>> and that's why we won't get bipartisan support for public financing at the federal level. >> on this somewhat contentious note, i need to say that our time has expired for this panel. i think they've done a terrific job, very informative, let's give them a round of applause. [ applause ] while congress is on break, during prime time, we're showing american history tv programs normally seen only on the weekens. tonight a look at world war ii. it starts at 8:00 eastern with spies and codebreaker, followed by the fbi investigation into a nazi spy ring, and world war ii veterans on american resistance in paris and the start of what is now the cia. american history tv prime time tonight here on c-span3.

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begins at 7:00 a.m. eastern on c-span, and cspan.org, or you can listen to it on the free c-span radio app. the nation's highest court heard oral argument in a case questioning the criteria in texas for determining if an intellectually disabled person can be sentenced to death. in 2002, the supreme court ruled that executing a "mentally retarded" person violated the constitution's ban against cruel and unusual punishment. in moore versus texas, the texas court of criminal appeals reversed the ruling, citing use of current medical standards and defining intellectual disability, not the 1992 standards. here's that one-hour oral argument now. >> we'll hear argument in case 15797, moore versus texas.

mr. sloan? >> mr. chief justice, and may it please the court, in atkins versus virginia, this court held that the eighth amendment prohibits executing people who are intellectually disabled and in hall versus florida this court reiterated that the inquiry into whether somebody is intellectually disabled for that important eighth amendment purpose should be informed by the medical community's diagnostic framework and by clinical standards. texas has adopted a unique approach to intellectual disability in capital cases in which it prohibits the use of current medical standards. it relies on harmful and inappropriately lay stereotypes, including the so-called brisenio factors. it uses an extraordinary virtually insuperable and clinically unwarranted causation requirement and most fundamentally, it challenges and disagrees with this court's core holding in atkins.

namely that the entire category of the intellectually disabled, every person who is intellectually disabled, is exempt from execution under the eighth amendment. >> excuse me. >> that's long laundry list of objections you have. your question presented though only focused on one, i which is it prohibits the use of current medical standards and requires outdated medical standards, and i think that several of the other points you made are not encompassed within that question presented. maybe they are questions that should be looked at but they don't seem to be covered by that. i mean in what -- you mentioned a correspondence with clinical practices. has that changed? did texas similarly depart from clinical practices under the old standard as it is under the new? >> it did. the prohibition and use of current medical standards aggravates and exacerbates that. but if i could address your honor's question about the

question presented, because i would like to make two points with regard to that, your honor. which is that first of all, it is woven into the texas court of criminal appeal's decision and the judgment that is before the court. and the judgment before the court because the texas court grounded its determination on the prohibition of consulting and using current medical standards on its opinion and framework and the court said what we decided in presenio, that framework governs, including the clinical standards at the time but the view medical standards generally are exceedingly subjective. that was very important the court in the determination here. >> well, mr. sloan -- >> i have the same question as the chief justice it seem this is doesn't cut to the heart of the case as you describe it. my understanding of your argument is that whether you use

the most current or even slightly older medical standards, there's still a conflic conflict. >> it is that the current clinical standards accentuate the conflict. >> but we wouldn't need that, would we, mr. sloan? we could say that the briseno standards are in conflict with the old atkins standards as well as the new ones. there doesn't need to be a difference between the old ones and new ones for you to win this case. >> that's correct, your honor. >> but you got in the door by a question presented that is a little more eye-catching, which is that they prohibit the current standards and rely on the outdated one, and that's all it says and i'm just wondering if you got yourself in the door with a dramatic question presented and are now going back to a concern that was just as

present, as i understand your argument, under the old standards. >> two points on that, your honor. first, again, as i was saying, it is woven into the court of criminal appeals' decision. one cannot look at their judgment on the prohibition of the use of current medical standards without looking at the framework of which they grounded it. >> i'm sorry to interrupt, mr. sloan, but could i make sure i understand that. what you're essentially saying is that the court of appeals said you are barred from using new standards, you must use the briseno standards. so the two are flip sides of the same coin and what the holding was is you must use briseno standards. now your qp reflected their framing of the issue, you can't use new standards, you must use the briseno standards, but you were just reflecting their essential holding which is we have this briseno case and you have to use it. >> that's exactly right, your honor. >> well, then why didn't you say

that? really, the question presented talks about a comparison between current and outdated. it's pretty dramatic to say you can't use current standards, you're only using outdated. it's quite a different question as they use the briseno standards and they shouldn't. you don't think they should have used the briseno standards under the old medical standards, do you? >> no, that's correct, but i think, your honor -- first of all, the question presented, we stand by it because they have prohibited the use of current medical standards and instead they have required the use of the 1992 standard -- >> let me ask you the same question in different terms and you can tell me whether this is not a fair paraphrase of your question and if you can give me a yes or no answer to this question, i'd appreciate it. under hollen atkins use dsm-v as opposed to older standards, for example, dsm-iv. yes or no? >> no with that wording, your honor. >> then i don't know how you can recover on the question -- you

can prevail on the question you presented to us. >> because, your honor, the question presented talks about prohibiting. if your honor had said can a state prohibit -- >> well, i don't understand what you mean by "prohibit." you mean prohibit the lower courts from using a standard different from the one that the court of criminal appeals has said is the standard that has to be used everywhere in texas so each trial level judge would apply a different standard, whatever that judge thinks is the right one? >> and that the court said prospectively the law of texas is you -- that you're prohibited from using the current medical standards. >> you think this is a question of trial court discretion? a trial court has the discretion to use the newer standards as opposed to the -- as opposed to the standards that the court of criminal appeals says are the appropriate ones? >> no, i don't think it's discretion. i think the court has prohibited. the court said the state habeas

trial court erred by employing the current standards. that's the language the court used. >> as opposed to the ones the court of criminal appeals had itself adopted. >> from 1992. and so it the helpful to consider if the court of criminal appeals decision stands how -- >> mr. sloan, to cut to the chase of the underlying question, was the criminal court of appeals using any clinical standard? old medical clinical stall dard? >> no, your honor. >> mr. sloan, i don't think you finished answering my question. there are two -- let me rephrase it this way. there are different things in the briseno opinion. one is the medical standards that are taken from the medical publications that were current as of the time of that decision and then there are these addition

additional considerations and that's what's regarded as the briseno factors. disregard the latter. the first are medical standards that were current at that time, are they not? >> i respectfully disagree, your honor, in this respect. because what the court said in briseno was after talking about following the 1992 standard, it said we view the medical standards as exceedingly subjective. that's the wording the court used in briseno and that's why we're going to come up with these briseno factors on our theo epstein are non-clinical, in fact they're anti-clinical. and that's what the court said here as its justification for its prohibition on the use of current medical standards. its justification as it says in 6a to 7a of the petition appendix is the court's long-standing view about the

subjectivity surrounding the medical diagnosis of the intellectual disability which stands in sharp contrast to what this court said in "atkins" and in "hall" where the clinical definitions in atkins and in "hall they were a fundamental premise of hall and as hall said, the inquiry has to be informed by the medical community's diagnostic framework and there's no way it can be informed by the medical community's diagnostic framework if there's an exclusion and a prohibition on using current medical standards. justice alito -- >> mr. sloan, there's no doubt about what texas court said, its marching orders for texas court. it said the habeas judge erred by appointing clinical definition of intellectually disabled in that respect rather than the test we established in

briseno. the test we established in briseno is stated sharply and clearly as the test that must be applied by texas courts. is that how you read it? >> yes, exactly, your honor. >> on page 6a. >> that's right. and i think it's helpful here to consider how atkins adjudications -- and obviously this is a vitally important life or death issue that goes to the human dignity of the intellectually disabled and how these adjudications will proceed in texas after this opinion in light of the passage that justice ginsburg just quoted, the critical passage is that to judges, the lawyers and to clinical experts testifying in texas the message is clear and unmistakable. you may not consult or rely on current clinical guidance. think about that from a clinician's perspective. a clinical expert trusted with evaluating and making this vitally important evaluation of

somebody about whether they're intellectually disabled. that person has gotten the clear and unmistakable instruction and will by the lawyers. you have to go back to the 1992 standard. you can't consider the standards since them. >> mr. sloan, i think it's more than that because it's not just you can't consult the current guidance, you have to go back to the 92 standards, it says you have to go back to briseno and briseno has these seven factors that are not consistent with the old standards, just as they're not consistent with the new standards. >> that's exactly right, your honor. and it's also part of a broader problem and framework sbir woven with briseno itself where briseno is setting up a framework where it is saying that only those who are the most severely intellectually disabled are exempt from the death penalty and that it's an open question, it says in briseno, whether those who are more mildly intellectually disabled or mentally retarded as they said at the time are similarly exempt and this court in "atkins" just held there's a bright line exemption for the

intellectually disabled. >> i tried to ask myself if a court could use the briseno factors first and after that if you find no intellectual disability turn to the clinical standards but as justice kagan points out, i think there's a conflict. >> there absolutely is and it -- >> under either the old or -- >> and it's rooted, both the conflict with clinical standards generally and the prohibition on the use of current medical standards and the hostility to current medical standards. >> but it is true that "atkins" left some discretion to the states. what is the rule that you propose for how closely state standards must hew to medical practice. >> i think it's the rule that the court announced and explained in "hall" which is that the statement must be informed by the medical community's diagnostic framework. so what i understand that to mean is that -- and, of course,

