma'am, we did. we made five different recommendations tsa agreed with each of those recommendations and we're in the process of doing an audit follow up to insure that, in fact tsa is doing what they said they would do. >> thank you. and i look forward to moving forward under your leadership and protecting a group of employees in our federal government. so many others are, but the tsa being a member of congress, and in the airport constantly, the respect i have for the agency the need for good firm leadership and the accountability that we saw through this situation, we need to move forward. and i support you in the future, thank you.

>> we'll now recognize the gentleman from north carolina, mr. meadows for five minutes. >> thank you mr. chairman. inspector general roth, i want to go on record to not only thank you but your entire team for your service. i have great admiration for your role and the roles of your colleagues across the federal work force. but i have a top five list i would say you and your team are in my top five lists for not only do insightful work, but thorough work, actionable work and follow up work that provides a real tool for members of congress. and so i want to make sure that the record reflects that. >> thank you. >> administrator, neffenger, are you familiar with federal air marshal robert mcclain? >> yes, sir, i am. >> are you familiar with the fact that the courts have overturned tsa's assertions that

his whistle blower disclosures were not prohibited by law. >> yes, i am. >> are you aware of the fact it's been over a since an administrative judge has indicated those disclosures should indeed be protected? >> yes, sir. >> okay. so if you're aware of all those and in light of the fact that mr. cummings asked do you tolerate retaliation, in what scheme could you not see the fact that he has been reinstated but yet no raises, he still continues to be paid at a position -- and not put in a position that he would have been in had he not been fired. at what point can you justify that that is not retaliation? >> well, i don't believe it is. i believe he was reinstated as required by the -- >> at a pay that he was at in 2005.

do you know any other tsa employee that is at a pay that he was at in 2005? >> well, i'll double-check. >> you don't have to double check, i know. >> off the top of my head i can't give you the pay of any tsa employees. >> do most tsa employees get a raise? >> the annual cost of living increases. >> would you say if he didn't would that be retaliation. >> i'll check to see -- >> no, yes or no. if he's getting paid the same he got paid in 2005, is it retaliation? >> i'd have to see the facts of the case. >> i'm giving you the facts of the case. is it retaliation or not? let me tell you, what really bothers me is i protect my whistle blowers. for you to get up here and talk about how wonderful the rank and file is, and how you're looking out for their best interests, and to see evidence that retaliation continues to go it has a chilling effect, wouldn't you think? >> if there is retaliation i

will look into it. >> why is the office of special counsel having to open a full investigation? >> on mr. mcclain? >> yeah. why are they doing a full investigation? >> the one that was already done? >> i'm talking about the one they're about to embark on. >> if they're opening it again it's because of his allegation. i'm not familiar with the specifics -- >> don't you think you ought to be? >> i'm familiar with the fact that we've reinstated him and he now is in position to compete for whatever position he desires to compete for. >> administrator, let me just tell you, that testimony is very troubling to me. because what i'm not going to tolerate is retaliation on whistle blowers. that's what it looks like to me. >> i don't tolerate it either, i promise you i will -- >> so can you get back to this committee within 30 days with a

way that you're going to rectify it so the office of special counsel doesn't have to do a full investigation? >> i will follow up on this colloquy to determine what the actual situation currently is. >> do i have your commitment? >> i have your commitment i will get back to you with what i have found. >> an action plan. >> if necessary an action plan, yes, sir. >> within 30 days to the chairman? >> i will get back to you exactly with what i find. i'm interested -- >> that's not an answer. okay, what's a reasonable amount of time there? >> i can do it within 30 days. what i want to do is -- this is new information you're providing to me i'm not aware of. i need -- >> you've done your research. this would not have been a shock this might have come up today. is that a shock to you? >> i'm aware of the previous issue concerning the federal air marshal. >> let me dispense with the rhetoric, get it fixed where we don't have to waste taxpayer dollars on a special investigation into this. you're the guy in charge, we're going to hold you accountable

i'll yield back and expect a response to the committee in 30 days. >> thank the gentleman. we'll recognize the gentleman from oklahoma, mr. russell for five minutes. >> thank you, mr. chairman. i share my colleague's concerns, obviously, about whistle blowers. i think while everyone who has the mantle of responsibility certainly wants to do right with the organization. when we do see individuals that have the courage to come forth, they have to be protected. i think that's the bipartisan motivation of everyone on our committee today. i want to take questions more on the security end and take it in a little bit different direction, however. inspector general roth, i, too, share my colleagues', you know, opinion of the competence of your office and your personal diligence.

