appropriately cabined in the areas that are aligned with that information assurance mission. so we build in a number of protections to make sure we stay on the right side of privacy. the last thing that we do is strive as you suggested, ellen, for as much transparency as possible. now, complete transparency is not possible here because there's a lot of classified information and those sorts of things. but the administration and d.h.s. have both moved very far forward. we have published privacy impact assessments on both the initial foray into the space for einstein i which is a flow monitor that just looks at the traffic, the privacy impactment assessment for einstein ii and then we published an unclassified p.i.a., privacy impact assessment, for the exercise we've got going to test out intrusion in a prevention system. ..

i don't believe personally that the market is going to take us all the way we need to go to protect national and homeland security. no other sphere do we rely exclusively on the market to protect national and homeland security. that doesn't mean we are going to need intrusive incentive-skewing regulations across the board. but we need a national dialogue on what steps we need to take to make sure those needs are met. we have been working with the private sector on things surf as incentives and other recommendations that would be appropriate. i think we need to think through what is the most effective way to make sure that

those needs are met. i would also say it is a bit of a straw man to say regulations should be revoked. most vitt cal infrastructure sectors are regulated. there are cybersecurity regulations that are included. to give one example, d.h.s. is responsible for regulating the chemical sector. that is a risk-based sector that includes a risk-based performance standard for cybersecurity. it is not whether there should be regulations or not and how they should be used. >> thank you for this introduction to cyber security. >> thank you. >> the senate returns on monday at 2:00 eastern to continue

work on the financial regulations bill. votes on several amendments are scheduled to get underway around 5:30 eastern. we expect majority leader hear read to file a -- harry reid to file a motion to limit the number of bills. follow the vot live on c-span 2. the house returns at tuesday at 2:00 eastern with debates on self bills. also next week, the chamber plans to return to legislation that re-authorizes science and technology programs. the house also takes up a bill that extends tax credits for businesses and unemployment benefits. the house is live on c-span. >> watch this week's hearings on the gulf of mexico oil spoil, or look back at the exxon valdez hearings from 1989

at the new c-span library, over 160,000 hours of searchable programming. it is washington your way, search it, walsh it, share it and clip it. every program since 1987 available free, online. >> this is c-span's "america and the courts." earlier this month, supreme court nominee, elena kagan moderated a discussion on the recent term. she spoke at the sixth circuit judicial yelps in ohio and was joined by former u.s. solicitor general paul clement. if confirmed, she will replace retiring justice john paul stevens. this is two hours. >> good morning, ladies and gentlemen. it is my privilege this morning to welcome all of you to the

70th sixth circuit conference. i am quite sure i am right about this, the biggest one we have ever had. if you don't all fit in the room, we are sorry. [laughter] a tremendous amount of work and planning has gone into this, and at this point i sort of feel old enough that i could have been at every one of these 70 conferences, but honestly i'm not. but i can assure you that having observed and to a lesser extent participated in the planning and preparations for this conference, it has been an enormous undertaking, and at best we are only crossing the starting line at this point. he would encourage each one of you in your comings and goings over the next couple of days, when you encounter clarence

moderate objection, and alison and his wonderful assistants who are at the registration tables and virtually everywhere else where something needs to be done, to express your gratitude for everything they have put into this. similarly i want to challenge judges jeff sutton and guy cole, the coceres for this event -- the co-chairs for this event. they have coming up with speakers and a set of programs that are absolutely outstanding. if i've learned anything over the years, the popularity of the speaker is inversely proportional to the amount of time they speak. if you have a cell phone,

blackberry, i phone or anything else that makes annoying noises, we would appreciate they be turned off. if anyone has any security concerns at all during this conference, the united states marshals have a presence in meeting room 22 on this floor. if you see any of the marshals, do take the opportunity to thank them for their service. this can't be the most exciting duty post that they ever encountered. i want to remind everyone to please wear or otherwise display your conference badge at the conference and the banquet. this is a security matter. so everyone is aware, and there is no way you couldn't be, portions of this conference will be taped by c-span and cbs. although this morning is the formal opening of this year's conference, we have already had

