but that was the reason that he's in that top five. >> let me just say something one minute, because i know we have a lot of questions. first is, it's a complicated question about character and presidencies. you can have people with questionable character and be successful presidents and have people with outstanding character and be bad presidents and it's complicating of what one is talking about. i do want to say one point which is i'm old enough to remember when conservatives used to argue for character and public leaders. that used to be important to our movement. and to the people who spoke for our movement. and fact that now that that's been tossed aside and that there is an embrace of someone who's so manifestly problematic on character, in every aspeck sps the definition of character i think is a problem. people see this and think, oh, you didn't really mean it when you were going after bill clinton in the 1990s, talked about how that stuff mattered.

now you're lining up. what was it? we use a different standard of judgment, don't you, when it's their guys and they have problematic -- character really matters a lot because he's a liberal, he's a democrat. when it's the republican nominee that has the very problematic character, all of a sudden that stuff is sort of tossed aside and the very same arguments the defenders of bill clinton made in the 1990s are being invoked in 20 16 on behalf of trump. people see that. >> we're going to take a break after this. i hope everybody will take a few minutes to talk with the panelists. if you could each offer some final thoughts, i think it would be helpful. sort where do we go from here, and is it simply a function, you know, running for public office is not necessarily the only thing. it's not the highest good, right? we have lots of other things when you become an dull you want to do, so perhaps there is something about the actual act of running for office that it is

creating this self-selected group of people who lacked a certain virtue and character. if you could offer some final thoughts, then we'll take a break and i hope that you can speak more with our guests. >> should we start with jane? >> sure, go ahead, jane, yeah. >> something that has rolled over in my head, george washington in his farewell address warned america about political parties. he said that he was afraid they would be sharpened by the spirit of revenge. and he also feared that a political party system would lead to the absolute power of an individual who, if more successful than his competitors, would turn to the, quote, purposes of his own elevation on the ruins of public liberty. and i just think that that's a little prophetic. we've seen that over time, but i think we're seeing that right now. and i just, you know, for me, in looking at different historical figures and thinking about life

today, i just, i think that how you treat people matters and it makes me think, well, how am i treating people? am i helping my son become a little more diplomatic instead of being so blunt? you know, and think about how someone else might receive his words. you know, and how -- what can i do? i can't do a lot. i can write a column on "the hill." i can write a book. but i can also help with my inner circle and be a presence whether at work or at home. it's the circle of influence that go from in to out that we all are a part of. >> yeah, a couple of thoughts. one is, you know, sometimes a virus creates its own antibodies and these things are not straight-line projections. you had a time in england in the 19th century, the great historian has written about this, so have others, which is

you had a real kind of renaissance resurrection of virtue in elizabethan england, and that can happen again. and part of the reason that that happens, some people could say it's, you know, it's a movement of god in the hearts of people. other times what happens is people understand things that they had once forgotten but remember again. and sometimes when you see the loss of character, public character in people and withdyo the human cost and the social cost and the political cost to a society for that, then maybe it dawns on us again that actually this stuff meres because one of the great human temptations is to forget a great and important truths but life has a way of reminding us why those things were truths to begin with. so snapshots in time are not eternity and things can change and you can be a theoretical --

that means you have to keep pushing and fighting and arguing and making your case with conviction and hope times change and leaders change. the other one is, it's probably a good time to say that in one of the most important things for a country and sometimes the most important thing certainly in the life of parents, is children and raising children to be people of good character. it's not easy. sometimes you're dealt harder hands than others. but you can't assume that political leaders are the ones that are going to do that for you and you're going to have good leaders and bad leaders and you're going to have leaders who are virtuous and people who are ridden with vice and i'd rather have somebody who i can point my children to and say that's a person of honor, be like that, but often that's not the case and in the formation of human character, political leaders is

not where this is ultimately decided. it's decided in living rooms and houses and churches and synagogues and mosques and in schools and in community groups. and that's where this work has to do and actually of all the things that hillary clinton has said that i actually have some sympathy with, it's the idea that it takes a village to raise a child. conservatives mock that and i understand why they did, but there is a deeper truth to that which is it takes a community of adults who care about the right thing to try and raise children to be people of good character and as i said, it's not always easy, but that's the great task that we're called to do as parents and fellow citizens. and tell you one thing, i'm not going to look for the next president for help in that respect. >> well, not for the first time pete wehner has stolen what i

was going to say. no, he just says everything so well and very pithy. let me only add something to that by saying that i was thinking along the same lines that we have in recent times been turning to politics more and more both as a sort of coming together of celebrity and religion and we've created these figures, it was most evident with barack obama in 2008 where a kind of frenzy swept over the country. the man was described as a light worker. he was a messianic figure to some. they've been disappointed, but that tendency to look to political figures as redemptive continues and i think it's partly because religion is on the decline and people need another outlet for that kind of thing and that instinct to want a king even though we are in

this country more than 200 years past that. nevertheless, it's very strong. you remember in the bible, you know, the israelites after they were freed from egypt and god performed all of these wonders for them and they saw all of these miracles and then he sent judges over them to rule them and they said, but we really want a king. you know, just like all those other people. and god was angry. justifiably because they had -- they had him, but they wanted a king. so that is a strong human weakness in wanting to worship somebody and in wanting to believe that somebody can solve your problems for you. so, that's good to keep in mind. at this moment, i agree with pete, again, that looking for inspiration is important because what's going on in the political world, what's going on on twitter and other social media, could not be more unedifying and, in fact, pressing, to see people descending to such

scurrilous and disreputable and disgusting behavior, name calling, childish taunts by a presidential candidate, on and on, and the lies. so, but there are people, even in this time, who have distinguished themselves by their honesty and what i've told my children is when you're trying to judge someone and you're evaluating because they don't always take my word for it about what's right and what's not. they like to make up their own minds. so what i've said to them is, look, i don't care what side of the political spectrum is, but here's how you know whether they're an honest fern. are they willing to criticize their own side or are they just a partisan hack? and, you know, nick kristof who writes for "the new york times," i don't agree with him very often, but he's written several columns where he's taken his own side to task for being close minded. for example, on campuses. that's someone who is a model of civility and open mindedness and

that is the sort of thing that we should praise. and similarly on our side, there are people who have stuck to their principles even though there's a tremendous amount of pressure to conform and to bend the knee and to get in line for, you know, donald trump and they've said, no, this violates my principles, i cannot, in good conscience, do that, and those are the people to look to and i think in the future, some of them, maybe ben sasse who knows not to point to just a political figure, but there may be some who will come out of this looking very good in retrospect because they did stick to principle. >> on december 16th, last year, i sat with nancy reagan in her library in her home in los angeles. this ust jfs a cwas just a coup months before her passing. she was in her wheelchair but she was beautifully dressed in red and she was 100% there

mentally and she looked great from here on up, so to speak. she couldn't walk anymore. but she was holding on to my hands fiercely like an elderly person at age 94, some of them might do. and, you know, when you're at that point and they're holding on to you so tightly and you're wondering, should you let go first, or she would let go first. and so finally she did and she put her hand on the maple colorcolo colored octaganal table next to her wheelchair and she started patting it and she said, you know, jim, this is the table where ronny got his diagnosis in 1994 from the doctors at mayo clinic who came here to the house. remember 1994, by the way. in any case, i said, how did he really take that? and she said, oh, jim, the way you know he always did, with optimism. and i thought to myself, could i

look at a time in history that i'm experiencing with the issues i have to decide about and confront today the way ronald reagan always did with optimism? and i thought -- i spent hours thinking about how it is that he could be an optimist because, of course, when he was, i think, the issues were not as searing, but when he came on the political scene, especially as he was running for president, there were difficult and challenging issues as well that would have caused someone and many of us to be discouraged as well. well, look it, we are very disturbed today. we are discouraged. the disruption that has occurred on our watch since 2008 in particular has been searing. and it's been personal. but reagan was an eternal optimist and the reason was is that he saw history in a long depict. and he saw himself, even though he never wrote about it in terms

of legacy in his diaries, he saw himself as a player in history. each of us is a player in history. his ability to see america's place in destiny and america's role in the world was so strong and the vision that he had of it was so graphic and specific to him that it gave him the ability not only to communicate it, but to feel that the danger that we all feel today that we may suffer from, both our families and our nation, we have to look at it in a long term. we have to be optimistic and we have to retain the degree of hope that reagan always had about the future. and he said over and over again, he told the american people, he told the people of the world really -- i remember standing at slush hombag in the alps when he

was addressing what you might say the millennials, high schoolers who gathered to celebrate the fundamentals of democracy. you are the best hope, you are the people who will bring back german reunification. he called on them. and i think we are right here, we are the soldiers for the future. and we have to demand this in ourselves. we have to ask ourselves, do we have this hope? do we have this vision about the idea of america and its destiny and its role in bringing everyone to the place at which reagan referred to as the place where everyone has the ability to exercise their god-given individual liberty and rights. that's what he stood for and that's is really the only thing that's keeping me on the -- giving me hope and optimism for

the future. >> thank you to all of you for such wonderful insightful comments. i know that we're trying to stay on schedule, so if you have additional questions for the panelists, i think they'll be in the lobby for a few minutes at least. and we'll see you in the next panel. [ applause ] road to the white house coverage continues sunday. hillary clinton will be addressing the u.s. conference of mayors meeting in indianapolis and c-span will have that live at 4:00 p.m. eastern. and senator bernie sanders sat down with us for an interview earlier this week. he talked about his presidential campaign, his life and political career. you can see that interview sunday at 6:30 and 9:30 p.m. eastern also on c-span.

more from the independent women's conference now with a discussion about college campus culture. including campus sexual assaults, free speech, and college safe spaces. >> all right. good afternoon, everyone. we're going to get started. thank you, all, for coming out to the iwf conference and for this topic, in particular, which is very important. as you know, the kids who are on college campuses may someday graduate and join the rest of us in the real world and so i think there's cause to be worrieworri. that being said, it turns out that i'm the old person on the panel today. so i'm going to offer you a brief history of this free speech, sexual assault, safe space discussion we're going to have today. i thought i might start by telling you that 20 years ago

wrote an article for a college newspaper in which i talked about how i thought it was important for young women to watch what they drink when they go out to parties because i thought that self-control was one of the things that might be responsible for the large number of unwanted sexual encounters that seemed to be taking place. so the day after i wrote this article, a friend of mine was on a campus shuttle and he reported back to me the beginnings of the conversation that he heard about this article. one young woman said to the other, did you read that article by that girl who was in favor of rape? anyway, the -- what i wanted to tell you about, the reason i wanted to tell you this story was that, sadly, our level of campus discourse on this topic has actually gone downhill since that comment. over the course of the last 20 years. and i think we want to explore, today, a few of the reasons why that might be the case. so i think that the first place

to start is that anyone now -- it used to be that anyone who was sort of questioning the prevalence of rape culture on campus, you know, people were annoyed by this, they were bothered by the fact that it, you know, was a dissent from what was the common orthodoxy on the campus even as far back as the '80s and '90s but now it actually seems people who dissent from this orthodoxy are actually, themselves, probably, according to some, no better than rapists. they are actually creating this dangerous space. students feel that they're actually in danger from an opposing point of view and the advent of safe spaces to protect students from speakers like christina hoffsomers who you know about our panelists today evolve from the discussion of sexual assault that was happening in the 80 s and '90s

and gone from a place where we were talking about actual violence against women to focusing, instead, on students' experience of fear and now i think we're just at a place where we're worried about students experiencing any discomfort at all. so, in order to inform our discussion today, i wanted to bring up three instances of some campus controversy that i know you're all aware of but i wanted to use them to focus our discussion a little bit today. the first, as you all know about, is the false rape accusation at uva that happened in 2014. one of the reasons i think it's important to focus on that is because it talks about, highligh highlights, i think, the role the media has played in this controversy, something i want to get to with our panelists. the second is the case of mattress girl, emma sulkwics at columbia. one of the reasons i wanted to -- what i found striking about that case is that the faculty were actually giving her

course creditor carrying them around the mattress. and i thought, you know, this might be an interesting way that we could get at talking about the support that faculty and administrators have offered to this new kind of wacky campus culture. and the final school that i want to talk about is harvard which has been in the news a lot. many of you probably recently heard that they're trying to get rid of single-sex male organizations on campus. for those who didn't follow the backstory, there was actually a survey that they did of sexual assault on campus that was sort of prompted by the office of civil rights and i want to talk about also, today, the government's role in how we've gotten to this point. just so you know, the harvard yust survey asked this question, and i think it's really important to understand the language that we're dealing with here. they said, "since you have been a student at harvard, has a student or someone employed or

otherwise associated with the university continued to ask you to go out, get dinner, have drinks, or have sex even though you said no?" to say this is a slippery slope i think would be an insult to slippery slopes. but i think it sort of gets at, you know, some of the evolution that has occurred in the language that we're using on campuses today. so with that little bit of history, i wanted to introduce very briefly our panelists since i know you have some information about them. caroline kitchens, she recently joined "r" street, a libertarian think tank from the american enterprise institute. she co-hosted the very amazing factual feminist blog with christina hoffsummers and editor of aie's free market folk nist. ashe schow is a commentary writer for the "washington examiner" and worked as an

editor and writer for the heritage foundation. and patrice lee who is just back from her honeymoon. she's an iws senior fellow and popular iwf blogger and was sending us blog posts while she was away on her honeymoon so we know she has her priorities in the right place. so with that, i guess i'll start with caroline. i guess the first question i wanted to ask you is how big of a problem are we talking about here? i mentioned a lot of elite universities. how widespread is the problem of free speech on campus, specifically with regard to questions about sex and gender and women? >> sure. can everyone hear me? am i on? there i go. okay. well, i think it's a very big problem. i think we need to differentiate here between, it may seem like it's just a small fringe group of activists. it doesn't represent the views of everyone which is true, but i think the problem here is that the fringe activists are being heard and they have political

weapons in the form of title 9 and expansive ways that title 9 is used to wield their authority and they're, frankly, creating an environment on campus extremely hostile to the free exchange of ideas. it betrays the very purpose of our universities. and it's also, frankly, infant lizing for women. essentially i think the new safe space crusaders on campus treat women and people of all marginalized groups as fragile little birds which can't cope with the realities of whether it's statistics on sexual assault, whether it's songs that might offend them, whether it's a speaker that might offend them. it's really a return to the past where people act as though women don't have the agency to handle these things and can't use logic and reason to overcome speakers and ideas that they disagree with. >> patrice, do you want to add to that? >> absolutely. i think it's also interesting when we consider those who come to campuses on a regular basis to provide entertainment. so you have jerry seinfeld, you

have chris rock talking about how -- they don't want to perform on campuses anymore because it's such a -- their comedy routines which are generally funny are considered, you know, ridiculous and, you know, students don't want to hear it. you even have examples where other comedians who look at college campuses as a great place to kind of build their network and get their feet wet and even gain new audiences, they find that, you know, there are students who will come and check them out, will say, yeah, you're hilarious but we could never bring you to a campus because you'd offend too many people. what's interesting, moving beyond just the quote/unquote rape culture or kind of rape on campus, but also when we look at racial issues, a lot of the undertones and a lot of what's driving this move to limit speech has a lot to do with people who feel like they've been victimized. i'm not going to minimize past victimization. i'm not going to minimize past hurts from different groups that have been marginalized, but young people today on campus don't need to -- should not be

held back by what's happened in the past. unfirefight, they're cry babies and have turned into victims and it's not going to prepare them for when they leave and go into the real world. it's not going to create -- it's not really going create anything other than just a victim mentality and nobody's going to call you wh coddle you when you leave cam fuss. >> you want to tell us how big this problem is in your experience, ashe? >> i want to add to it, the role of the media in all this. not only do they have -- do these campus cry bullies as the "wall street journal" called them have the attention of the administrators, the media is just aching to eat these things up. so any accusation of racism, it ends up being a hoax. the media, you know, writes articles and articles about, you know, the oppression of this marginalized group or how horrible this event was or, you know, just the other day it wasn't a campus issue, but, you know, see how it reacted with the wholefoods cake hoax, right? so everybody is, oh, look at the hoax and they're writing about that and then it was discovered

that it was a hoax and, you know, far fewer, wroun, articles get written about that. a better example, because we did have the federalist on that, was the sunni albany women who claim that they were attacked on a bus for being black by 20 or so white people and then the surveillance video and the 911 tapes came out and it was proven, no, they actually threw the first punches. there's no evidence of this racial amizatio arccusations bu clinton coming out on twit r saying no school should accept this, no one should be subjected to this. never get a tweet out about how nobody should be perpetrated hoaxes. you never hear that from anybody in the media or, you know, presidential candidate that wants to get a name off of all this. i think the role of the media has been really important in all of this and they obviously learn nothing from "rolling stone." i mean, they just, even now, you just see rape accusations j s j

without any attempts to contact the accused or even mitigate some of what might have happened. even if the details don't add up and they don't make sense. and i want to talk about just briefly the students, themselves, i mean, the other panelists have talked about how the students, you know, they're cry babies and everything. the problem is that they think they're right. and not only do they think they're right, they think they're a part of some large movement and that's kind of what they want to be a part of. so you had -- now you have students -- there was an article in the "new yorker" recent they that focused on oberlin and had an own a student, we're, i quote, no shade to civil rights but it was a little misogynistic. it had women in the back. a lot of other identities, trans folks and all that were not

included and we're the generation that tries to incorporate everybody. you have students on campus saying the civil rights movement was just okay but we're better. that's kind of the mentality we're dealing with at this point. >> i think that brings up an interesting point. i think i want to tease out -- people who have been around college campuses for a while will say 19-year-olds have always had the tendency to think they're the begins and the end of the world and they'll always think they're the cutting edge generation. i guess i'm prompted by your comments on the media and your comments on the students to ask all three of you to think about, you know, what is new, how have we come to this safe space point in particular? i remember even christina hoffsummers was here last year and talked about how she's been giving the same kind of speeches on campuses for 25, 30 years now but only recently in the last

couple years she's started to experience the safe space phenomenon. what's new here? >> i think it has to do a lot with the -- i'm sorry, i am a millennial, i think everybody on the panel is a millennial. the stereotypes of the millennials, wanting to be coddled, participation trophy, any time anything is adverse to you, somebody has to fix it. you used to have mommy and daddy do that. you have your college administrators do that. my near is when they get out in the workplace, they're going to try to get employers to do this. it also has to do with, i want to lay some of the blame on politicians. barack obama, to his credit, when he ran, he was not running, i'm going to be the first african-american president so vote for me because of that. his surrogates did that and, you know, a lot of this, you know, it was supposed to be this new age of, you know, no more racial tension and everything, but the cries for it just got louder and

louder. now we have hillary clinton who rather than letting her surrogates run this campaign, she's directly running this campaign of i'm a woman, vote for me. so now she's highlighting every oppression, myth out there. so gender wage gap, sexual assault, sexual harassment. just anything that she can list in order to make women feel like they're oppressed and that hillary clinton's going to be the woman who helps them. >> you know, i want to pick up on a point you ended on, ashe, talking about inclusion. inclusion is not a new topic, new idea. i think it's something that's gotten legs over the past few decades and especially on college campuses and with a generation that is the most diverse generation. there's the idea nthat, you kno, i definitely don't want anyone to be hurt, whether that's a woman or person of a different ethnicity as myself. there's nothing wrong with that. in the past, we had cultural appreciation. cultural exchange. you went to college to experience something that you had never experienced before. you know, going to school with people you'd never gone to school with. all of a sudden, i think that

changed to cultural appropriation where it's the case where if i appreciate your culture a little too much, then now you've offended me. i just got married as i was mentioned. my husband is nigerian. i'm from the caribbean. i wore a traditional nigerian garb during the recession. i just offended someone by -- i'm sorry, did you guys hear anything i said in that could be considered a cultural appropriation. so there's something that changed in our psyche, you know, among young people that appreciating someone too much is taking something away from them to the point where, you know, you can't do something -- you can't appreciate an element of a different culture because they feel like they've been offended and you don't want to offend. and then, of course, social media plays a huge role in this. i mean, videos, viral videos which can both be redemptive for the people who have been -- can help vindicate those who have been accused of doing wrongdoing. but also it emboldens people to try to go after others and say,

yeah, you did this wrong, you did this wrong, and you try to solicit lots of other sympathizers online to join on board with you. >> i would also add i think one of the major shifts i've seen just in the past few years is this idea that identity and victimhood somehow confers superior knowledge and that people must automatically bow down and listen to people from marginalized groups just because of their status and that's kind of the whole theory behind this trend with intersectional feminism. it's the idea that being from a marginalized group means that you possess a deeper knowledge of things and that people must automatically defer to your opinions. that's not to say these people shouldn't be heard. i believe that everyone should be heard, but in the pursuit of truth, it requires using reason and using logic and not just deferring to people because of an identity. so when i was in college just a few years ago, i remember learning that race is a social

construction, we were trying to work past identity groups, identity politics to an extent were going out of style. now you hear people actively claiming to be parts of all of these identity groups so? you look at the article that ashe schow mentioned at oberlin all these people have categories for themselves. i'm a latin-ex, all these words. that's the issue with intersectionan feminism. it's not enough to belong to one marginalized group. people are always seeking what's the next layer of marginalization in i don't think anyone wins with that sort of logic. i think it yiunites people. i don't think that's a force for social progress at all. >> when we're looking at -- it seems like, i guess the foxes are kind of -- i won't go there. i guess one thing i'm curious about in your experience on

campuses recently is how you see the reaction of the faculty and the administratoradministrators. i mean, some people have said, you know, they're sort of caving in a way that it took years for administrators and faculty in the 6'60s to do. and are they getting a little worriied that this movement on behalf of students is getting out of control, that they kind of lost the ability to have any moral high ground? i guess the bottom question is where are the grown-ups and to you think they're going to reaer is themselves at any point on campus? >> i'll start with this. college professors are scared. a lot of liberal college professors are very scared and many brave ones have spoken up in the media. to give an example of one, laura kipnis, professor at northwestern, has pretty legitimate feminist credentials. wrote an article criticizing the way title 9 has been

implemented. she faced a title 9 investigation for criticizing title 89. i can't imagine being an untenured professor at a school right now and a lot of professors are saying i'm always terrified if i say one wrong thing in class there will be petition, people coming to my door demanding my firing. i think some universities are taking a stand. for the most par, universities have always been kind of cowardly in this regard. they face a lot of political pressure. so i don't think they're doing everything they can, but there are a lot of professors that are terrified of this phenomenon on both sides. >> and you're also seeing a lot of professors that are leading this for, i mean, whatever their own goals are. sometimes you see the demands of these students, you know, there have been all those demands lists were coming out last fall and so many of the demands involved, you know, hiring more gender studies or african-american studies professors which is like, gee, i wonder who actually gave them the idea for that, or money for

these specific departments. so i think that in a lot of ways there's a lot of professors that are of the '60s generation, of the protest generation who just want to, i don't know, maybe relive it again? but you've also seen the administrators who they're terrified of, again, i go back to the media, but they're terrified of their school being portrayed negatively in the media if they don't cower to these demands. they don't want to look like a racist school. so they're going to kowtow to any -- to so many of these demands. you see them disinviting speakers. you know, again, not being allowed to speak. you've had ben shapiro have issues with that as well and ben shapiro is probably less bombastic as milo, so, you know, having him disinvited to speak

or jason riley, you know, was disinvited just recently, i mean, you're seeing the administrators listening to this pressure and wanting to, you know, stop this. and i'll just speak from my own experience, i was just at american university about two months ago, and we were trying to just film, not even talk to anybody, but basically film the protests outside of a milo event and the campus media relations person was at first very nice to us then suddenly started, like, stop filming, you have to come inside right now, i can't leave you out here to film, i have to be with you. we never heard that before. she was tries ying to, like, basically, take a camera away from a student and, you know, follow us around to be near our sound person to kind of mess up the sound or whatever she was doing. but it was just we do have these administrators that see what's going on and, you know, i can't

speak for her real motivations, but it kind of felt like didn't want the protest to be filmed. you know, you don't want to shine a light on what these people are actually saying. >> i think you have -- you have this -- the administrators are sort of almost a separate class from the faculty right now and a lot of the administrators have been hired almost specifically to fill these roles of diversity coordinator, gender studies coord -- people who are there, almost there to foment a permanent type of protest on campus. in some ways it's not surprising this is what occurred. patrice, i wondered if you might get a little bit this question we talked about, the title 9 question, what the government's role in particular has been in perpetrating these? and i think the administrators, you know, may support these goals in principle or they may not, but they definitely are being threatened. >> yeah, i mean, absolutely.