the record has been out standing. >> my question today deals with vapor weight dog teams in terms of security.>> my question toda vapor weight dog teams in terms of security. did the ig in reports make any recommendations on vapor weight dog teams and how they should be deployed or how they should be used at different airports? >> we have not looked at that issue. my understanding is that gao may have done work on that but we have not. >> okay. i appreciate that. admiral neffenger, as a preface, first off, i take some comfort knowing that you're at the helm of this organization. i don't think anyone who has advanced to your level as an admiral in our coast guard who has protected our shorelines and protected our borders has anything other than the interest of the defense of our country. and i appreciate that.

i also think that it probably gives you incredible insight in dealing with a myriad of problems in a very complex and at times lethargic organization. in oklahoma city in my district. the vapor weight dog team issue came to mind because acting federal security director steve courtwright had cited it was the ig's reports as the reasons for the elimination of vapor weight dog teams from airports such as will rogers world airport. and it was due to the need for performance and screening and getting people through and the airports would have to lose the dog teams. in the case, although we had will rogers that was one of the charter five original airports in the training of these teams,

they trained four such teams very effectively. allowed great through put. the entire program was eliminated from that airport. i suspect it's probably not the only one. so my question to you is, why would a federal security director make the claim that it was the ig and their findings that would call for the elimination of that program and why would we not want these teams at airports that might have less capacity other than a huge airport but they also might have greater vulnerability for infiltration. it seems to me that security wise it makes good sense. and i realize this is not part of the normal stuff. but it is very important for security. >> well, i'm not sure what the federal security directors discussion was. let me tell you from my perspective what we've done. i like the -- we call them

passenger screening dogs they look for trace odors and follow them back to their source. it's a tremendous resource. it's a great explosive detection technology we have. it can move people very efficiently through a security line. i don't have as many of those dogs as i'd like to have. to meet -- this is my decision i'm the guy you need to look at for this. it was my decision to take dogs from some airports that aren't seeing as much volume as the larger airports for the coming summer in order to meet what we know to be the large passengers volumes. it was never my intention to eliminate their use. we have about 322 total dogs at tsa operates, most of those are trained to do cargo sniffing, not passenger screening. we're in the process of converting as many of those as we can to passenger screening k-9's. it takes about a month to do that. >> i would just ask, again, security has been much of my

life, a lot of my interest here in congress. i would ask that we consider -- if i were an enemy, i would infiltrate in small or regional airports simply because there is a better chance of infiltration than a large one. deploying all the assets, once you get in the loop you're inside the loop no matter where you originated or flew from. i would ask you relook some of this specifically in a vulnerability stance, not necessarily a political stance. that's irrelevant in my view when it comes to the security of the nation. we ought to relook rather than putting everything where we expect to have a problem and maybe leave areas vulnerable where we don't. with that mr. chairman i yield back my time. >> i now recognize the gentleman from alabama, mr. palmer. >> i'm the guy you've been waiting on, the last one. mr. neffenger, how many

different assistant administrators have led the office of intelligence and analysis since tsa was created? >> i don't have that exact number. i'll get that for you. >> it's 11. and i ask that because it concerns me that the office would suffer from that rate of turnover, would you agree with that? >> turnover in offices is always challenging. >> particularly the office that's responsible for your intelligence and analysis. have you looked into that? >> yes, sir. in fact i've brought in a new chief of intelligence this year and he's an intelligent professional. one of the things i asked him to do was to insure that we build a world class high quality intelligence operation and he's in the process of doing that. >> that's mr. bush. >> mr. bush, tom bush, yes, sir. >> are you aware of any significant security violations

committed by oia officials? >> i'm not sure if you're referencing anything in particular. >> i'm asking you if you're aware of any security violations committed by oia officials? >> i know prior to my aprival there was an individual who was in charge of oia who had been disciplined. >> that answer would be yes? >> yes. >> do you believe oia should abide by the professional standards of the intelligence community in handling classified information, wasn't that what the issue was? >> my understanding that was not the issue that was about, no, sir. >> what were the circumstances related to the departure of former assistant administrator steven sadler? >> i need to familiarize myself with that case. i'm sorry, sir. >> there were multiple security violations that took place under

his leadership. what percentage of tsa's intelligence and appropriation is used for vetting and traditional intelligence? >> i'll give you the exact number for the record, but we -- a significant amount of our activity is spent on vetting. understanding the vetted population. but we also have a strong analysis branch that works closely with the intelligence community members to provide specific intelligence assessments of transportation security challenges and risks. >> one of the -- i'm going to transition a little bit here. one of the things i'm concerned about is in our last hearing, the repeat reports that there are only three u.s. airports that currently require employee security checks. are you aware of that?