a great foretaste. yesterday afternoon we were treated to a wonderful presentation by the senior vice president of the metropolitan museum of art on the speech by abraham lincoln when he visited the ohio state house in 1859. i have certified that on very infrequently have nongovernmental groups be allowed to assemble there. our thanks to them. i don't think i have ever seen that much seafood in my place in my life. the conference always benefits from the participation of the life members, and it's a fact that after you go to that reception, you don't need to go to dinner, although i notice that most people do anyway. we want to thank tom schuchat and the life members committee for arranging that reception and all of the life members for

making that possible. this morning i want to make special mention of the fact that justice sfeefs is with us again this year but for the last time as our circuit justice. he has been a faithful tendee as our circuit justice for many years. i am sort of tempted to say, but it is not accurate, that the mind of man run eth not to the contrary. but as you know, he has recently announced his well-deserved and well-earned retirement, which will commence at the conclusion of this supreme court term. we look forward to the interview with justice stevens that will take place, and at that point we will introduce him with all the appropriate bells and whistles. and should he decide that retirement is less appealing, the sixth circuit extends to

him the warm invitation to come back and sit with us and perhaps subject himself to review from some of his former colleagues. [laughter] >> and we are extremely honored that we will have both the attorney general, eric holder and the chief justice of the united states addressing us later on in the day. with that, it's time to begin the first session of this 70th sixth circuit judicial conference. the supreme court update, presented this year by a panel moderated by elena kagan. ms. kagan doesn't have any reason to know this, but she and i actually have something in common. when she had not yet reached the age of 40, she was nominated to the federal court, where she learned the wonders of the judicial selection process and the definition of the word soon in the context of that process, which pretty much

means between now and the time of your natural death. >> maybe. >> and sometimes in that process, and maybe your natural death, if it gets bad enough, did you at some point during that process she saw her future as a federal judge at least at that point disappear. so i suspect that she would have been entirely able to sympathize with me in my experience many years before that when i was undergoing the same judicial selection process . one evening i got the definitive telephone call that i was not going to become a federal judge. i was at home that evening watching "monday night football," and after taking that phone call, i went back into the library just in time to see frank gifford describe the last play, which was a blocked punt, and i wrote this down.

he said if he had been where that ball would have gone, he might have gotten it. i thought, that's me! [laughter] well, ms. kagan went on to bigger and better things, becoming a tenured professor and dean of the harvard law school. i could point out that is considerably more renissan tiff than becoming a federal judge. a graduate of princeton, a graduate of harvard law. professor of chicago law and professor and dean at harvard law. i am sure she knows that solicitor general is the only officer of the united states required by statute to be in the words of the statute, learned in the law. now i don't want to be stepping on any toes, particularly looking forward to lunch today,

but the fact is that although the judiciary act of 1789 did require that the attorney general be learned in the law, with the creation of the office of solicitor general in 1870, that requirement was dispensed with. [laughter] >> maybe it is the requirement that you be learned in the law that explains the letter some 70 years ago that was delivered without incident or delay to then solicitor general robert jackson, which was addressed, the slestial general, washington, d.c. >> that would be the same robert jackson who became a justice of the supreme court, where he famously wrote a accidenting >> dissenting opinion as a win fall as anything left to the taxpayer.

in any event. slestial or not, she now finds herself on the short list to fill the vacancy left by justice stevens. this is a mixed blessing for us. we will have to be understanding and anesthetic should she opt to be a bit circumspect in expressing her views on the topic at hand or anything else. but that is not moderating the honor she does us in moderating this panel. ladies and gentlemen, the solicitor general of the united states, elena kagan. [applause] >> thank you so much. thank you for the invitation. thank you, judge, for that

wonderful introduction. i'm not even going to attempt to be that funny. we have two terrific panelists here to discuss the supreme court term so far. and as the judge says, i will moderate the proceedings. i figure in my regular life, i answer questions all the time, and so it was actually something of a relief when she said we have a great gig for you. you don't have to answer any questions. you can just do the asking of them. i said i would be delighted to do that. we have two marvelous people here who know an extraordinary amount about the supreme court. to my immediate left is the founding dean of the university of california irvine school of law. as a former dean myself, i can

tell you that just dean-ing is hard enough. but to be the founding dean of a law school is a special kind of challenge. and he is doing a simply extraordinary job. it is the talk of the law school world, in fact, what is going on at the university of california-irvin and how quickly he has put the law school on the map and the extraordinary things he is doing there. all of us in legal education look forward to an absolutely spectacular deanship from him. previously he taught at duke law school, and before that at the university of california school of law. his sexeer tees is federal practice, civil rights and appellate litigation.