when we consider why title 9 was created and how over the years it's been extended to the point where it's now ensuring that there's no language on campus that's issued that could offend or make someone feel unsafe, we begin to see how the government has little by little allowed the freedoms of individuals and young people eroded. now, we have seen a countermovement in states like north carolina. they're considering legislation that would remove limits on free speech. a lot of states are now saying, okay, you know what, enough is enough. and now if this legislation is probably going to not only affect public institutions, not private institutions, but it's meant to be an example to say, listen, you're receiving federal or state money. your institution should be a place where diversity of thought should flourish, where ideas should be present and where free speech highlighted -- upheld, created by the constitution, it should be protected on your campus and it should not -- our

tax money, the money of taxpayers should not be used to limit that. so we're starting to see some of that. >> you want to comment? >> yeah, i would actually go so far to argue that the current safe space culture is almost the direct result of obama administration overreach and the office of civil rights overreach when it issued new guidelines on title 9 that are extremely expansive and they allowed title 9 to be essentially weaponized as a political tool. so in 2011 without going into too much detail here, in 2011, the office of civil rights issued new title 9 guidance essentially the main issue was on-campus sexual assault, telling schools they must take aggressive action to combat sexual assault and with that came a lot of problems in terms of due process rights and the rights of accused students, but it also created this language where anything that was perceived as a hostile environment to someone who might be a victim, that that could be subject to federal

investigation. so that was only a guidance issued by the office of civil rights. it wasn't through the courts. it wasn't through legislation. it's an extremely undemocratic way to essentially revise the entire way schools adjudicate sexual assault and the way they handle offenses on campus. but i would go so far to say that without that 2011 dear colleague letter and without the obama administration's new guidelines on title 9, i don't think the current safe space culture activists would have such a tool for empowerment that they have and i don't think we'd be seeing the current breed of mad ness we have today. >> i'll add on the title 9, not only did it not go through congress, but as much as the education secretary tries to claim that it is just guidance and that it doesn't carry with it force of law, if schools don't adhere to these policies, they face investigations that, again, get reported in the media all over as you violated title

9, you were harmful to women, look at you, awful school. and also carry with it the threat of lost funding if they do not immediately get into compliance. now, i've had activists actually scream at me that it has never happened that a school has lost their funding. well, duh, like, of course they're going to come into compliance because it is as nancy gertner said, as i just spoke to a former doj prosecutor, it is much easier for the school to expel a student accused without due process than to possibly find him not responsible. it is much better to throw out a man than to run the risk of being accused of not being sympathetic to a woman who's making a rape accusation. >> yeah. i wanted to go back to a little bit of the conversation earlier about the coddling of these young people. my first question is a little bit just kind of, you guys have been on campus more recently. when activists say that they're scared, or that they need a safe space, that they're somehow

being traumatized by these speakers or just something that was said to them, are they for real? i mean, do they look to you like, i'm just curious, do they look to you like they're genuinely scared or is it the language they've adopted? >> i think it's just the language. i think it's just, like, they're not actually cowering, right, because they go out and protest and they're holding their signs then if you -- what was the school? was it for christina they had the safe space with puppies and the crayons -- >> had one. >> yeah, there was definitely, like, they create this safe space where they just go and literally act like children where they have coloring books and playdoh, so now when i give speeches i just bring the playdoh just in case. so you have these students that i don't think they're really sitting there like oh my god, i can't get out of bed because, like, christina hoffsummers is

talk and i digs agree with her because most students are just like, i won't go and listen to her talk, and some students want to. but this idea that words are now violence is permeating college campuses so if you hear something you don't like, little less the same as being punched in the face now. they're adopting this language because you do hear the same words over and over again. safe space, trigger warning, mic micro-aggression. you know, i feel unsafe. it's always my feelings. it's not that i actually am. it's not that anybody who is going to see christina hoffsummers because they want to is going to get violence. it's just that they want to get that attention, stop somebody from maybe spreading words that they disagree with and then they just kind of retreat back and they force themselves to be afraid. >> what bothers me about this

safe space movement, it's under the guise of being victims. there are victims of all sorts of discrimination. they need support. there are people struggling with post traumatic stress disorder and things like that but they use that as a guise basically to assert power and control over others and i think the safe space -- the whole safe space culture isn't really about being sensitive to victims. it's about being able to silence critics that disagree with you politically and essentially to assert your power and control. so basically i think it's often a bigger charade of self-righteousness and i don't think that's helpful to victims. to give an example of what i mean by that, if you look at trigger warnings which are the most common buzzwords, the ideas are, professors on top of news articles or on top of course syllabi, even in speeches, you need to issue trigger warnings to essentially announce to people that might be traumatized by what you're reading, give them a heads-up this could be traumatic for sexual assault,

for ablism, you name it. when you actually look at the research surrounding trigger warnings, there's a harvard psychologist, richard mcnally, who's looked at research surrounding ptsd and he concluded that, if anything, trigger warnings are actually harmful to people struggling with post traumatic stress disorder because for people with this disorder, often the best treatment is systemic exposure to things that might trigger you, not avoidance. but people put trigger warnings on the top of all of their materials, essentially just to signify look at how informed i am, look at how righteous i am, i know how to talk about these issues. i don't think it does a service to victims and i think it's honestly rooted in self-righteousness. >> what's interesting is that going back to your initial question, this isn't occurring on every single campus. i think when i visit on campuses that are community college campuses or campuses that -- schools and universities that are focused more on specific

industries or skills, you know, those students tend to be experiencing -- have a very different, unique college experience and for them their top issue is not whether a word has aggrieved them, it's how am i going to juggle work and school and my kids and my family? i think that on some campuses i do visit which tend be liberal arts colleges, you tend to see kids who have a lot of free time, who have a lot of challenges that are not traditional real world challenges who find the time to find themselves as victims. i'll just read you something really interesting. this was emory university. trigger warning. these students were protesting and one says, "you are not listening, come speak to us, we are in pain. i'm supposed to feel comfortable and safe here." and then another university, at claremont, they created a group of black female students created an online safe space and this is what it says. "this is only for pro people of

color, pro-black and anti-white supremacists." quote/unquote, while you may want to invite a white friend and ally, to make this a safe and comfortable place for other people of color, we ask you do not. this wrd you're creating a unique space for you and a person who looks exactly right now. isn't college supposed to be with you're meeting with, mingling with people of different cultures to learn more about yourself as well as other people? [ clapping ] to go back to the point, this is not occurring on every single college campus and i get to visit lots of college campuses and unfortunately, it's on those campuses where students who have a lot less on their plates than they really think, and they want to be victims and maybe they think that gives them a leg up in the real world, but, you know, employers will tell them, no, it doesn't. >> thank you. we're actually going to open it up for questions. i just had one other topic that i want to introduce and maybe think about it as you're asking

your questions, what the safe space culture mean for the future of feminism. i'm not going to go to you now. if i want to incorporate that into your answers, that would be great. we'll start with taking questions from the audience. there are microphones. >> oh, it worked. sorry. hi, i'm elizabeth. i'm a 2012 graduate of a women's college at the intercollegiate studies institute ranked as a train wreck college. >> congratulations. >> yes. i am going back in the fall to be the token conservative speaker at an event. i was wondering if you had any advice or suggestions because i'm already having nightmares. >> great question. >> i wouldn't -- i honestly wouldn't worry too much being the token conservative speaker unless you're at the level of christina hoff-summers or milo or ben shapiro. you don't really get protests. like, i don't get protested.

i was at an event and a couple people made comments on facebook, i was like how dare you invite these people with ev there was not a single protest. that is your first one. but after a couple of them and you are known, then it would be a problem. and if that is the case, then you know, make sure that somebody is with you that is filming these people that is filming what is happening. so you have this documentation. i don't know if -- you may sound like, no. but that is what i would do, personally. to make sure there is filming. because that goes viral and then it is always -- turning it back on them. where they are supposed to be a -- above this hate and this violence, but then look how they treat people. >> i don't think you need to worry as much as you think. what is interesting is you have people on the left who actually agree with us, that college should be a place where thought should be free.

even president obama, i don't agree with him on very much, but during his commencement speech circuit has been pushing students to say listen, you need to listen to and not shut down or shout out view points different from your own. and go in thinking i have the president on my side and be willing to wear a black jacket but depending on the college campus, you know you have the truth on your side and you are exposing different students who need to hear different ideas that you have to bring with you. >> yes. >> hi. thanks for coming. you guys bring up so many good points that i had to think about my question. but i do appreciate the -- the thought about going outside of your bubble. as you can see i'm a white woman with blond hair. we all see that. i firsthand by accident ended up become associate members for the

southwestern black student league conference. it was an accident, i thought i was in a meeting to go to the conference because i believe you are supposed to go out of your bubble to understand other issues and not just talk about them or to sympathize and i will never fully understand but at least it is an effort, but not everyone saw me -- everyone saw me and now i have to apply and somehow i managed to get on the board. the point is that was a really good experience for me because there were people that weren't so okay with me being on the board but there were others that were very happy to see that someone cared about going to this. so you talk about freedom of speech, we're all about all of this stuff. there is a difference between blatant hateful comments. i think we should know the difference. but what happens is people say, that is offensive, as you brought up, and it is really not. what i wear should not offend you. it is my freedom of speech without the intent of offending.

but my question is how do we encourage people, we are so global and connected and yet we are in our bubble and we are a sensitive culture. you are going to offend someone, somehow, without even realizing it. so how do we encourage people to go out of the bubble to have their beliefs and their faith and be vocal about it but also to not fear going out in to the world and being who they are. >> good question. >> i'm not quite sure i know the answer to that. but i would underscore that diversity is a really important thing. we all learn -- we all do better when we can learn from people with all different perspectives. diversity isn't just a buzzword, it is important to the pursuit of truth and knowledge. so it is very important that we don't lose sight of the fact that diversity is important. and obviously not just cultural racial diversity but also ideological diversity which is really lacking on college campuses. and to your comment about hate

speech, i think if there is one kind of over-arching lesson to learn from this, is that hate speech isn't defended by -- isn't combatted by silencing it. you have to defeat wrong ideas with the right ideas and you have to youth logic and reason and it is never the answer to just shut things down. if you believe your idea is right, what are you afraid of? why do you need to silence other people. the way that we progress as a society is by allowing the right ideas to prevail over wrong-headed ones. >> i think that one of the rules for adults on campus is the encouragement of rational debate and bringing pogt opposing -- bringing together opposing points of view rather than silencing what is going on. >> and right. and that is what i was going to say is educators need to bring this up and so do we. we have to be not afraid to stand up and say no. after the mizzou protests when

everything broke last fall, there were a couple of newspapers that ended up writing articles that, you know what, we've been afraid to speak out on these issues and now we're not. so it takes students to actually stand up and stop being afraid that these protesters are going to shout you down or that they're going to call you a racist or a rape denier or a sexist, any number of names. because the only way that -- as carolyn said, you have to defeat their ideas with better ideas as well. sow have to be brave. >> one more question. i wanted to get kathy young in here who has written a lot about this topic and she has a -- >> and first of all, i wanted to comment -- to comment on something that wasn't really touched on which is the transgender and gender fluid

politics on campus that is the new thing that is adding a whole new dimension to campus feminism where now there is this idea that gender is completely self-defined. it is not just about the old-fashioned transgender person who undergoes gender assignment, it could be someone who literally labels themselves as male on monday, wednesday and friday and female the rest of the week. and my understanding is that a lot of colleges now have a policy where professors are required to respect people's self-defined identities. their required to address people by -- refer to them in the classroom -- i think there is actually a process of open every class by having everyone in the class state what pronoun they

are using. and so it is just this whole new dimension and it is not just male and female, it is people who consider themselves agender or people who use all of these fancy pronouns that -- you know, that people use. >> this might be a future feminism question. what does feminism mean when anyone can decide they are a woman or not a woman. >> and that is creating a lot of attention, is that feminism, because there are feminisms who are saying that basically this is sort of like women being literally erased from feminism. because now you have this new generation of intersectional feminists demanding, for instance, when you talk about abortion, you shouldn't say pregnant women, or pregnant

people because there are transgender men who get pregnant. >> i have a couple of comments on that. one of them, it was always interesting to me to see the fights within feminism over this issue. so after caitlyn jenner became bruce jenner you had some feminisms come out and write, no, he is not a woman and he didn't grow up with the difficulties that i had, that were specific to being a young girl and you didn't go through puberty and deal with getting your first period like i did and all of this discussion. and i found that very interesting to see that -- the struggle with this. and on the broader question, this is all a discussion that we're just now getting into. so there is some who look at it as like this is a little ridiculous. you are putting x's where an x that didn't have a x before or a y that didn't have a y before. and i'm a pan-sexual poly am

orrous and they have swings of words and we might think of it as ridiculous but i think it is kind of a discussion that america is having and maybe college is the best place to have it. now some of the things i find ridiculous and childish, but at the same time, a lot of transgender issues is still a discussion that america needs to have, as in how many decades ago were most americans against gay marriage and now it is kind of flipped. but we are just now introduced to the whole transgender idea and most americans haven't met someone who is transgender and they don't know much about it. so we really need to have the conversation at this point. and i think that is really lacking. and it is also difficult to find when you have students that want to self-identify as so many different things and expect everybody to not offend them by accidentally getting it wrong one day.

oh, my god, i said he when i should have said z. >> and college is the wrong place to have the discussion. given the current state of conversations. >> it could be. >> unfortunately, we have to end there. thank you all for participating. and stick around for the next panel. [ applause ] >> take care. tonight on c-span 3, a senate hearing on the ideology of isis. and then oral argument in two supreme court cases. birchfield versus north dakota when search warrants are required for blood tests of suspected drunk drivers and the affirmative action of fisher versus university of texas. later university of missouri president middleton on the student protests that led to his predecessor's resignation. sat a hearing on the religious and political ideology of isis, refugees from isis held

territory discusses how the group funds itself. witnesses talk about how ideology motivated lone wolf attacks like the orlando shooter. this hearing of the homeland security is two hours.

good morning, this hearing will come to order. we have one witness who parked over at union station and making his way over here. he can join us when he gets here. i want to thank the witnesses for appearing for your time, your testimony. the mission statement of this committee, you have heard it repeatedly, but i'll repeat it again. to enhance the economic and national security of america. on the homeland security side, one of our top four priorities is doing whatever we can to keep our homeland safe to counter islamic terror. the goal of every hearing, from my standpoint coming from a manufacturing background, i solved a lot of problems.

the first step in solving a problem is admitting you have one. but really facing reality. so the goal of every hearing is to lay out a reality. so that certainly the members of the committee, the people in the audience understand what we're dealing with with a particular problem. today's hearing is our eighth hearing dealing with some form of component of the threat we face from islamic terror. it's a harsh reality. it's one i wish was not true. it was one i wish we didn't have to face. but we have to. we're going to be hearing testimony today that will be hard to hear. it will be hard to hear. but it's testimony that i think is incredibly important for us to hear. so i thank the witnesses for appearing. i would ask that my written statement be entered into the record, without objection. it's important for us to understand that islamic

terrorists declared war on the united states. quite honestly, they declared on -- war on the civilized world. we didn't declare war on them. they declared war on us. i can't exactly point to the date, but certainly one that's pretty visible was the first attempt to bring down the twin trade towers. that was on february 26th, 1993. and the fact that we didn't face the full reality right there and then i think eventually led to the fact that we then faced the tragedy of 9/11. we're almost 3,000 americans were slaughtered in that terrorist attack. now there are two ways to end a war. only two ways. either one side defeats the other or both sides decide to lay down their arms. the tragic events of yet another isis-inspired terror attack on this country in orlando has

proven islamic terrorists are not laying down their arms. so the only way we're going to end this war, the only way we're going to keep our homeland safe, return peace to the civilized world is if we defeat islamic terrorists, if we defeat isis. on september 10th, 2014 president obama laid out america's goal as it relates to isis. it was pretty simply stated. to degrade and ultimately defeat them. that was 22 months ago. 22 months ago. in testimony last week before the senate foreign relations committee, the cia director john brennan laid out reality as it relates to our success or lack thereof in our war on isis. and he testified that u.s.