>> that's actually not correct. it depends on what you mean by security checks. anyone that holds a credential -- >> i'm not talking about requiring them to go through the same kind of security that, say, a staff member. >> this would be screening of individuals as they -- >> as they're reporting for work. i should have been more clear. i apologize. >> there are currently i think three or four airports that do -- the airport themselves do security screening. there are other places where employers provide security screening. we are at varying levels across the system right now for direct screening. everyone has access requirements that's a fundamental requirement. those access requirements are with their badge. and those badges give you access to certain locations. and then there are some airports that have gone beyond that to do actual screening, we in tsa do

random screening through the sterile area of the airports as well. >> but that gets back to my concern, every member of my staff, every member of any member of congress's staff has to go through a screening process. their bags are screened they have to take metal objects out of their pockets. they all have badges, okay? and that's part of my concern is that out of the thousands of people who work for tsa, that -- does it not create any concern -- it was reported there were a number of tsa employees who had some tie to terrorist groups. it just seems to me that they ought to go through the same screening process that -- >> we've had no tsa employees that have ties to terrorist groups. we vet our people daily. if we ever found that they'd be gone. >> i'm telling you in our last hearing that came up. that it was reported that there were some who had some connection to terrorists or potentially had terrorist ties.

i'm bringing this up in the context of out of the thousands of people who work for tsa, all of whom have security badges, it just makes sense before they enter these critical areas that they go through a screening process. like everybody else. their bag goes through a machine, they go through the machine, like everybody else. >> congressman i want to make sure i understand. first of all, there are the people who are not tsa employees who have access badges. we vet those people continuously. there's a population of 900,000 or so in the aviation system that have access badges of some type. it's varying types of access. they're not all accessing the same locations. those people are continuously vetted against the terrorist data base and they're recurrently vetted against the criminal data base.

a continuous vetting pilot -- >> we're not talking about the same thing. >> tsa employees are also vetted against -- >> we're not talking about the same thing. i mean, it's also been reported there's thousands of badges that have been lost or stolen. that -- let me say, that haven't been accounted for. my question is, when they report for work, do they have to put their bag on a conveyer to go through a machine to see what's in the bag? do they go -- >> in some locations they do, in some locations they don't. >> my contention is it ought to be all locations. i yield back. >> i haven't asked questions yet so i'd like to recognize myself now for probably more than five minutes. so let's talk about the involuntary reassignments or the directed reassignments you've

spoken about that. you said there is or is not evidence that that was done as a retaliatory action? >> i do not have any direct evidence. what i'm waiting for is to see what the results of the office of special counsel investigation tells me with a couple of people who have made some allegations. >> the office of special counsel has already stated andrew rhodes directed reassignment as well as becky roarings suspension due to evidence there were cases of improper whistle blower retaliation. are you telling me they haven't given you the final report? >> i am waiting for -- mr. rhodes has an outstanding investigation which is still pending, in the meantime, i was pleased to see that prior to my arrival that that had been stayed and he is still located in the -- >> what about becky roarings? >> same with hers. i understand hers is still undergoing review as well. >> no other evidence of any -- >> i myself -- >> retaliation. do you have any evidence of any other types of retaliation above

and beyond the reassignment tool they had used? >> i don't have personally any knowledge of retaliation. if i see it i will take action to address it. >> mr. roth, do you have anything to shed on this? >> i do not. i don't have any evidence that i could share at least today. >> okay. administrator, we have particularly over the last six months i've got kind of one page -two sided page here of outstanding requests we have from this committee. we will give you a copy of this. i don't expect you on the spot to respond to it. there's some that have had no -- again i don't expect you on the spot. we need help getting these responses in a timely manner. some have been good others have been not so good. some we've had nothing on, we get very frustrated with having to do in camera reviews. we handle classifies

intelligence on a regular basis. i need your support in responding to these outstanding requests. >> yes, sir, i will. >> i want to go back to what mr. palmer was talking about. you said you vet daily. when somebody -- i want to get a crystal clear picture. when somebody applies and goes through the process of working for the tsa, they get what sort of background check? >> it's a standard national agency check, it's the same type of check you do for people coming into the military first time. you do a criminal history background check. check their name against the terrorist screening data base. look for any disqualifying activities, offenses or the like in their background prior to coming. >> there is some infractions that would still be acceptable to be hired as a tsa? >> there are i can't enumerate those off the top of my head. >> if you can provide the current standard. >> yes, sir i will.