as the court said in "atkins" and "hall" and "brumfield" the clinical definitions are very, very important. they have to inform it. if a state wants to conflict with or disagree with the clinical standard, there has to be a sound reason for doing so. and in this court identified four conditions for evaluating a sound reason for doing so. the first is is there a genui genuinely a clinical consensus on that point, the second is what do other states do on that point. the third is what does the state do in other intellectual disability contexts? texas uses the briseno factors only in the death penalty context. in no other intellectual disability context and as the court explained in "hall," the condition as the court said in "hall"of intellectual disability has applicability far beyond the death penalty and so when a state does as texas is doing

here, treats it very differently with much more severe restrictions on finding intellectual disability only in the death penalty, it is at the very least a major red flag. >> can we go -- >> justice sotomayor? >> can we go to the practical application of what you're saying for a moment? let's take the decision of the cca here. they found two prongs that mr. moore had not met, that he couldn't prove that he was clinically scli clinically intellectually disabled. that his iq was higher than what was generally recognized clinically. what did they do wrong with respect to that prong? and then secondly, with respect to the adaptive function prong, what did the court below do wrong? identify the two ways in which what they're doing and how they're applying the standards we're talking about were in

error. >> i will, your honor. and as to both they are in sharp conflict with clinical guidance generally and especially with current clinical standards so beginning with the intellectual deficits in the iq, the court of criminal appeals accepted as valid an iq test of 74, which, as the court explained in "hall," with the standard error of measurement would take it down to 69, well within the range for intellectual disability but what the court did here is that it chopped off the lower end of the standard error of measurement. it treated the 74, the number 74, as decisive and as in and of itself determining that mr. moore could not establish an intellectual deficit and he could not establish intellectual disability which conflicts with clinical standards, current clinical standards and this court's decision in "hall." the reasons that the court gives for lopping off the end of --

the lower end of the standard error of measurement were clinically unsupportable. the court says he had a history of poor academic performance. that's not inconsistent with an intellectual deficit or disability. the court also says well, he may have been depressed because he was on death row. well, there's no death row -- there's no rule that if somebody is on death row you cut off the lower end of their standard. >> there's no medical rule to that. >> that's right. >> no medical support. >> no medical support. no clinical basis for that. and the court points to what it views as a depressive episode from 2005 which was 16 years after he took the exam in 1989. >> well, i thought the most significant part allege there had by you in your briefs were that it assumed that things like poverty, poor nutrition, poor performance in school would not attributable to intellectual functioning but to his lack of a

good home, essentially. why is that clinically wrong? >> because, your honor -- in terms of the causation requirement, which is i think what your honor is referring to. and there are -- there are three major problems with the way the court dealt with causation. >> well, i think the court's -- would you say something about the adaptive behavior? because i think that may be a stronger leg. >> why don't you deal with justice sotomayor's question first and then justice alito's. >> thank you, your honor. so in terms of the causation, first the court says at page 10a of the petition appendix they have to establish that intellectual deficits caused it rather than some other cause. like the causes your honor is talking about. it's well understood as a clinical matter that there is a very high incidence in intellectual disability of multiple causation,

co-morbidity. so that view of the inquiry, rather than some other cause, is completely at odds with the clinical understanding to begin with. secondly, factors the court points to include things in addition to what your honor was saying like, again, poor academic performance, his terrible childhood abuse that he suffered which not only do not detract from a finding of intellectual disability, they are well recognized as risk factors and associated characteristics of intellectual disability. and third and very importantly, as the aaidd explains in its amicus brief, from a clinical perspective, there is absolutely no way to make the kind of showing that the court requires here rather than some other cause. as a clinical matter it's impossible to do and this court in "hall"talked about the risk and the threat that atkins would be turned into a nullity and there's no question that w that kind of causation requirement it turns it into annulty. >> now maybe you can respond to justice alito.

>> yes, your honor. in terms of the adaptive deficits, it's important to recognize certain points that are undisputed in the record. it's indisputed that at the age of 13 mr. moore did not understand the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of addition, standards units of measurement and there are numerous other deficits like that that are undisputed? >> what is the problem with their analysis of that point? >> there are four problems, your honor. so one of them is that the court focuses on what it perceives as some strength which is it says outweighs the deficits. and -- >> okay, on that one, is there a consensus in the medical community that that's improper? >> yes, your honor. and, nfin fact -- >> well, here's an article written by a number of experts, a recent article from the journal of american academy of psychiatry and the law asasessig

adaptive functioning cases, one of these experts was cited in one of the supporting amicus briefs by professional organizations in "hall"which says that any assessment of adaptive functioning must give sufficient consideration to assets and deficits alike. are these quacks? this is dr. hogan, drogan and gill met. >> your honor, the clinical guidance from the rahaidd and the american psychiatric association in their definitive clinical guidance which comes out once every ten years is very explicit that the adaptive deficit inquiry focuses on deficits and not on strengths. the first is that the clinical inquiry is about the degree to

which somebody is impaired in their everyday lives so it's focusing on the impairment and the second is that there is a common stereotype and misunderstand nag if somebody has strengths they're not intellectually disabled and both of those authoritative sources of clinical guidance -- >> well, if the professional organizations by, i suppose, a majority of voters, something like that, conclude one thing but there are respected experts who disagree, you're saying the state is obligated as a matter of constitutional law to follow the organizations? >> i'm not saying that, your honor. as i said to justice kennedy, i think "hall" identifies considerations if the case -- if the court is going to disagree and the first one i mentioned was is there a clinical consensus. >> can i ask whether you might be talking about two different things? i might be wrong about this. but as i understand adaptive functioning, there are these particular areas of functioning that have been set out and what the consensus is is to say well if you have deficits in four of

these areas, it doesn't matter that you don't have a deficit in another area and that's what the consensus is. now within each area, people, psychologists, can look at within an area to determine whether you have a deficit, yeah, you have to look at what you can do and what you can't do to decide whether there's a deficit in that area. so the two things might not be in conflict at all. >> that's exactly right, your honor. orb or if there's a dispute about a particular skill. somebody says he cannot drive, there's proof on the other side that, yes, the person can drive. so those -- >> i have one question which i don't think you can answer orally. but i think that these cases -- you can point me to the answer, that's what i want. there will be a bunch of easy cases and then there are going to be cases like your client who has been on death row for 36 years and there will be

borderline cases and the reason they're borderline is because the testing is right at the border. like an iq test. you'll put weight on what's called related limitations in adaptive functioning. a matter that on its face sounds as if it's maybe easy in some cases and tough in another. all right? what is the court supposed to do? are we supposed to have all those hearings here? i mean, you've made very good arguments for your client. there are probably several others in the country in different state which is may have different standards and if you have some view that the law in this area should be law, i.e. that it should be uniform across the country, point know something that will tell me how a district judge should go about

making this determination in borderline cases my suspicion is there is no such thing but that's why i ask the question. i want to be sure there might be. >> let me make two points which is that first of all your honor says what do courts do. i think it's important that the general principle of this court was clear about in "hall" which is being informed by the medical community -- >> i understand what you are saying whatever they should do it shouldn't be voted on here. okay, i got that point. i'm asking a different point and if you want my true motive i don't think there is a way to apply this kind of standard uniformly across the country and therefore there will be disparities and uncertainties and different people treated alike and people who are alike treated differently. okay? now, that's my whole story and i want you to say no, you're wrong, there is a way to do it.

what? >> well, your honor, i think actually the best places to look on this would be the aaidd current manual, 11th additional, as well as the pages in the dsm-v that address it and it points up differences in current standards. because of this problem about stereotypes that if people have strengths they can't be considered intellectually disabled, for the first time the current 11th edition, the very one the court 1ed was off limits here, has an entirely new chapter, chapter 12, about the issues and problems of people who have high iq -- who are intellectually disabled but at the high iq end, exactly the group of people your honor is talking about and the user's guide accompanying that manual for the first time has a list of harmful stereotypes which includes exactly that.

