supreme court history, so that we can forever preserve the significant and scholarly work which we introduce to oor members. this is made possible by the generosity of our trustees, members, and other generous donors. tonight, this program is being televised by c-span and will be reproduced for viewers at a later date. tonight, as always, our programs are hosted by the justices of the supreme court. we cannot be in this room without their gracious support. tonight's host is justice john robbins. there will be no extended

introduction. he does not need one. [laughter] i really do not want to risk contempt of court. there will be no extended introduction, however, i would be remiss if i did not say publicly that long before he ascended to the bench, a chain of justice roberts was faced strong supporter of this society. we are deeply in his debt. it is my honor to present to you chief justice john f. roberts. [applause] >> thank you very much. i did not know what ralph was going to do. i had a case yesterday involving those.

good evening. welcome to the court. thank you for joining us on this beautiful spring evening. this is the second lecture in a four part series on the supreme court and separation of powers. as ralph noted, the series is supported by the supreme court historical society. we appreciate all that the society does to promote pnderstanding of the supreme court and our nation's constitutional form of government. these lectures or an example of the society's great programs. tonight, we will talk about the appointment process. it is a timely topic. justice stevens has announced is imminent retirement. justice stevens -- it is justin scott stevens and 90th birthday. he was on the bench today by my

side, not only working, but making sure that the lawyers before us urged their pay. professor barbara. has a very distinguished resonate. she is a professor of government where she has taught since 1989. she is also the director of the center for civic renewal which fosters effective citizen engagement for enhancing understanding of the american constitutional system. she received her degree from the university of little, her master's at the university of oxford. i've learned a short time ago -- her works and crude her works

include "the supremes." professor. served with the court from 1984 to 1995. please join me in welcoming a per professorry. -- welcome -- welcoming professor perry. [applause] >> thank you for our kind introduction and for honoring us with your presence. when i appeared in the court in 1994, it was an honor to serve with chief justice rehnquist. my mentor is here thii evening. he taught me everything i know about judicial appointments.

his book is now in its fifth edition. it is the definitive work on supreme court nomination. i would like to thank my long time friends and students who have come here this evening. many came all the way from sweetbrier. some of you may have heard about a recent speech given across the street in which a resident of a large white house at the opposite end of pennsylvaniaa avenue inadvertently advertise the theme of our lecture series by announcing his separation of powers between the branches of the government. i must admit that the theory tends to make my students eyes glaze over. no wonder that a poll conducted several years ago revealed that many americans identified the

three branches of government as follows, republicans, democrats, and independence. at the time of the survey, i served on an advisory committee and was grateful that the president had chosen separation of powers as the focus of his tenure. obviously, our work was cut out with us. how unfortunate that ameriians have so little and understanding of our constitutional structure. a noted british author on separation of powers observed that the principles of dividing government authority along botulinus accurately attempted a paradox. freedom rules, but government is lost liberty. each branch of the government3

of its own function and not be allowed to encroach upon the functions of other branches. in this way, each of the branches will be a check to the others and no single group of people will be able to control the machinery of the state. no political scientist could begin a separation of powers discussion without referring to james madison. he describes a need for what he called the necessary petition of power among the several departments. departments was the word that he used for branches of government. by contriving the interior structure of the garment, madison argued, its individual parts will keep each other in its proper places. the father of the constitution explained that the distinct exercise of the different powers of government is essential to the preservation of liberty. he said that each department should have the will of its own

and the members of each should have as little gency as possible in the appointment of the members of others. in theory, madison suggested, all appointments should flow to the people. he+ recognized practices that hd to deviate from these principles. he called peculiar qualifications being essential in the members, the primary consideration should be to select the mode of choice that best secured debt qualifications. because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on of 40 confering them. at the philadelphia convention in 1787, the framers of the constitution spent more time discussing the process of judicial selection than the

criteria for choosing federal judges. according to madison's conviction that, the delegates initial -- initially considered appointments by the national legislature. james wilson, pennsylvania's representative, oppose the proposal. he argued that intrigue, impartiality, and concealment resulted from judicial appointment by the legislatures. the primary reason for creating a single executive, wilson reminded his colleagues, was so that one official would be responsible for nomination. john rutledge of south carolina who chaired the committee countered that granting so great a power to any single person would cause the people to think that we are leaning towards market. rutledge would receive two appointments from president george washington to serve on the u.s. supreme court. he resigned his associate justice seat before the court ever convened to accept an

appointment on the south carolina supreme court. congress failed to confirm his a recess appointment in 1795 after he had already served five months. madison proposed legislative selection of judges. he said that the danger of intrigue and impartiality, many of the legislatures of members were not judges of these qualifications. he did not want the executives to have the full appointment power. according to his notes on the convention, madison was inclined to give the power of judicial appointment to the senate because its members would be sufficiently stable, -- would be stable and independent to follow their judgment. even a founding father cannot be right all [laughter] the time. at this point, benjamin franklin

offered an entertaining antidote to break the tension. franklin described the scottish method of allowing lawyers to select members of their own profession to sit on the bench. the possibility of dividing the newly suggested judges practice among themselves always motivated the scottish lawyers to motivate -- nominate the most qualified members of the bar who would have the most lucrative legal practice. not a bad idea. midway to the convention, nathaniel gorham suggested that several judges be appointed by executives with the consent of the senate. madison proposed a variation on gorham's idea. he wanted a concurrence of one- third of the legislature's open house. this would unite the advantage of possibility in the executive with the security afforded to the second branch against any