-- this is a quote, that isis remains a formidable, resilient and largely cohesive enemy. and that our efforts of not reduced their terrorism capability and their global reach. now that is a depressing reality after 22 months. but it's a reality we have to face. so again, i just want to thank the witnesses. don't hold back. lay out the reality. the senators on this dais, that the american people understand the threat, the enemy we face and why it's crucial that we defeat them. i wish they would lay down their arms, and i wish they would declare peace, but it doesn't seem like that's going to happen. with that i'll turn it over to my ranking member. >> thank you, mr. chairman. first of all, thank you for delaying this hearing for a week so that our witnesses could be assembled. we have more time to prepare for this hearing. we welcome each of you.

thank you for coming and sharing with us your stories and perspectives. they are valued and we're delighted you could come. i want to just follow up briefly on how the fight against isis is going. i went over a map today of that part of the world. the u.s. and coalition forces which now number 60 nations, have recaptured almost 50% of the land that isis held once in iraq and syria. almost 50%. we're up to 47%. isis has also lost 20% of the land it once held in syria. ramadi was a key victory. last friday iraqi forces, ground forces captured a city in the center of fallujah and working to clear out the last few pockets of resistance in that city. so there's only 25 miles west of baghdad. as we speak, kurdish, iraqi and

syrian democratic forces backed by the u.s. special forces are making preparations to retake isis key strongholds in mosul and raqqah. we have killed some 25,000 isis fighters and more than 120,000 key isis leaders. we have cut isis funds by a third or more. we literally destroyed hundreds of millions of dollars in cash that they were hoarding and reduced by a dramatic amount their ability to realize profits from oil reserves and resources in that part of the world. we have drastically slowed the flow of foreign recruits from a high of about 2,000 a month in 2014 to 200 a month today. and there also goes for young americans who have sought to travel or join isis. one year ago about every month about ten americans were leaving this country to join isis. today that number is one per month. and at home the fbi is cracking down on recruits as well.

over the past two years, the fbi has arrested 88 individuals on isis-related charges. i was a naval flight officer for 23 years. combined active and reserve, i served five years in a hot war in southeast asia. i know a little bit about fighting wars. another 18 years up to the end of the cold war as a mission commander. one of the ways we're going to win this fight is not by ourselves. there's not an appetite in this country for putting boots on the ground but there is an appetite for working with a coalition of countries throughout the region and the world and that's what we're doing. i believe we're making progress. is it perfect? is that where we want to be, is this where we want to go? no, it is not. but i think we're making progress. the other thing i want to say is last saturday, nine days ago, my wife and i went up to new york. we have a son who lives in that area of the city. he took us for father's day and his mom's birthday to the 9/11 museum which is built right on

the location of where the twin towers once stood. i was reminded there as we saw the faces and names and heard the voices of family members of some 3,000 people who died that day. i was reminded of the way we responded to that tragedy. in this room, in this room we helped to key -- create the 9/11 commission. in this room e we received some 40 recommendations of bipartisan group presented to us by tom cane, presented by lee hamilton, former house chairman, co-chairs of the 9/11 commission. they presented to us after months and months of work some 40 recommendations that they came to unanimously on what we could do to reduce the likelihood these attacks would happen again. we adopted maybe 80% of them. almost unanimously. then set about implementing them. the response to that tragedy was

bipartisan, it was a unified approach and ultimately it's been successful. ultimately it's been successful. and when you compare that response to the response of the tragedy in orlando, it could be could not be more different. my hope today is we're going to have the kind of conversation with all of you to enable us to better improve this fight. and this is a fight we're going to win. a fight against isis. and we have a lot of allies that happen to be not just folks in this country, not just people who might be catholic or proddest an -- protestant, but together we're going to prevail. i ask unanimous consent that the rest of my statement be entered into the record. >> without objection. it is the tradition to swear in witnesses. if you will all rise and raise your right hand. >> do you swear the testimony before this committee will be

the truth, the whole truth and nothing but the truth, so help you god? >> please be seated. our first witness is mr. hassan hassan. mr. hassan is an association fellow at the institute for middle east policy. mr. hassan co-authored isis, inside the army of terror. in 2008, he started working in abu dhabi in journalism research focusing on syria and jihadist movements in the wider region. mr. hassan. >> thank you, chairman. ranking member carper, and members of the committee. in my introduction, i want to add i come from an isis-controlled area, controlled today. also, i have also interviewed dozens of isis members for my book, and other research. and i want to say this. this is not a sectarian war. the very people that isis claims

to represent are victims of its brutality just as much as everyone else. there is -- this is reality felt on a daily basis. when a family and friends go to the market and see severed heads on pipes or when isis condemns its sunni opponents, people that they claim to represent as upper states, they burn them alive, stab their hearts before they shoot them, they display their dead bodies for days in central squares. what it says to fellows, it doesn't matter if you pray, if you fast or ramadan, if you turn your faith towards mecca and pray. we will still kill you as long as you don't pledge allegiance to us. not far from where i come from in my area, isis killed 700 sunni villagers in a matter of

days because they dared to stand up against the group. and i want to move on to say that as a belief system, those who believe in the islamic state ideology are minority, not only in the muslim world, but also within the group. during my research, i found that members come in six categories. one, long-standing religious radicals. who deviate even from al qaeda. for example, they believe there's no sanctity of life. unlike al qaeda, which, for example, justifies killing civilians but only as collateral damage. isis considers killing civilians itself the preferred outcome. in fact, a month ago, exactly a month ago, the spokesperson for isis said when he called for sympathizers in the west and europe and the united states to launch attacks, he said i receive complaints from people,

sympathizers saying we couldn't find military targets, and we are afraid to kill civilians. he said there's no such thing as innocent civilians in the west. in fact, he moved on to say we prefer that you kill civilians. and he said i don't have time to justify that. basically, didn't even have the justification during the statement. and the second category of people who join isis are young zealots who are victims of the first category. people who are between 12 to 17. people who are drawn to this ideal of a caliphate and so on and so forth. they're brain washed. they are told that islam in a way that isis understands, that distorts a lot of things. because people don't have religious knowledge, they hear a lot of events and the traditions that isis relates for the first time.

and there's a third category which is very important. people who are drawn to isis, political ideology, not religious one. this is a major problem, not only within isis, but i think in the region. people who are drawn to this political ideology, not only for isis, but al qaeda and other islamic groups because they think there's political stagnation in the region and only these groups can actually shake up the political order in the region. and i think omar mateen belongs to a category of people who are only superficially influenced by this organization. he obviously didn't follow their way of life, but he still was an animated by this idea of the islamic state. the other categories drawn to the group because of its military success, attraction to brutality, or simply their

profiteers, but the group swims in a sea of political failures in the region. that's where we should focus. it's not a surprise, for example, that isis emerged in iraq and in syria. countries that suffered unimaginable brutality, violence over the past decade in the case of iraq, and half a decade in it case of syria. the group has built its narrative around the idea of sunni victimization. it benefits from the brutal reality in iraq and syria to say that sunnis are systematically under attack by iranian backed militias or governments in those two countries and that the two greatest superpowers in the world are helping both of them. and that there are traitors in our midst who help them. it's important without downplaying the genocidal acts of isis to highlight that the

reg he'll of bashar al assad have carried out in damascus has carried out out almost all of its atrocities that isis has committed even before isis arrived in syria. in 2012, for example, pro-government militias in syria stormed villages, slaughtered children and women, and smashed using rocks, heads of condemned people. and i just want to conclude by saying and emphasizing that isis thrived in this context and should be defeated in this context to stem its international appeal. this can only happen at the hands of the very people isis claims to represent. thank you very much. >> thank you, mr. hassan. our next witness is dr. tarek elgawhay. he is the director of religious studies for the world organization for resource development and education. he also serves as the ceo of the co exist corporation and a trustee of the coexist foundation. he has a ph.d. from princeton.

and he studied islamic science at seminary in cairo, egypt. >> senators johnson and carper, thank you for the opportunity and the other members of the committee. i would like to make brief introductory remarks and try to save the other maybe discussion points for questions and answers. i would like to add to what senator johnson said in the beginning, that before isis or isil and other related groups declared war on our homeland, they declared war on islam. and this is not only a threat to our homeland, not only a threat to our national security, but an existential threat to our religion. islam in sunni and shia expressions is defined by a very robust, interpretive methodology. that's what you go to seminary to be trained in. very briefly, this methodology requires one to understand the divine text, to understand the text of the

koran, the understand the various statements of the prophet. there are 6,233 verses in the koran, there are 60,000 to 70,000 and there are over 100,000 narrations of this prophetic texes. understanding the texts means understanding about a dozen different sciences beginning with arabic grammar, syntax, morphology, logic, all of these different interpretive tools we use to understand what does the text actually mean in the context in which it was revealed. the second thing is to understand the context that we live in now. the current moment. understanding full well that people change, times change, circumstance change. and location and place change. how does one fast the month of ramadan in the northern latitudes in which the early muslim generations never experienced. how do we deal with usury, with

the light of currency, not backed by gold or silver bouillon, so on and so forth. so that further adds that one needs to understand the current moment we live in and its complexity and its changing. and then the third aspect of this interpretive paradigm is how do we link the divine text into the current moment in which we live? and that, as we were taught, is a talent. not everyone is endowed with that type of talent. viral and extremist groups like isil have no interpretation whatsoever, nor do they have a fundamental understanding of islam. they're unlettered warmongers who have in essence created a parallel religion. yet the parallel religion they call to is no more islamic than a pool with one lemon squeezed in it is lemonade. because of their gross misunderstanding of the primary text and because of their lack of a robust interpretive methodology, the good news is we're able to identify what is so wrong with their thinking. in my work and in my analysis, i have been able to dedeuce about

a half a dozen or so main concepts that they have, and have been able to trace them back to a certain cluster of sources that are used by every single islamist extremist group from the middle of the 20th century until our time today. and in that, i am able to isolate those concepts, we're able to provide a counter-narrative and deal with it. i don't have an army at my disposal. i don't own weapons whatsoever. i leave that to law enforcement. what i have is my intellect, my scholarly training, and i can employ that to provide a robust counter-narrative to inoculate our youth, to protect the next generation, and make it absolutely unequivocally clear that what isil represents, what they stand for, has nothing to do with the religion whatsoever. thank you. >> thank you, dr. elgawhay. our next witness is mr. subhi nahas. he is an activist for

transgender rights who fled syria in 2012 after receiving threats from soldiers and jihadists because of his sexual preference. he fled first to lebanon and then turkey. he applied with the united nations for refugee status. he was granted refugee status after a year and moved to the united states. in august 2015, he testified before the united nations council summit on lgbt rights in syria. mr. nahas. >> chairman johnson, ranking member carper, members of the committee, thank you for offering me the honor and the opportunity to be here today to share my story in the context of the larger events happening here in the world and here in the united states. my personal story mirrors the stories of many other lgbt individuals. one day i was heading to university. an organized group of militants accosted solely because they perceived me as gay. in a local mosque, they said

they would clear the city of all sodomites. isis had not yet been formed. but the regime, they targeted all gay men in the country. i fled from my home country of syria in 2012. after living in a country of lebanon for six months, i moved to turkey. my history of activism for lgbt right meant that even in turkey, i once again find myself in danger. extremist groups like al qaeda and isis were gaining strength and access there. although i was employed for two years in a senior position with save the children international, i was still not safe because of my sexual identity. a syrian friend informed me i had been targeted for death. the director of save the children helped me with a u.n. refugee agency. to be assembled to a safer country. prior to my resettlement, i completed an extremely thorough

screening process which included testifying under oath in front of an officer from the dhs, security checks, medical tests, and cultural orientation. after this ten-month process, i was relocated to san francisco. in august, 2015, a few months after resettlement, i spoke with members of the un security counsel about the threats in the middle east during a historic events organized by the united states and chile. as i stated during the meeting, and to the press along with ambassador samantha power, isis was simply one of many threats to the lgbt community in the middle east. reports from recent refugees of syria say that isis and other groups actively target gay people. it is enough just to be perceived as gay by them to be arrested, tortured, or raped. then this perceived gay person

can be thrown off of a building to a full crowd that will stone them to death if they're not death. while isis is viewed by the public as the most notorious group in syria and iraq, it may come as a surprise that their methodology, when it comes to the treatment of lgbt people, is very similar to many other groups, including governments themselves. we know that many groups, including isis, target and kill gay people in syria. they just use different methods to kill. while good fortune has allowed me to begin a new, much safer life as a refugee in the united states, recent events in orlando show that lgbt people still face huge challenges here. a "new york times" reported on june 16th, even before the shooting rampage of the gay nightclub in orlando, florida, lesbian, gay, bisexual, transgender people were already

the most likely targets of hate crimes in america. according to analysis of data collected by the fbi. put simply, efforts to discredit the poisonous ideology of isis and other extremist groups while extremely important are insufficient to completely erase the threats of lgbt violence either here in this country or abroad. rather we must -- we must also commit to combatting homophobia, xenophobia, and bigotry in all of its various forms, regardless of the source. in order to deal with these issues, i recommend two things. one, through the bridges and power unique to the united nations, support actions that promote not only human rights for lgbt persons but also love, inclusion, tolerance, and equality among religious communities. this requires continued u.s.

leadership at forums like the u.n. human rights council and supporting funding for the u.n. institutions like the u.n. refugee agency. statements such as the one issued by the security council on monday condemning the orlando attack are critical. the statement specifically denounced for the first time violence targeting people as a result of their sexual orientation, and it received support from russia and egypt. this will make it more difficult for those countries and others to argue that sexual orientation is not recognized -- is not a recognized international human right. two, we need partnerships across communities that can address the serious negative consequences of isis ideology, including assisting the communities affected by it. for example, i have launched a special project which assists lgbt refugees in the middle east and north africa region by providing shelter and education

while also promoting in the u.s. and abroad a more positive image of the lgbt people. so thank you again for this opportunity. >> thank you, mr. nahas. our final witness is ms. nadia murad, a yazidi rights activist. one of the thousands of women abducted and enslaved by isis. since her escape, nadia has been outspoken about her experiences. earlier this year, the iraqi government nominated her for the 2016 nobel peace prize. ms. murad. i will mention murad coincidentally is her interpreter. thank you. >> translator: mr. chairman, senators, i'm very grateful and very happy to be testifying among you and thank you for the opportunity.

the first thing i would like to tell you is that i was heartbroken when i witnessed the crimes in orlando because for the same reason, for no reason, they were killed, and they were abused just the way i was. but i wasn't surprised by this because i knew if isis was not stopped, they will deliver their crimes everywhere. when i was captured, i was 19 years old.

i was one of the 6,000 yazidi women and children taken into captivity. this happened on august 2014, more than a year and a half now, and isis attacked the yazidis for one reason, because they are considered infidels, not people of the book and their interpretation is that the men must be killed and the women and children must be enslaved. and this is what they apply to us, thousands of men, women, and children, were killed in the first day of the attack in sinjar.

in the hottest days of the summer, more than 1,000 yazidis were stranded on the mountain. it's true that crimes were committed in iraq and syria, but what happened to the yazidis was different. i was one of the girls who were enslaved in mosul. i was among one of the thousands of women taken to mosul. the first thing they did in mosul was to, after distributing us to the fighters, was to take us to the court and have us convert by putting our hand on the koran.

[ speaking in a foreign language ] >> translator: it is true that i was raped and soiled and abused, but i was lucky. i wish that everyone from the 6,000 women and children was like me because girls at age of 9 were raped as well. only in two hours in my village, more than 700 men were killed, among them were six of my brothers and the same day my mother was killed, too, for no reason, but for having a different religion.

i am not saying that isis represents the islam, but isis is using the islam to commit its crimes. we need to stop the ideology first. many people in the area had a choice to leave when isis came, but they were happy to join the islamic state when they came. there are many things for me to testify about and tell you today, just the time is limited and i don't speak english. i wish i could tell you more. i would like you to give me more one minute if possible.

>> take your time. we want to hear the story. please. take whatever time it takes. >> translator: this was committed against the yazidis first, and it's still continuing until now. [ speaking in a foreign language ] >> translator: i deliver this message to egypt and to kuwait because what is happening has been happening under the name of islam. people there, they had the sympathy and they said this does not represent us. but we have not seen that daesh have been labeled as infidel group within islam from any muslim country.

and i ask the leader in cairo is to say that isis is an infidel group within islam and he has not committed to it yet. many families in iraq and syria when the yazidi women and girls were escaping to the houses, but no they could have helped them, but no, they seize them and give them back to the militants. daesh will not give up on their weapons unless we force them to give away their weapons. before all the arab countries must stop the flow of the

citizens into daesh and prevent them from joining daesh. and we have to prevent the supplies of weapon and money to them. and we prevent their oil will not be sold. and then we have to fight them militarily after that. the yazidis, all of the religious minorities in iraq, are unable to protect themselves in iraq and syria. a country as strong as your country cannot protect citizens in orlando or belgium and france, how can a minority like us protect ourselves when we're in the heart of the land where the radicals are.

there are many things for me to ask you, because for three years we have been waiting. but the list is just too long for me to ask you. i know what is going on now with modern yazidi girls and women who are still in captivity. when i was held for every hour, i was very happy and grateful that i was not sold, i was not raped. one hour was counted for me, and every hour was counting for me.

i was freed, but i do not enjoy the feeling of the freedom because those who committed this crime have not been held accountable. what happened to the yazidi people was a genocide. just the first day, thousands were killed. the first displacement of 80 persons of the yazidi people who do not have the joy of a tent to live in. and for holding more than 1,000 yazidi children in syria to be trained to have the exact same ideology that the crimes were committed under.

because of the children who are at age of 9 who didn't enjoy the childhood and became slaves. and for the people who drown in the aegean sea and that's also a crime of isis because the people escaped because of isis. because thousands of our children also have been prevented from going to school, and this is all because of them. today, i'm saying that small religious minorities such as the yazidis, christians, and other minorities, if they are not protected, they will be wiped out.

we only are seeking peace. we want to live with dignity wherever we are. [ speaking in a foreign language ] >> translator: as a little girl, i had a dream. that dream was to open a beauty salon, and i was prevented from accomplishing that dream, and that's the exact same story with thousands of children and people like me who were preventing to continue pursuing their dreams.

this should not be practiced against islam, but the crimes have been committed in the name of islam, and the muslims must be the first one to resist this. i don't like anyone to be attacking an entire religion, for example, the family that liberated me in muslim. but at the same time, this has been committed under the name of islam. there is so much time that is needed for me to tell my entire story. but now i will stop and i will give you the opportunity to ask any questions. >> thank you, ms. murad. thanks for your courage in coming forward and testifying. let me just ask.

did any of your family survive? >> translator: yes. two of my sisters, three of my brothers, and some of my nephews and nieces. 18 people from my family and extended families are killed or missing. >> can you tell us how you escaped? >> translator: i never believed i would be able to escape because not me or other girls because we were held in areas it was vastly occupied by isis.

the first couple days, i tried to escape because i could not hold on more on the rape that was committed against me and the insults that were committed against me, i could not take it more. i decided to escape. i attempted to escape, but i was not successful. i was taken back, and i became a subject of rape by multiple people. collective rape. the second time i attempted to escape, i was successful, and a family in mosul helped me and they made for me an islamic i.d. with that i.d., i was able to escape from mosul. >> you mentioned 3200 additional yazidi girls and women being held captive.

are they dispersed throughout syria and iraq at this time? >> translator: yes, they are everywhere because they are not held in a specific place. what is happening is that they are being sold, and their places will be changed from a place to another. >> by the way, we are holding questioning in five minutes because we have so many members attending this. thank you. i want to go to dr. elgawhay. a real scholar in islam. can you just explain, is there any way for you to -- for us to understand how did -- how did adherence of this barbarity of this violence, how did it get to that point? what happened?

>> so, thank you, nadia, and nadia mentioned -- so nadia was saying that daesh, they don't represent islam, but they use islam. she gave some examples, but they're using islam wrong. for example, they told her she has to go to court and swear on the koran to become a muslim, but that's not how you become a muslim. you become a muslim by testifying. so even small mundane things, they don't even understand. and i just was so moved by what she said, and it reminded me that the prophetic text, peace be upon them. he said fear the supplication of the oppressed because there's no veil between that supplication and the lord. and he never mentioned it's muslim or not a muslim, and he said i am the protector of the religious, the defender of the religious minority on the day of judgment of the muslim that aggresses against the religious minority.

it's a big question you asked, senator johnson, but basically the way i see is they're taking certain concepts or certain phrases and adding to it and appropriating to it new meaning that doesn't exist. for example, nadia mentioned one of the things they told her is that yazidis don't count as the people of the book. they're apostates, but the people concept is not conscriptive, it's descriptive. it describes an organized religion that has a legal code, a book meaning, a sacred text, so on and so forth. as muslims expanded eastwa, out of air abia, they encountered yazidis. these are communities that have co-existed with muslims from the first generation of islam up until now. all the other hinduism, taoism, all of these religions, muslim scholars understood these as

people of the book because it's a description, not proscriptive. this is how they misunderstand things. their basic access around which this thinking exists is declaring people to be apostates. i'm an apostate according to him, therefore they can aggress against me. why am i an apostate? i don't agree with what they agree. i don't pledge allegiance to them. so on and so forth. with this tactic, they go on and on and on. one last thing nadia mentioned, in cairo, why doesn't the senior leadership of sunni islam declare isis as nonislamic, because i know that's a common question i get. our understanding of organizations like isis is even worse than apostasy because there's no punishment for it. the prophet said thee people are outliers. and in all of his mercy and all of his love and all of his beautiful teachings, he said

[ speaking in a foreign language ] . he said that they are the dogs of hell fire, and he said glad tithings to those who fight them and kill to those that fight them and kill them and are killed in the process of killing them about the outliers. it's even worse. it's even more of a derogatory statement, derogatory label, than being an apostate. it's an obligation on all of us in the family of islam to do what we can to combat it with whatever tools we have at our disposal. >> one very quick question for you, mr. hassan. a population, 1.4 billion, 1.6 billion. what percent of this population adhered to this barbaric ideology? do you have any sense of that whatsoever? >> for me? >> whoever has an estimate. >> isis doesn't need a lot of

numbers. we have seen this recently when they start being put -- when there is a force that pushes them in a certain area. they can hold territory with like 200 people. i think they are a very small minority, even within the syrian rebel groups. they are still a smaller group than others, but i think because of the sheer violence and brutality they deter people. they use a word in their literature which means deterrence with extreme violence, brutality. so when they kill one person, they make sure that 100 or 1,000 people see that person being killed. >> senator carper. >> thank you. did you say we have five minutes? >> yeah. there's so many people here, so -- >> okay. again, our thanks to each one of you for joining us today. and for sharing with us some

parts of your lives that are not easily shared. we're deeply grateful to each of you, but especially to you, nadia. thank you. here in the united states we are, as you probably know, are people of many different religions. we're protestant, catholic, we're jew, we're muslim, hindu, buddhist. we're other religions as well. and one of the reasons why our country was established was because of the concept, the nature, of freedom of religion. people yearning to not just to be free, but to be free to worship god as they saw fit. there are some people who take the bible, most people in america probably protestant and catholic, most, but certainly not all, but some people who take verses of scripture out of the bible and they twist it in ways they're not meant to be done.

and there are people of our own faith who bastardize our faith, cherry pick our faith. a great example is an eye for an eye and a tooth for a tooth. that same verse of scripture goes on to say revenge is mine, said the lord. there's another verse in scripture that says when i was in stranger in your land, did you take me in. and we have some people in this country, some political leaders, i don't know that they've read matthew 25, but there are some people in this country who have argued that the united states needs to stop accepting not just syrian refugees, but in some cases all muslim refugees. and in the case of the syrian refugees, they would not allow us to accept, they could not be muslim, they could be christian, they could be a jew. a variety of religions. and i would just ask maybe starting with you, mr. elgawhay,

with you, and just ask, what are your opinions about a ban on all syrian refugees? and or even all muslim refugees and how much -- how such a ban would affect the ability in this country to counter isis propaganda and ideology? would you go first? >> i'm not really trained as a politician, so -- >> neither are we. we're untrained. >> at the risk of making or saying a political statement, i mean, i think as an american, i understand -- >> my question is what are your thoughts about how a ban on all syrian refugees or really all muslim refugees, how does that effect our country's ability to

counter isis propaganda? >> as i understand our nation, it's un-american not to accept refugees. and we have, i think, a legal, political, and more importantly, moral authority to take people in that we can. and this is what, you know, e pluribus unum, this is what makes our nation great. from a social cohesion standpoint, societies that are more plural are stronger. i think that by bringing in refugees, we will be able to understand the problem more and see how we can help them more, but i think some sort of form of isolationism or some sort of rejection will only increase the problem and make it fester more. >> good, thanks. other witnesses, please. same question. >> sure. i can say two things. the first one is that i try to keep in touch with people who left syria and they now live in germany and other countries, and i have seen how positive the message that european countries in the case only recently here that they accepted them.