and the other thing, your honor, though, that i have to emphasize is that whatever one thinks about the application across the country, there is no question that texas is very extreme and stands alone in its view that -- of basically disagreeing with the core premise of "atkins"and repeatedly in its decisions, drawing distinctions between those who are severely mentally retarded and those who are mildly and saying there is no distinction. and in bres seine o briseno itst said our task is to decide what a consensus of texas citizens thinks the line should be and this court in "atkins" just decided for 8th amendment purposes the consensus of united states citizens. your honor, i would like to

reserve the balance of my time. >> thank you, general keller? >> thank you, mr. chief justice, may it please the court. the petitioner conceded we could have used the dsm-iv instead of the current dsm v and the petitioner says there is no material difference between the language in texas's standard which is based on the ammr ninth clinical framework and current ones. so this case has shifted to a discussion of the seven briseno evidentiary factors and if i can put those into context, the seven briseno factors are all grounded in this court's precedence as we point out in our bullet point lists at pages 53 to 55 of our brief. what those go to are the second prong of the clinical definition, the adaptive deficits inquiry. all of those questions are asking can someone function in the world. that's precisely what the pennsylvania supreme court noted when it also endorsed the briseno factors. >> you describe these as coming from some source, but briseno

itself listed this in sechk bullet points and did not give a single citation or where any one came from. >> it did, however, this court in pages 53 to 55 of our brief we go factor by factor and quote this court's precedence to show how they're congruent with factors this court itself has considered and a petition appendix 162-a, the trial court adopted petitioner's proposed conclusions of law and that said that analyzing the facts under that second prong, that adaptive deficit prong, even under the around aaidd 11th answered "many of the briseno factors" so the analysis done under the second prong of the clinical framework, the adaptive deficits prong, that's going to overlap with these briseno factors so this is not a free-floating tests that negates or obviates the three-prong established test that texas uses and is part of the national consensus. >> would you agree with this,

that the texas court criminal appeal has made clear to the texas chooses to -- whom a complete consensus a-100% consensus of clinicians would find to be intellectually disabled. would you agree with that? >> i don't believe that's what the briseno opinion said. the briseno opinion said it was going to adopt clinical standards. >> i'm asking about briseno and other court of appeals decisions and i thought that you said this in your brief, that the -- that your view of the point of state discretion is that a person who everybody -- every clinician would find to be intellectually disabled the state does not have to find to be intellectually disabled because a consensus of texas citizens would not find that person to be intellectually disabled. isn't that the premise of the court of appeals decisions.

>> no, quite the contrary. let me very clearly state about the texas consensus language in the opinion. the briseno opinion flags the issue about what a texas consensus materialize on an issue but the court said twice it was not going to answer that question. that was for the legislature and instead the court adopted the ammr 9's clinical standards. >> i don't understand this in light of your brief which i'm going to start to quote from pretty soon. but it seems to me what the texas court did is to say, look, we're going to accept the three dimensions, the adaptive deficits and the iq and the age but with respect to the quality and the degree of impairment, i think that that's their language, we're not going to accept the clinician's view so that people with mild impairment can be executed even though the

clinicians would find those people to be intellectually disabled. >> briseno very clearly adopted the three-prong established test. in cases since then there were cited -- >> i know they established the three prong test, the question is the degree to impairment as to each of those prongs and, again, it seems to me pretty clear from your brief when you're talking about "atkins" didn't establish a national standard, that you're saying, too, that the texas -- and if you're not, i mean, i guess i'm surprised by that that you're saying that the texas courts do need to follow clinical assessments of intellectual impairment because that's -- it's not what you say on page 19 and 20 and 21 of your brief. >> justice kagan, it's true this court has recognized there is a difference between a legal determination regarding 8th amendment culpability and a medical diagnosis but briseno adopted the clinical standards in the ammr ninth -- >> i'm sorry, go back to justice kagan's question. >> well, he was talking about my

question, so go on. [ laughter ] >> thank you, justice kagan. also even the dsm-v itself says there's an imperfect fit and the court has sited that in previous dsm language. so it's not the case that states have to categorically wholesale adopt the positions of current medical organization s but what briseno did was adopt the ammr ninth, the precursor to the 11th and the brief says there's no material difference between the 11th and the ninth's language. that's why we're not talking about the three-prong test, the f face y'all test of the language. >> i have a follow-up unless you want to go up. >> maybe i could ask a follow-up. >> justice kagan, please. >> maybe i can't. >> let me take one of the briseno factors, the idea that what lay people think about the person growing up is relevant to

an assessment of adaptive function. but briseno factors makes clear point one that you're supposed to sort of rely on what the neighbor said and what the teach we are no experience with respect to intellectual disability said. that seems to me a very big difference between the briseno factors and the clinical view of intellectual disability. >> this court in "hall" looked at what siblings and teachers from the developmental period did and clinicians would also look to those. in fact, here there's testimony at the penalty phase retrial about people, lay witnesses, that knew petitioner at the time. so it's not that this is irrelevant evidence that's not probative. now it's not going to be dispositive, that will depend on

the totality of the circumstances and the record on adaptive deficits but this is probative evidence -- >> well, briseno says essentially this can trump everything and it says this can trump everything because of the underlying view of briseno and other texas court of appeals cases that we don't have to look at the clinical standards and that we can execute people whom clinicians would find to be disabled. >> no, briseno did not say that the seven evidentiary factors can trump the established three-pronged definition texas has consistently applied. >> i'm sorry mr. general keller. you keep saying the three prong definition but the three prong definition just tells you you have to look to iq, you have to look to adaptive functioning, you have to look to youth. it doesn't tell you anything about what qualities you look to and the extent of impairment within those factors and that's where the texas court has insisted upon its freedom to go out on its own. >> well, even in briseno -- >> may i note that as a footnote only -- you can continue -- that in ex parte sosa, the cca sent

back a case directing the lower court to apply the briseno factors even though that court analyzed the case under the clinical standards. it appears to be acting as if those briseno factors are the clinical factors and are controlling even though there are stereotypes built into them. >> there are not stereotypes built into them -- >> well. the dma and all the other clinicians recognize that some mentally disabled people can have some adaptive functioning, idiot savants, for example. is it your position that if someone can calculate math in their head they can't be intellectually disabled? >> no, the point -- >> how about if that same person has a job in nasa calculating the airspace shuttle launches.

is that person not intellectually disabled simply because they can use that particular skill in a way that gains them employment? >> no. and as what texas standard says, it looks to the current frameworks and says for adaptive deficits you look at conceptual, social and practical skills. if i can address sosa, the cca reversed the trial court because the trial court held it was categorically prohibited from looking at the facts of the crime. it didn't say you had to use the briseno factors -- >> general, we're not reviewing sosa. could i ask a question about what the court did in this case? now on pages 62a and 63a of the petition, the appendix to the petition it sets out the three factors and then it discusses those at length and then on page 89 it says, in addition our consideration of the briseno evidentiary factors weighs heavily against the findings.

is it clear these evidentiary factors actually played an indispensable role in the decision in this case which is what we're reviewing? >> no, they did not. they were only two pages to bolster a second alternative holding on relatedness and that weighs heavily language, that is only talking about weighs heavily on the relatedness inquiry. the court already concluded in pages of its analysis that there was sufficient intellectual functioning under the first prong and there were sufficient adaptive deficit, compton's testimony said i do not have the deficits to find a diagnosis. and that was even before prison. that is a sufficient basis to affirm without getting into the relatedness inquiry or getting into the briseno factors. >> are you saying that the briseno factors capture all individuals with intellectual disability? >> no, the briseno factors -- there could be other circumstances or other facts in the record that would bear on the adaptive deficits prong and

that's why the cca said these are discretionary. these are different ways of phrasing how you do the conceptual, social and practical. >> isn't making it discretionary a huge problem in this area? because if you let one trial court judge apply this and another one doesn't have to apply them, then you're opening the door to inconsistent results depending upon who is sitting on the trial court bench, something we try to prevent from happening in capital cases. >> no, justice ginsburg. it's discretionary. what the cca said, and this is kathy case, it says the trial and appellate courts may ignore all or some of them if they are not helpful in a particular case. in other words this is just looking at the record. is there evidence on any of these factors, if not, that will be a helpful factor in that case. justice kennedy, as far as the universe of people that would be or not be covered by the briseno factors, the cca has used the

factors to grant them relief and they've affirmed trial court decisions, this is valdez, plot and maldonado -- >> but the theme of the petitioner's brief is that the briseno factors are intended to limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus. >> and they have never said the purpose of these factors is to screen out individuals. >> isn't that the effect? >> no, van allstein granted relief. >> well, of course general there are going to be cases in which the briseno factors will show disabled but that's not the question. the question is can they be an exhaustive list? >> the bris seine joe factors are not an exhaustive list and the cca has never treated them like that. >> but the genesis of these

factors were that the court said the clinical standards are too subjective and they don't reflect what texas citizens think, both of those things. they're too subjective and they reflect what clinicians think, not what texas citizens think. that was the genesis of the standards which suggests that justice kennedy is right about how they operate and how they were intended to operate. >> the court did mention subjectivity. the texas consensus point was not part of the basis. what the cca was trying to do is take the adaptive deficit prong phrased in the terms of related and significant limitations in adaptive functioning and put that into more concrete terms where you could apply it to a record. >> there are two things wrong possibly with the factors which we've heard. one i can't deal with at this moment in oral argument. you could go through them, they're in the briefs, one by one and say reading them actually they're not consistent with or reflect an error when compared to what the psychiatrist and psychologists

think. your answer is they don't, the other side says they do. i can't go further with that here. the other is the question of why did the texas court write these standards. i have to admit that in reading through briseno i came to a -- at least a pause when i read the words that they're trying to figure out what to do in borderline cases and what they've done is not -- i understand it. they say we have to figure out the level at which a consensus of texas citizens would agree a person should be exempted from the death penalty. when i read that and other words on page six of the reported opinion. when i read other things i thought what they're trying to do -- which we do often in law -- what's the purpose of this? the whole purpose is to try to figure out who not to execute because of their functioning, the way they function.