corrupt nomination by the executives. in judicial appointments, the convention moved towards a variation on the theme of separation of powers that included another crucial component of american constitutionalism, namely checks and balances. the branches would enter act in a contrapuntal mode. the great security against the gradual concentration of the several hours in the same departments consistent to those who administer each department to resist encroachment of the others. or, as he famously expressed, ambition must be made to counteract ambition. the interest of the men must be connected with the constitutional rights of the place. in the waning days of the philadelphia convention on september 7, 1787, the delegates

settled on a compromise for selecting judges for the supreme court. three presidential nomination with apartment contingent upon the senate's prerogatives. madison made reference to these qualifications for judges at the convention. the u.s. constitution is a wholly silent on criteria for selecting members of the u.s. supreme court. what's more, we can turn to the federalist papers. this time, alexander hamilton and several comments on the importance of merit in the selection process and the necessity "choosing men who are best qualified for their respective offices. he was more specific than the document he was expanding. integrity and the knowledge of lost acquire through long and laborious steady were his only

expressed elements of the general criteria of merit. when jennifer lowe invited me to deliver this talk on supreme court appointments, she asked how i would know that i would be piven this talk when we were -pconsidering a new justice. i said it was arbitrary. i was elated to get the call. i have written and spoken on this topic four years going back century ago.tation a quarter-%- i have read volumes on the role of the president and the senate in nominations. it occurred to me that speaking for the supreme court historical society at the supreme court might require speaking about the court. i inquired of jennifer, is there a particular approach would like -pme to take? she responded rather regal the, what role has the court played

in appointments? has it been a bystander or an active participant? for a moment, much potential -- my professional life flashed before my eyes. i had been invited to give a talk at the u.s. supreme court with the chief justice and other important dignitaries and i had been given a trick question. the founders had not assigned a role for the court in the appointment of its own members. unfortunately for you, i felt someehing like to talk about this evening. i pondered jennifer's question and recalled instances when members of the high tribunal had played a part in the selection of the individuals to occupy its bench. sitting justices have suggested nominees for have supported nominees for the court supported

by the president. i am going to report you to your scorecard. this is a table i have handedd out. it includes historical examples of sitting justices supporting judicial nominees from 1853 to 1974. as best i can determine, after five months of research 1853 marks the first instance of the court successfully recommending a nominee to the president. these are examples of successful suggestions. there were at least twice as many suggestions, but half of which did not become successful. 1974 is more arbitrary. this is how they define supreme court history so that it does not overlap with the tenure of current members of the court. in other words, this history

stops with justice stevens since 1975 appointment. happy 90th birthday to justice stevens. the state the first category of 19th century examples. the 1853 example occurred during franklin pierce's administration. it was probably still stands as a unique action, the entire income the membership of the court wrote to pierce and deputized benjamin curtis. the justices campaign part ccmpbell was highly successful. the president considered no other candidate and the senate approved his nomination. campbell resigned from the court in 1861 and became the assistant secretary of war for the confederacy. president lincoln took his own castle when support -- when --

president clinton took his own counsel. salmon chase was suggested. during ulysses s. grant's administration, members of the supreme court made justice robert greer finite retired at the urging of his colleagues in 1870 when aids- related illnesses made his services no longer feasible. though a democrat, he recommended republican joseph bradley. greer also supported william strong selection to the court in the president's 1870 appointment. when justice strong deported the court in 1880 after a decade of service, chief justice morrison wait recommended william boyd. pays an additional opportunity

to nominate a justice two months before leaving office in 1881. stanley matthews had also been supported by his close friend justice plane. the democratic senate refused to take up a vote on the lame-duck presidents nominee. presidenn garfield would senate confirm him by one vote.- after garfield's assassination, his successor met with samuel miller. they supported forced great to be their new colleagues on the bench. melville fuller was recommended to the president. an illinois attorney was recommended for the post, but he denied -- declined president cleveland's offer.

when justice matthews and died in 1889, president benjamin harrison took nine months to compile a long list of possible nominees. he narrowed it down to two, david brewer and henry brown, two conservative friends with credentials. barack and brown referred to each other, but president -- justice miller fell victim to a stroke, and harrison had the opportunity to name brown to the high court. brown would return the support. he recommended havel jackson to fill the 1893 vacancy. apparently, jackson's ranch with benjamin harrison overcame their partisan differences.

jackson's confirmation was delayed. let's turn to the second category, 20 century examples. the chief justice had only been on the court after losing a confirmation battle a few months when he became one of several high-ranking supporters of justice clark. president woodrow wilson named clark to the seat vacated by justice use. -- justice hughes. william howard taft, the only person to serve at the judicial and executive branches, -- his chiee rival was chief justice warren burger. -- chief justice warren burger.

his visson and leadership in planning this study are unparalleled, but sadly he did not live to see his completion. he was an unhappy chief executive having been persuaded to run for president by theodore roosevelt who then lost a third- 1912. that allowed woodrow wilson to win the presidency. as the sole president to serve on the bench, taft is the only person ever to engineer his future appointment from the white house. several biographers suggest that president tapped suggested white to the bench instead of use because white was only 48 and would serve a longgenough to as a justice.