and that was a positive sense, only hearing good things from refugees. they praise the germans and how hospitable they are and so on and so forth. the other thing we have to recognize, i think, especially for the united states, that thousands of syrian refugees who left syria and turkey and europe for the united states have been instrumental in the fight against isis. they provide intelligence information, guidance, and you know, isis operates in these areas that, you know, in eastern syria and northeastern syrian and northwestern iraq. and these people have been affected most by violence, driven out. i mean, they're the reason why they're helpful in the fight against isis. >> all right, thank you. anyone else? very briefly. >> okay. from my experience as a refugee myself, i went through the process.

i could say it is very highly unlikely for the process to let any terrorists that comes -- it's a highly intense process which takes security checks, background checks, waiting period for over like a year, at least a year and eyewitnesses. they ask you a lot of personal questions. and for the slightest chance to let a terrorist or a guy or girl that believes in these ideologies to pass through is highly unlikely. >> all right. thank you. nadia, could you briefly respond to my question, please? very briefly. >> translator: i would like to say that every country has a

right to protect itself and to protect its borders and its laws. but the people who are escaping from the religious discrimination and genocide, they should not face closed doors before them. i would like just to say that if the terrorists want to go someplace, they can go regardless of the process. and some of them have already emigrated. >> i think we have a moral imperative. we face in this country a moral imperative to be true to those words written at the statue of liberty. we have a moral imperative to matthew 25. when you're a stranger in our land, we take you in.

but we also have a moral imperative to the people who live here and want to live in safety, live to be old and to have kids and grandchildren. our challenge here is to make sure that while we need to be true to our faith in allowing people who are in distress and on the run and haunted by their memories, we need to be welcoming to them. we also at the same time have to be mindful of the need to protect our safety. sometimes, they're in conflict with one another. last thing i want to say, doctor, you can comment on this later. my understanding is every religion, just about every religion, including islam, has a golden rule. treat other people the way we want to be treated. is that true? is that not true of islam? >> yes, it is. >> my view is if all of us would abide by that, because that's part of the fabric of all of our religions, we would be a lot better off on this planet. thank you. >> senator carper, we equally went over. we need to keep five minutes to

be respectful to all the people here. senator ayotte? >> i want to thank the chairman. i want to thank all of you for being here. in particular, mr. nahas and ms. murad, we're so sorry for what you have gone through and your courage in coming forward today is very important for us to hear what you have endured and it is horrific. but i wanted to follow up, ms. murad, on the issue that actually you raised and i would like to have dr. elgawhay comment on it. that is, doctor, you said that what daesh is doing is beyond apostate. you have described it as the dogs of hellfire. and i would agree with that description. but what i want to understand is to what ms. murad asked, as we look at how the reaction should be from, for example, i think she may have identified the

seminary in cairo, which i believe you studied at, which is a very, very important seminary in islam. do you believe that leaders in this seminary and other leaders in the muslim world have described and have called out daesh in the way that you have described it today as forcefully as they should? >> thank you, senator. so just a correction. those weren't my words. i was quoting prophet muhammad. prophet mohammad said the outliers are the dogs of hellfire. >> what i want to understand is to really answer her question, do you think that leaders in a position to influence -- influence what islam truly stands for, do you think they have been forceful enough in calling out whether you call them dogs of hellfire, apostate,

however, how daesh is warping, as you have testified today, your religion? >> so i think yes and no. i think there are definitely those who are very outspoken. one scholar that comes to mind that we have worked with is a syrian refugee for all intents and purposes who is now living in morocco. he's written a non-binding religious opinion in english against isis. and he makes the argument, which is a valid argument, that daesh or isis are in fact outside of the folds of islam. but if you have worked with scholars and academics, they are slow on the uptake and not good in front of the camera. >> we need leaders. >> that's one of the problems, i think, one of the deficiencies, the weak points, is that its communications capacity. in a former life, i actually helped establish the office of

communications for egypt between 2003/2000 -- 2003-2007 before i went to princeton. that was, wow, a coup. when i asked them how do you deal with journalists, they said we call the police and arrest them. you have to work with the media because if you don't, what you're trying to say is not going to get out there. i think there's a lot of training that can happen to help that. i agree with you, more needs to be done. more voices need to be heard. >> thank you. ms. murad, i wanted to -- i wanted to say i believe that daesh has engaged in war crimes, crimes against humanity and genocide. how important do you believe it is -- you have put in your written testimony today and you have also told us -- how important is it for the united states to formally recognize daesh's actions as genocide?

and i mean with reference to the yazidis and what you have told us today about how they're treating the yazidis. >> translator: it's very important for us that what's happening to us to be acknowledged as a genocide. just a few days ago, when the u.n. acknowledged the genocide for the yazidis who have been hopeless for the past two years, this was the first time they started having some hope.

>> translator: i would like these crimes to be legally recognized by you and i would like to be acknowledged and i would like you to look into the crimes, the things i have said today, and the things daesh has done. they have publicly said they will do it and they did it, and i would like you to look at these crimes and evidence. >> i want to thank all of you for being here. and i would just say, there is a senate resolution, a resolution 340, which would call this for what it is, a genocide. and i hope that we can come together and declare -- i would like to see the administration declare this a genocide. and also would like us as a congress to come together and declare this for what it is. thank you. >> senator tester. >> thank you, mr. chairman. i want to thank all of you for your testimony.

dr. elgawhay, i came in towards the last half of your comments. one of the things you said at the very end -- i just want you to confirm this. isil has nothing to do with religion. did i hear you right? >> isis has nothing to do with islam. that's what i believe i said. >> okay. so tell me the difference real quick. >> i began by saying that normative islam in its sunni and shia expressions is defined by an interpretive methodology and walked through the high level of what that is. >> right. >> and the text that we have, what we believe to be divine text live in time, and there's a tradition in how we interpret these verses and these injunctions for the moment we live in. isis, they're unlettered. they're completely unlettered in the religion, in the fundamentals nor do they have an interpretive methodology. what they conclude is based on their own whims and desires what

they're reading prima fascia. >> got you. so i keep coming back to why these guys exist. there's absolutely a criminal element, because we saw that in paris, saw it in brussels. that people belong to isil. there's also doctors, engineers, well-educated folks that are part of it. that quite frankly shouldn't be a part of a twisted ideology as this. could you tell me what about their ideology appeals to that broad of a base of crooks and professionals and everything in between? >> so maybe hassan would know more because he's actually interviewed more of them. i think that the first thing i would point out is that i don't know if they necessarily believe in what isis is saying or they're coerced to believe in what isis is saying or what they're holding to be true. i also think -- >> coerced by force? >> coerced by them, by isil and what not.

>> so you believe this or you're going to die? that kind of coercion? >> exactly. as we heard the example and other stories that come out in isil-controlled areas. there's a spectrum of extremist frght in islam. it can start as something sort of innocuous, but there's something wrong with that way of thinking and it can slide. i think when they find somebody that sort of looks like they're from central casting, they're able to pull them to that side. >> there's a lot of folks in that group. it appears to me anyway. would you want to comment very briefly on that or just agree with the doctor, if he's correct? >> i mentioned in the testimony before that the people who believe in the sort ideology isil believes in, really believe in it, are only two categories. people who are young zealots who are indoctrinated by another category which is of long-standing radicals who

believe in declaring fellow muslims as infidels, apostates, based on specific criteria they have. they rely on books like there are two books that come to mind. without getting into too much detail. there is a book, for example, that is 1,000 pages of a man who when he appears on tv and he explains his methodology of fatwa. he said fatwa should not be -- should not be done in the same way that muslim clerics have done it over the centuries. >> all right. >> that i, as a person, i can declare you as a fellow muslim as an apostate based on my impression of you, if you work with the west against muslims or if you're an agent to a certain

government and so on and so forth. the criteria are very post-modern in a way. >> okay. back to you, doctor. so are there statements or actions the u.s. has taken that might encourage people to be a part of isil? >> for me? >> dr. tarek. >> to be honest, that's a tough question for me to answer. i think that the rhetoric that comes out of isil sometimes makes us think that if it were not for the u.s. invasion in iraq, if it were not for the u.s. policy doing this or the u.s. policy doing that, but the fact of the matter is that one can make that argument for any other country. one could make that argument for any other regional player in that region. and you know, politics is all based on interest, geopolitical interest, and things like that. i don't think that's necessarily fair. i think because america is so dominant in the world and so out there it's just an easy target and it's an easy, oh, well, if america just stopped di eped do, we'll stop doing that.

that's not going to happen. if we stop doing whatever they say, they're not going to change. >> my time is up. i want to thank you all for your testimony. i'll submit -- i'll submit questions to record if appropriate. thank you. >> thank you so much, mr. chairman, and thank you all for such thoughtful comments and for such thoughtful words and such courage and bravery, especially our last two witnesses. i think everyone here who frequently spends a lot of time on their smartphones during testimony sat in and really listened and really you moved us all. thank you so much for your courage. and for the fact that you're survivors, and as survivors, you're willing to provide testimony as to the horror and as to the imperative that we all as good people need to engage. but i want to, for a minute, turn to our first two witnesses and just kind of engage in a discussion about message and messengers. doctor, i was fascinated by the work that you have done basically parsing kind of the perversion and responding to the

conversion of -- or the perversion of islam that is being done by these radical groups. and obviously, having met with people who have been radicalized, have a pretty good sense of what messages could we deliver that would actually make a difference, especially in this country, when now i think our greatest threat is radicalization of young men and women or american citizens. we have seen that now twice. so there's two parts of a message. it's the right message and then the messenger. i'm just going to make a couple points. i want both of you to respond to what you think the right message is and the right messenger, and i want to know if you're familiar with what the department of homeland security is doing today to try and provide a counter message and offer any advice to us as we review that in our role of oversight. and that will be the last question i ask. and i would like that you both split up your time.

>> thank you. in terms of messaging, i think it's different because it's complicated because isis should be treated as two organizations in one. there's the local one that operates and has -- operates on the ground in syria and iraq and elsewhere like libya and elsewhere. they have their own messaging. usually based on sectarianism. and there is international, which is a very close to al qaeda. they, in fact, are trying to re-collect and regather the dispersed networks of al qaeda that were basically dispersed after the terrorist attacks of 9/11 and the campaign against it. so they're trying very hard to do that in europe, in the united states, and elsewhere, but also in north africa. so the messages should be different because they're different organizations. on the ground, internationally, there is this danger that what

happens like it's appeal on the ground has become an international appeal. why? because it presented itself as some sort of an idea that everyone is fighting and the enemies of this organization are the west or iran or something else. this organization stands for something. the most effective messaging against this is not talk too much about only the victims of isis outside the group that it claims to represent, but rather what's really happened on the ground, which is on a daily basis the group kills fellow sunnis, people it claims to represent, and we don't see that in media. for example, next to my village, i mentioned they killed 700

people and only "the washington post" did the story about that. at the time it killed 700 people. it's not the sectarian organizers or the sect or islam versus the west. it is a crazy organization that recasts itself in religious terms that people of that faith rejected and that needs to be hammered again and again. >> as far as messaging, i think there needs to be an unequivocal counter narrative from muslim leaders. no wishy washy stuff. there is yes, no, black, white, period. what i have been trying to do is conduct a traditional class and

try to deconstruct it in a detailed way. my goal is for young muslim people to understand why it's wrong. that kind of effort is what we need more of. i think the english language is very important because a lot of the media is in english in an appeal. as far as recommendations, somethisome of the things that come to mind in montgomery county, we noticed a drastic increase in bullying. i think anti-bullying work is very important so that children feel safe and they are not

pushed to the sides and we work to help them get settled. they have something to plug into. those are the things. one last thing. i think media training for muslim leaders abroad is also very important. and i think there's a lot of good people. there's a lot of -- i can't remember who we were talking about earlier. there's a lot of good leaders who are making the right argument, but they need to know how -- you can't write a 40-page legal opinion and expect that to be trending on twitter. it is just not going to happen. when i told my teachers that, they're like, what we're saying is the dumbed down version of what our teachers said. we have to stop the humility thing and we have to be start about how we inject this message into the media.

the training is very, very important. the social media for leaders abroad. >> thank you, mr. chairman, and the republicans here today. thank you for your compelling testimony. we have been playing persecution and terror. people see the human face of refugees in this country. your presence here today is important and hopefully many people today will see that and be as moved as i know everybody on this panel has been moved by your testimony. thank you for your courage to be here today. doctor, i would like you to respond to the debate back and forth in the political realm as to whether or not we should call

isis radical islam. when you hear someone calling it radical islam, do you think that is accurate with isis? >> i seem to be intent on getting all the difficult questions. there is no -- there is nothing wrong with labels because a lot of times we get stuck in labels. they are only what their definition is. if i use that term, a lot of people in my community get upset. people who look muslim and according to the koran, they are doing horrible things. they are terrorists for sure, but they are different than a neo-nazi group, for example. i don't have a problem with

that. when people say that, congress or the white house or in the media, i understand what is meant. however, i fear that that can easily sligy lily slide into an radical islam. that's where the fear is. we limit it to what it's supposed to define. >> that's a good question. when i was here, i was an advocate of these terms. i remember the late saudi king who died two years ago. he admonished for the first time and i said i feel you are lazy and not speaking up. but i think when i moved to the u.k. last year, i felt there was a question of messenger. and it's important to keep this in mind.

this is the thing that isis did in the middle east. it wants to polarize its enemies and polarize the society under its control and they want to divide their enemies and they have succeeded in the middle east and they'll succeed here getting people talking about whatn to call it and whatno not call it. this organization is declaring war on islam, and here it is help muslims fight the organization. >> i appreciate that. the issue we face here in the united states in dealing with this threat deals with lone wolves, folks who may be inspired by what they see and the ideology. is it safe to say the folks who may be inspired by this are folks who really have very little understanding of islam? is there a correlation there?

and does that have something to do with this recent shooter who was claiming i believe allegiance to isis and at some point hezbollah and how that may be inconsistent? you can kind of address what may be going on in the minds of lone wolves and what we should be considering when responding. >> they have little to no understanding of religion and that's the emergency. they have no training or a teacher and what i described earlier takes place. i think that's definitely a fear. people that are surfing online finding a lecture here, finding a statement there, and forming some kind of conclusion and

acting on it, i definitely think it is a problem. i think more instruction, more religious literacy for muslims, will help in that regard. >> senator baldwin. >> thank you, mr. chairman. and i want to add my words of appreciation and thanks to our panel. very, very powerful testimony. thank you for being here. wanted to start -- i know the hearing is about the ideology of isis, of daesh. and yet it was called in the wake of a horrible tragedy in orlando that was at once a terrorist-inspired attack and also a hate crime in this case against members of the lgbt community -- it was also latin

night at the club, and it's unclear whether that was contributing to the targeting of the club on that particular night. mr. nahas, when you were testifying, you shared with us that attacks against lgbt syrians preceded the formation of isil, that it was called for or tolerated or perpetrated by the regime as well as militants who opposed the regime in syria, that they, too, perpetrated violence against lgbt syrians. in the u.s. violence, bullying, intimidation, discrimination against members of the lgbt

community has a long history also. and in the early days, you could certainly argue that it was sanctioned at one point in our nation's history by the government also, but things have changed. and i want to just draw attention to something you highlighted in your testimony about the u.n. security council acting very recently to recognize that lgbt rights are human rights, a first in that international forum. you highlighted it as something that is very important in moving forward. i guess i want to ask in terms of your proposals, your recommendations, to this committee and to others how

important it is for governments, for authorities, for regimes to say lgbt rights are human rights? and how dangerous is the absence of that, the silence to that? >> thank you, senator, for this important question. from my own experience growing up as a gay man in syria, i know that -- i knew at an early age that the government has laws against us and we're not -- my existence was not legal, so i was not allowed to say it out loud. i was not allowed to be out in the open. it was punishable up to three years in prison. this is the least. it could be persecuted by your own community members, so it is very important for us to put the words out there to say to

governments and hold them accountable to tell them that lgbt rights are human rights. that are not, from my understanding -- my community and traditions say lgbt rights are only sexual rights. they don't relate at all to human rights. to make this message clear to governments and their communities, it is important to elevate the consequences that i witnessed in my country where we're being bullied all the time, persecuted, harassed in the streets, even verbally and physically abused. we could not go anywhere. we could not go to the bullies. we could not tell our families because if we do, they will persecute us more because they will always say you have to man up and defend yourself. this is an not an issue that you can talk about. but if these international

platforms were used in a proper way to deliver the message, to tell the governments that these rights should be addressed probably, it delivers a very strong message. >> thank you. i wanted to follow up -- >> can you do it for the record? >> a question for the record then. senator peters was asking questions about self-radicalization and lone wolves. and i think in the case of orlando it is not clear how deep of an understanding the perpetrator, the gunman, had with -- appeared to have relationships online with various terrorist organizations, but i guess i want to ask an even broader question about self-radicalization because we have seen in recent instances of

mass gun violence in the u.s. people who are self-radicalized, but inspired by different types of hatred, hatred of a minority religion as we saw in wisconsin, mr. chairman, when a gunman entered the sikh temple in oak creek, as we saw in charleston motivated by racial hatred. what can we learn about self-radicalization and in studying those who have been self-radicalized by isil when dealing with self-radicalization for people who hold different types of hatred? >> and the witnesses can answer that in written responses. senator langford? >> thank you, mr. chairman. thank you all for being here. i appreciate your bravery in coming forward and your courage to be able to speak out.

these are important days and we need to be able to hear clear, articulate voices. i thank you for bringing that. what is the end goal for isis? what do they see on the horizon? they are fighting for what and they will know they have achieved it when? >> well, they say they want a caliphate that dominates the world. this is their stated mission. i think their realistic objective is to control syria and iraq and expand in the region and become this leader of jihad and global jihad. that's why they have spent so much effort on targeting al qaeda. they're more critical of al qaeda than probably other ones because they see them as their competitors and their rivals. they're goal is regional dominance, but obviously they want to expand in the west and elsewhere. >> so you're talking about the

regional dominance. yet they're trying to motivate people in western countries, whether it be europe, the united states, australia, to be able to fight and attack in those locations as well. so why try to motivate people in australia or in the united states or in europe to be able to fight for them if the goal is the caliphate there? >> well, listen to them and how they talk, reading their books, the books they say they read. they talk about the war today. and this is important i think for the anti-isis campaign today because there is this tendency to think about tactical defeat as strategical defeat through isis. isis is a long-term project. they talk about a war of attrition. they want to exhaust the west, exhaust everyone else. to think ten years ago, the americans were in iraq.

they had the appetite to fight us. ten careyears later, president a had little appetite or less appetite to fight us. in ten years, that will be even less. they have a core that is mostly consisting of security officials. these are the most dangerous people. many of them were former members of saddam hussein's security parties. they shape the organization in terms of how it operates and how it works and how it ensures itself survival. so i think they have that goal. that core won't go away. you can defeat the organization, defeat the members that joined it two years ago and so on, but they think of their long-term strategy as a war of attrition. >> okay. if you go back 15 years ago or 10 years ago, the united states was talking and challenging and

the west was challenging leadership in islam to call out -- now it is a challenge towards isis or nusra front. we see this springing up in multiple areas around the world. you used the term radical islam is twisting off, but it is not just around isis. it is around mostly isis today, but it could be nusra front or al qaeda or others. it's a more broad system. is it a confront isis or is it a confront a larger set of teachings that is separate from traditional islam? >> that's the difference between defeating the organization tactically. you can launch military -- very effective military campaign against it and you can defeat it. expel it from mosul, raqqah, fa

flfa -- fallujah, but the broader appeal of like minded groups like al qaeda that believe in violence as a strategic goal rather than violence just because they're pushed to violence -- >> does the worldwide movement of isis diminish if they do not have a functioning caliphate in syria and iraq? >> it will, but i fear we have reached the point today where what is happening on the ground in iraq and syria doesn't effect the international appeal of isis. i think this is directly because the campaign against isis hasn't been done properly. using the wrong forces to fight isis in towns where these forces are viewed suspiciously is a disastrous campaign. for example, allowing the ypg,

which is an organization affiliated to the pkk in turkey, which is designated by the u.s. as a terrorist organization. using that organization to fight isis, another terrorist organization, in sunni arab areas, that's just wrong. i think the campaign today is allowing isis to convert territorial losses into legitimacy in that region specifically. that's why i've been warning time and again that the campaign is not being done properly. it is only making isis stronger. >> thank you. >> senator booker? >> yeah, i think senator langford's line of questioning is right on. i would like to pick up right where he left off. you say in your testimony you can defeat the group in raqqah, mosul, fallujah, but these defeats will remain tactical. could you go deeper than that?