that's the purpose. let's look at what texas citizens would think about this person and try to get standards that reflect that. i did think that's what they were trying to do in that opinion and they're arguing that that's the wrong thing to try to do in this instance. first because it would produce non-uniformity among 50 states or among the many states that have the death penalty because second the question is not what the citizens of the state think about who should be executed. that has nothing to do with it oddly enough. in this case what has to do with it is a technical matter about this individual that would free some while subjecting others to the death penalty irrespective of what texas citizens think. do you see my question? what were they up to in this opinion? briseno? i think they were up to going back to the citizens of texas. you saw what i think they're up

to. you tell me if i'm right, wrong, or why. >> justice, i believe that's mistaken because there were two points after that discussion where the court says -- and this is page six of briseno -- as a court dealing with individual cases and litigant wes decline to answer that normative question about the texas consensus without significant greater assistance from the citizenry acting through its legislature. and two pages later it's assessing the difference between legal determination and a medical diagnosis and the court says that question is not before us at in case because it goes on the adopt the ammr 9 clinical standards. >> mr. general is it your view that what texas is trying to do is determine who's truly on the clinical borderline as opposed to trying to determine the type of mental ly disabled people i

thinks should be executed? >> correct. >> the latter? >> yes, texas has adopted clinical definitions in the ammr 9. >> so is it fair to say that in texas a mildly disabled person is unlikely to be considered disabled by the cca under the briseno factors? >> no, if there was a diagnosis of intellectual disability, even mild intellectual disability, that would satisfy -- >> but you're pointing to one of the cases that you cited to me where someone was clinically diagnosed as mildly disabled and the cca said under the briseno factors that they should not be executed. a lot of the cases you provided by me with there was clinical evidence of moderate and mostly severe but moderate to severe disability. but was there anyone with mild disability that the briseno

factors would find sufficiently disabled. >> justice sonia sotomayor, the van al stein case is the case that i can look at where they granted relief. >> did they find him mildly disabled? >> the testimony was on adaptive deficits and i believe whether it's mild or moderate would go more towards iq scores. if i can pull back, the question presented is whether texas has prohibited the current standards from being used and is erring by using the outdated standard. the petitioners conceded we could have used an older version and texas is not prohibiting the use of current standards. in this case, the cca repeatedly -- >> so why did it go through so much trouble in saying it wasn't going to use current standards, only the older standards and the briseno factors. >> because the current standard used does not have the relatedness inquiry. that's an extraneous part of this case, it was a second alternative holding but that was the main reason why the cca said trial court, you're not

following our precedence, that's error. >> if we believe its definition of relatedness has no support anywhere, would that have been a valid reason for discounting the current clinical standards? >> there was a second alternative holding here. it's fas ee's facially valid foo have a -- the dsm-v talks about something needing to be related but it doesn't flesh that out. so we're talking about the application of that. this would be an odd case to decide that issue when it's a second alternative holding. there's no consensus on this. that's the "coleman" case in the supply brief. we are not aware of any case in which the relatedness inquiry was the dispositive point on which an "atkins" claim was denied. >> i'm not sure how i can accept your characterization of the cca decision when basically it's saying his poor intellectual functioning on iq tests -- which

happened when he was younger -- were not related to his intellectual abilities, they were related to his poverty, his morbidity factors. if they're saying that, how are you saying they weren't finding that he wasn't intellectually disabled because of those other factors? that's how i read their decision. >> it wasn't just the cca saying that, it was relying on testimony. >> wait a minute, the testimony of compton was having looked at all of the iq tests was i'm not sure, it's probable that he's intellectually disabled by iq but he wouldn't qualify in my judgment because of his daadapte skills. but even the state's own expert said that it was probable that he was intellectually disabled? >> the state's expert said it would have been borderline

intellectual functioning. but the second alternative holding that the court doesn't have to reach looked at testimony from the petitioners' retrail in 2001 when petitioner affirmatively argued he was not intellectually disabled. the petitioner's own expert agreed. >> it was a strategic advantage to doing that back in those days, right? >> well, actually, at the time "henry" would have been decided and there would have been a valid basis to say petitioner i'm intellectually disabled therefore use as mitigation evidence. the strategy, which was a reasonable strategy from coun l counsel, with towse say petitioner would grow in president and that was mitigation evidence he could be reformed but, right, the petitioner expert agreed with the prosecutor, the petitioner was "nowhere near" intellectually disabled and so the lack of education was to blame. that's joint appendix 269. >> well, that happened in atkins, too.

regrettab regrettably, until we decided that mental disability was a ground to execute execution many mentally disabled defendants were represented by counsel who thought that arguing differently was a better strategy. >> of course penry would have been on the books so there would have been a advantage to argue that that's why it's a contradictory argument. the cca credited compton's testimony as the most reliable expert who's the only forensic psychology who reviewed the records and personally evaluated petitioner for intellectual disability and compton said "i don't have the deficits for a diagnosis t" but this is a fact-pound question of the application of the test. the question presented here is whether texas's well-established three-prong test for intellectual disability violates the 8th amendment and texas is well within the national consensus. there are only four states that have categorically wholesale adopted one of the current frame works. two of them did so saying

there's no material difference in the language between the current framework and that test and that's the precise petition the petitioner took in the reply brief. >> can you explain why texas applies a different test to determine whether a school child is sintellectually disabled or juvenile offender to determine what to do with that offender texas applies a different test when compatible with current medical standards in both of those categories? why does it have a different standard for capital cases only? >> first of all, the juvenile offender discharge rule that petitioner cites in page 7 of the reply brief. that adopts the three-pronged test that briseno adopted. that's 380.8779c 1. there are other provisions that incorporate the latest manual of the dsm but as the dsm-v itself

noted, there's an imperfect fit between a determination of legal -- a legal determine nation of medical diagnosis and since you have those different purposes it's valid for a state of when someone is morally cupable. >> that's exactly the point. that's the point that we've been making, or at least i thought we were. that the whole point of briseno is to answer the question that you said to just say no it isn't there. to help determine which persons suffering borderline cases ought to be executed or should not be because they're less morally culpable, now that does supply a reason for making differences as justice ginsburg pointed out and the question is is it the

purpose of atkins and the other case or was it to give each state the right to decide in borderline cases whom or whom not to execute in light of their feelings about capital punishment? i thought it had a different purpose. un usual in the law but which was to appeal to technical definitions of who and who is not mentally retarded or intellectually disabled. that's a real issue. but i think this case does present that issue. >> and what atkins and hall said was there's a critical role for the states and while states don't have unfettered discretion, they have some. every time the dsm-5 or the next addition of the aidd 12th comes out, the states don't have to wholesale it out because there's a well-established three-prong test. this test has existed for 50 years and the states, there's a national consensus adopting that

test. there's not a national consensus against the relatedness inquiries causation or that the various factors, the briseno factor of an entry test can't be applied and on adaptive strengths in particular, no state prohibits the use of adaptive strengths. in fact, three states that use the current frame works that have adopted wholesale the current frame works still look at adaptive strengths. the hackett case from pennsylvania is the best example. >> the problem is that as i read the cca opinion it's looking at adaptive strengths only and not at adaptive deficits and looking at the depth of them or how they formed the intellectual disability component. even dr. compton, the state's expert, testified that mr. moore could not from memory recreate a clock. now she says "i don't quite believe that" but she doesn't quite believe that of a person who at 13's father threw him out

because he was dumb and illiterate, couldn't tell the days of the week, couldn't tell the months of the year, couldn't tell time, couldn't do anything that one would consider within an average or low average of intellectual functioning who's eating out of garbage cans repeatedly and getting sick after each time he did it but not learning from his mistakes. the state's opinion does very little except say those are products of his poor environment, they're not products of his intellectual disability. >> in addition to analyzing, she said, there are limitations i see, whether it's academic abilities or social skills but there have to be significant limitations and she said that wasn't there. she noted petitioner testified four different times in the course of these proceedings,

even in filing pro say motions and was responsive to questions and was sincing what was going on. he lived on the streets after the crime he was found in louisiana. >> but the briseno factors who were fashioned after, lenny was working on a farm. somehow that different from mowing a lawn? and the state had no problem in saying that lenny even though he could work, earn a living, plan his trying to hide the death of the rabbit he killed, that he could do all of those things and yet he was not just mildly but severely disabled. why is the fact that he could mow lawns and play pool indicative of a strength that overcomes all the other deficit? >> lenny in the character of "of mice and men" is not part of the test, it was an aside and the court said it was not going to

address that separate question and instead adopted the clinical standards. >> but it informed its view of how to judge the lack or strength of adaptive functions. it used the lenny standard. >> no. it absolutely did not. and we can see that not only from the fact that what happened in briseno was the lenny paragraph was an aside and the court documented the clinical standards. the cca has only once since then ever cited lenny and it was in a footnote quoting a trial court and the cca granted atkins relief in that case. the lenny standard has never been part of the standard. that's one of the most misunderstood aspects of the briefing here. >> general, can i ask -- i'm trying to reconcile the statements you've made here and your briefs and here's what i've come up with. tell me whether it's right. i think what you're saying is that the texas court of appeals is complying with "atkins" because it uses a three-pronged test focusing on iq and adaptive function and age but within each

of those prongs in order to make this distinction between clinical disability and moral culpability, within each of those prongs the court can choose how to apply that prong and particularly what levels to appro approve. is that affair snans. >> mr. chief justice, my i answer? >> sure. >> i don't believe so. because the court has adopted a three-part test. >> yes, it's adopted the three-part test but within each of those prongs you get to apply it. i thought that was the entire point of "hall," no, that's wrong, you don't get to apply it however you want. >> but on intellectual functioning texas has never had an iq cut off. as "hall" recognized, it applied the error of measurement and even on the adaptive prong analysis that will account for conceptu conceptual, social and practical skills as texas has adopted the current standards. >> thank you, counsel. three minutes, mr. sloan.