he has engaged in numerous pro bono practice activities. inincluding arguing before the supreme court and appellate courts of the united states. he played a role in drafting a new city charter for los angeles. i am pleased to welcome the dean. [applause] >> and paul clement is the head of the appellate practice currently at king and spaulding. but before that, he was the 43rd solicitor general of the united states from june of 2005 until june of 2008. three years is actually a pretty good stint in the solicitor general's office as solicitor general. in fact, former general clement's practice in the office goes back way before that. he served for nearly a year as

acting solicitor general, and he served as principal deputy solicitor general for over three years. i just said to paul prior to this panel, i just came from the seventh circuit conference, and i will tell you that if the exetegs were one of attendance, you win. >> but i was introduced at that conference by judge easterbrook, and the judge introduced me as having the second best legal job in america. he went on to say the first best legal job in america was to be the deputy solicitor general, and paul clement has done both. his more than seven years of service in the office of solicitor general is actually the longest period of continuous service in that office since the 19th century. he has argued over 50 cases

before the united states supreme court. he is one of the incredibly tiny group of people who can claim they have argued more cases than they have years on the planet. did you reach cases or 40 years first? >> 40 years, unfortunately. >> too bad. 50 cases, and more than the number, paul complement is known at the supreme court and across the supreme court bar as simply the gold standard in supreme court argument. the solicitor general's following pool is always questioning that. are you as good as paul clement , and the answer is going to be invariably no. this is a fabulous panel, and

we will get right to it. the way we are going to work this is we've split up the supreme court term into various practice areas, and eitherer win or paul will speak for 10 minutes about each practice area and then turn it over to the other person. we will go through a number of practice areas in that fashion, and i hope we will have more than sufficient time to open up the session to some questions from the floor. before we go into particular subjects, maybe if we could do a little bit of discussion of just sort of general themes about this term and the court, what has happened so far, and what you might expect to happen. and maybe in the context of that, you could also talk a little bit about the change of personnel that we did see in the court.

we have a new justice, justice sotomayor, and whether that has affected anything, and if so, how. >> i will call on erwin first. >> thank you so much. thank you for the kind sbrougs. it is a pleasure to be at this conference again, and an honor being here sitting between the current solicitor general and the previous solicitor general. i feel like the answer to the says my three question which of these things doesn't belong. over a five-year period, there will be four new justices on the supreme court. we have gone through a long stretch of no new justices, and now not quite half of the justices will be replaced by justices. once more it is the anthony m. kennedy court. if you look at each of the

prior foreyears of the roberts court, anthony m. kennedy has been in the majority of more 5-4 decisions. last year, kennedy was in the majority of 92% of the cases. the most of any justices. last year 73 cases were zed, 23 were 5-4 decisions, and kennedy was in the majority in 18, the most of any justice. i think you can get the best sense of-year all ideology of the roberts court by focusing on the 5-4 decisions where the justices are split along ideological lines. last year, there were 16 of them on one tile, roberts, -- as kennedy was with the conservatives in 11 out of 16 and with the liberals in five

out of the 16. that was the pattern. kennedy sides with the conservatives more than twice as often as with the liberals. the most important one in this term, citizens united. the same thing. all the lawyers who appear before the court are aware of this. i filed a brief in the court, and frankly it was a shameless attempt to pander to justice kennedy. if i could have put justice kennedy's picture on the front of the brief, i would have done it this. justice sotomayor's presence doesn't change the makeup of the court. she might have her greatest effect behind closed doors. maybe she can persuade anthony

m. kennedy in cases where david couldn't. in the long-term, justice sotomayor and the new justice could be part of a majority that could change the ideology of the court. >> let me also thank you for the wonderful introduction, and let me echo that i am so happy to be here and part of this panel. let me pick up where he left off and say there is certainly a great deal of truth to the idea that in so many cases, justice kennedy holds the critical vote. let me say one thing that reinforces that and one thing that cuts other way. it may be that justice kennedy's prominence on the court in these 5-4 opinions will become even more, if that

is possible, prominent in the wake of justice stevens' retirement. in addition to casting the critical vote, it will now be the case in every case in which justice kennedy and the chief justice and justice scalia disagrea, i.e., in every case where justice kennedy sides with what might loosely be described as the liberal side of the vote. to the extent he is inclined to keep the opinion and write it for himself, that will be his option. the one area of the law where the 5-4 where is justice kennedy going to come out dynamic does not hold true increasingly is the criminal docket of the court. in an unusual twist for those that don't watch the court very closely, in some ways on the criminal docket, the key swing vote is actually justice