what specifically are ewe ayou advising us today? we're giving them more strength in some ways in the way we're doing it. can you be more specific? >> isis was defeated in iraq in 2006 after the surge, but isis came back and took mosul. it was defeated from 2006 and 2010. it was a very marginal organization in iraq. sunni arabs in the areas that isis operated in defeated the organization, worked with the americans, and policed the areas. that worked, but then the policy that followed in 2010 when iraq -- when the united states pulled out of iraq before iraq was able to govern itself because there was support, perceived support, between -- cooperation between the u.s. and iran to work with a sectarian

prime minister and work with him despite the fact he was weakened and there's another shiite rival that was more tolerant. so the mistakes that followed that very success, that success that was between 2006 and 2010, led to circumstances that enabled isis in 2012 to tell all sunnis in these areas, look, the only way forward is for us to work together and reject this government from our area. and they were able to rally people, mobilize people against this government. that's why they were able to take mosul in 2014, in the summer of 2014. took mosul, forced the iraqi army to drop its arms and flee, and they took massive american weaponry. they marched back into syria and

fortified iraq. they became a stronger organization because the political failures. and my fear is there is so much focus on the military component rather than on the political and social and religious dimensions to what's going on there. >> so i see your point. i also appreciate in your testimony discussing how we in the west should be trying to discredit -- or having islamic voices discrediting daesh. and maybe that gets me to your testimony, which i thought was really wonderful discussing all the ways that they're perverting islam in the way that they're waging their war and taking advantage of our political failures in terms of how we're gaining territory. and so this is not a clash of civilizatio civilizations. this is people perverting islam

and taking advantage of political realities. so i just want to get from you -- and you said this already, but i want to go one step deeper. for us who have focused so much on cv efforts here in the senate, what are the specific tactics then to start to expose isil for the perversions that they're doing and discredit them? what are some of the best ways to go about that? >> thank you, senator. i think i really believe in the counter narrative. and that's very, very important because when i started to do this less than a year ago, i realized that there's no very articulate, very clear cut counter narrative. by counter narrative, i mean how does islam deal with issues of plurality, citizenship, nation states. all of these things have been argued in the last 200, 300 years, but unknown to the vast

majority of muslims. the bones they're picking with modernity have en dealt with already. it's just the memo hasn't been passed around. the counter narrative is effective because it is steeped in authentic scholarship. it is based on the primary sources, the koran, the suna. >> i'm going to interrupt you there. i hope you make yourself available for further questions. i want to say in my remaining ten seconds your testimony was so courageous and so moving. the outrageous attacks going on against lgbt people in the middle east and here in the united states, which as you point out in your testimony is the most common types of hate crimes we see, i'm grateful for your honesty and courage. ms. murad, i'm grateful that you would come here today and share your story, which is so important to be hear.

thank you very much. >> thank you, senator booker. i want to pick up on both senator langford and senator booker's line of questioning just in terms of what's been the reality situation in terms of success or lack of success against it. there's a state department report called the start report, study of terrorism response terrorism. when i looked at -- and i did a little calculation -- the number globally of people killed in terrorist attacks in 9/11, it is a little under 5,000. with updated numbers, that's grown five, six, seven times. this is a really growing threat. the isis news report showed that outside of syria isis-inspired attacks that have cost 9,991

lives. we've made some progress. we've taken back some territory, but they still control territory. the analysis i'm somewhat using is that of a beehive. you might have a beehive in your backyard. is that what we're witnessing? what is the danger there? we do have to defeat isis. we have to deny them that territory. we have to deny them that caliphate, but then we have a lot of mopping up to do. these islamic terror groups, if anything, they're spreading. they're growing. they're evolving. they are metastizing. >> they're on their own trajectory of expanding for the next decade or two.

i think it's important. at this moment isis is being rolled back. it is being defeated territorially in iraq and syria. 50% in iraq. they lost 50% of their territory. they lost 20% of their territory in syria. and libya, they're also on the back foot. in libya they're struggling to even establish any presence there. al qaeda is doing very well in yemen. the same thing in afghanistan. they're not doing very well there. so their capacity currently is limited. however, i think the ability to inflict damage is strong. the benefit from the open space obviously on the internet, self-radicalization. you can become self-radicalized by watching the american citizen who was killed in a drone attack in 2011, i think. it's very easy to become one of them. the radicalization, the sorts of radicalization, that leads

someone to isis is swift and animating. meaning they can push a person a very short time to do some damage. it is very hard to predict it, but it's there. it's a danger that will remain for a while. >> the gains we're rolling up in syria and iraq, does that give you much comfort? you're saying this is a long-term project. you're thinking they're growing in strength over the next decade or two. >> briefly, that's good. the problem is the other tracks, the political track, the social religious and the political process in iraq and syria, the conflict is lagging behind. if they are catching up to the military advances, then isis will go away for a while, but for now the focus is on military while neglecting the other things is a problem. >> doctor, i want to shift a little bit to the muslim brotherhood. it is oftentimes reported as a more moderate group. do you have any thoughts about

the muslim brotherhood? >> i have a lot of thoughts about the muslim brotherhood and like groups. i think that goes back to what i was trying to say earlier, the concept of a spectrum. while some of the groups are on the very left of the spectrum or open to violence, there are certain procedural changes that take place if certain boxes were ticked on the form. then violence would be authorized. i'm always shocked, utterly shocked, at how engaging our government is of organizations like the muslim brotherhood. when i was living in cairo and i said why do you engage with muslim leaders, they give me a list. i think there's a big mismatch. i think by engaging with them so openly and so freely we almost

legitimize that approach. i think it's dangerous. i think it's definitely on the spectrum, but it does not necessarily -- it's not a necessity that it will go from one end of the spectrum to another, but it is on the spectrum i'm concerned about. >> thanks. again, we thank each of you for being with us today and spending this time with us and sharing your thoughts with us and your advice as well. i want to start with a question. i think i'll start with you, but then invite other witnesses to respond to. i think in your testimony you wrote that the united states must highlight that the war with isis is not a sectarian conflict. that's pretty much what you said, i think. you point out there are muslims of shia and sunni joining christians and jews and joining

people of all religions and backgrounds fighting isis. some people in the u.s. are trying to paint this battle with isis as a broad clash with the west and the islam. this kind of rhetoric is dangerous and it plays directly into the hands of isis. i would just ask do you agree with this? >> i agree this is not a sectarian war. this is not a war -- it's not an islam versus west war. in fact, if anything, the war with isis is all about muslims versus muslims. this is what the ideology is built on. if you track -- talk about ideas and ideology, but practically speaking like the way ideology of isis has matured and become

kind of framed was a reaction to the events that happened after the iraq war, not the iraq war itself. for example, how sunnis reacted to the presence of americans on the ground and start declaring these people as apostates. they started to appropriate events in islamic history to the context of what's going on here, so it's not at all about what's going on in the west. it's about what's going on on the ground in the muslim world. >> do you agree sort of portraying this war as a war against isis and islam plays into the hands of isis or not? >> i agree with what hassan was saying. i think, if anything, the victim of isil is islam itself. they have definitely declared war on our scholars, our sunni and shia sects.

that's the biggest tragedy. i don't think -- and i think that our best allies in this are normative muslims that are people like me. i mean, my life is in threat just by being here speaking out against this. i don't say that lightly. i think i want to stop that, but more probably than you do. i really want this to end. i want to know what i can do to push that forward. in that desire is the greatest idea we can have to counter the rhetoric and the ideas coming out of isil. >> same question, please. >> i'm sorry. i don't have the capacity to anxio answer this question. >> nadia, do you want to respond to that question please? do you agree painting this war against isis as a war against islam plays directly into the hands of isis and inadvertently

we're helping isis by portraying this as a war against islam? >> translator: the first thing i did, i went to egypt to deliver that message because the things that happened to me i wanted to go to these countries and tell them what happened to me. >> [ speaking foreign language ]. >> translator: i want to prevent the youth from joining the islamic state. i went and i told them what crimes were committed, what actions, what ideology they had. i want to stop the flow of the youth to them.

speaking against this is not help for daesh. you have to speak against it. also, minimizing the role of daesh or the power is not right because only isis border is more than 3,000 miles and they protected all their tens of thousands are fighting for them. some of our villages are only 150 people are living small villages. we have not been able to recapture these villages for a year and a half. so how about the big cities? it's not a small power.

speaking against isis does not mean speaking against islam and also does not mean speaking in favor of sunnis or shias, one against another. when we all speak together against, this then we are united. then we can defeat it. >> my time has expired. mr. chairman, you and i are both supporting legislation that would strengthen the ability of the department of homeland security to reach out to faith communities, to reach out to civic groups, parents, community leaders in order to prevent isis from recruiting americans, which we believe is the greatest threat that we face. if i could just have 30 seconds and ask dr. elgawhary, what advice would you have for the department of homeland security as they outreach to a broad community to focus on the people radicalizing here. one strong piece of advice for

the department of homeland security. >> work with us. >> thank you. >> senator carper, i will give all the witnesses a chance to just have a closing comment after we go to senator brooker. but i do want to ask nadia a question. who helped you escape? microphone. >> translator: a muslim family. >> that answers your question. senator booker. >> senator carper, doctor, pointed question which you said help us basically help you. but we're looking at specific efforts that have been going on to activate lone wolves in the united states, cells in belgium and france. and this is a part of the war that obviously hits western countries right where they are, being preached at.

where citizens of those countries and american citizens are finding the isis ideology and the perversion of islam so compelling that they are willing to take up arms against their fellow citizens in europe or in the united states of america. and clearly we're doing a lot already, trying to empower local organizations in our communities, working with mosques. and we've had panels here where folks have given testimony about that. we now have allocated more resources toward that. i've been one of the people saying c.v.e. efforts should not be law enforcement focused, they should be focused on empowering communities, empowering those networks. if cve just becomes more police, more surveillance, more of that it's not going to really help us really deal with the core of the problem. and what i found so compelling about you is you pointed out so clearly in a way that i learned a lot from your testimony, so clearly that this is a perversion of islam, this is not

islam we're fighting against, this is people that are using it to fuel hatred, violence, and as hassan hassan said, tactically for political objectives, to control territory and to expand the reach of their totalitarian ends. but my concern is i still think we need to be doing more. frankly a lot more to counter that narrative. and i liked what you said in one of your responses that another paper, another 150-page paper is not that effective against the memes that you often see online that often seduce and pull in sort of vulnerable souls to this kind of terroristic activity. so i understand your sort of short answer to a short question. but i'm trying to figure out what are the specific strategies? and we're seeing some of them that are working.

where you expose the fact that isil is killing far more muslims, killing far more sunnis than they are killing people in the west. that really begin to expose this so that those young people who might be susceptible to them see them for who they are, naked before their eyes. and those are the kind of strategies that we need to start really investing in more. and so in the two minutes i left you in a three-minute preamble could you go really to the core of those things that if you were making the investments in the budget that we have to oversee where would you be placing those dollars more specifically? >> we have a very successful model in montgomery county called the brave model. it's a public-private partnership. we work with law enforcement. we work with the county executive. it's a really good program. it's getting national recognition. we're trying to export this model, train other people in other counties in the country

that need this type of message. what i do in this model is i do a lot of the counternarrative. i would love to be able to be in a position where i can train other young muslim leaders in this country and our counterparts in western europe on what these points of -- i did the research. i'm happy for them to take it. i'm happy for them to say they did it. maybe my colleagues will be upset about that. but i'm happy for people just to get the message out there. i also mentor people. people that might be on the spectrum that are referred to us by law enforcement. the school board. that might be on the spectrum. but there's no capacity for local government to deal with them. i sit down with them, i talk with them, i try to decipher is there a problem, are they on the spectrum? is it a mental health issue? we try to refer them out to countywide programs that will help them. this public-private partnership is working. it's working in our county. and i think if i had some say in the purse strings i would like to see us to be in a position to train other counties, first in the country where it's needed the most, and i would like us to go overseas, western european

cities like brussels, london, and work with our counterparts over there to train them in this model. >> and that's a proactive strategy that often saves a lot of money on the raekt reaction we'd have to do with law enforcement or god forbid something happening. today your all testimonies have been testimonies of courage. what you said, people should understand that you are risking your life by coming here, by speaking truth, by laying bare the evil that we are up against. and for that i am deeply grateful. >> thank you, senator booker. and you are right. just think of the evil that people are threatening somebody speaking the truth with their lives. again, i'd like to offer all the witnesses about a minute to just make a final comment. and we'll start with you, mr. hassan. >> we sort of covered most of the ground but i want to just emphasize that we all need to show isis, you know, show what

it is -- what it does to the people that it claims to represent. we need to emphasize that these are its victims as much as the others are. and i think that needs to be present in the media. it's not one person's war. it's everyone's war. >> mr. hassan. by the way, doctor, you got the harder questions because you've got "doctor" in front of your name. but doctor. >> it's actually at the end of the name. senator johnson, senator carper, thank you for the opportunity to address the committee, to submit testimony about something that is much more than work. this is something very personal. i think of my children when i come here and how the rhetoric, even though they're young, the political rhetoric unfortunately is something that scares them. and i hope that what we're doing here will help build a more

resilient homeland so that the america they brew up in will be better than the america that i grew up in. thank you. >> mr. nahas. >> thank you, senators, for the opportunity for allowing me to speak in front of you. and every time that i have the chance to speak and talk about my experience i always think about my counterparts that are still in danger, that are still under threat, especially because of their -- because they are different, because they are not as -- they don't conform with other people expectations. and i hope that the united states will take a stand and will be more active like in holding government and other actors on the ground accountable for their actions and doing something about this. thank you so much. >> thank you. miss murad. nadia. >> [ speaking foreign language ]. >> translator: thank you. and thank you also for all the attendees and witnesses who came here.

i wish that we all can work together and stand up together to stop this terrorism. i would like also for you to recognize our genocide and to bring every single one from the islamic state whether a leader, middle or a soldiers, to bring everyone who committed these crimes to justice. >> we would love to see that. again, thank you very much -- >> mr. chairman, i don't have any more questions. but i just would like certainly to thank all of you. and one of the key takeaways for me here is we talk a lot about the golden rule, treating other people the way we want to be treated. we both have children. our children are out of school. out into the world. but the schools that they went to, there was bullying.

there was bullying. and in some cases i remember as a parent was aware of some bullying that was going on actually going to the school and speaking out against it and trying to make sure that did not persist. and i think we were successful. but i applaud folks of the islamic faith. i really applaud those who are speaking up. in some cases at risk, at real risk to your personal safety. we want to make sure you don't pay any price for that. but that's a matter of real concern. but for the kids who are being bullied because they happen to have a name like elgawhary or hassan or murad i'm concerned about them that they somehow are paying a price as well. and they -- if i were giving them advice it would be to be vocal and brave and speak out against the kind of abuses we see perpetrated by isis.

and i think maybe the best protection that they have is to denounce those kind of activities and for the -- it may abe hard thing to ask kids to do. but i think at the end they will be safer and i think ultimately will feel better about their own situation. thank you. >> thank you, senator carper. again, i want to thank all the witnesses for your testimony, for your courage. you certainly have i think accomplished our goal of laying out a reality, helping us understand this better. we have a long way to go in fully understanding this. the american people do. but you certainly helped that. so again, thank you for your testimony and your courage. the hearing record will remain open for 15 days until july 6th at 5:00 p.m. for the submission of statements and questions for the record. this hearing is adjourned.

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on american history tv on c-span 3 this saturday at 8:00 p.m. eastern on lectures in history -- >> by the end of the 1880s you have a dramatic upsurge, a tremendous surge in veterans' organizations, in the membership in these organizations, and in the statues that they create. >> university of georgia

professor scott nesbitt discusses the ongoing debate over confederate war monuments and memorials and how many were the result of campaigns by southern women during the reconstruction era and into the late 19th century. then sunday morning at 10:00 on road to the white house rewind -- >> back in 1976 mr. carter said trust me. and a lot of people did. and now many of those people are out of work. >> the republican alternative is the biggest tax giveaway in history. they call it reagan kemp roth. a free lunch that americans cannot afford. >> the 1980 republican and democratic conventions with former california governor ronald reagan becoming the gop nominee and president jimmy carter accepting the democratic nomination. on july 1st the smithsonian's national air and space museum will commemorate its 40th anniversary. and sunday at 6:00 p.m. eastern

on "american artifacts" -- >> in 1976 we were wrapping up a golden age of human exploration with the apollo missions to the moon, and we were launching into the first golden age of planetary exploration with the missions of the 1970s to mars and to the outer planets. we're now in another golden age of planetary exploration, particularly on mars. >> we tour the museum with valerie neal, head of the museum's space history department, and learn about the story of human space exploration from the moon to mars. and at 8:00 on "the presidency," james rosebush, former deputy assistant to president reagan and author of the book "true reagan: what made ronald reagan great and why it matters." >> and i've come to see that -- and this relates again to president nixon.

that a great leader of character is a person who has the ability to discern the future and lead a people to it and through it. >> for the complete american history tv weekend schedule go to c-span.org. on thursday the supreme court ruled that blood tests for suspected drunk drivers require a search warrant but that breathalyzer tests do not. justice alito wrote the decision for the 7-1 majority. justice thomas wrote a dissent, arguing that neither sobriety test requires a warrant. here's the oral argument in the case of birchfield versus north dakota from april. it's an hour and 10 minutes. we'll hear argument first this morning in case 141468, birchfield versus north dakota and the related cases. mr. rothfeld?

>> thank you, mr. chief justice, and may it please the court. the fundamental problem with the statutes at issue in these three cases is they make it a criminal offense to assert a constitutional right. under laws of north dakota and minnesota a person who is stopped on suspicion of impaired driving is obligated to take a warrantless chemical test to determine the alcohol content of their blood. the states concede these are searches in the meaning of the fourth amendment. the united states and north dakota appear to recognize that no recognized exception for the warrant requirement applies. nevertheless, a person is authorized to submit to this warrantless search and is committing a criminal offense if he or she does not do so. >> is it correct to say that you concede that the state could revoke the driver's license for refusing to take the test, either blood alcohol or breathalyzer? >> that is not at issue in this case. we haven't taken a position on that. but we don't dispute for purposes of this case that the state could do that. >> let's assume that that is a concession or that we hold that

or that's a premise. if the state could impose a civil administrative sanction, why couldn't it also impose a criminal sanction? we have hypotheticals where you have no more than three days in jail, criminal sanction or three-year suspension. why should there be a difference? >> i think the fundamental distinction that governs the outcome of this case is that between the state taking away a benefit that it didn't have to give you in the first place which is what the court addresses in the unconstitutional cases. what the state is doing is saying by fiat you are subject to a criminal penalty, affirmative criminal pent for asserting a constitutional right. in the case that you're -- >> i think the conditions are just different. i don't think that analytically it's a different proposition. >> i have to disagree with that,

your honor, for this reason. i think in the unconstitutional conditions line of cases, what the court has said is the state has given someone a benefit that it did not have to give in the first place. and all the state is doing when it takes the benefit away is saying you're back in the position you were to begin with. there's no direct penalty attached to what the individual is doing. the court in those cases has said we'll look to see the practical effect of the combination of the benefit and condition to see whether or not the state in reality is trying to do indirectly what it could not do directly, that being the suppression of a constitutional right. in those cases the court will look to say is -- what is the degree of connection between the benefit and the condition. it will look to see the degree of coercion, the state's manipulation of the benefit and condition impose on the individual to surrender a constitutional right. but as the correlate has made very clear in this entire line of cases, what it's trying to do is figure out is the state trying to do indirectly something it could not do

directly, which is abdicate a constitutional right. >> one way of looking at what the state is doing is not to criminalize the assertion of a constitutional right but to criminalize reneging on a bargain, and the bargain was we give you a license to drive, and in exchange for that you consent to a blood alcohol test under certain circumstances. and if you renege on that bargain, then that's what's criminalized. why isn't that a better way of looking at this? >> i think to look at it that way i think that you're sort of in the world of consent. in this case at least there is no suggestion that consent of that sort was present. but in this case there is no reason to believe that the defendants had any idea that they were agreeing to the bargain that you describe. >> under justice alito's -- suppose for every driver's license you had to sign a consent form, i consent to take a breathalyzer test in the event an officer has grounds to require it. >> let me answer that question

in two parts, your honor. first as to what's going on in this case where there is nothing like that on the floor, what's happening here the way these statutes operate if you drive on the roads in north dakota or minnesota you are automatically irrevocably subject to the state's -- >> i'm testing justice alito's question. suppose there's real consent. >> then the analysis would be -- not the analysis in this case but a consent -- >> it's real in that everybody had to sign this form. >> i'm assuming they're going to stop everybody at the border. someone who listens from that particular state who hasn't signed anything is still subject to the same criminal penalty. >> that's my next question. but let's talk about just the state. >> and that is the reality of this. but i think as i say the analysis there would be not the analysis in this case but a consent analysis. and i think it would be the

state's obligation to show on the totality of the circumstances that the consent to permit the search and therefore to subject yourself to the conditions is truly voluntary, that is, the product of the defendant's choice, that it was not the product of coercion. >> especially north dakota you have to drive in order to -- so we know that consent is fictional in that sense. but suppose that it was voluntary and explained and so forth. it still seems to me you'd have an argument that it's coerced. >> i think that's right. as i say, the analysis would be a consent analysis under schnecklaw. one of the key points is coercion. if someone was told you cannot drive particularly in a rural state like north dakota but certainly there. something that is absolutely essential to daily life. that would be grounded in the fourth amendment. because the -- >> the right people have to

drive. i thought you were just postulating something, saying -- i mean, you're saying the states could not take away that right. >> no. i apologize, your honor. that's not what i meant to say. what i'm saying is if the submission, as justice kennedy hypothesizes, is people are told and actually are aware that they're being told that if they drive they are consenting to be searched, they're consenting to submit to the chemical test. i think whether the state can then execute on that depends on whether or not there is consent. >> but i thought you said, well, of course there's coercion because you can't survive in north dakota without a car, which i'm happy to postulate. but what is the basis for that right? >> i think that's not a right that's grounded in the constituti constitution. the relevance of that is there would be coercion within schneckloff, within the

voluntary consent. >> so for purposes of analyzing this case we have to assume that states could prohibit people from driving, period. >> i think that's right. >> as far as the border goes, i understand stopping people at the border. but what if there's a sign on the border that says anyone who uses the state's roads con sents to blood alcohol test field goal they're pulled over? >> again, that would not be this case because in this case there is no suggestion that these defendants had any idea that these statutes -- let alone that they were voluntarily surrendering their right to assert the fourth amendment. but in the hypothetical that you suggest i think it would be a difficult case for the state to make because the state's obligation would have to be carry the burden of showing that the defendant actually voluntarily surrendered the right to resist. >> is it true that the state could prohibit driving altogether without a reason? >> well, i sort of conceded that to the chief justice. that's not an issue in our case.