president warren harding nominated president taft. once the ascended, chief justice taft began participating in every presidential decision to fill vacancies on this court.%+ he said, i look forward to having you on the bench with me. president harding was happy to place on the supreme court his brilliant friend from their days in the u.s. senate. harding's next choice was his second pick. the president had first approoched john w. davis who has held views despite his party affiliation. davis declined, so taft turned to butler. taft deferred to brandeis and

oliver wendell holmes jr.. tapped appreciated butler's a nominal democratic party label. it was top-heavy with several republicans. he worked to block the nomination of another justice. he thought they would form a radical trio. after butler successful plummet, taft wrote to the chief, i congratulate you on the president's selection of cit -- president selection of butler. although the chief treated a nominee's religion as an irrelevancy, which chief justice white's death, no catholic would

harding's fourth and last nomination to the court, edward sanford, attracted tafts consent of the stanford was not his firsttchoice. in 1925, however, the big chief enthusiastically recommended harlan stone. when he stepped off the court as he neared his 91st birthday in 1932, just distend suggested benjamin cardozo to her liver. cardoso had been called the outstanding justice of his time. not a justice himself, a felony yorker offer to resign from the court -- a fellow new yorker offered to resign from the court. stone's offer urged the award for most selfless support for a nominee.

hoover finally elected to the -- finally relented to cardoza and nominated him in 1932. before his premature death. he is known as one of the greats. i sell a portrait of him in the conference room this evening. he is there. the cardoza vacancy put roosevelt in a political bind. he wanted to nominate felix frankfurter, but the western states had no representation in the courts. roosevelt thought frankfurter would be a good replacement because of his religion. geographic considerations were beginning to wane as selection criteria. justice don't was among a host

of frankfurter supporters3 he wanted roosevelt to ignore the geographic factor and concentrate on merit alone. frankfurter was nominated in 1939. one month later, his mentor resigned at the age of 83. they had combined to support a plethora of progressive policies. they had fallen help over brandeises -- in a personal visit with the president, william of douglas wws suggested. douglas and hugo black advocated the selection of wiley rutledge in 1942. roosevelt had packed the court by attrition. he made one bipartisan nomination in which justice

frankfurter played a key role. charles evans hughes announced that he was stepping down in roosevelt wanted to appoint his attorney general, robert jackson. as a result of the liberated, he spoke with the outgoing chief and all of the associate justices who urged him to act. he called cues to a white house meeting. the retiring chief advocated stones promotion. roosevelt consulted justice frankfurter for one more comparison of the stone-jackson candidacy. he preferred the attorney general because of their close friendship, but the sitting ducks were obvious. stone has the art -- still hhs seniority in his favor. frankfurter asserted that

stone's republican credentials were asset. into worlds entry war ii, frankfurter a biased fdr that a bipartisan pick would serve him well in the turbulent days ahead. fdr promised a future supreme court appointed to be disappointed jackson. stone's nomination met with unanimous acclaim. for his nomination recommendation, but as a cheap and associate justice, stone earned another award. it is a bipartisan price. in the documented illustrations of his suggestions to the president, stone, recommended a democrat, cardoza, to a republican, hoover.

truman knew all four supreme court appointees well. still supported burton believing his senatorial experience would serve the court well. stricken by a fatal hemorrhage while presiding over the court on the bench in 1946, chief justice stone was replaced by a german appointee. -- stone was replaced by a truman appointee. justice frankfurter continued his influence as his tenure move towards its conclusion in the 1960's. his position would be vacant.

john f. kennedy said that replacing frankfurter with another jewish justice was too obvious and cute. nevertheless, kennedy did so. according to president had help. lyndon johnson looked to sitting justices to confirm hiss appointments. his long time friend did not want to ascend the bench, preferring his own lucrative practice as well as his continued partisan support for his friend. johnson, however, twisted the arms of to reluctant men, sending justice goldberg to the

u. n. lbj had enlisted in hugo black. be jewish seat remains in act. chief justice earl warren the chief remained on the bench until the new republican president, richard jensen, named warren burger to replace them. he would rival chief justice taft for the -- burger received an inquiry from the nixon administration. could the president discuss supreme court appointments with him? the chief said it was entirely appropriate. ,fter nixon's first appointees the frustraaed president had

another nominee. he was a strict constructionist. eight u.s. circuit judge harry blackmun, by all accounts, -padvocated his fellow minnesota and he would refer to himself as old no. 3 to indicate that he was nixon's third choice. just before the court began in october, 1971, nixon faced two openings. they were sufferinggterminal illnesses. chief justice burger expressed concern over the spot course the minister membership. deciding cases with six justices instead of nine was problematic. three names were submitted. herschhl friday, a california

court of appeals judge, and senator robert byrd of west virginia. nixon had told his attorney general that women should not serve in government because they were erratic and emotional. thank god we do not have any in the cabinet, he exclaimed. friday and will lead fell into a security -- secured -- of security. chief justice burger fired off a personal and confidential letter to attorney general mitchell repeating his previous recommendation -- recommendation. the 19 -- the 64-year-old virginia gentleman had already asked that his name be removed from consideration. he was of no more interested in

the position in 1971. even after president nixon called him and told him it was his duty, the ever conscious of lawyer said that he would reconsider the offer. next, chief justice burger phones and wanted to kansas his concerns -- wanted to discuss his concerns. poll found the chief reassuring about all f his doubts and worries. when he announced the possibilities of go into the high court to his partners, powell was disappointed that no one expressed regret that he might be leaving. it occurred to him that they might be relishing the prospect of carving up his chair in the lucrative practice. benjamin franklin had been right about the scottish appointments. indeed, paul recommended the finest qualities of the bar.