scalia. there are a number of cases, sixth amendment cases, cases involving the confrontation clause, where justice scalia has really been the criminal defendant's best friend. he along with justice stevens have fashioned an unusual majority. typically when justice souter was on the court they stayed together. those cases are worth focusing on because as he said in the main, i think the consensus in washington and other places is that these -- justice sotomayor's replacement of justice souter and a replacement of justice stevens may not change the dynamic in some of the 5-4 cases that divide along traditional lines.

on the other hand, in some of these criminal cases and the confrontation clause cases, it is possible that a substitution of justice souter and stevens may impact the court's direction in those cases. i would be the last person who would claim to be privy to the obama administration's selection process, but i rather doubt the litmus test applied is the prendi test or the crawford test. i do think these cases will be an interesting area to watch as the court moves forward. let me finish with two other thoughts. one is to foreshadow a bit. one area where we may see an interesting alliance son the criminal side is on the honor services fraud cases, which we are going to discuss later. the last thing i will say is to pay attribute to justice

stevens. i think it will be -- you can't talk about justice stevens leaving the court and the impact that that will have on the court in the sort of simplistic terms that, well, he will be replaced by a president who, if he gets the kind of nominee he is looking for, there won't be a change in the bottom line in my cases. you can't underestimate the influence that justice stevens has on his colleagues, the way he proceeds, the wisdom of all those years on the federal bench, his gift for seeing a way to five justices for a proposition. i really think that it will be almost impossible for the president to replace all that wisdom, the fact that he is the senior associate justice. there are a lot of different ways you could point to that. given the way that i've been making my living the last couple of years, what presents

itself to me is his presence in oral argument. he approaches an issue and asks the question in a nice way, and a lot of times the candidate has a knife in their back before they have realized what has happened to them. he has a way of getting to the nub of the case, and that is going to be something really impossible to replace. >> that is for sure. justice stevens' typical first line when he asks a question is may i ask a question? no, justice stevens. [laughter] but this remarkable politeness, courtesy. he has this incredibly lovely manner on the bench. his questions just stop you in your traction and make you realize that you cooperate get

to the place that you were really hoping to go -- couldn't get to the place you were hoping to go. i think advocates find this, that his questions are expressed most politely, but are as deep, penetrating and effective as any asked from the bench. he is a man of extraordinary talents, and that among them, in terms of changing the focus, changing the flow of an argument. if i could, before we get to particular areas, erwin started by talking about the typical 5-4 cases. paul, you had one of those cases this year, which was the kenny a. case. i don't know if you want to describe that case now or later, but if you could talk about what it means when you have one of these cases, that you just sort of know from the start is going to depend on

justice kennedy's vote, how that means you argue a case like that? >> we will talk about the sort of substance of kenny a. in a bit, but to answer the process question of how you approach one of these cases where you think justice kennedy holds the balance, i think the key is to obviously try to craft an argument is that is going to attract his vote but at the same time not lose sight of the fact that he is only one justice, and you have to build a coalition of five justices to get the result you want in a case. i think that case may also be a case that illustrates that sometimes justice kennedy can affect the dynamic of a case independent of kind of where he comes down in the final resolution, which is to see i look at the kenny a. case and the way it was argued, and the way that the oral argument came down, and it seemed like

justice kennedy was really wrestling with the issue and thought it was a very difficult issue. without getting into the substance of the case now, on the question presented in the case, which is whether you could ever have enhancements above the load star amount in a attorney's fees case, the cord decided 9-0 by my count that you could have enhancements. from the oral argument itself, it is not clear that nine judges were there for oral argument. there were some justices that seemed to think the simpler bright line rule was is imply that you could never have an amount before the load star amount. i think the fact that justice kennedy was not persuaded that that bright line no enhancements rule should carry the day not only affected his

opinion, but carried the way that all nine judges awe greed in that case. the bottom line is the key is you have to have a focus on justice kennedy, but you can't lose sight of the other justices. we will talk about a case that you argued, elena, the salazar case, which is a good example of a situation where justice kennedy may be the determinative fifth vote, but it is not as simple as just getting his vote, but you have to get a coalition of five judges who may have differing views, and that is what you did. >> let's talk about some cases. it has been a big first amendment term, citizens united principally, but stevens and the humanitarian law project. >> no matter what else the supreme court decides this