if the state con do that, then that makes their case even weaker. they could not then condition -- they would not have a benefit that they could withdraw. >> suppose the reason would be that the issue we're talking about, all the traffic deaths. right? i mean, obviously it's not a realistic contention, but that's a lot of the hypotheticals aren't. i'm trying to get to the basis of it seems to me that the flexibility that a state has in this situation depends upon what rights the motorist has. and i understand the fourth amendment argument. but it does seem to me that you're making an unconstitutional conditions argument. it is pertinent to determine what authority the state has in any event. >> that's right. let me be very clear. i think there were two points that are krushlt. one is we're not making an unconstitutional conditions argument. we're saying what the state is doing is a direct assertion of direct imposition of criminal penalties on people who assert

their fourth amendment rights. this is nothing to do with a condition. because as i say, these defendants are not shown to be aware that they were subject to a condition at all. >> but we're interested in other possibilities. and so if you assume that a state can condition to drive on the state's roads, and let's assume this is not something who's crossing the border. assume the state can condition the ability to drive on the state's roads on consent iing ta blood alcohol test, perhaps under certain circumstances, let's say this is done in writing at the time the person applies for the license, so it's not just implied. why does that -- what is different about that situation from a number of other situations that i can think of. for example, conditioning a license to operate an interstate passenger train on submitting to a blood alcohol test in the

event of reasonable suspicion the person is operating the fran under the influence of alcohol or the same thing with somebody who is operating aircraft. or suppose there were a law that said that if you want to enter certain government buildings such as this building the condition of entering is consenting to a search and you have to sign something. you have to go through the magnetometer. and then if the person got through that and there was reasonable suspicion the person had smuggled in some kind of a weapon, the person would be subjected to a search. what would be the difference between that situation and this situation? >> i think there would be a number of distinctions. one is at least in some of the hypotheticals that you offer, the train hypothetical, for example, that's the skinner case. there is a special needs exception to the requirement

that applies. there is no ability on the part of the individual to resist the search. there is no warrantless -- there's no requirement for a warrant in the first place. i think entering the government building -- >> in those cases don't you just lose the benefit in you don't come into the building. >> that's correct. >> you lose your job. >> again, let's be clear on what the doctrine is. i think in the skinner situation there simply is no fourth amendment right. so we're not sort of in the benefits and conditions world. we're simply saying you have no right to resist the search. and i think that's true entering the building as well. i think otherwise -- >> but if you say that, and i recognize there's some circularity in both positions here. when you say oh, in skinner there was no constitutional right because you can take the right away, that's what the government's going to argue. it doesn't seem to me to help us. >> again, i think i would look at it differently, your honor. i think that what's happening in a case like skinner is the court is addressing the substantive scope of the fourth amendment.

it's saying that in the circumstances of this search is there a requirement for a warrant. >> suppose we said this is like skinner, if the chief justice asked about statistics, suppose there was a compelling showing that there was a measurable increase in traffic fatalities if this was not in force, we would say this is a special condition and therefore you must consent and the bottom line is and that means there's no constitutional right because we just said there's no constitutional right. >> well, that i think, your honor, would be creating a new exception to the fourth meantime. it's not a conditions analysis. it's an important point. i think what was happening in skinner is the court -- that line of cases, skinner and vernonia and van rob, the court is saying we're looking at the circumstances, the individual's right to privacy, whether or not there is discretion on the part of law enforcement officer to decide whether or not to execute the search. all those things go into special needs. and the court said in these

special needs situations there is no fourth amendment -- i find the ordinary fourth amendment principles, there is no fourth amendment entitlements. >> i thought that was the whole thrust of justice alito's question. why can't we say this is special needs? let's assume the statistics are compelling. we're talking about innocent lives. just as we were in skinner. >> i think the analysis there is do we look to the basic fourth amendment characteristics that go into whether a search is required. in mcneily the court addressed that very question. the court addressed the argument that the nation's impaired driving problem is so severe, so compelling that we can disregard the warrant requirement. and the court rejected that. i think no member of the court accepted that as a principle in mcneily. >> i'm not sure that's different in this case. in the railroad case i think

what we're saying is the need for safe transportation on the trains, protect the innocent people there, is compelling enough that it falls within the special needs exception. again, i'm not sure why that analysis wouldn't apply here. i don't know. i suspect more people die from drunk driving accidents than from train accidents. and so the special need would seem to be just as compelling. >> but i think that was not the rationale in skinner. certainly not the entire rationale. i think the principal reason for saying there was no warrant requirement there and the court said not just that there was no warrant requirement but that there was no probable cause requirement, that there could be a search suspicion at all. no one's suggesting that was -- i think the reason the court came to that conclusion both in skinner and van rob and vernonia and those cases is the whole range of characteristics that there was no discretion as i said on the part of law enforcement officers to decide who to search, that there were a

variety of things that had nothing to do with ordinary criminal process. these were not criminal investigations at all. and the court has said time and again that in ordinary law enforcement circumstance where a search is being conducted that a warrant is required. that is the presumption. >> there's a presumption. but there are many ways of analyzing this case. so let me try to get you to focus on one that doesn't have to do with consent or any of these differences that you -- many of them that you've been discussing. one way to analyze it is you just ask is it -- there is no such thing as an exception to the fourth amendment. the question is whether the fourth amendment requires a warrant in these circumstances. and it seems to me if it does then you win. and if it doesn't then the state has considerable freedom. it couldn't boil people in oil.

but it might be able to do this. all right. so that's what i'm thinking. the question is, and i don't find this very much in the briefs, and it surprises me. that's what i want you to address. why isn't there a big difference between a blood test and a breathalyzer? i mean, look, i look at a breathalyzer. it's a little box the size of a cell phone. it has a little straw on the end. and you breathe into it. and what you breathe into it is carbon dioxide, which is going to go into the environment anyway. you're not going to keep it. and moreover, it takes place quickly so the evidence hasn't disappeared. a blood test you have to go somewhere else. there is risk involved. time elapses, so you lose some of the evidence, and it's painful in some instances. so i immediately think, isn't there a difference? so encapsulated in what i'm saying is what is wrong with a

breathalyzer test when it can save lives lots of lives and is given to those people where there is probable cause i take it or at least reasonable decision to think they're drunk. it will clear the innocent. it will inculpate the guilty. very little interference. but a blood test, that might be a different thing. okay. i'd appreciate what your response is to that line of thought. >> and i will do that, your honor. to begin with i think your pref tri statement is quite correct, that if a warrant is required here we win. if a warrant is not required then the state has considerably more leeway on to what it can do. on the breath test, breath test is a significant intrusion on personal integrity as the court said in skinner. the -- first of all, there is no question that the breath test is a search in the meaning of the fourth amendment. that's conceded by my friends on the other side. and the court presumption has been that when there is a search in a law enforcement proceeding

a warrant is going to be required unless one of the regular exceptions to the warrant requirement applies. they conceded in the united states versus north dakota that there is no such exception here. >> why can't we say with respect to a breath test that this is a search incident to arrest? >> i think that it's not a search incident to arrest for the reasons that were stated in the dissenting opinion in the bernard case by justices strauss and page in the minnesota supreme court, which is the court has made very, very clear consistently from chimeno on through riley most recently that the search turns on the existence of one of two considerations. either the search is necessary to preserve officer safety or to preserve evidence. >> well, i think this would be based on the notion that it's necessary to preserve evidence. plus the notion which just breyer suggested that this is about as uninvasive as a search can possibly be.

and so given those two things together, that it is useful to preserve evidence and that it is extremely uninvasive search that we can assimilate it into the search incident to arrest doctrine. >> on the preservation of evidence -- the evidence that's being tested here is the blood alcohol level. so alcohol level in the blood. they're simply using breath as a means of doing that. as to that, breath and blood are identical. and so as the court addressed this in mcneily. >> yes, but there's something very different in the level of invasion. and certainly it's appropriate to look at the invasiveness of a search when deciding whether to do a search incident to arrest. i mean, if that weren't true we wouldn't have talked about how much you could get off of a cell phone in riley. if that weren't true we would allow people to do body cavity searches when they do search incident to arrest. so it seems to me that the court can look at the level of invasion incident to a search

when deciding whether a particular search comes within the search incident to arrest doctrine and that that might be a way of separating out this category of cases from the ones we were talking about in mcneily. >> let me say two things about that. first, our sense is that a breath test is in fact a significant intrusion on personal integrity for the reasons the court suggested in the skinner case. when one takes one of these breathalyzer tests, it is not, justice breyer, simply that you're exhaling in the ordinary way and carbon dioxide is dissipated -- >> i didn't say ordinary way. i said you blow hard into a little straw-like thing that's connected with what looks like a cell phone. so using the word significant or not doesn't help me. it is what it is. and the question is why it is so intrusive that the constitution insists on a warrant where that

insistence could undermine in many cases the evidence that you are looking for. now, that's a question of several factors. it doesn't just help me to say significant or not significant. that seems to me the question, not the answer. >> well, as to why we think it is significant as a personal matter, when one takes a breathalyzer test of this kind a tube is inserted into the person's mouth. you have to exhale continuously for an extensive period of time. could be as much as 20 or 25 seconds. and the point of it is to exhale what the court has characterized in skinner as deep lung air. >> what is that to do with it? after all if in fact the person's eyes turn bloodshot when every time he drank four bottles of whiskey, you could look at his eyes and that wouldn't be intrusive at all. i mean, what you're looking for doesn't have much to do with the

intrusion. it's the way you're looking for it that's the problem. that's the problem. not that you happen to want to know it for a particular reason. >> you're inserting a tube into a person's mouth to get them to exhale something from deep within their body so it can be tested by the government -- >> excuse me. i know we've assumed that it's only evidentiary. but in my experience police, when they do the road test, do it because they want to confirm that you're in fact drunk. before they take you in and take you off the road they're doing this test as part of the probable cause evaluation. is there enough probable cause to bring you in. there may be independent of it, but sometimes the breath test exonerates people and they go on their merry way. so why are we thinking that it

is only evidentiary? i do think the blood test is, by the way. once you've arrested someone, you've decided to take them off the road and the road is now safe from that person. but -- >> and that is true of the breathlizer too. we're talking here not about preliminary field sobriety screens. we're talking about people who have been arrested or as to whom there is probable cause to believe that they have been driving -- >> as i said, there's probable cause and there's probable cause. >> but these -- >> meaning why can't we view it as just part of the necessity of the stop and suspicion of the stop? >> because i think, again, that the tests we're talking about here ufrnder the laws of both north dakota and minnesota, the officer has the right to give -- >> right. what is the percent of test of breathalyzers that is given by the car and what percent of

breathalyzers is given after the person has been arrested and moved to jail or the equivalent? >> well, as i said, the field sobriety test i think that's given in practically every case as an initial screen. >> i'm saying what percent is which? okay? i'm asking because i'm curious and think that might be relevant. and you may not know. so if you don't know, say you don't know. >> i don't know, your honor. i think to answer that question, how many people who are stopped in a preliminary way are then arrested for suspicion of driving while impaired. and i'm not sure there are statistics anyone has that are available. >> suppose the breathalyzer test was improved, there's better technology so let's suppose that all that's required is to put the breathalyzer a couple of inches -- an inch from the person's mouth and wait for the person to breathe and that would be sufficient to measure blood alcohol. would you say that's a search? >> i think that might not be a search. i think that would be a very different situation. >> so if you compare that to with what has to be done here,

what is the big significance -- what is the big difference between those? that you have to put a straw 234 your mouth? >> i would think most people, maybe this is just me, but my suspicion would be that if presented with the possibility of inserting someone into your mouth and expelling something from deech within your body to be tested by the government, people would find that more intrusive than having an officer look in your backpack. >> that doesn't seem realistic. the reason people don't want to submit to a blood alcohol test is they don't want their blood alcohol measured. it's not that they object so much to blowing into a straw. do you disagree with that? >> well, i think maybe i do, your honor. obviously, people don't want -- people who are stopped on the road don't want to be tested in any respect. there's no question about that. >> that's not true. if you're not drunk you'd be happy to be tested, right? >> i think that's an intrusion too. maybe you'd be happy to be tested and let on your way. >> it's an intrusion when you pat down someone should go probable cause to believe he's

committing a crime and you pat him down. which is the worst intrusion? i would get passdown guess pat- more intrusive search than saying would you blow into a straw. and we allow it. >> let me again sort of offer two points on that. one is the states in their treatment of blood and breath tests as the court described in mcneily, almost uniformly treat breath tests and blood tests identically. and as the courts -- >> that's really my unknown question. why? that's why i started with that. was i really don't know the answer. >> and i think the answer, your honor is people understand the breath test to be -- it's designed to obtain the same evidence, exactly the same evidence as the blood test. and in response to -- >> i guess -- please. go ahead. >> but i think that you're concerned about the dissipation of this evidence. i think as for blood and the breath test, it's exactly the same. >> you write that it's designed to get at the same evidence, and

you're right that the dissipation of the evidence works in exactly the same way. but you're suggesting that we should close our eyes to the fact that there's a very significant difference in the degree of invasiveness. even assuming that both of these are searches, which i have to say i think that that's -- we've held that and so blowing is a search. there's no question about that. but there are searches and then again there are searches. there are more invasive searches and less invasive searches. and i guess my intuitions are that that's an important difference when we think about these questions. >> well, as to the nature of the breath test. and again, i've been addressing this and i'm not sure how much more there is to say about it. but i think that the reality is when a foreign objects is inserted into a person's body and they are asked to expel something from deep within their body to be tested by the government, that on the face of it is an intrusive proposition, something that most people would

regard as as the court suggested in skinner, a significant invasion of their personal integrity. >> what about the standard sobriety test? i take it you're not challenging if a police officer said walk a straight line. >> that's right. i think that would not -- certainly would not be a search. i doubt it would be a seizure. >> even though it's involuntary. the person doesn't want to do it. >> if it's not a search, we're not concerned with fourth amendment limitations. it may be a seizure. and that's something we have not analyzed or thought about. and certainly we're not challenging it. >> it is a seizure if you say to a person, now you walk a straight line and that person is in the control of the police officer at the time. >> i think these are almost all voluntary. the officer asks would you walk a straight line, people do it or attempt to do it. if that's the case, certainly there can be no fourth amendment problem.

but those are not -- as i say, they're not challenged here. i think they present an entirely different set of issues. i'm sorry. >> go ahead. >> just to return to justice kagan's point, i think in addition to the particular characteristics of the breath test, which we do think are personally intrusive, i think it is a fact that the court has always, whenever it has confronted a search, and there is no question these are searches, in an ordinary law enforcement investigation, not in a special needs kind of search, general investigation, the court has said there must be a warrant unless one of the recognized exceptions apply. and the recognized exceptions i think are substantially conceded by the other side, do not apply here. so i think it would be a novelty. >> but i guess the question i asked -- i agree with you that you do need a recognized exception and that we should not feel good about making up new exceptions willy-nilly. the question is why isn't this a search incident to arrest given the various aspects that i've mentioned? the fact that the evidence does

dissipate over time, that getting a warrant might interfere with that, and that it's relatively uninvasive. >> if i can answer that question, i think participation for search incident to arrest purposes, my understanding of that doctrine is one is concerned with the suspect doing something affirmatively to get rid of the evidence, flushing the evidence down the toilet. that is the classic search incident to arrest situation. the court in mcneily made very clear we're not dealing with that. the blood test dissipates at a predictable level. it's going to remain in the body to be tested later on. i don't think that justifies a -- shoehorning this in to the search incident to arrest doctrine. it's simply an entirely different category of threats to evidence as i understand it. >> then why isn't it an affirmative effort to get rid of the evidence because you know

the more the interval passes the less likely that the test is going to reveal a level that's over the standard amount. >> i think the evidence suggested in mcneily, which says that there is nothing you can do -- nothing affirmative you can do to take this evidence and hide it. it's going to be dissipated in a predictable way and it's not in your control to do it. and if the state can test you quickly and breath tests can be very quick, the state will be able to obtain the evidence. if the state gets a warrant, they can do that. and that's what they should do. >> thank you, counsel. p mr. mccarthy? >> mr. chief justice. and may it please the court. the north dakota statute strikes a bargain with individuals wishing to use the public roads conditioning their use thereon on consent to a blood alcohol

test if arrested for drienk. the court has said this is a valid bar and the state may impose significant consequences including license revocation and the use of testing in criminal proceedings. >> what about another bargain if people find texting while driving is becoming an increasing problem and so when you get a license you get implied consent for the officer to look at the texts or whatever they can look at on your cell phone to make sure a minute ago you were texting somebody while driving? would that be acceptable under your rationale? >> i think it's highly doubtful, your honor. i think there's many differences between that and what's going on here. first of all, the interest here is a uniquely compelling interest. >> well, i assume. i don't know what the statistics are going to say. it wouldn't surprise me if there are at least as many accidents caused by people texting while driving as drinking while driving. >> even still your honor, i

think this statute, given the history, given the history here, it's a uniquely compelling interest. but on top of that -- >> what do you mean the history? >> the history of the state's battle in combating drunk driving. >> well, there's not that much history for texting because there haven't been iphones around for -- >> certainly, your honor. nonetheless, there's -- in these cases there's first -- the search only comes up when the driver has been arrested. so there's probable cause to believe this person was driving drunk. so this law is targeted very tightly right there on the people that are causing the problem. >> i don't see that that's a difference with respect to my hypothetical. people swerve in the road because they're texting just like they do when they're intoxicated and they're stopped for doing that. and the officer says let me see your phone. as opposed just like let me see your breath. let me test your breath. let me check the phone.

>> again, your honor, i think it is different because there is probable cause. the officer has reason to believe the person has been drinking and driving as opposed to -- >> where does that probable cause come from? >> it comes from the field sobriety test. it comes from doing -- >> he's got to do those before the breathalyzer? >> not necessarily. i suppose an officer could do a preliminary -- the on-site screening test, breath test before the sobriety test. particularly what happens -- >> that was probable cause. >> the car's been weaving. the alcohol smell -- his speech is slurred. his eyes are red. >> yes. >> this is standard stuff. >> yes. this is all standard -- >> so it's like the chief justice's hypothetical. weaving on the road while you're texting. >> well, even aside from that there's a whole separate set of -- the intrusion is much different as the court indicated

most recently in the cell phone case, that there's -- that's separate. one level over. and that's much more intrusive to go into that. and there's not the same interest with the dissipation of the evidence that there is in the case of the drunk driving. not only that, but what's happening here is the states are really in a terrible bind. the situation here, if states are left only with administrative penalties for refusal then what happens is it creates a loophole in the system that makes it very, very difficult for -- >> you can get a warrant. i mean, you're not left with that. you don't want the administrative expense of calling a magistrate or setting up a system to get a warrant. but it is a very powerful alternative. that's what we say in mcneily. so it's not that you don't have an out. the issue for us is do we

dispense with a very important requirement in our law, that before you search particularly the inside of a person with a needle or in an intrusive way that you get a warrant. i'm not sure why you think you're left with nothing. >> well, your honor, two things. one, we think mcneily's helpful for us. because what the court was concerned about there was forced blood draws over the objection of the s.d. those don't happen in the system. the second part of mcneily is mcneily pointed to these types of statutes, said these are alternatives that don't require forced blood draws -- >> but they only talked about civil consequences, suspend the license. that's directly related to the condition that the license given. but criminal sanctions are a

very different thing. in scope and in effect. you're putting someone in jail. you're not taking just their license away. >> criminal penalties are different. we don't dispute that. and that is really just the essence of the question on the table here, given that the court has already endorsed these types of conditions being imposed on the privilege of driving and is endorsed significant consequences being used as an enforcement mechanism. >> can you say something about what the practical consequences of requiring a warrant for every breathalyzer would be in a state like north dakota? my picture of north dakota is that it's not like new york city. you don't have night court going on all the time. so how many of these tests occur during some period of time and how many magistrates would you have on duty? let's say at 2:00 in the morning to field a request for a warrant. >> well, the first part of my

answer is if a warrant was required in every case that would go well beyond what the fourth amendment requires because even in mcneily the court acknowledged that in many cases a warrant won't be required. but in north dakota your honor brings up an interesting point. it's not that there are judges or magistrates on duty all the time in north dakota. in fact, they're considered what is thereas as on call. so they're not on duty but they're reachable somewhere typically by phone. but it often takes a while. especially inallong? what it says in the acdl brief is in wyoming it takes five minutes and in montana it takes 15 minutes. how long duoes it take in north dakota? >> in north dakota in the larger jurisdictions where there's a little quicker process where they use telephonic warrants and the arresting officer can go directly to a magistrate in those systems, my understanding is it typically takes half an hour to an hour. but 2349 smaller jurisdictions where it's more rural where it's oftentimes harder to get somebody on the phone and there the process is different. the officer has to go through a

prosecuting attorney first and then to a magistrate. >> why is it harder to get somebody on the phone in rural than in a busy city? >> i think a large -- >> i thought people in the rural areas were sitting waiting for the phone to call. [ laughter ] >> your honor, i think in large part it's a lack of resources and manpower. there's not as many people available to cover all the times. >> so that excuses you from a constitutional requirement? we're now going to bend the fourth amendment, which i always thought started on the presumption that we favor warrants, we don't disfavor them. but since many jurisdictions seem to manage it, we give a pass to north dakota because it doesn't want to? >> it's not that north dakota's asking for a pass here. there's a couple things here. one again is a warrant is not

required in every case. the second thing is that -- >> i think what people are asking me was to try to get some sense of the real world harms here. so let me just ask you to assume something. assume that you actually could put into practice a system which got you a warrant in 10 or 15 minutes, which many states of a similar kind have done. what then would be your interest in the rule that you're asking us for? >> the interest would be almost the same really because -- and this is the important part here. is that the purpose of the warrant is to authorize a search over the objection of the arrestee. but that's not happening here. the state does not want to undertake those searches because it's a public safety risk not only to the officer and the arrestee but the medical personnel that would be in between them. and this is something -- >> if you assert justice by refusing to comply with the warrant, you can punish someone