still less than certain that he should leave his beloved home and career in richmond and with mrs. powell in tears -- she was a sweet briar alumna. i particularly loved her because she would come up to me and asked if i was a student. that either says something about her eyesight are my youthful appearance. they called john marshall and reluctantly agreed to accept the president's domination. we have come toward the end of our outline. listless and patterns in appointments. the course early history, based on my research so far, the court involvement in nomination seems primarily to be made phenomenon. little if any evidence points to justice making successful suggestions to presidents during

the first half of the century. one might that be the case? several factors about the course early years play a role. justices in the initial decades were closer in time to the birth of the constitution. it created no formal role for incumbent justices. second, i think about the court as an institution and its order among the three branches. prior to the great chief justice john marshall, it could not claim parity with the executive or legislative branch of the federal government in prestige or power. during the first 10 years of the course existence, no one, including members of the court itself, appeared impressed with the authority of the judiciary. the lack of a building to call its own symbolize the course status as the third batch. why would a sitting member of -pthe court recommend the

nomination of a colleague, l.i., or a friend to an institution that has a little clout. moreover, presiding in maritime circuits took the justices far from the nation's capital where they might have had the most contact with the president. it was probably more than coincidental that the justices formal role in nominations increased after their circuit riding requirements and did in the 1890's. third, a historian has observed that chief justice marshall did not need a temple of justice to create a template of justice that increase the court's influence.

a professor has also noted that the painful lessons and driven home by the impeachment of 18 03 was a need for justices to avoid personal involvement in the world of politics. the indictment must have been traumatic for federal justtces and jurors. the court went out of its way to avoid precipitating political attacks, plunging into politics may have seen a seemed -- plunging into politics may have seemed a recent -- risky business. of the 104 successful point as to the supreme court from its establishment to 1974, sistine genesis -- sitting justices have had a role in one-third or about 27. otherr 27 nominations, about 10 were supported by chief justices. about half of those by two chief

justices in particular. taft and berger suggested their nominees to the respective presidents who appointed them. earl warren, a republican, consulted with two presidents that did not appoint him, jfk and lbj. of course, chief justice warren had embraced the democratic party's ideology which had become the real politics. what with the founders and make of this extra constitutional record compiled by sitting justices? with the framers conclude that it is an occasional departure from hell they describe the process in the post-convention series a?

madison focused on the need for federal justices to possess peculiar qualifications. that is why the people could not select them. rather, the executive with the advice then -- advice of the would incumbent members of this court no what qualities their colleagues should suggest -- should have? three great, fight near-great, applied average, to below average, and two failures. in fact, the three great supported by sitting justices constitute one quarter of the total justices in that highest

category. how does such sporadic activity by incumbent justices in this election process and combine with our fame and lecture series, separation of powers? to the extent that it compromises the courts image which places the tribunal above partisan politics, justices involved in supreme court nominations may be a gamble they do not want to take. the trade-off is judicial independence. that is a treasured element of3 system. it is better to remain aloof from the political process for the sake of political autonomy. my favorite quote about this venerable institution is a simple wine from chief justice used -- is a simple one from

chief justice queues. he said, the republic and tourists. it the court has indeed help to preserve the nation, it is the separation of powers principle with its exclusive corollary of checks and balances that has preserved the supreme court of the united states. make it always be so. thank you for your attention this evening. i hope to speak to you all. [applause] thank you for what i consider to be a fascinating discussion. i will publicly express my innocence because until you began to speak, i had no idea that any justice of the united

states supreme court had ever been involved in the political process of the appointment of another. of course, i am sure nobody else pas doing this. i am trying to imagine, given the controversy that has evolved in the confirmation process of any member of this court or its predecessors, getting involved in that process. i cannot imagine it. thank you, justice roberts, once again for hosting this evening's presentation and for your continued support of this society. the next lecture in the 2010 series will be next week on the

27th. tickets are still available. i would refer you to my good friend googol. you can find the website and find the number to call to get tickets. if you are not a member of the society, you can find out how to become a member of the society. we would dearly welcome you. shortly, we will adjourn and go into the conference rooms for refreshments. as i do each time, i invite you to introduce yourselves to the officers who are here and to the members of the staff. our director, our assistant director, our membership

director, our development director, and you can identify us by these funny little things we have around our necks. please, if you have not met us, introduce ourselves to us. we would love to meet you. if you have any suggestions on how to improve our services, we would dearly love to hear from you. thank you for coming. we are a jerk. [applause] -- we are adjourned. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

with a confirmation hearing for elena kagan coming up this month, c-span takes you inside the supreme court this sunday. hear directly from the justices as they provide insight about the court, the building, and the supreme court. that is this sunday at 6:30 eastern on c-span. coming up next, a discussion of spill in the gulf of mexico. after that, assistant attorney for national security talked- about wall enforcement as a counter-terrorism tour -- counter-terrorism tool. then we have a press conference on the nato mission in afghanistan.

both the house and the enate are in session next week. 2:00 p.m. eastern. several amendments are still pending that adds money to medical aid to state. it is unclear whether the majority leader has the votes necessary. they are also says -- expected to vote on nominations. that will be live on c-span to. the house returns on monday at 2:00. they will work on a bill that creates a fund to help small businesses get credit and expand their operations. also, a measure to roll back the supreme court's decision from earlier this year. that decision asserted that

corporations have the same free- speech rights as individuals. all of the house live on c-span. >> the second one is to continue to press the frontiers of the industry to get access to new supplies to the world. bbc e o tony hayward before the gulf oil spill. thursday, he will testify on capitol hill. see what government officials have said about this bill with more than 100 hearings in briefings. they are archived at c-span as video library. up next, a discussion on the federal response to the oil spill in the gulf of mexico and el will corporations perform during these times. it is about 45 minutes.