year, citizens united versus the federal election commission will be the most important decision. elena argued it well. if my 11-year-old daughter had argued the case, it was going to come out 5-4. it just shows you what a brilliant advocate can do. the opinion was 157 pages long. this reflects a trend. as the size of the docket has gone down, the length of the opinions has gone up. it is not unusual to have opinions of this length. one of the things i have to do every summer is edit down cases for our case books. there is no way to edit down a 157-page opinion for law students in one night. i am starting a new campaign. word and page limits should be imposed on supreme court

opinions. [laughter] everyone is familiar with the case. it involved about the mccain- fine gold finance campaigns. it prevented such ads over the broadcast media 30 days before the general election. the supreme court declared this provision unconstitutional. kennedy writing for the court, and the court split along now-familiar ideological lines. i thought i would talk about the significance because it is such an important case in terms of the police system, in terms of the doctrine of the first amendment. in terms of the political system, i think it is going to be a long time before we can fully assess what it means when corporations and unions can spend as much as they want for the candidates they want to get

elected or defeated. there are some who say it might not have that much of an affect. they point to the states that have allowed such spending and said it hasn't seemed to have a dramatic consequence. on the other hand there are those who believe the ability of corporate wealth has a tremendous distorting effect of the american political system. my own concern will be what will it mean in judicial elections, especially in states where increasingly large amounts of money are spent to get people elected for the bench or defeated for the bench? what might it mean for local elections where a particular corporation has the ability to outspend all others to get those they want elected or those they opposed defeated. it has great significance on a doctrinal level. three years ago in another case, the same five justices in the majority, again with justice kennedy writing, said

that the first amendment protects only the rights of speech as, quote, citizens. there the supreme court said there is no first amendment protection for the speech of government employees on the job in the scope of their duties. now the supreme court has said that corporations have the same free speech rights as individuals. the court once more said that spending money in election campaigns is core political speech. what will this mean for other dobtrins of the first amendment and other laws restricting corporate union spending. this case involved independent expenditures. there is a federal law that says corporations cannot contribute money to candidates for elective office. and unions can't contribute money to candidates for federal elective office. can that survive at citizens united? justices scalia, kennedy and

thomas had previous expressed they think that is unconstitutional. this case suggestion that justice roberts and alito will likely be with them. what will that mean if corporations and companies can contribute money, not just spend money independently? are there five votes to say that all restrictions on corey buickses are unconstitutional. one of the pillars of buckley case in 1976 is that the government can restrict contributions, but not expenditures. here the supreme court has expressed the view that that aspect of buckley should be overruled. my guess is there are five votes for that. it is notable that in citizens united, the court upheld the disclosure requirements by an 8-1 margin. i think the case is important on a injures prudence level.

what does this say about precedent in the roberts court? in january of 2003, the supreme court, mcconnell versus the federal election commission upheld the same thing. what changed over seven years? did the court find some musty history that led it to believe it made a miss take? >> no, it was 5-4. justice owe connor had been replaced by justice alito, and that led to the reversal. >> we are going to hear a lot of discussion in the next couple of months about liberal judicial activism. i have been skeptical of that phrase. i thought it was a phrase that people use for decisions they

don't like that. if we come up with a definition we might say well, the court is being active if it is overturning a law, restrained if it is up holding. it is active if it decides broadly, restrained if it decides narrowly. it is active if it is protecting rights that represent in the text or intended by the framer. restrained if adhering to the framers. i think brown versus the board of education would be a very active decision. that is the exemplar of what the supreme court should be about. so activism in this case is disruptive, not norm tiff. in this deaf yigs, citizens united is breathtaking in its activism. it overturned another case that

allowed the government to restrict campaign spending. the court could have decided this case a year ago on narrow terms, but chose instead ask for rebriefing and reargument. here i have to disagree with justice scalia's concurring opinion. i find it very hard to find in the constitution the right of corporations to spend an unlimbed amount of money in elections. to me it suggestion that judicial activists can exist on the left or the right. the second case is united states versus stevens. >> before you go on, could i include paul in this discussion on citizens united, that maybe it is such an important case, we should you could r talk about that. >> sure.