>> you said you vet those daily. but how do you -- if somebody were to get arrested, somebody had a assault charge or murder charge, you know, pick something heinous, how would you know that once they've been hired? >> well, after they've been hired, we do recurrent criminal history background checks. >> how often? >> i believe it's an annual basis. i'll verify that. and then we do daily recurrent, continuous test check against the terrorist screening data base for our employees. >> 450 or so airports, i'm not sure how many ports you're dealing with. how many of these -- you mentioned 900,000 security badges of all sorts. >> in the aviation system. >> in the aviation system. so how many of those are -- do you have a sense of how many of those have biometric

information, whether it be as simple as a photograph on them? >> they all have photographs, those are issued. these are the badges at airports and airlines issue their individuals. it's set individually at each airport. a badge you have for atlanta will not work in any other airport. these are issued by employers and the airport. the standard is set according to -- there's a federal security standard they have to meet in order for the badge -- they have to have photographic id's. not all the biometric identifiers are necessarily in use for access purposes at every airport. >> when you say biometric, one of the issues in the past is they didn't have readers, they didn't have electronic readers for each of these. >> well, i don't want to confuse this with the twit card. the transportation workers identification credential is not used in the aviation system. that's used in the maritime

transportation system and people who are interacting with that. that one does not currently have readers for that. that biometric in the maritime world is not currently in use. it's still a -- it's a badge that's -- card that's issued with a background check. it has a biometric on it but not all the readers are out there. that's a government issued card. it's a joint program between the coast guard and tsa. it does not apply to aviation workers. that's a much larger population of people who hold that twit card. >> so you shouldn't be able to use it at an airport, but in the -- >> you cannot. >> shipping, cruise lines, things like that? >> yes, sir, truckers that interact with the ports and the like. >> okay. that is one of my bigger concerns, is the access that so many people have. dulles airport alone my understanding there is 16,000 security badges out there.

to mr. palmer's point, what he was talking about, is, you know, why not check people who go -- why not check tsa employees as they go in and out? you check a pilot. i stand there and you know they go to the front of the line as they should. pilots are checked. if we're trusting somebody, it's trusting the pilot. why not check each person? >> well, we do check each person. they do recurrent drug testing, we vet them against the data bases we watch them everybody. these are people who are standing in the checkpoint day in or day out. >> if they -- pick whatever you want in a back pack and walk past you would never know, correct? >> well, that's not necessarily true. we do a lot of integrity testing, in fact we have a good integrity testing program i think. if we find people -- >> you're checking and screening every person that goes through except the tsa people.

>> they're checked by definition when they show up in the morning. they're vetted every single day. we look at them every single day. they're probably some of the most watched people in the transportation system because they're under the watchful eyes of supervisors, under the watchful eyes of the other screening work force. so i believe that we're doing a very good job of keeping track of those folks. these are really good people. they have taken -- >> by and large i'm sure they're really good people. but, again, when you have a zero tolerance for -- you have to keep security at its highest level. i don't understand that. we check a pilot, we check the flight attendants, but we don't check the tsa folks. you have had arrests. there have been problems. it's not as if it's never happened before. your ability to move drugs or weapons or anything else across

that line, mr. roth, do you have any insight into this? >> i don't, no. congressman. >> i want to move to dogs, if i could. i'm a huge fan of dogs. the person i want to sit next to on the airport is the person who has had their luggage screened, they walk through a metal detector and they've walked by a bomb-sniffing dog. i've never seen some of the technology that's used at the airport, i've never seen it at the white house. i don't see it in afghanistan where they're dealing with improvised explosive devices on a daily basis. i don't see it in a lot of other places. europe has banned some of this technology and we use it here in the united states. and i appreciate your comments about the dogs, but the single best way to secure an airport from an improvised explosive device is a dog. would you disagree with that or

agree with that? >> it's a huge piece of the security environment. i like dogs too, i'm a big fan. i've been advocating for more k-9's in the aviation security environment. >> we need more of them. i hope the appropriations will follow up appropriately. i want to compliment tsa also on its instagram presence. you want to see an entertaining instagram, go ahead and go to the tsa one. i'll put in a plug for it. you got some 400 plus thousand people that are looking at it. but it's also kind of scary. because almost on a daily basis, i mean, the one i looked at just now had -- there was a live smoke grenade somebody tried to bring on to an airport. vwi there was a picture of a gun they had taken off a person. the rise of people bringing or attempting to bring guns on an airplane is astronomical. the statistics on this are quite high. my question, maybe you can shed light on what that's happening, but i don't see that there's much any consequence. i don't hear anybody gets prosecuted.