>> as promised, a lifelong alaskan. what deeds -- what did you do in alaska? >> i was a daily news reporter. i was there when the oil spill hit in 1989. but was the first reporter on the beat. i did not leave. i kept reporting for that story. >> your experience has been in coverinn up oil spills. >> a lot of the environmental and technical aspects of are obviously different. if you are dealing with eight warmer environment and oil that is being released for other offshore at the bottom of the

ocean. in terms of the way we are responding, it seems shockingly similar. a lot of the causes seem very similar. the mistakes being made are, sadly, very similar. people arr heart sick that we seem to have learned so little in 20 years. >> what is thh difference between what you saw then and what you are seeing now? >> the contingency planning, the seeming inability to get organized, the failure in washington to come to grips with how important it was at first. the attempts by the oil company to control the images and information. the focus of response.

when you lose this amount of oil in the ocean, it is hopeless. you really cannot clean it up, yet there is a need on the part of the oil industry and government officials to deny that an act like they can clean it up. they have to own up to the fact that these accidents will happen. they have to look at it from that point of view. where do we drill? where do we not drill? >> as far as what you say about once oil is in the water, what is the condition? >> if he were to go there on vacation, you would think it was the most beautiful place you had ever seen. but, if he went with an old timer and looked at it, they

would say that there is not as much wildlife as they remembered. one reason for that is that there are still -- there is still oil on the beaches that are leaking out toxins. one of the largest and most important fish species has never returned. that is the herring. we still do not know why it has not come back. it is another failure of the system. we did not do the science early on to find out how to get the hearing back or find out what happened to them. >> you can ask him about his experiences on one of three lines.

journal@cspan.org is our e- mail address. from the state of nature, this was about the valdez experience. i want to get your response. you had wrote that exxon's cleanup was evident to diminish the harm done in prince william sound. can you expand on that? >> we have the sense with our technology that we can't fix problems when they occur. everybody is disheartened when they see these animals and the people at the gulf of mexico suffering. it is very easy to forget from

the perspective of our ordinary lives. the scale of this is just enormous. there is nothing that we ever really deal with that covers the amount of area. it is very simple, you cannot pick up all of the oil. the exxon valdez case, it was 11 million gallons or more. it was spread over 500 miles of water and 500 miles of shoreline. there is simply no way to have that much equipment out there to pick it all up. then you get into the desire to be aggressive and to continue working on it and not give up. you want to show that you are able to deal with it. in the case of the valdez, that led to more and more aggressive techniques that did more harm it is damaging long-term.

you're killing all of the animals on the shoreline and then changinn the way that the sediments were organized. it could be many generations before it returns to the way it was. this is the problem. we know how to make a mess, but we do not know how to fix nature. >> as far as the coast guard techniques, can you rate the coast guard's performance to date in light of what they did 20 years ago? >> it is the same dynamics. the problem is, the coast guard i admire greatly. i am a better. i remind me of firefighters. they are put into an impossible situation. it is not their resources. they have to ask the oil company

to do its thing that needs to be done. they have to create a positive relationship with the oil industry people. that is a concern. the oil companies are defending their own actions. they are creating this impression that the coast guard is on the oil industry's side. i do not think it works. if i were the king, i would say that there ought to be some kind of ball that allows the coast guard to be in command instead of begging the oil industry for support. admiral allen said that they did not have the resources to deal with it and that they could not take it over. >> great british%petroleum's

performance in this. >> it is really disappointing. it seems to showwa pattern. they had the refinery fire in texas. the company was a convicted felon at the time that they had a spill on the north slope. in each instance, they seem to be cutting costs in safety. when this bill hits, it suggests that no one thought there could ever be a spill. again, it is very similar to the exxon valdez. i remember the president of exxon saying, we are on the ground now. we are going to get to work. that night there was a storm that blew the oil onto prince william sound. you have to invest money.

you have to invest in new technology. you have to be ready and you have to have local people who have knowledge and some oversight to be watching over these actions. they need to create some vigilance. >> first call for you is from st. louis, missouri. he is on the independent line. go ahead. >> i would like to know your hsoughts on goldman sack and bp selling stocks before it happened. >> it is the last thing that i think they would want to have happened. it is hard for me to believe that they would be aware that it was going to happen. i do not think i'd buy a

conspiracy theory. >> i have two quick questions. what is bp going to do with the oil that they recover? once they capture it and skin that. . being captured ads out of the pip that oil is usable and shod be able to be refined and sold, some discussion eing i heard about it for, y know, for restoration, those funds being used in me way for aitive ay for the lf of meco n. terms of oil that's being skimmed from the water, it's not usable. it's he mulls fewed. what happens is t water

emulsifieshe oil, and get gooes stuff that's of no use to anyone. and i think that has to be disposed of hazardous waste materials. it can be iinered, buried, but i dot think it's o any use to anyone. typically, it's a very,y good oil spill recovery in a g catastrophic oil sll if you get as muc as 10% back. in exxon valdez, it was on 7%%- d i would expect it would much less thans oil spill of it and how far it spreads. host: a questi off of twitter. this is doug, since we alleed cheap and abundant energy, should we all be on e oi industry's side? guest: well, i'm not rea to be on the -- you know, i apt pick sides in this. in the book, i really, try to y over and over again, i

don't think the's gooduys and bad guys in this, because it's a fact we use o, and it's a fac that we have the corporations that we allow to be enormous, and their behavior is pretty predictable in light of what they are and how they are, and the same bevior is repeated. their ability to capture government regulatorand get them to what they them to is pretty predictable. it's happened over and over ain. so what i try to do in the book is take it ba to a systemic level. we need to think about the materialistic and ener-intsive lifestyle that is we live. rather than boycotting b.p., you know, go buy a hybrid car. that's how you deal with it. .