my own involvement in the court's campaign finance injures prunes goes back white a way. this aspect of citizens united goes on the increasing list of cases that i argued and prevailed in a case only to have the court later revisit the issue. it is an issue i have been dealing with for a while. i would say a couple of things about this area of the law. when citizens united came down, especially after the supplemental briefing order was issued, there was no great surprise that the court divided 5-4. i think the only spends left in the supplemental briefing order teeing up the continued vitality of mcconnell and austin on this point really -- the only real issue is whether the court would strike down title 2 on its face or as

applied. in that sense, it wasn't any great suspense that the court did what it did. in some ways you could look at this case and say these five justices could really kind of take the law in a very different direction in a lot of different areas. one reason why it would be a miss take to overreact, there are very few areas that justice kennedy feels as strongly about and as strongly that there should be bright line rules as in the first amendment context. if you look back, he has always been consistently very strong about taking a pro-first amendment view in the campaign finance area. austin is a relatively old precedent, but it is not so old that justice kennedy was not on the court when it issued. he was in dissent in austin,

and this is one area where he has charted a course from the beginning. i argued other cases regarding other provisions of the mccain-fine gold when alito coming on the court. those were cases where the government defending the statute lost 5-4. it is clear there are five justices on these independent expenditure issues where they feel very much that the first amendment should prevail. that said, i am not sure that is going to necessarily spread to other areas even to campaign finance law. the first case i argued was a case called beaumont. the court was 7-2, including justice kennedy, distinguished contributions from independent expenditures. so it is less clear to me that the court will continue to extend this rule about independent expenditures to contributions. i think in some sense the

undercurrent of the decision is that independent expenditures do not present the same kind of questioned pro quo that contributions do. and quid pro quo is one area that the court will continue to recognize. let me say one other thing about citizens united and that trying to capture the dynamic. the president criticized this decision in his state of the union. it is something that he and his spokes people have continued to push. it is an issue to where kind of an unusual degree the court has been criticized in the public process as being out of touch. the one thing i would say is that i really think the five justices in the majority could care less. the chief justice might have taken umbrage at the location at which the president leveled

that criticism. but i think that the reason the justices in the majority don't care about this criticism, they would say this is not an activist decision. they would say it when an act of congress is struck down. here the first amendment is relevant in their view. i think when they are vindicating the first amendment in what they view as a counter majorityarian way, they think that is exactly why we are here, to enforce that in these situations. >> erwin, go on and tell us more about the first amendment. >> sure, the other case i was to address was the united states verse stevens. it involved a provision of federal law that outlaws selling, possessing or

distributing pictures of animal cruelty. the first circuit found that violated the first amendment. the supreme court affirmed. chief roberts writing for the agreement. they said it was an analogy to child pornography. they said the government can ban possession of child pornography as a way to drive the market. the government said likewise, in order to protect animals being used in these snuff films, the government can issue punishment. chief justice roberts rejected that argument. he said the government of course can punish animal cruelty, but it is very different to punish speech about it or pictures of it. the court refused to create a new categorical exception as it

did for child pornography, and it refused to accept the argument that a constant restriction of speech would meet strict scrutiny. right after this case was decided, the supreme court agreed to hear a case next year involving a california law that prohibits renting or selling violent videogames to minors under the age of 18. here again the court is going be to asked to create and recognize new categories. never before has the supreme court dealt with the medium of videogames. surprisingly, the supreme court hasn't dealt with violence in the first amendment context. as i think about with citizens united and not wanting to create new exceptions from the first amendment lead me to

wonder what they are going to do next year in this new area, violent videogames. >> as you said, the government's principle argument in stevens was it was like ferebe, that it was meant to address and indeed the only way of addressing the underlying conduct, as opposed to the depictions of that conduct. what is your understanding of why the majority rejected that view? is it just the difference between children-and-mals? was it something else? does it express something like a dislike of ferber itself? >> i think it is the difference between children and animals. there is such a compelling difference in protecting children. there is no way to be able to dry up the market for child pornography without punishing

possession. the court is afraid to go forward further with that. what about the other things that are undesirable? if we can ban the speech, it would go against the activity. >> holder involves a provision of law, 18 united states code, and it prohibits the knowing provision of any service, training, expert advice, assistance to people envaging in tariffs activities. in 2004, congress amended the statute to clarify some of the definitions. the ninth circuit found that the training and service parts of the statute were still imper miserably vague.