>> thank you, your honor. just a few brief points. there was a lot of discussion about the role of briseno and the relationship to clinical stan cards in the texas court of criminal appeal decisions and i would suggest the court look at the american bar association amicus brief because it goes through three decisions of the court of criminal appeals where in each of those three decisions the clinical testimony, the expert testimony was unanimous that the individual was intellectually disabled and the texas courts used the briseno factors to conclude that, in fact, he was eligible for execution not withstanding the yuunanimity of that expert testimony. the second, my friend said that i conceded they could have just applied the dsm-4 and rejected the dsm-5. just to be clear and for the record, i do not concede that and in my response to justice kennedy i was saying if a state

is going to reject clinical consensus and the current clinical standard, as in that example, then there would be a number of factors that the court would look at and what i didn't get to and very importantly is the eighth amendment principles and concerns in "hall" and "atkins" and the requirement to ensure somebody who is intellectually disabled won't be executed. third one point about the chief justice's initial question i never got to about the question presented. in addition to the fact that as we did discuss it interwoven with the briseno decision, in our petition and reply we repeatedly used the phrases like "non-clinical" "unscientific" standards completely untethered to clinical consensus and the state rested heavily on briseno factors. there's a few pages of their opposition that are specifically directed to that. so that was very extensively

discussed in the papers at the time. >> could you clarify what you said about dsm-4 and dsm-5 because i had a different impression from your initial argument. if we were to say today every state must adopt dsm-5 and then at some point in the future dsm-6 comes out, would it be your position that those states would all have to go back and reconsider what they're doing? >> they would have to consider them as part of the diagnostic framework. and these new conditions come out once every ten years but, yes, because those additions represent the scientific method at work. people using their best clinical and medical training to refine and sharpen the tools and with regard to intellectual disability -- >> is it your view briseno factors are consistent with dsm-4? >> no, your honor, they're completely inconsistent with clinical factors and have been from the day they were announced but it's more clear they are

inconsistent with clinical factors in light of the current clinical standards. my friend was also suggesting there's some question based on briseno -- may i finish the sentence? based on briseno about whether in fact there is a bright line exemption for the intellectually disabled. he was suggesting it's clear there is and i wanted to call the court's attention to what the court of criminal appeals has said relying on briseno in ex parte hearn, the court has expressly declined to establish a mental retardation bright line exemption from execution without significantly greater assistance from the legislature. briseno 135 southwest third and simply in ex parte sosa the court said answering questions about whether the defendant is mentally retarded for particular clinical purposes is instructive but not conclusive. thank you, your honor. >> thank you, counsel, the case is submitted. while congress is on break this week, during prime time

we're showing american history tv programs normally seen only on the weekends. tonight, a look at world war ii. it starts at 8:00 eastern with spies and code breakers breakerd by fbi investigation into a nazi spy ring and world war ii veterans on american resistance in paris and the start of what is now the cia. american history tv prime time tonight here on c-span3. this week on c-span in prime time, tonight at 8:00 eastern, a review of house and senate hearings from 2016 on topics including the flint, michigan, water crisis and the wells fargo unauthorized account stanley. >> seriously? you found out that one of your divisions had created 2 million fake accounts, had fired thousands of employees for improper behavior, and had

cheated thousands of your own customers and you didn't even once consider firing her ahead of her retirement? >> thursday at 8:00 p.m. eastern, we remember some of the political figures that passed away in 2016, including former first lady nancy reagan and supreme court justice antonin scalia. friday night at 8:00 our in memorandum continues with shimon peres, muhammad ali and former senator and usa naught john glenn. this week in prime time on c-span. join us on tuesday for live coverage of opening day of the new congress. watch the official swear in of new members of the senate and election of speaker out house. events on capitol hill begins at 7:00 a.m. eastern object c-span and c-span.org or listen to it on free c-span radio app.

a new generation of military helicopters is created by pentagon with new technologies and enhanced capabilities. the plan called future vertical lift program was discussed by a group of military officers from the army, marine corps and special operations command. this is an hour. well, good morning, everyone, and thank you for joining us this morning to talk about future vertical lift. before we get started, let me take care of the obligations at all our events before we get into the meat of this fascinating topic. let's just give our security announcement. for all our events, we like to remind folk we're in a nice

secure facility here but nothing is as secure as it could possibly be. if anything were to happen, i will be your security officer. i'll give directions about where to go. most likely we would head out the back here and a safe location over by the "national geographic" building. if that were to become necessary i'll let you know and i'll be the voice of god coming through the speakers. in all likelihood, we'll have an event that will not be eventful in that sense but will be eventful on the substance. i'd also like to thank our sponsors. this future vertical lift series is sponsored by bell and tech tron. we want to thank you for meeting it possible. we want to talk about vertical lift, part of a series looking at this question of what's the future of vertical lift, where are things going. i'm really excited, actually

been waiting for many months to have today's eventwhere we're going to talk about a requirement for future vertical lift going through the pentagon and at approval. we're at the stage where rather than just talking about it, people are getting deeply into beginning to execute programs. we've got an all star cast from the services here to make us smarter about this. to my right is colonel erskine bentley, united states army. he's the capability manager for future vertical lift. he has had a number of command positions in the army and aviation. and has been the air requirements branch chief as well as ground requirements branch chief at socom. he's a dual threat at least,

perhaps more. to his right is colonel john barranco. did i pronounce that correctly? barranco. from the united states marine corps, currently assigned to headquarters marine corps aviation as branch head. he has previously served as executive officer to general kelly. if you are like me and you have your u.s. marine corps cabinet bingo sheet at home, i've determined you can pretty much staff the entire cabinet with former marine officers. i'm going to pencil you in, john, as a future secretary of transportation, if that's okay with you. and in all seriousness, he has a lot of experience obviously in aviation and instructor pilot and naval academy graduate. to his right is colonel david phillips, who is a peo for rotary wing at socom, a test pilot, also trained as a program manager, so another dual threat joining us.

and with that, we're going to start with the army, which is the lead service for the activity that's under way, and then we'll hear a little bit from the other two panelists. and then we'll go into q&a. but colonel bentley, over to you. >> great, thank you. good morning. first of all, sincere appreciation to csis for putting together this event, and to you, mr. hunter and ms. johnson also. as we look at the future vertical lift family of systems, you know, that encompasses the entire dod vertical lift inventory, from our smallest to -- training helicopter to largest cargo helicopter. really whether or not we've done is taken a mission systems approach to defining our requirements for the vertical lift family of systems. we have department and service equities across that system. but as we look at the army requirements and specifically for capability set three, we see that the greatest joint need

across the services is for capability set three aircraft. and so that's our intent to go after a cap set three first. specifically for the army, we're looking at a utility mission. this utility mission involves medevac capabilities. it involves our air assault capability. the ability to assault life forces and their equipment. and also involves troop movement. as we also look at what the army requirements are, we look at the reach, protection, and also the lethality of fvl aircraft. when we talk about reach, we're looking at the power, speed, range, and endurance of fvl and specifically cap set three. this enables the army to conduct strategic deployment. and once we arrive in theater at a place in time of need, it allows us to immediately go into operations.

so it's about strategic deployability with tactical deployment once we arrive. the other thing about reach is it gives us maneuverability and agility in and around the objective area. as we look at protection, fvl speed and range also enables us some additional protection for the force. not only for the aircraft but also for the occupants and the force in general. the speed and range of fvl coupled with, you know, advance survivability equipment, sensors and other equipment enables us to increase the protection of our force. as we look at the lethality of fvl, once again, the speed and range coupled with sensors, lightweight precision munitions, is going to increase the lethality of army aviation and vertical lift aviation in the joint force.

we spent quite a few years developing our requirements. and we still have a long way to go. we're just kind of, you know, scratching the surface on developing our initial requirements. but really what we have is a well-informed decision-based plan of execution. we have a very large investment in s&t that's informing capability set three and fvl. we're looking at different ways of manufacturing using different materials, advanced technologies for vertical lift, and we're also looking at the opportunity to use a modular open systems architecture in fvl aircraft that could be common across the family. but we've done a lot of it work getting to where we are. we have a lot of work to do. even before we start refining our requirements and before we start writing production requirements for vfl. but the army is excited about capability set three.