i'm not only gratefufor this gattedsering but touched and either a littl bit surprised. my daughter who is now 26 w, she was ound 16 or so died.

you and all your csest male friends should form alub and you would hold one meeting a year that all of you would refuse to attend. but if the meeting were in a placlike thiit would be hard tohouse us out of there. as zacha sd, my book is lled,y new book is called the unwanted sound of ything w want. which is something of a mouthful for a title. so t subtitle is very simple and direct a book about noise. and noises a very topcal subject, a subject that i believe is right for our time of which i'm gng to mention right now because i want to leave shy peoe something for qstion and awerf they uld like. but it's also very ancient subject. i think most of you here are

familiar with the story of noa and the ark in the hee brew bible and some of you may also bible and some of you may also know thathat story has a predecessor and so scholars would say a sourcen a book

really important part of improving safety.

and in alaska on t pipeline system with the blors have been consisteny thhe problems have been found and problems have been found and addressed. host: and jayed t statement that rresentative ed marky o massachusetts has called bp a crime agast nature. she follows up by sayin can they make this right? guest: i think, i almost answered that second one ready. i don't think bp can make it right. i think we need tohi how we can make it right. one of the really wise people after the exxon valid yizz spill said getting this restor raon money instead of spending it on procts tha probably aren't going to be that effective in the environment, we shouldend it on science education for kids. because an oil spill like this is not a unie incident that's happening all by itsel it's more a symptom to its relationshito the environment. we're spillingil from our

cars all the time. fossil fuels are damaging the environment all theime. climate change is always going on. now we st of see it in its full uglyness. what are we going to do about it? are we going to pass a few incremtal la that will lose their effectivenessver the years or are we going to think about changing the way we li and how we relate tohe environment? host: as we're currently discussing an energy bill, are there indication that might shade how this bill might shake out? guest: i really hope so and i think it's a question -- the mood of the country right now is very, verstrong and i've been doing varioos talk shows and people are extordinarily angry. and i just would hope that tha nd of message would get throw congress and that people here inashington will hr it and act. because i think that there is -- the exxon valdez inense was a huge cultural moment,

something like 98% of americans knew abo the oil spill and how bad it was. and it rely wasn't taken advantage of. the s that were passed were not binoh forhe ment. and in ft, o of the laws and in ft, o of the laws thatassed ironically was that 75 mlion liability cap which isow protecting bp. so i hope that there's leadership and certainly i'm not the first one to call for it tsay this is our environmental 9/11. now is the time to reallpull together and do something big. host: a followup question to your thoughts on localities. guest well, you know, from a guest well, you know, from a chnical standpoint, the wells that are beyond the territorial watersf the state, those muns gerally go to the federal governnt.

and there is sharing and there's discussion of that in ngress. i in fact would take it down belothe level of the states. in alaskk,he people in prince william sound wanted to protect prince wilam sound the fishermen in the arctic, the esskows have sued to stop that shell drilling while the state government became deeply corrupted by the oil industry. and the oil industry i sort of one of the most corrupting industries of althe industries in our economy. and if you now look at louisiana and alaska as bei two of the stes that have aditionallhave e worst corrtion, they are two of the ggest l producing stas in the country. so i pull it down to the people whlive on the coast as has happened in pnce willm sound where we have an organization that can do some oversight. at's what i would like to see, is not at thetate lev

but at the local level. host: our next guest, john on our independent line. caller: sir, i was wondering if you n give an update if the people of princ edward soundr did collect any of the $5 billion awarded to them bthe courts. the last time i read an article the sound had been devasted with alcohism, a of dostic violee. in fact, the guy leading the cause commiited suicide. that waan article i read several years ago. then i read a disturbing one more recently that that $5 billion had been wttled down to in the millions. and wha is the state of the people of prince edwards sound at this point in terms of jobs and lelihood? could yo do you have y information on that? guest: i wrote about that in my

bo, the fate of nature, and ve akind of updated it on my websitehich i fate of nature.com. somerticles that i have wrten. it's a tribly sad story, especially the community of cordova. there was a sosheyolings who went and did psychological studieof that community and how it changed over time and found it devastating sige lockcaimct from the whole community. ande actually in these n mexicocal measur of stress, he found levels of stress that were similaro whe you lose mily member from people who are going through ts. d, yes, there were suicis. the mayor of the town comtt icide and it wt on and on. and fr the monetary standpoint there was a lot of energy and a lot of money spent in tha first summer of 19 89. but when the mediatttion left, the money stopped flowing. and exxon adopted, instead of

and exxon adopted, instead of payout loss of money attitude, adopted an attude of fight evy lawsuit to th last possible appeal. so in 14, the civil litigas, the people who were affted by this spill, there were 30,000 of them won a $5 billion against exxon. exxon was able t appeal that through man many lel up and down the federal court kicking it back to the judge, going up, going bk down again. unl last year. so 20 years after the oil spill . and then the u.s. supreme court, tmy view, offiall arbitrarily reduced it to $500 million. by the time e judgment was actual paid out, more than 20% of e victims had died. andthers obviously had gone on with their lives and many of them of the 30,000 received ken amounts ofon. even before that, i was in a restaura in the town of