the the concern here is could it be applied to a group seeking to provide humanitarian assistance? what does the word knowing mean in this context. they urged the supreme court that even if it is vague, the court should find within the statute an intent requirement. the statute is important in many terrorism prosecutions. the first time the supreme court has dealt with the first amendment in the context of the war on terror. there have been a number of supreme court cases involving detentions and military tribunals, most of these that paul argued expertly. but this is the first time the supreme court has dealt with it in the context of the first amendment and a statute that is used for so many of these prosecutions. >> paul? >> i just wanted to up to date score the point he made about

the humanitarian law project. if you think about the government's response to terrorism in the wake of 9/11, both was was done on the military detention side of the ledger, but also what congress did in trying to amend the statute, they are really responding to the same impulse, which is that in confronting terrorism where you have acts of violence with such prem potential damage, including acts in which the individuals will take their own life in the process of creating all these other casualties, in that context, the normal criminal process and its insting that the way you -- ins contingent with the way -- instinct on the way you deal with criminal acts is not responsive. you want to deal with it earlier.

the effort there was to go outside the normal article three process and to detain people preventatively based on something less than you would have to show under an article threesome. the other way to go in an article threesome is to try to define criminal activity in a way that essentially allows you to get at activities that are more incoate than the regular system. you try prohibit material support of terrorism. i think that any way you try to deal with pushing the horizon out of trying to deal with crimes before they occur, or trying to deal with preview take tiff -- preventative efforts is the way to deal with it. i think it is interesting that the court is confronting this issue already having deny with

the preventative detention cases on the military side of things. >> paul, can you ask you to go out on a limb and ask you how you think it will come out? >> you can ask me, but that doesn't mean i have to answer. i honestly don't know. i would love to know your perspective since you argued it. my read of the transcript is you did a wonderful job and that the court was hard to read. i ly don't know how the court will come out. >> it was actually a case which is unusual on some of the kinds of cases that the s.g. argues. some of those cases are the typical 5-4 cases where one part of the court is giving one lawyer a hard time and the other part of the court is giving the other lawyer a hard time, and you are trying to figure out who might hold the balance. but i think this was a case where the entire court was struggling over the issue and

where all the justices were asking very pointed questions to both me and david cole, and everybody was trying to grapple with the very hard issues that you have described in the case. >> paul, talk a little bit about some of the other first amendment cases that the court has heard this year not involving pure speech questions. >> i would be happy to do that, and i want to start with another case you argued very well, the salazar case. congratulations for prevailing 5-4. the salazar case is a case about the war memorial cross in the desert. the most obvious point is this case reinforces that no area of constitutional law has the same capacity to divide and really splinter the court as the

establishment clause. this is a case that i counted up ultimately as being 5-4, the nine justices in this case produced six different opinions, but did not produce a majority opinion for the court. that is actually a reasonably patter pattern in establishment cases in the past few years. to make matters more confusing, the disposition on which i do think it was ultimately 5-4 was to remand this case to the lower court to reconsider its injunction. the lower courts had enjoined an act of congress that would have transferred the cross from public land to private land. that was enjoined by the lower courts, and so the disposition of the case is to revert and remand the case to the district

court to reconsider that. even though that was the disposition, as far as i can tell from the opinions, only one justice actually favored a remand. the other eight justices in the case were really ready to decide this case. now i will let people guess who that one justice was. it was indeed justice kennedy who wrote the lead opinion that announced the judgment of the court to remand the case. to give you a flavor of the lineup of judges, let me first reinforce the background of the case. the procedural history of this case made this more complicated than your average establishment clause case. there was an original challenge to this cross, this war memorial in the desert, and the ninth circuit had held that the display of this on public land was unconstitutional, a violation of the establishment clause. its remedy was the government had to take down the cross.

congress seeing this and seeing the prospect of federal authorities of taking down a cross in a long-standing war memorial thought about transferring the land to the v.f.w. while at the same time continuing to recognize this as a national war memorial. the lower courts enjoined that act of congress. the case came up to the supreme court. the justices in addition to wrestling with the establishment clause shuse had to decide to what extent the underlying case was before the court. the justices seemed to have said that all they were looking at was the land transfer statute. two justices, justice kennedy and the chief justice, joined in full in an opinion that strongly suggested that the display was constitutional, but the exact disposition was that the district cour