we're definitely excited about leading the multiservice team for fvl development and specifically capability set three. and we're looking forward to the future. >> all right, thank you. colonel barranco, please. >> well, good morning. thanks for having us here today. andrew mentioned i'm a naval academy graduate. he didn't tell you i'm a west point grad. i don't know if you guys know, there's a little game tomorrow, maybe you heard something about that. >> is there a wager? >> not yet. but we'll see. a great opening by colonel bentley. and, you know, i agree with everything that he said. you look at what's the need and the impetus behind the future vertical lift family of systems. probably a lot of you saw recently articles about the america deployment that the marine corps did with f-35. you look at f-35 across the joint force, across the three

services, f-22. we're fielding and have fielded fifth generation fighters. that's important, we need that. we need a fifth generation fighter attack strike aircraft. with the exception of the osprey, you look across rotary wing, which makes up the majority of our flying force in the joint force, we haven't really seen any large technical advances in aircraft since third generation, second or third generation. really since vietnam, what massive technical leap, despite all technical progress we've seen in the last generation, have we really seen in rotary wing vertical lift aircraft? with the exception of the osprey, which is a very small portion. it's kind of a shocking assertion, when you think about it. so the need, both for industry and across the joint force, to leverage technology and to

develop a new, more capable aircraft has never been larger. when you look at the threat out there today, you hear a lot about antiaccess aerial denial, a-280 systems, for a variety of potential peer competitors that the u.s. plans for, plans to compete against, our assembly areas, our rare areas, are going to have to be farther away from the action, from the flaw, that they have been before. they're going to have to be. they're going to have to be. our ability to penetrate, to get close to where the action is is going to be limited. it's going to be limited by those systems. that's one of the reasons we invested in our fifth generation strike attack aircraft. it's going to take range and speed to be able to range back and forth from the assembly areas to the flot. we've talked about a lot about distributed operations. we're going to have smaller,

more capable, more lethal, more networked, net centric forces. and they'll be distributed more widely in smaller groupings across that flot. we're never going to get away from the concept of, at the decisive moment we'll still need to mass our forces and bring that to bear. that also will require vertical lift systems that give us additional speed, range, lethality and survivability. i'm very excited to be participating in this with the army. the army-led multi-service program. as colonel bentley said, we're still in the early stages. but what we're finding is, with cap set three future vertical lift, we have a lot more in common with the needs that we've identified across the services, socom, army, and marine corps. i'm very excited about being part of it. i think we've already put a lot of time, a lot of effort, and most importantly, money towards it. we're looking forward to successfully deploying cap set three as the first of a large

future vertical lift family of systems. thank you. >> thank you, colonel. and then pulling up our rear guard is colonel phillips from socom. >> okay. good morning, everyone. i would like to start out by saying, if you first get a call from somebody who says, hey, come sit on a panel in washington, dc before christmas with a lot of experts and a lot of experts in the audience and questions fielded from the audience, consider that call carefully. consider that person that made that call, think about are they going to be on your christmas card list. so with that, i would like to say thanks for having us here. i would like to say thank you to my peers for taking this on together and thank you to c sis for having this. i think we should get something out of this next hour's conversation. i think it should be a two-way conversation and open it up because we should leave with a better shared understanding of

the challenges ahead. i really think it is great to see the familiar faces in the office but if we don't leave with the shared understanding, we'll waste the opportunity. so why is fvl important to special operations command. if we start by looking at the environment and look at the risks and the way we should collaborate to address those risks, i think it will paint a little bitter picture from the so com perspective. so diffusion of power and technology and we just talked about that, we know that the world is not getting to be a safer place. and we know that our near peer competitors in regional states and violent extremist organizations are continuing to threaten our national interest. so we have to be cognizant as we develop a new future vertical lift aircraft, that it can keep up with that environment. really we want to stay ahead of that environment. so fortunately, the investments

that we made down at u.s. so com in the 1990s, when d.o.d. was in a draw-down period, it came to bear after the attacks of 9/11. so we were able to execute long range assault and infiltration missions through the mountains at night in afghanistan and we were only able to do that because we had invested in the equipment and the training to be able to do that, those missions. the kilo is a good example. that black hawk ran a lot of those missions and we invested in those and fielded those in the 1990s. so looking at that history, how should we be prepared to look at it in the future? i think one of the enduring ways is to have better interdependence and greater in immigration and inner operability. those three tenets over the last 30 years and particularly over the last 15 years have shown we can't operate soft and conventional sources separating in space and time any more, we have to operate together and with nested operations, we have to operate with nested

acquisitions. so integrating with the services in the past could be conceived -- perceived to be a challenge. but i think going forward, i think that is the right thing to do. and a couple of examples i could call out specifically in recent history. the army developed the ua 60 black hawk and they gave us that at so com and we modified it to meet our mission requirements and we field it as the mr 60 m. and the ch47-f block two program under way with the army and the renew program underway with the mh-47-g, those two efforts are directly aligned and the synergy there is paying off in development. so we have to keep up with the environment and we have to learn from our history and take these lessons that we've learned and the recent fielding of aircraft and employ them on this future vertical lift opportunity. we have to learn as much as we can from the flight tests coming up on jay mar.

i believe that speed, range and pay load are achievable and i think that the j mar flight test down at the two vendors that are building those aircraft are going to prove out the envelopes that are possible to get there. but i think that the key point and the key point i would like to make is that operational suitability is not just about speed, range and pay load. operational suitability is really including sustainability and survivability. and those are the kind of things that help build the combat power for all of our forces. not just for socom. so that combat power and the readiness that is driven by sustainability and survivability has to be up there on the priority list and we have to think through that carefully. i think after we get those five things, not just the top three, but all five, but i think then we should fold that into carefully considering better

mission equipment. better hardware, better software, better mission architectures. those architectures be agile enough to keep up with the environment and to stay ahead of the environment. and said that earlier and i'll say it again. i think it is that important to stay ahead of the threats so we can maintain that comparative over match. the last 20 years of mission equipment, there has been a lot of great opportunities but it is littered with examples where we didn't live up to our expectations on open architecture systems. we've learned a lot. i think that learning is still going on in the s and t community and if you are in industry and not familiar with the missions systems architecture demonstration or the architecture process demonstrations, if you are not familiar with those acronyms or those programs, go out and get familiar with the army s and t and the nav folks working on that. i think it is important. because the really collective challenge is to prioritize those efforts along with the speed, range and pay load that we'll

see in the jmrtds. so provide value to soft commanders, given the expected costs, it must provide those capabilities and in all weather, all environments, and we have to be able to -- to execute our missions when the enemy least expect it. integrating open architecture with emerging sensor technologies is a way to do that but it can't be cost prohibitive. it can't take too much time and it can't cost too much money. so the bottom line, socom absolutely is lined up with the other services, we need an aircraft with range and speed and pay load and an aircraft that is survivable and sustainable. we shouldn't get focused on the architectures of today. we should look at the architectures of tomorrow. and we have to address the risk collectively and in environments starting here but in a lot of ipts and a lot of discussions

with industry and keeping our operators involved in the process along the way to make the right decisions for fvl. thanks again for having us here today and i look forward to your questions. >> thanks. well we'll start with a couple from down here and, by the way, as i encourage the panelists to question each other if you would like. i don't know if i can get you to do that. but we have a couple of events recently where i've had panelists engaging directly with one another and it keeps things pretty lively. so you are encouraged. i want to start this on issue a couple of you raised about the commonality of the requirement. and i guess it is kind of a multi-part question, but there is a requirement that has gone through the j rock, but as colonel bentley mentioned, that is really a starting point. that's an initial and early look at requirements. there's still a lot of requirement work to do. the fact that the three of you

are here today means we're fairly well aligned to cross services on this initial requirement but then the question is how do you stay aligned as the requirement matures and grows more detailed. and it strikes me that there is maybe more differences between future vertical lift than where we were at the same point with joint strike fighters than similarities but it's obviously a program that comes to mind as a major joint program where the services tried to align requirements going forward. obviously that proved to be quite a challenge. and it turned out there was less commonality between the various aircraft when they were finally produced than maybe had been the notional perspective going in back in the '90s. so i'm just interested in each of your thoughts on how do you maintain the commonality of the requirement as you get more detailed into some of the issues you all raised about deploy ability, ability to do mission upgrades and your thoughts on

that? >> this is something that we're all looking toward and really what we've developed is, i think, a broad area of joint trade space that we've noticed. and because really as we look at the pay load capability of the aircraft, we look at some of the speeds and ranges that we're looking for in a cap set three aircraft, there is a lot of alignment on the capabilities between the services. we still have -- as we said, a lot of work to do in that area. but we've definitely identified the trade space that is there. and when it looks at things like pay load of the aircraft, even though the army, marine and socom requirement may be different in say number of soldiers or marines on the aircraft, we can trade that pay load for other things. for instance, we could trade

part of the pay load that the army uses for soldiers into fuel to increase the range that the marine corps needs or that so com needs. the other thing is we look at the multi-service capability of the aircraft. there is a lot of components, a lot of dynamic expensive components that we could see using throughout the services. both our members here also mentioned the open architecture system. so there is great commonality there in an open architecture system across the services. >> to colonel bentley's point, you talk about differences and requirements in trade space. every requirement is a range. a threshold, a minimum that you think you need, that you assess as your need and objective, your ultimate desire. within that spectrum, whether it's from x speed to y speed or