for obstructing justice. you can get the same outcome as putting them in jail for being drunken and driving. so what is important as the fourth amendment warrant requirement? >> again -- >> if you can't do it in 15 minutes. >> again, it's not that the state is trying to get rid of the warrant requirement. i think it's helpful -- >> what it's trying to do is get evidence of someone, this is a pure law enforcement need. this has nothing to do, necessarily, with the safety of the community, because the person has been taken off the road. and we presume you can suspend their license. so this is something more. >> your honor -- i'm sorry. your honor, this is different. this is something more. but it's not about doing away with the warrant requirement. i respectfully disagree that the

suspension of a license and an arrest of a person takes them off the road and makes it not a public safety interest. it's still very much a public safety interest. it requires some explanation here. but the problem here is that the states really cannot effectively, in north dakota in particular, cannot effectively enforce its drunk driving laws without a penalty for refusal that actually has teeth because the way -- >> that's what we're asking. because if you could get a warrant easily in every case, then i'm struggling to figure out what your interest is in having the kind of law that you have. but maybe i'm just not understanding something. so it really is a question. suppose you could set up a system where somebody could be reached within 10 or 15 minutes, and they would in almost all circumstances give a warrant, and in a couple, say no, i don't think you satisfied the requirements, right? you could do that in 10 or 15 minutes. what would be the problem with just relying on a system like that? >> again, there's two problems. one is that the warrant is not required in every case. so this is going beyond the

fourth amendment and putting -- >> i'm asking about your practical needs. and then, you know, we'll figure out what is or isn't consistent with the fourth amendment. your practical needs. >> again, the other point here is that the warrant, the point of the warrant is to authorize the search over the objection. the state doesn't want to do that. i think it's a step back -- >> i cannot understand that answer. we're struggling for in the weak of the recent cases where we talk about warrants, we find out modern technology allows in some states, both sparsely populated and heavily populated to get a warrant in 15 minutes. and look, the position the states are arguing here is that there has to be -- that a warrant is not necessary. it takes too long. suppose it takes 15 minutes. what then? >> what we're asking for an

extraordinary exception here. you're asking for us to make it a crime to exercise what many people think of as a constitutional right. there is some circularity there, and you can point to no case which allows that, but we have to show there's exceptions, a necessity for an exception, and you're not answering the question whether or not in the wake of the recent decisions in the last three, four years, warrants have been expedited in many cases, and if they have been, why that isn't an answer to your argument? >> there's a couple reasons. one is to require a warrant in the situation, i think would actually require the court -- it would essentially invalidate the statutes of the court upheld, there's no warrant -- >> i don't want -- none of us want an answer in terms of law. we want to know a practical fact. the practical fact is, is it possible that you could get a warrant in 30 seconds, at a button on the cell phone, has a

big "w", the policeman presses it, they say what's the problem? you explain it in 15 seconds, they say, i got it. you got your warrant, or there's something unusual and they say no. okay, now, if that were in front of us, it wouldn't take me too long to decide this case because i would say why don't you use it. you might answer, that's ridiculous. it isn't 30 seconds, it can't be. it isn't five minutes, isn't 15 even in most parts, and it can't be without added expense. or you can say it doesn't make a difference and explain it. i think you would have a hard time with that one, but i want to know what your answer is on the fact. >> on the fact there, is some delay in getting a warrant. that does make a difference here. >> why does it make enough of a difference? >> well, there's a couple reasons. i want to step back because the implication of a fourth amendment is to start of the analysis, not the end of the analysis. we're in the unconstitutional

condition contest where there's a bargain here. the state is allowed to impose conditions on the public in this manner. for nearly 100 years, the court has allowed this type of thing as a mechanism to impose conditions. >> it's really just a criminal element that makes it different. >> you're not answering the question. >> do you know how many breathalyzer tests or blood tests are administered during any period of time in north dakota? >> there's approximately 6,000 of the two, and roughly 50/50 over the course of a year. >> 6,000 a year. >> yes. >> can i ask you a different kind of factual question, which how many of these are done roadside. how many are taken to a police station? when are people taken to a police station? what is the practice? sorry, i -- >> please, answer. >> so the only test that's done on site is the preliminary test, which is not admissible in court. the blood tests are done at a

medical facility, either by a doctor or nurse. the breath tests are done at usually a police station or a jail or some place where they have the chemical breath tests. >> thank you, counsel. >> mr. chief justice, may it please the court. i would like to follow up on some of the questions of the practicality of search warrants in these situations. and having grown up 20 miles from the north dakota border and attending college in the fargo area, i'm very familiar with what the realities are in the rural area. and yes, it may be possible to get a search warrant in every case. but if that's what this court is going to require, in minnesota, we're going to be doing warrants and blood draws in every case.

and that is not what this court wants. >> but why? >> because why would i now as a police officer cause any more delay, because there is going to be a delay in getting that search warrant. and why would i delay by taking someone to the police department because that's where most of these tests are being conducted in minnesota and north dakota. they're not done on the side of the road. >> blood and breath. >> breath. blood, you have to go to the hospital. >> i see the breath part is the part that i don't get here. if you take them to the police station anyway to do the breath test, and it just requires a phone call to get the warrant, what's the problem? >> but why bother? because now i have transported this person to the police station. i then have to get a warrant, and now -- >> phone on the way.

>> so let's talk about the rural aspect of minnesota and north dakota. in a lot of these jurisdictions, there's only one officer on duty. i grew up in a town of 2,000, 20 miles from the north dakota border. there was only ever one officer on duty and that hasn't changed. the other problem is, there's not a hospital located in every jurisdiction in minnesota and north dakota. and for example, in the town that i grew up in, the nearest, the nearest hospital would actually be in fargo, north dakota. >> you can do the breath test then. you don't take them to the test. that's a practical alternative. you have two tests, breath test, blood test. you can choose precinct or hospital. >> if they choose to take the breath test, now, i'm not going to get a warrant to take a breath test.

>> why? >> i can't force somebody to blow into the straw. >> right, but you can make it a crime not to. that will force them. okay, so -- we're somehow missing in this argument, i think what people are trying to figure out, at least me, is if, first, forget the blood test. the blood test is a separate matter in my mind. i'm thinking solely about the breath test. do you -- does the constitution require you to get a warrant before you administer the breath test? other things being equal, the constitution leans in that direction. and so i ask you, why not? and now you've told me all the things that cut against you. you say, well, before we give the breath test, we take them to the station. and so then that seems to take 15 minutes. and in the meantime, why can't you just call the magistrate and at least we have some kind of safeguard against total arbitrary behavior?

that's where you are. and so why is that bad for the state? >> and i have to look at our implied consent statute and what that allows and doesn't allow. currently, minnesota's implied consent statute says once i offer a test and they refuse, we're done. we're done. >> but i don't know how to explain it more clearly. i'm not talking law. i'm talking practical fact. if you're prepared to come back and say to me, you know, if we have to get a warrant, 50% of the drunk drivers are never going to be caught, i'll listen to that. if you come back to me and say, you know, if you say that a warrant is required, it will mean that 400 policemen have to spend ten seconds more than they would otherwise spend on a telephone, i would say, that's a point but not that much of a point. now, you see? i'm trying to get a fact. >> well, and i don't have those

type of statistics to answer that question. >> can i ask maybe a different way of asking a similar kind of question. when we decided mcneely, there were two opinions. even the opinion that was the concurrent or i don't remember whether it was a concurrence or a dissent, but the chief justice's opinion, even that said, and this was with respect to a blood test. but the chief justice's opinion said, look, if there's 20 minutes between the times that you're stopped and the time we can get you to a hospital to get a blood draw, and you can get a warrant in that 20 minutes, then yes, you have to go get a warrant in that 20 minutes. so at the very least, why wouldn't that be the case? you know, if all of these things, i mean, i have to say, when i originally thought about this case, i had in my mind roadside stops. but in all of these cases, you're actually driving these

people to a station house. so why can't you get at least what the chief justice said in mcnally, which is okay, if you can get a warrant within that time, you have to get a warrant within that time? >> and you know, speaking on behalf of minnesota, and it's very clear. minnesota treats, and i don't necessarily disagree with you. minnesota is up here is kind of the alternative argument. minnesota specifically treats blood tests differently than breath tests. we specifically do. and our court has recognized that. so for example, under the implied consent law in minnesota, if you are -- in order to get a blood or urine test, you have to offer both. and so we do treat it differently. in the case, and minnesota treated it differently in the bernard case. it's very clear.

and they clearly stated in ruling that they weren't going to address blood or urine. and they will be shortly because there are two cases before them with that issue. >> let's talk just about the breath test. number one, i'm not sure why they are not roadside, but number two, if you take them to the police station, then you have the question about the warrant. let's talk just about the breath test and the practicalities of adopting the petitioner's position. >> let's assume, i know my colleagues are, as part of this, okay, assume as justice kagan did, that the system could be put in place for a warrant on a breath test, if you're doing it at the precinct. you can do it as you go there. right now, we get dozens of cases where the police oppose, where the police tell the

homeowner, we're applying for a warrant. and the homeowner says, well, then i have to do it. and so the number of warrants are much less because of that. because they know they're going to get a warrant. so if you can put a system in place for a warrant, and you tell the person, if you don't take the warrant, you're going to -- if you don't do the breath test, you're going to be charged with obstruction. what are you losing out? >> what we're really losing out is the enhanced ability. that is the difference between -- >> enhanced ability? >> for a dwi. in both minnesota -- and i'm sure, well, everywhere, enhanced ability with dwi laws. in minnesota, and for example, if i just -- if i can't charge the dwi or refusal and i'm only left with obstruction, i can no

longer use that event to enhance any future dwi that same person might commit. >> but you change the laws. you know, it's as if you want us to create an exception to the fourth amendment. a very drastic one. to give smchb the someone the right to say yay or nay when writing a warrant. you're someone who writes to say aye or nay without a warrant, but we don't permit meme people to say yea or nay when a warrant is present. if they don't apply, there will be obstruction and there will be consequences to obstruction. >> but not the same consequences it would be if it was a dwi or refusal. >> that's because you choose not to penalize obstruction at a higher level. that's your choice. we're now creating an exception to the fourth amendment because of your choice. >> well, it's minnesota's position that a warrant isn't

necessary. >> i appreciate that. okay, but i'm assuming, if you can get a warrant. >> justice sotomayor is assuming you're going to lose, so she wants to know what your reaction is to that. [ laughter ] >> well, i don't like it. i don't like it one bit. thank you. >> thank you, counsel. mr. gershengorn. >> i would like to do three things, first, address the real-world consequences. second, explain why i think a bright line criminal rule is at odds with common sense, u.s. code, and third, explain why it would be a mistake to have a warrant requirement. it's critical not to assume warrants are available 24/7. that is not the case in the real world.

the north carolina example is one. what the study did there was compare three jurisdictions that were able to put in a warrant requirement against the nine jurisdictions that have various resources reasons, availability of judges reasons and other reasons were unable to do it. the experience of the park police in the wake of mcnealy is while they can get the warrants 24/7 in maryland, they have stopped doing blood draws in virginia and d.c. because the magistrates are not available 24/7. even in mcneely itself, where the court listed in a long, long footnote -- >> why in maryland have they been able to and in virginia not? >> for the federal system, it's not a resource constraint. some of it, as the court recognized, is a willingness of the judges to be available 24/7. a matter of priorities in federal court. in the southern district of new york, you may have 24/7 availability for terrorist attacks, but you may not have

them for routine drunk driving. even in d.c. and virginia, it's not available 24/7. >> how long does it take -- a person is drunk. he is 10% above the legal limit, whatever that is. how long does it take for it to dissipate? do you know? >> i don't know -- >> how long before that would register 10% above is now equal to or less than? is there any study -- >> so, statistics, i don't have the exact statistics, your honor. what the court has found is there's significant dissipation, but that you can back calculate, if you get it, but there is a delay in getting a warrant at times. in the maryland case, you can get it as soon as 15 minutes, but a warrant can take as long as a half hour or as long as 90 minutes or two hours. that's page 37 of the study. i think it would be a big mistake for the court to decide because in the mcneely footnote, the court listed 33 states that have electronic warrants which

is not the same as 24/7 judicial availability, but that leaves 17 states that don't have it. i really think it is a mistake for the court to decide -- >> but there are more and more every year, aren't there? we're now up to over 40. >> there definitely are more and more every year, but again, i think that if the court is doing a rule, based on the idea that these warrants are always available, there's a serious risk that once you require that, then the evidence is lost, particularly in a breath test in the jurisdiction where you can't get a warrant. so if i could then turn to the bright line criminal rule that i understand to be the core of petitioner's case, in mcneely, this court said that the state may condition driving on public roads and may require as a condition that a motorist arrested or detained for drunk driving agreed to a bac testing and that the state may impose significant consequences on the subsequence refusal. the question is this, the constitution impose a bright

line rule against criminal penalties even when lesser sanctions are insufficient to overcome the natural incentive many drivers will have not to abide by that condition. as a matter of common sense, i don't think that makes sense. the idea that you can only withdraw a government benefit has major problems. for example, if the condition would extend beyond the term of the benefit, cancelling the benefit does nothing. and the u.s. code reflects that. if i could, your honor, i am subject under 18 usc 7 to a one-year ban when i leave the solicitor general's office for contacting or communicating with the sg's office on an official matter. that is punishable under the law by up to a year in jail. that is the criminal penalty as a condition on my employment. that is not the only situation. it criminalizes contributions by government employees. 42 usc 14135, criminal rises of probationer's refusal to give dna.

the idea that there is a bright line between administering the sanctions and criminal sanctions that forces the government to rely only on withdrawal of the benefit is just not the case. that's reflected in this court's case law. back in 1927 in the stevenson case which is discussed in the brief, that was a situation in which texas had conditions driving on the texas roads, and restricted that by imposing all sorts of permitting requirements. in that era, those were reviewed as unconstitutional. and although the other side identified stevenson as a case that did not have criminal penalties and that was just withdrawing the benefits, we read the case differently. if the courts look at page 260, the texas statute imposed criminal penalties. so again, the idea that the only thing the government can do is withdraw a benefit in the

context of an unconstitutional condition and can't go to the core of it, which is to enforce the prohibition makes -- >> i think one of our concerns is driving is so essential for so many people that it's really different than not being able to work for the solicitor general. >> i take that point, but i think this is critical. what the court said in mcneely, they crossed the bridge in mcneely and in bright line and mackey. and in nevil. what the court has said for 60 years, yes, of course it's different than working in the solicitor general's office, but it's a dangerous activity when you're driving two tons of steel down the road, and the court said you can condition driving. that's a reasonable condition the state can impose. >> a helpful answer, and your time is running up. but i'm going to stop you to ask another question. >> yes. >> is it permissible based on the briefs filed with us for the court to make a distinction between taking a breath test, refusing to take a breath test

and refusing to take a blood test? >> certainly it is, your honor. we set forth that in our brief. i do think what this court said in skinner, in your honor's opinion in skinner is that a breath test, the court has never held that a warrant is required and it should not do so, here. there are no significant privacy interests that we cannot conclude a breath test indicates significant privacy concerns. that makes good sense because the intrusion is much smaller. the amount of information that's revealed is just the alcohol. it's a much narrower set, and it can be done as part of the regular booking process. on that side of the scale, the privacy interests are substantially smaller. >> are those tests often administers roadside? they have been telling us -- i thought they were roadside. >> as a general matter, they're done at the station. there's a preliminary test that can be done at the side of the road that often is not admissible in evidence. there are these so-called bac

mobiles, but many jurisdictions are not using those. they're done at the station. but i also would like to follow on your honor's opinion, on your honor's question, that the warrant requirement is kind of an odd fit in the breath context because, because even with a warrant, generally the warrant, of course, it provides the function of having a neutral magistrate look at the evidence. but generally with a warrant, then the officer can force compliance. that's part of what the warrant allows. that's not possible in the breath context. what this court -- a warrant for a breath analysis can't be -- can't be accomplished without the consent of the breather. you can't force somebody to breathe steadily enough. it's like an extended birthday cake blow-out, candle blow-out. you can't force somebody to do that. so the warrant is kind of an odd fit. >> presumably, there are sanctions for failing to comply with the valid warrant.

if the police have a warrant to search your house and you say, i don't care. i'm not going to let you in, i mean, it's subject to criminal sanctions as well. >> it might well be, but i just can't -- it shows a little bit why the use of the warrant doesn't quite map on the way i think in a usual search context. the other problem you have is because you can't force compliance, you might have another statute later to do it, but because the consequences are not as clear, what it will do is drive the state to the blood testing. which one can force. but that's the very situation that this court recognized in neville and that the states hereof have told you, i think, consistent with neville, is the situation that states don't want to be driven to, to a forced blood draw on a nonconsenting individual. >> and what about that, assuming for argument's sake, if you can take a breathalyzer without a warrant, what need is there for a blood test without a warrant?

i mean, why isn't it at a minimum that if you're going to have a blood test, you need a warrant? >> one difference is that the blood test, if an officer has a suspicion there's other than alcohol at issue, the blood test is critically important. if there are drugs. >> of course, it's important, but it's going to take time. you have to get to the hospital. there are risks involved. it's a more serious intrusion, and so the requirement, as we said, could be pretty minimal. you go during that 15, 20 minutes, he's going to the hospital. get a warrant. nobody is saying they can't do it. the question is whether they have to have a magistrate's approval. that's what my question was. without a win on the breathalyzer, why would you win on the blood test? >> your honor, we win on the blood test because there is no bright line on criminal sanctions and because it's critically important outside the blood context where you need the drug evidence. thank you. >> thank you, counsel. three minutes, mr. rothfeld.

>> thank you, mr. chief justice. if i may, i'll make three quick points. two legal and one practical. first, i think given the discussion, not to lose sight of what we think is the fundamental legal proposition, what's going on in the case, which is north dakota and minnesota, people who drive on the roads are automatically irrevocably lose their fourth amendment right to resist warrantless searches. there's no consent here, no knowledge that's been demonstrated on the part of the defendants. the proposition offered by the government is states can simply attach to any benefit that is provided to individuals the surrender of a constitutional right. whether or not the individuals know they're going to do it. and in the future, a criminal penalty can be attached to the exercise of that constitutional right. that's quite a remarkable proposition. i think the examples that mr. gershengorn offers of criminal penalties that can be attached, there is no first amendment right.

there are cases where there are limitations on what the government employees can do, so there would be no constitutional problem there. on practicalities, there is the discussion of how available they are. if the court reviews the study bit highway safety administration, it'll find to some extent with mcneally that warrant are almost universally available on quick and efficient terms. we demonstrate this is true in a vast majority of cases. there are more states that provide these warrant mechanisms now than when it was decided. as the study shows, virtually all jurisdictions including rural jurisdictions, as justice alito asked about, these are warrant procedures work effectively, that the officers on the field, the magistrates and the judges who handle these cases, the prosecutors almost universally praise the warrant process as something which is

effective, that drives down test refusal, that makes confrontations between officers and drivers substantially reduced, and drives up dui convictions. so warrants are a way of addressing this, and as the court said in riley, there answer in a situation like is simply get a warrant. the third and final point on the question of breath versus blood tests, the court so far as i'm aware has never said once there's a search that's taken place in a law enforcement investigation, that one can cut out certain types of procedures or certain types of evidence that's being sought, presumption is that a warrant should be required. in the skinner case, the court addressed both blood and breath tests. they noted there were differences teen the two. they treated them identically for fourth amendment purposes so they have similar characteristics. they have similar degrees of personal intrusion. i do not think there is any supportable reason for treating them differently for purposes of a warrant. enough for the question, your

honor. >> thank you, counsel. case is submitted. >> in another decision handed down on thursday the supreme skourt upheld university of texas's firmtive action admissions policy. the case of fisher versus university of texas was brought by abigail fisher, a white woman denied admission to the school based on her race. justice anthony kennedy wrote the court's 4-3 majority opinion. the supreme court heard oral argument in the case last december. it's an hour and a half. >> you will hear argument in morning in case 14981. fisher versus the university of texas at austin. before we get started, we will say this is our only case and we intend to grant the parties ten minutes or so of extra time and five minutes. so mr. ryan, no need to rush.