cordova d was talking to someone out th and a fisherman came up to me and squst just go on with your live. because they've been sitng there essentially a generation waiting for their money. and even before the suit was completed they said exxon had won because if you have to wait 20 years, it's meaningless. host: here's the cover of the book, the fate ofature. the guest has written "the whale and a super computer" what is that about? it's about climate change in erctic and the way that eesski mows and scienttses are responding to up there. host: you talked about wkers that were hired bxont the time to help with the cleanup. cod u tell a little bi about how that was done and the

effect on thcommuny it had? and if there's some parallels that we see from the workers down in the gulf? guest: well, this is one of the ing thats you really wouldn't expt, that ong with an oil spill comes a money spill. these billions that are being spent to do cleanup will create a short-term economicoom in the area. and that was very true in alaska where there'sot that many people and lot of money being spe. so acty, alaska economy had been in a dp receson and t oil spill pulled it out of a recession becse so many money was being spent. if you go into a community and there's one person who lost his livehood and his best friend because of this is making a killing, you create stresses in this community. and at's one of the main things that happened to these towns that oke them apart. friendships were lost. and exxon had the straty of hiring every boat available. and wend the journalists belie it's because they didn want to get out the d see the oil. it was extremely difficult to charter a boat because capn

had chartrd them all. a lot were sting them out got doing a thing. and they were paying these guys $5,000 a day plus expenses for mont on end. so if you owned a boat, you could end up putting your kids through llege or paying for yo retirement. host: without the boat havg to threef slip. guest: without having to do a thing. host: sblo where another guy because of aense of rht and wrong decided noto take that kind ocharter gets notng. these conflicts becse of these two becomeery intense. so the scientists from the universi of southern alabama who studiedordova and studied the people, he lives 300 yards fromhe gulf of mexico inlabama and he is counsing people down there anhes saying his number one message is stick together. because the thing is going to divide people, turn them against each other. they need support each other d they need tory to be empowered, not to feel helpless and to get out tre and clean

their own waters and take because that's what's goino kind of kee them psychologically whole. host: kevin from houston. good morning caller: good morni. i have a two-part question. isn't there a --f there's line that's weak? and what do yothk engineers were doing when e pipeline exploded? host: i didn't hear the first part of the question. caller: isn't there a valve that detects if there's a problem with a piping line? caller: yes. e -- i'm not anxpert on this deep water drilling but i've reads much about it as i can. it's a very complex and tchy process when you're completing one of thesels you've got this mud which is avy which is holding down the oil and you've got to keep that pressure enough to keep the oil congp while you're cementing the line and putting

a ap on it thawill keep it from expding. what i understand is that the mud was removed prematurely essentially because they're essentially because they're trying to hurry up and finish the job, and tt sounds like it wasne of e rimary causes of the blow youou now there's also thlowout preventor which is supposed to shut it off when there's an cident. that can be activated manually and then there's also a automatic activation, which is from equipment that's required in europe which for whatever reason i've been told becae it's too expensive, half a million llars, is not required here. in any event, itbviously didn't work. there's a loof discussion about why it didt work. but it smshat that was really the only line of defense, which to me i inadequate when you're dealing wi this kindf risk, you need morehan one -- you need a fail-safe system, which has a fail-safe system, which has more than one line of defense. i would like to see two wells

drilling at a minimum, blowout preventers. if one goes, you can immediately intercep that we will and block i it can b expenve but not as expensive as now. host: the president is expec to talk to bp anything we c lea from history? we don't know the we know theature of the discussion. we don't know what's going to happ. is there anything that can help us understand what happens next week? guest: well,he president has the opportnity to take this out of history, take it out of the patternnd make new history with it. thpastatrn has been not necessarily a clusive one but a ice dents of ins rest. it was t first president bush it was t first president bush in9 89 and an intent to

appear outrage and appear to or the public sentiment and then get beyond to the next issue. i hope very strongly that's not where prident obama is going with this. there's been a lot of there's been a lot of discussion about getting bp to defer didend, which is something that at least inflicts some economic punishment on the company beuse it caused their stock prices to drop dramatically. i am skeptal that the legal syem will be able to meet out a punishment that is large enough to threaten their existence financially. the company is too large and there is no history of our legal system imposin a punishme of that size. thcompany is essentially too big tounish. so the oy way to really hit them where it hurts is to think about what future drilling is going to happen, what kind of lawse're going to put in

ple, what nd of oversight we're going to put in place that would make their work more expensive and safer. hofor the folks at home, we've set up a special site on our website. it's this oil spill with a lot of this information and otter resources for yousou comprehend what's going on, at least look at the legislative and regulatory aspects of i d tt will give you informion th you need as you look at that. our next call, tennessee, republican line. jim. go ahead. caller: you're not an environment list. most are democrats. and what ty'rerying, what they've done over the las40 years is use the environmental movemento weaken the industrial system in the united stateso they can win elections. that's what they're all about. i know who you voted for. i know who you've contributed to. you've never done anything for