x amount of troops to y amount of troops, that is kind of your trade space. and there is a lot of overlap in between there. to get to as close as the perfect shared solution, will there be compromise, yeah, of course there will be. that is not a bad thing. because the reality is and colonel phillips touched on it, we're in a very physically constrained environment. anybody who thinks that will change radically for the better is probably fooling themselves. we need shared technology and we need shared systems, we need shared aviation supply and logistics. that is a reality. it is not just a fiscal reality, it is a battlefield reality. we're not going to be able to sustain, move, supply, multiple unique systems across the services like we've done in the past. i think to think that we're going to have that kind of flexibility or that degree of overmatch in the future, i think that's probably a wrong

assumption. talking a little bit about -- you touched on f-35 and i think -- an important distinction to kind of make here and colonel bentley touched on it. this is on f-35, but lessoned learned. this is a multi-service project, versus joint. what does that mean? is that just semantics? we set up a joint program officer f35 and that was an unheard of creation and an amalgamation of different services, very unique and on a construct that existed previously, when you do something new, you learn a lot -- a lot of lessons learned. it becomes more difficult to leverage existing relationships and structures that work well. that is not what we're doing here. this is an army led -- army program management led program

with participation from socom and the marine corps. so using existing army program management structure, existing nav air support, we're not creating something new from scratch. that in and of itself doesn't guarantee it is more successful or goes smoother than f35 -- the f35 is doing very well. the marine corps has one complete squadron already fielded but this isn't structured different than f35 was. so yes, there are similarities but we've looked at those and tried to take some lessons learned from there and structure this a little bit differently. >> so i think the aoa will flush a lot of that out. i think we'll absolutely have the opportunity to think about that and talk about that together with services. a good example, this is a good example of the f35, and another

good example for us in socom is the fh60m and the mh47g. we made some hard decisions back in the early 2000s to have a common set of mission equipment in that -- those aircraft. and that decision was hard at first. and it required a lot of compromise but we built in the flexibility and the ability to upgrade those systems. now with common contracts, common sustainment tales, that really the way that we could efficiently operate the fleet today. and if we hadn't made those hard decisions early, 15 years ago now, then we wouldn't be where we are today. >> thanks. a related question but also moving into kind of the next topic i wanted us to cover is the issue of threat and what is driving the need to get to a next generation of vertical lift systems. and again you all referenced this to some extent in your remarks, just wanted to drill

down a little bit deeper. and in particular, something several of you mentioned, we focus on speed, range, lethality. and those are wonderful and fantastic and i wouldn't in any way minimize them and they have the potential to support new concepts of operations, as you mentioned, colonel barranco. there is that piece that will encourage sustaining commonality because my sense it, you can correct me, that the pace of the threat development is pretty consistent across the mission sets you are looking at. but there is also the aspect of sustainability and adaptability that we're hoping to have in these new systems. so if you could maybe talk a little bit about how that -- how that need to get to a more sustainable fleet or set of fleets, in the case, or system of fleets, and the need to adapt and how the threat is moving in

a way that is consistent or not consistent across the various mission sets you're looking at. knowing that you can't get too much in threat and unclassified environment. >> thank you. one of the things, as we look at the future threat and colonel touched on it earlier, obviously the speed and the range enables us to stay outside of the threat envelope. but as we look at sustainment of the future aircraft and the ability to move a joint force into an area of operations, by inner operability through the services, by commonality we're able to reduce our footprint. we're looking to explore different types of inner operability where possibly we could share maintenance capabilities, not only the sustainment chain of parts and supplies, but also the ability

for services to work on other services' aircraft. i mean, we think nothing today of flying on another services aircraft. we would probably want to explore joint sustainment. you know -- the other thing is, and we've touched on the open architecture capability, really that allows us to plug-and-play and rapidly innovate new technologies into the aircraft. so if we go to a more of an app for that approach, or with resident firm ware and hardware that is available and we really define that open architecture system of how different capabilities can plug-and-play in the aircraft, how easily it is to update the aircraft. and then one of the other opportunities is with a clean sheet design, we can design all

of this into the aircraft up front. we've had both in the h1 fleet and the h60 fleets over the last 30-plus years, we've experienced great growth and enhanced the capabilities of the aircraft. so with this in mind, we would go into capability set three planning for that growth in the feature. >> that is absolutely a great point. and you know, you talk about the sustainability of logistics foot print, there is also a threat reduction piece to that. you look at the range and speed of our current aircraft and the amount of far b that you need to sustain, every one of those, obviously it is a logistics draw, but every one of those, particularly with the advanced systems out there, threat systems, is a target. it is a draw on man power and force for protection and draw on other resources for air defense. every one of those is a target. it is not just a draw on the

logistics but a way to reduce threat with additional range and speed. you talk about open architecture. we think about an all networked aircraft. it could easily share information. think link 16 but even more so. the ability to share information. shared information shared situational awareness is its own form of threat reduction. the ability to have the open architecture and have all of our aircraft linked, sharing threats, sharing friendly location and enemy locations, mission data, et cetera, realtime simultaneously on the battlefield, that is one of the greatest aircraft survive -- survivability equipment pieces, threat reduction things that we could possibly do. and that is not to say that we won't continue to invest in direct energy systems for counter ir missiles and other counter radar systems. we are. but i can't think of no better way to reduce the threat in the modern environment than to be linked and have everyone be in

network node sharing information. and i would argue that probably that capability, that kind of digital inner operability, that is probably our greatest overmatch right now against our opponents, potential opponents. you look at some of our potential peer competitors out there, they make good hardware. they make very good tack air jets. they make good wing aircraft. but can they network them and share information realtime in a battlefield like we have the potential to do? i would argue, no, they can't. and i think that is probably our greatest potential overmatch and that is where we have the greatest advantage and we need to exploit that. that is what we're building from the ground up with this system. from cap set three to the whole family of systems, some of it backward fitted to legacy aircraft, that is going to benefit all aircraft across the joint force. that is really the direction that we need to go. and so then we spent time in the marine corp, we are building that network right now. but what we're building right

now is more of an ad hoc after the fact. what we're looking to do here with cap set three is to build from the ground up, this digital, inner operable network where we're all connected. so i think that's really going to be a huge advance for us. >> so that is a good question. and i think the two points that the gentleman had earlier honestly about sustainment and survivability are inextricably linked. so i think our sustainment in socom is linked to the services today and we are absolutely tied to the army for some of our systems and tied to the navy for some of our systems. so i think we've got some experience doing that on the sustainment side and on the survivability side where we share a lot of lessons learned across the community. i think we have those weapons open. we have to share lessons learned and not forget them during aoa.

we can't focus on the tech demonstrators that we forget about the rest of the aircraft and the requirement and that focus, those discussions, staying focused on where the threat is going, and trying to stay ahead of that, is very important. >> and i've got one more question and then we'll turn to our audience. i have to a at these future vertical lift events there is as much or more knowledge in the audience as any other gathering that we tend to have here at csis. at least on vertical lift and the technical questions. and the question, and i think this is the issue that is probably the most lively discussion this year on capitol hill and probably for a little set of years here, and probably has been already, is this issue of timeline. and how this capability, this next gen vertical lift capability is going to start to deliver into the operating force. so i just would be interested in

each of you just tackling how the timeline looks from your service perspective. when does this need to deliver -- colonel, you referenced about backward fitting some of the advances here to the existing force which seems like a key point. but if you could each talk a little bit about timeline. >> as we look at our cap set three development, we're looking to get this capability into the force in the early 30s. we've already mentioned we're currently involved in analysis of alternatives. that is going to help us refine those capabilities. and then starting in probably fy-19, fy-20, we're going to be making some decisions there on the multi-service aspect of the program, that joint trade space again. and we're going to continue to refine our requirements there. probably in the mid-20s we're going to make a decision to go

forward and build representative aircraft. our prototypes. and then we'll look at a low rate production of one of those prototypes in the late 20s. but i think the first time we're going to move into full rate production would be in the early '30s, with getting this into the field shortly thereafter. >> how does it look from the department of navy perspective? >> well, you're right, probably a lot of the audience is extraordinarily knowledgeable and more so than i am and that is why i have brilliant majors working for me, which i actually do. same things we review around 2030s, 2033, around that time is when we first start to see feet introduction. could that be earlier? it could be. it could always accelerate in -- if it becomes a priority and the funding is there.

we envision cap set three in the marine corps as replacing the hmla, or h1 yankee and those are tell live any aircraft but we're planning ahead and when you think about it, the uh1 yankee came into fleet introduction in 2008. it was a 25-year airframe. so 2033, our oldest yankees will be hitting the end of the useful life and looking to replace them with fvl cap set three and then following it again in '35 they'll start to hit their end of their useful air frame life and look to replace them. that puts us in a quandary in the interim because for us, mv22 has changed things in the marine corps and changed the game. one of the primary missions we used to do. i'm a pilot by trade, that is my background. h1ws and i tell people