>> mr. chief justice, may it please the court and the extra time, i didn't rush up here to review the fifth circuit's initial decision. seven members of the court reaffirmed that a clear precondition to the u.s. of race they have the ability to satisfy what was called the demanding scrutiny which was articulated. my establishing that she was considered for admission under a system that discriminated on the basis of her race. ms. fisher placed upon ut the burden of proving by evidence of the record that its use of race was first, in pursuit of a compelling constitutional legitimate interest expressed with sufficient clarity and

concrete tons allow a reviewing court to determine first that the use of race was a last resort in pursuing the interest to find taking into account reasonably available nonracial alternatives. >> may i ask, if we didn't have the 10% plan, if that were out of this case, all that were left were the plan, would you then recognize that you had no claim? we have the university of texas added on to the 10% plan and we wipe out the 10% and we have only this plan. >> with respect, i would question the premises of the question because it's not the

plan in its entirety. >> i know it's not, but i'm asking a hypothetical. >> i'm saying even in the aapia system it's not that kind of a plan of shaping a class by individualized one to one comparisons. it's not aimed at a critical mass. it's not a gruder plan in that sense. i think the other part of this is that's not the case before us. when you look at the satisfaction of a compelling interest, you look and ask does my preexisting system satisfy that interest? do i have a need to do something else? if i have a need to do something -- >> assume need was proven. >> i know. you're putting aside need. what's wrong with this plan if need is put aside? >> let's put it this way. we do not oppose the use of the

various pai factors that were in place before race was added. what's wrong with this plan apart -- >> no, no, no. i know you're saying they didn't need to do it. i said put it aside and answer justice ginsburg's question. if they had to use race, how are they using it improperly? >> if you have to use race and you want to use the model that was created in bakke and grutter they would have to judge them in one against another in the class and the con tex actual they were created. >> my god, that sounds more like race than in this case. tex act created. >> my god, that sounds more like race than in this case. t actuae created. >> my god, that sounds more like race than in this caseu actual were created. >> my god, that sounds more like race than in this casea actual

were created. >> my god, that sounds more like race than in this casek actual were created. >> my god, that sounds more like race than in this case actual t were created. >> my god, that sounds more like race than in this casel actual were created. >> my god, that sounds more like race than in this caseactual th were created. they tthey w hey >> i'm sorry if it d it says in the situation of the bakke situation and you're looking at every aspect of an individual and trying to judge if one or another of an individual, the places, the last places would most benefit the class, the class as a whole as a learning entity, as bakke indicates, they have backgrounds with different ideas. >> how is that -- >> this is not the system. this system doesn't do anything like bakke. it's very different, even if you separate it from the necessity issue, which is a major issue in this case. i'm assuming your question they have shown, they needed to use race, there was no other way to do whatever they were trying to do, which isn't clear to me either. you have both the question of whether they've defined a legitimate, compelling interest. you have the question of whether they've shown any necessity to use race. if even i put those aside, whether this is the narrowly tailored vision that came out of bakke is a very serious

question. it isn't. it's quite different. >> you still haven't answered why this is worse than bakke. i mean -- >> because it's not used to build a class. it's just used to create a racial plus and to increase the number of minority admissions. it's race as such. >> how is race given a plus? i thought what they were looking for is leaders in diversity, not just of race but of experiences generally. >> those factors -- >> so how do -- >> i'm sorry. those factors were in the pai before they added race. leadership demonstrated awards and success out of school overcoming obstacles, like a single-parent family. those were all part of the pai before race was added. race was just tacked on, as they said, as a factor of a factor of a factor. the shifted position is how it's used in district court to -- to minemize a factor of a factor of a factor. it's a minor plus.

don't worry about it. it's now become -- well, it's a contextualized part of the pas which is part of the pai and we can discretion nairly jack that up any way we want. >> i think your brief admitted this isn't in favor of any particular race. white people in some situation kes show leadership. as well as black, hispanic, native american. any race could benefit from this plus factor. how is this worse than bakke? >> with respect, we did not concede that. we would not concede it. because the other pai factors might benefit anybody of any race. people's circumstances, their leadership, their community effort. those are universal and they can benefit. they don't benefit from the race factor. >> but in grutter and what justice said would be proper in

bakke. race was a factor. race itself was a factor. that's why i'm finding it very hard to distinguish what the university is doing apart from the 10% plan. it seems like that's driven by one thing only and that seems race is only dependent on having racially segregated neighborhoods, racially segregated schools and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education. >> justice ginsburg, let me respond this way. the top 10% does not address anyone within race. it is only within the texas educational system. >> it can work only in the

background. >> when you say work, it works on a number of fronts. it creates geographic diversity, looks all over texas. it doesn't distinguish between high schools. it creates socioeconomic diversity. it does have an effect, demonstrated effect on race because a number of minorities, the type they care about, are admitted under the top ten program. it's not based on race. it's based on the degree of effort you make relative to the other people with whom you're being -- >> it's created because of race. >> i'm not in a position to tell you why it was created. it was created -- >> is there any doubt it was created to increase the number of minority students? was there any other reason for the 10% plan? >> i've given you other reasons which is it's kind of a democratic recognition you want to invied people from all over texas, regardless of the school they went to. you're looking for those who are trying the hardest, doing the best, who excel in their environment. >> but it was created in the wake of hopwood.

so, i think that was the purpose. to define a neutral framework in which to satisfy the state's and university's objective. >> certainly one in the legislature might have looked at the predictable effect, but that purpose and effect are different. but, yes, it was created. in part, because certain schools do have minorities. the idea was, well, that would benefit those schools. yes, it would benefit a rural high school in a white community which ordinarily would have very great difficulty placing their students in the university of texas. this system -- >> you argue the university of texas' goals are insufficiently concrete. can you give an example of what in your view would be a sufficiently concrete criteria or set of criterion to achieve diversity?

>> the solicitor general tried to by breaking down the concrete goals and objectives. one goal that credits respect is if you have studied your campus and you believe there's an inadequate exchange of views, and minorities feel so isolated they cannot properly bring to bear their perspective on the campus, you can look at measures of how successful are we in this type of dialogue and try to investigate that and try to say, okay, is there a level -- when do we reach a level of critical mass, which is the term in grutter, where that exchange is vibrant and taking place on our campus. that's one measure. >> i don't understand. how do you do that? >> it's not easy to do and it's not our job to do it. we're not here to tell them how to do it. if one were to endeavor to try to find this kind of concrete level, we're not saying quota, but we are saying, you have

to -- you, the university, if you want to use this forbidden tool, this odious classification, you have to find a way to do it. you have to be able to explain what your concrete objective is. >> are there any critical mass studies you can refer to? >> not that i know of. >> a scientific study in which you have suddenly enough of a mass? >> no. >> so, what did the university base it on? >> the university based it on two things. it was short of the demographics of the high school graduating class, which is measurable but not legitimate. and it claimed it was basing it on this classroom, small class study, which they had conducted previously, which indicated minorities were not present to their satisfaction in a lot of small classes. >> wait a second. >> excuse me. >> excuse me. to their satisfaction. i'm asking on what did they base their satisfaction? on what base do they base 15%, 20%? >> they premised it on good faith. and that was accepted in the

fifth circuit on the first iteration of this case. and this court says good faith does not suffice. >> i'm sorry. i thought the study they did showed in 1996, they had more participation in these smaller classes -- i don't know if they're really small when there are between 8 and 25 people, but there were more of those classes in 1996 than in 2003 or '02 when they were looking at that study. it would seem to me that that suggests there was less than they took from it, there is less exchange of ideas in a classroom rather than more, based on this race-neutral policy. >> well, i think -- >> what's wrong -- since you have to infer these things, you can't use a quota. you're saying they can't use

demographics. so they use a study that shows there's less classes, there's less people in classes. they talk to administrators, faculty and students. they're having racial incidents on campus. where students of color are complaining that they feel isolated. that stereotyping is going on on campus. what more do they need? >> let me start with your first concern, which is this classroom study. first thing i would observe about it if i were in their position, and i'm not, is that the second study was done at a time when there were more minorities admitted than the first study and they claimed it went backwards. so, that might tell me right away that the problem -- the necessity of using race could not be demonstrated for that because -- >> yeah, because the necessity

is not the necessity you're talking about. as i read it. you use words like critical mass and so forth. it sounds like a cloud of sort of you don't know what you're talking. but as i read further into it, it becomes quite specific. that is, 75% of the students are at this university because they were in the top 10% of their class. and it doesn't take long before students and faculty, in particular situations, know who is who. 25% of the students in that class are admitted, if they're good students, not in the top 10%, on the bases of leadership, activities, awards, work experience, family's economic status, school status, family responsibility, single-parent home, languages other than english spoken at home, s.a.t.

scores and race occasionally, too. we're talking about that 25%. and it won't take long before students in a class see that in that 25%, which means you aren't just in the top 10% of your class, in that 25%, there's hardly anybody who's african-american or hispanic. and seven years of experience with that kind of thing led the faculty at meetings, administrators and others to say, we should do more to see that that 25% has occasionally somebody who's a minority. does anybody -- that's what their program is. it isn't something like critical mass, et cetera. and if you have to say, it seems to me, why is that not a diversity-related judgment of what is necessary. >> justice, let me answer that. first of all, one thing your question establishes quite clearly is if one assumes premises from evidence that

doesn't exist, you can draw a conclusions that are, perhaps, invalid. so, let me go back to where you started. you say these people are admitted on the various pai factors, which you read. that's not how they're admitted. that pai is only part of the admissions criteria. and it's not holistic because you look at the person as a whole. here you could have the most wonderful pai and never come close to admission because they use the ai independently so they're not admitted. >> every school in the country that's a college that i've ever experienced is a combination of grades, class position and a lot of other things. so, i'm talking about people who aren't admitted, 75% are solely on the basis of class ranking. >> yeah. then you assume people could identify them one from the other. >> i was going to ask that. does anybody except the faculty know who this elite 25% is? >> no. >> and all of the 10% people identify themselves? >> no, they do not.

>> do they go around in bunches and say, hey, i'm one of the 10%. >> no. the level to the admission to the university's subgroup in which they study, whether it's business or communication, there it's all done by aapi. they're all done equally. >> can i come back to this issue of classroom diversity, because this does seem to me to be something that could be measured. maybe there's evidence in the record that measures it. i don't know. that's what i want to ask you. the university knows which students, even assuming the student don't know, the university knows which students were admitted because they were in the top 10% and which were not. presumably, they have a record of all of the students which enrolled in which classes so to me it would be possible to determine whether the students who were admitted under the 10%

plan were less likely to choose to enroll in the classes in which minorities are underrepresented than the students who were admitted under holistic review. now, maybe that's in the record. i haven't found it. is there anything in the record to show that? >> the best of the record, because they didn't study that specifically when they did the classroom study, they did not try to distinguish who was in the class. it was just a number count. by classification. how many minorities of this kind, how many of that kind. they counted african-americans, they counted hispanic students and they counted asians in that study. but they counted them by race. >> i don't want to -- i think we're well into the substantive issues. can i begin with almost a procedural point? did you object to the university's request this be remanded to the supreme court? >> we did in the fifth circuit. >> it seems to me, justice

alito's question and, frankly, some other questions have indicated, that the litigants and, frankly, this court have been denied the advantage and perspective that would be gained if there would be additional fact-finding under the instructions fisher sought to give. we're just arguing the same case. it's as if nothing had happened. >> and the reason -- >> it seems to me that justice alito's question indicates this is the kind of thing we should know but we don't know. >> well, let me point out that the purpose of strict scrutiny is not just to adjudicate. it's to instruct the university that before you use the odious classification, before you employ race, you ought to know these things. if you're going to depend on them, you ought to study them and know that. the failure to do that is not

just because they didn't put it in -- >> but they weren't given the chance to add additional evidence in order to meet that standard. >> well, they can't go back and recreate the past. they have put in all the evidence available to them -- >> but they could answer some of the questions, like the ones justice alito added. and i think it's a very important point. >> they could. i mean, but they have to go back and study the conditions at the time they made the decision. and i think the failure to do that kind of thing indicates that the retreat to race was reflexive, was done on the day grutter came out. >> not only that, it was their burden to put it in, wasn't it? >> yes. >> they're going to say, they failed to put it in, let's give them another chance. do a do-over. send it back in so they can put in, what they should have put in, in order to prevail the first time around. >> i entire agree with that.

grutter said strict scrutiny. bakke said strict scrutiny. justice alito, what we found in the record is where the most selective schools were concerned, which would lead you to the smaller classes, more of the top ten minorities enrolled in that than the added minorities they derived. >> the issue in this case is not whether the university can have holistic review. the issue is whether they can have that as a component of holistic review after they take into account other characteristics not based on race. so, if it were would there be any way of determining, if there were a remand, which of the non-top ten admitees were admitted solely because of race? in other words, these students would not have been admitted taking into account leadership and family education and socioeconomic background and hardship and everything else. >> according to the university of texas' answer to that is no.

they cannot make that determination because in their view race is contextual. you cannot sort out those who could have made it without race to those who did it. in response to justice breyer as fact of record, prior to the indication of race, 15% of the non-top ten admits were -- were the minorities who later benefitted from race. so, it was not devoid of admits who were hispanic or african-american. it was producing 15%, marginal increase out of race, if you try to measure it, was very small. and i could think of reasons for that. so, they couldn't put that in. they denied you could ever identify those students, so it would be a fruitless pursuit, unless they completely change everything they said before. >> could you associate a number with the very small? i guess it would be the number of students who were admitted with the consideration of race

who were not also -- >> correct. that would be the measurement. there's no perfect answer to that when the university says, they can't identify them. we looked at the historic period in which they were using the pai without reference to race. and compared that to the percentage admitted of the total student body of those admits in the period when they were using race and they compare -- it was about a 2.5% difference. it's very small. >> 2.5% difference in entering class numbers or number of minorities admitted. >> number of minorities you can measure either way, by enrollment or admission, it's still going to be a very small number. it's statistically lost, so it's a very small increment. of course, you -- >> the number's important to me. is what -- >> it's under 3 -- >> i can ask your friend on the other side, but -- >> it's under 3%. >> of what? of -- >> of total admits and the total enrollees each.

judge garza premised -- >> of the minority students, of blacks -- >> in the class itself. what percentage -- let me be very clear. what you're trying to measure is to what extent did the use of race boost over the use of the pai in a nonracial basis. >> parents involved we indicated that at some point the actual benefit of the program turns out to be not really worth the very difficult decision to allow race to be considered. if at the end of the day it generates a certain number. i'm trying to figure out what that number is. >> i'm saying that as we said in our briefs and we tried to -- there's no perfect measurement because you don't have them running simultaneously. but if you try to do it by looking at the results, using the pai and not race, the results, both admission/enrollment stage of using the pai affected by race, it's under 3%. and it's --

>> i'm not sure where you get that number. between 2004 and 2007, it nearly doubled from 3.6 of the holistic class to 6.8. for hispanic students. that's for blacks. it went from 11.6% to 16.9. i don't think that's that small a change. in 2008, 20% of all black students and 15% of all hispanic students were offered admission through holistic review. black and hispanic admission and enrollment rates have increased since 2005. this is on holistic review. the only exception was in 2008 and that was because 92%. class came in under the 10% plan. >> well, you know, when you use

numbers on holistic review, that incorporates the ones who would have made it without race. so, it's not a valid comparative number. we tried -- >> the ones who would have made it -- >> without race are incorporated in, quote, holistic review, so those numbers really don't tell you anything about the effect of race. >> wait a minute. i don't understand how that can be. if the 2004 number was that much lower than the 2007 number, race has to have some input into that. >> it has some effect. that's what u.t. says. they haven't measured. they say they can't measure the effect. you're dealing with different classes. >> could i ask you a different question now. i fear something. i know there is an educational debate on the benefits and costs of a 10% plan. i don't want to get into that debate.

but i do have a worry, if you're reading proof of a compelling need or proof of a compelling need, will any holistic review ever survive? as i'm reading your answer to narrowly tailor, schools have to use nonracial means of doing it. if the 10% plan is the only thing that achieves a greater number in minorities. won't every school have to use a 10% plan? >> we're not certainly trying to dick date tate every school use a 10% plan, nor is it the only way in which you can encourage and increase minority enrollment. so, i don't accept that premise. strict scrutiny is a heavy burden. the purpose of strict scrutiny is to recognize the base -- >> your answer is yes? >> no. >> if there's no other way of doing it, then the other

race-neutral way, if offering scholarships with this university did increasing outreach to minority neighborhoods they did and continue to do, there's a list of six or eight other things they did that didn't increase the admission of minorities. >> there are many other things they can do. we're not trying to tell them how to run it. clearly one of the things they could do, in the pai they recognize, the two essay scores, which is strictly composition, which is culturally biased as you can get. it makes it hard for those that went into a secondary program to excel. they could cut it to two. they could take measures which were aimed at looking at potential deficiencies in initial education because you come from a home where there

isn't a college-educated parent and say we will take those further into account because they apply equally without regard to race. there are many things they could do within -- >> that's exactly the question, i think. i can put the same question -- or suppose we do put it back to the district court and put in more evidence, we tell them. suppose we did that. and suppose they start with a basic plan where they want to use race is in the 25% of the holistic area, we want to do that. now, you've seen the chart and i've seen the chart of the factors that are one, two, three, four, five, six, seven, eight, nine, 10, 11, 12. you've seen that chart. i've seen that chart. in the bottom of my list is the word race. it says race, r-a-c-e. what kind of evidence, in your opinion, could they or anyone else with any roughly similar

plan put in that would show n your view, that this is constitutional? >> well, i mean, you have the example of justice's opinion in bakke. that says if you're looking at the whole person and comparing individuals one to another to say who will best suit the educational need of the class, then you take account of a person's race. it's part of the exercise. you don't isolate it because if you look at justice bakke's example, he has a and b, two african-american minorities, and c. he says, depending on where the class stands in this overall composition, you might choose a, vice versa, you might choose b, and sometimes you might choose c, without regard to race. he's looking at it as a way of looking at the totality of a person, all of their achievements, academic and otherwise. so, you -- the bakke systems are not at issue here, nor is the top ten at issue. that was accepted in this case. no one challenged it. i'm saying, you don't have to do the -- >> so, we have one. >> justice breyer, you can

achieve this small increment of under 3% in our view, by a number of alternatives that would give this same boost. these are the racially available neutral alternatives. >> i have one. you're saying you should look at the two folders and as a kind of tie-breaker, use race. that, to you, is okay. now, said there are several others. it would be helpful if you can summarize them in a sentence so i get an idea of what the others are. >> you could give more emphasize to the socioeconomic factors -- >> that's not to use race. i'm saying r-a-c-e, race. i want to know which are the things they could do, in your view, would be okay? i'm really trying to find out. not fatal in fact, we've said, okay? not fatal in fact. okay, fine. what are the things, in your view, they could do so it is not fatal, in fact? >> what i've said, first, they could shape their system more

toward the bakke system and move more towards individualized consideration. that's one thing. that's not fatal, in fact, because this court endorsed the view that justice powell took of the harvard system in bakke. that's one. they could expand the top 10. that's another alternative. that's available. they could, as i said, they could rescore some of -- >> the top 10 you said it doesn't use race. justice breyer is asking you -- you say, yes, race, can be a factor. it was a factor in bakke. it was a factor in grutter. so far you're saying now it can be a factor only if what? we're not talking about so-called neutral factors. we're talking about race. >> i mean, the first question is, you know, why are you using it? the why. therefore, it can be a factor. you have to clarify the objective. you have to show the necessity. you have to show if you, as they do, live with and accept over time a very small increment that

you can't get it done any other way because race is not the baseline. it's odious classification. that's where we differ. >> if i understand what you're saying, the bakke approach, comparing two individuals and where they're tied giving a benefit to one for race, that's okay. regardless if there are any other means of achieving the racial balance you're looking for, right? >> well, justice powell indicated in bakke that that approach could be used where it's part of a greater function -- >> understand, understand. >> and the court has apparently accepted. we're not challenging it here. >> you don't have to apply the question whether it could possibly be done in any other way. but you're saying anything beyond that, anything else, you have to establish first that it couldn't be done another way.

that doesn't take into account race. such as expanding the top 10% to the top 15%. >> it's not just me, justice scalia. that's what this court said in the prior opinion. >> that's what i thought. >> it has to be shown to be necessary. >> that's true of all strict scrutiny. the court said in the prior opinion that it's other strict scrutiny opinions were not different. strict scrutiny is a heavy burden. no question about it. that's why it's strict scrutiny. >> is there any evidence that the holistic review being used by u.t. operates as a quota? >> you know, we have not claimed that, but since so much of it is masked and hidden, but certainly if you're motivated, as they said, by demographics, they want to get the number up, it's certainly number-driven. if you look at one thing this court said in grutter is you have to have a basis to use it. there has to be an end. there has to be an end point. if you can't find your

objectives, there is no end point. you have to look at, what are they measuring each year? they're looking at numbers. they want the numbers to go up. that's what they care about. that's what this system does. if it's a quota to the strict sense, to wit, we have a definite target. their target may be equating with the population, high school population. today they're a majority/minority campus in the real world. just because of the demographics. >> because your time is running out, there's one preliminary question i'd like you to address. that is, what is the belief you're seeking? i take it not injunctive because mr. fisher has graduated. >> correct. >> and you have no class. so what specific relief are you seeking in this case. >> the case started with a plea for damages. the damages plea is live. it has never been challenged.

>> what dot damages consist of? >> the damages consisted of a refund of the unjustly committed fee for application. that was the direct -- one specified application. we asked for further relief because at that point in the case we didn't know anything for certain, to wit, if she were admitted, that would be one thing. if she wasn't admitted, there would be other damages arise from her failure to be admitted. we realize that's a separate issue. we reserved on it. >> if the university should say, okay, the application and whatever else we add to that, we offer that so this contest will be over. if they offered you the damages you are seeking, would the case become moot? >> no. and the reason is the damages we are seeking were broader than that.

that was a sefk item of damage pleaded. they didn't challenge is under 12-b-6. >> you gave me the application fee. >> now, miss fisher has not been admitted. she has suffered the consequences of nonadmission. which include she went to an alternative university. she had to travel as opposed to being in her home state. there's certainly good information that within the state of texas, a degree from the university of texas has consequences in earnings down the road and that's measurable. she doesn't have that benefit. all of those elements, which were not part of the case originally because we were trying to enjoin in a way that would have her admitted, now she's not admitted, that changes the complex of the case. that's why we bifurcated -- or reserved the right to amend for a broader plea for the justice and relief. in terms of just standing, we have an existing claim they haven't paid us. they threatened to do that on the first petition for cert. they didn't tender it.

we have broader claims because we haven't yet reached the state of litigating remedies and damages. the case continues, unquestioned standing in this case. thank you. >> i suppose if they tender it, you don't have to accept it either, right? >> correct. >> thank you. >> i'll reserve the rest of my time. >> mr. garre. >> thank you, chief justice. may it please the court to pick up on the questions this morning i would like to focus on three things. one, why the record supports the texas legislature's conclusion in 2009 that the holistic plan at issue was a necessary complement to the state's top 10% law. two, why the record shows that texas' holistic policy has had a meaningful impact on the diversity at university of texas. three, why the record absolutely forecloses any claim that university of texas adopted a quota. with respect to the first question, necessity, there's three principle ways in which

the record shows the plan at issue was a necessary complement. first, as justice breyer mentioned, there's a significant portion of the admissions pool, all out of state students, all students from texas high schools that don't rank, some of the best schools in the state, and all students just below the top 10% who are nevertheless great students who aren't eligible for admission under the top 10% at all.