[ inaudible ]. [ laughter ] one of the big missions was assault support escort, escort the ch46s. that is not a mission we can perform for the mv22. we don't have the range and speed and capability to do that. we envisioned cap set three as being able to do that. that is one of the very important things as we look forward in the marine corps as we look forward for the analysis of alternatives. >> i'll sound like a broken record a little bit but we're absolutely tied to the army on this. our fleet that became a fleet we finished fielding those in 2015. we look at 25 years from that, and that's where we're looking to absolutely line up with the army and take those new future vertical lift cap set three aircraft and apply the same types of modifications for equipment packages as necessary. really in the interim, we're going to sustain our little bird fleet and our mh 47 fleet. we're investing in those now, so

they will be relevant into 2030s and as long as we could keep them relevant until the next opportunity comes for the next capability set. >> all right. i did want to open up now to audience questions. we'll have a mic brought to you and please briefly state your name, your affiliation if you have one and make it a question. so i saw the first hand right here. >> good morning, [ inaudible ] with c power magazine. this is for colonel barranco. where in the lift reach in trip capability are looking at? you've goaltender osprey, medium lift. you're talking about phasing out your h1s, bringing in 53 kill osama of heavy lift. what range are you looking?

are you trying to do each one replacement, or heavier and longer? basically what capability are you most needing it for? >> yes, sir, that is a great question and one that gets asked often. and i think human nature is when you replace something, we try to kind of pigeon hole. the v22 is replacement for the h46 our medium lift and it is true it did replace the h46. but to compare the v22 and its capability and its size, what it can carry to the h46, it is really not apples to apples. and we have an experiencing v22 pilot here so i would defer to colonel freeman but we could fit twice as many combat troops on v-22 than on 46. the range and speed differences are well-known. but a lot of people aren't aware of that.

that it is actually not an exact replacement medium lift, it is medium lift plus. so as we look at replacing the yankee and the zulu, our initial going in cap set three, we like to be able to carry eight people. we like to carry eight marines, eight soldiers. that is a threshold. that is a threshold. the army looks at cap set three as more of a replacement for h60. h60 was kind of comparable to h46. osprey is larger than both of those aircraft and carries more people. fvl cap set three we look at it as a yankee replacement and it carries less people than the h60. this is where the trade space discussion comes in. if it carries 11 or 12 people and does the other things that the marine corps wants it to do, that is great. that is fine. we view that as a bonus. now like the osprey replacing the h46, well that is a larger pay load. that is more troops. that is not an exact one to one,

apples to apples comparison replacement. but that is fine. we would welcome that. if we were able to accomplish everything that we wanted to and have added capability to boot. that is great. eight is a threshold requirement because that is a lift capability that is no less than what we have now. with the added range and speed that we want. if we can get more of everything, that would be tremendous and we welcome that. so we present that challenge to the industry. i hope that answers your question, sir. >> obviously cost is a key factor there, if you are replacing -- it needs to be in a cost range that matches a need there, too. >> hi, sammar bell, [ inaudible ] could you address the integration of men on men

teaming and organic sensing the w capabilities from that aspect? >> so our current man-to-man teaming capabilities, we're utilizing that in our tack aircraft and our utility aircraft. we see the ability to expand that capability in order to not only really expand on the capability that we have in the apache to control different aircraft, we see that requirement throughout the family of systems, specifically capability set three. so we definitely want to continue to explore that. in line with man to man teaming, we want to explore the capability to optimally crew the vehicle. do we see fvl aircraft obviously

controlling other aircraft with the potential of controlling fvl aircraft in the future? we do. but this is one of the areas that we really want to explore and see what the capabilities are. so it goes much farther than man-to-man teaming. it gets into, as we said, the optimally crude capability of how different missions could require different crews, and just really continue to explore that and what are the potentials there. as far as advanced sensors, obviously that is something in development. and it goes back to the open architecture. the ability in the joint trade space across the services to use the same architecture, to use different sensors for the services, based on the different mission requirements and things of that nature, that is where we really see the development of that going. >> i completely agree.

it kills me to admit this, the army ahead of us on man on man teaming. you guys are. there is no question about it. we do some of it in the marine corps and we have not taken it to the degree that the army has. that is absolutely one of our goals in the future. it is something we're working right now on kind of an off air frame knee board solution. because we don't have the over architecture systems in our existing legacy platforms that we're building into fvl cap set three but we want it built into the cap set three and the optionally manned systems out there that we allow you to do that now. the marine corps is developing a group five shipboard v tall uas right now that we envision as being partnered with fvl cap set three so we look at them as working very closely and tandem and parallel as we move forward. on the sensor piece, the other thing and there are systems out there now and i don't know how specific it is, so i'm going to avoid -- avoid getting too

specific, but there are systems out there now that exist, open architecture, wave form, independent or wave form nondiscriminate that will allow us to do sensor fusion and allow us whatever our on board sensor is on fvl cap set three to send other users they confuse what they are seeing in their cockpit and what they are going from all other users on the network so that you could have either built in the cockpit on your electronic knee board a few sensor pictures from across the spectrum of users in the joint force for any objective air target air that you are interested in. and our systems right now have that capability and we're looking to incorporate that in cap set three. >> i'm richard whittle, write

for breaking defense.com. and everybody here probably sees the need for future vertical lift. some may think it is more urgent than others because taking another 15 years to get the aircraft into the fleet doesn't really seem realistic in the 21st century. but that said, there is a new sheriff coming to town. there is -- everybody is expecting the restraints to come off that have been on defense spending. the services will presumably get more money sometime soon. but what i'd like to understand or get your views on, within your services, how widely shared is the interest in this program? how widely appreciated are the benefits? because i have heard army

officers cast doubt on the idea that you need anything faster than a black hawk or an apache. i think the marine corps has developed a different attitude for the v22 and i'm curious to know, there is still a limited pot of money, doesn't matter what the new president and the new congress do. so how much of it can be really expected to get? how much -- what priority is there within the services for future vertical lift. >> let me just make one comment before i turn it over to the panel, the people you really want to hear from, a lot of the work we've done in csis recently is looked at the question of what i would call the pipeline and what is very notable about the pipeline, certainly for vertical lift, up to now and to some extent for each of the services most acutely for the army is that the pipeline is pretty empty. so the question of bringing forward capability, you have to have something in the works.

my friend general cody talks about when he was the vice chief and all of a sudden they were in a shooting war, what he was able to do was move a lot of combat capability to the field because it had been in development and there was something to accelerate. if there is nothing to accelerate and if you are starting from scratch, it is going to take a long time, no matter what you do. and no matter how much of a priority you put on it. >> let me let you hear from the panel. >> thank you. and that was a very good point. and really, as we move forward with fvl, it is about having something in the pipe there and ready to move forward with. you know, from an army perspective, we do have a requirement for increased capability. speed, range, pay load, endurance. we have some very capable aircraft in the fleet right now. and so it is a balance between

maintaining the relevancy of those aircraft that are going to be in the fleet for a while, but at the same time pursuing new capabilities that is going to give the army a operational maneuver capability and a strategic deployment capability. what capabilities the army chooses to pursue, that is well above my pay grade as a requirements developer. we are charged with talking to our users and developing a capability that we have sitting there in the pipeline ready to go. so as far as looking at the army capabilities, we have a very capable fleet and we need to maintain that capability and also we have a requirement for the future to enhance that capability through fvl. >> so i can add on to that just a little bit from the so com perspective.

i think we have to look at what priorities now and what are the priorities in the future and i think wise investments as we watch -- as the army leads the effort, those wise investments could pay off in the future and i think there is a recognition of that within the socom and you asked about the interest and the benefits, there is definitely interest and definitely benefits but i think the timing of the investments is what will matter once we see where the technology is with the demonstrators. >> back here on the aisle. >> i don't know about that. your question, sir, and you hear different what, is the commitment of the marine corps and you hear different voices in the army. that is good. it is natural. we -- everybody within the services welcomes different opinions. we're building doctrine for the future. as we have always done, we're

coming out of a war, in this case over a decade plus of war, and it was a -- a relatively low intensity counter-insurgency effort. we have a tendency to rehash and refight the last war. we're looking forward with reemerging threats and reemerging potential competitors and are there different opinions an are strategies and opinions continuing to form, they are. we are trying to develop our doctrine, our concept for the future. and as always, the future is unknown. so, yes, i think there are different perspectives in the services and within the respective services. but right now the commitment to fvl within the army, socom and the marine corps, cap set three is very strong. and i anticipate us continuing to move forward as doctrine continues to form.

and whatever that finally looks like, we know that the threat is growing and the capability that we're going to need in the future is more than we have now. that much we agree on. the nuances of where the trade space is and what the final fvl cap set three looks like and system looks like, i don't want to say those are small details, they are not. but we all know that we need to advance our capabilities. that we agree on. so i don't know if that was out of the park. >> i can't resist making one other point that really came up from what you were saying, we had an event here yesterday focused on invasion. and the doctor from darpa was one of the panelists. she made the point that really sort of game-changing innovation, a lot of times it is nbo