republicans, never don anhing for conatives. why is it always environmentists thradicals are always in the sameart, always spoutinthe same crap, antibusiness, antiindustalization. they've got more cars aund washington, d.c. they'vgot all e big cars i e suburband then they drive e little cheapars so the employs think they're saving. you burn more gasoline than anybody else. it's all -- well, it's not all politics. it's 90% politics. host: wll let our guest respond. guest: you know, i don't think the demrats necessarily like what i have to say, either, because i think lot othe problem is power that is centralized, organizations that are too big. but you know, what i guess i disagree with the tea partiers or ere you're coming from, i don't think the government is too b. i think the corporatns are too big. and i would like to see real

people be le to be able to control their own destiny in local areas. but,ounow, you can read my book. i am a democrat. i usedo be in office. i was in my town council in anchore. so, you know, if you disagree with me, thas fine. host: orego iependent line. kate. caller: good morning, gentlemen. i guess my qution is, well, first i wa to say i agree, i first i wa to say i agree, i don'think that financially we can hurt bp. obously, $87 million in fin wasn't enough to do it. but don't you think that by removing theirharter to practice business in the unite states mhtot be a good place to start? guest: wl,hat is certainly the kind othing that would have a dramatic and seve impact on a company like bp. d when the exxon valdez happened inlaska, the people

the community said can't we ju get rid of exxon? can't we get them out o princ william sound? and that w viewed to be impossible or to be much too large of a tk. and a they did was get that -- congress actually passed the law saying that ship couldn't come in any longer. one of the things that i believe ishat control of these issuesown to l people, they really should have the bility to decide who comes in and works in their waters, who drills in their waters. natially, we feel bad about the oil sll, but we're going to move on. 're really not paying a big price other than themotion animals. seing the dead but e people down there, they have all the risk onhe line. they should be the one who really make the decision about at happens in their waters. it's signinghe decision with the risk. so we get theil, they pay the price. i don't think that's right.

host: baltimore, maryland. terry on democrats line. caller: good morning. from an economic standpoint, i from an economic standpoint, i an unemoyed for the past two years. as bp soowerful and so strong? i mean, he some connections in the has m and ty're just not hiring. i wod like to know what the heckhat is about. i sent off an e-mail to the white house and i ner got a response bk. gue: in other words hiring people to work on the cleanup. fromhat i hear, it sounds . like there's a lot of people on the payll down there but don't know the details about that host: does exxon still have any directnvolvement on princ william sound? guest: exxon is a third owner of the oil fields. sohe oil that's gng tough ince william sou is still there. they've nevehad much of a presence in alaska as a compa and they are not really

responsible for t oil, you know, the oil sll preparations that are in prince william sound which are very, very extensive now. st: georgia. republican line. caller: yes. can you tell me, ias listening to some of the other news programs is morning. has fe been lled in or has this been called a disaster? guest: not that i have heard. but, ain, it's a little bit outside of myxpertise. so i can't give you a real good answer on that. hostdo you have a followup question? ller: yes. i was just quite astonished on this other news program that thatasn't happened yet. host: well, there's certainly people down there who are suffering in terms of onomic loss because of their businesses, not having customers or they're not being able to fish. u know, being suddenly unemployed and so forth.

it turns outt's really hard toeal with those problems. i'll give you an example. in alaska, where you h fishern who suddenly couldn't fish, the way fisng industry works is that the captain sells the fish and then he shares a share of his catitthe crew members. well, a lot of captains got paid as if they had been fishing that summer when they couldn fish. but then they hadn't hired any ew members. so they had no one to share the crew member shares with. all the the folks who normally would have worked as crew got notng. it's a similar situaon if you have a moatle. now there'so one staying in the motel and you've laid o all your worrs. and then you're able to win a settlement from exxon. the mo at the time ownerets the money but the chambermade doesn't. she was never hired. so it's not possible economically to make people whe. once the economic system i broken apart, it'snother

thing you can't fix beeause ose relationships, those ose relationships, those people hiring didn't happen. host: richmond, virginia. on withharles. gue: good morning. caller: good morning. u're correct. local government is theebest way to go. at's the way tounding fathers started the country. the least power should be in the federal vernment and there should be more power given to theovernors in the area of the gulf to oversee what's happening. but myoint is i look at but myoint is i look at there's been innovator that have been on tv showi how they can clean up and separate the oil from the water. they've notified the government and just like with governor jindle, they've gotten no response. so this leads me to the question that i'm going to ask you about. earlr in presidentbama's administtion, rahm emanuel

said do not lve a crisi go to waste. good crisis go to waste. i look at this and see the disaster that's going to come disaster that's going to come economically and vironmentally. it is the best thing for president obam be able to pass his cap and trade. why would he want to pass cap d trade? because chicago climate exchange is an orgation is -- carbon offset company that was started by the -- that was helped started by the joyce foundation thr barack obama. goldman sactionas a fincial interest in it, al gore, franklin rains bought four different patents to b used. so that the money can be redistbuted to the emerald citis. which a joe rogers ganization. now, i know this sounds concspiracyy.

ho: in the interest ofime, if you had a specific question. caller: isn't it very interesting that people are begging to help out down there and they get absolutely no response? guest: it's very similar to the exxon valdez where thetate officials weren p aad really angry and wantedction fast and the federal officials and the oil industry took a long time to get ramped up and to deal with that. but one of the problems that you have to recognize is that there's thi crisis situation do there. they're not prepared. ey've got to fd offices they've got to get set up. and thenou've got a these inventors, some of them probably have good ideas, mo whom have crazy ideas. the te to sift through the inventions was before the oil spill happened. once you're in the middle of a crisis, you can't take theime to decide, figure out what's

going to work and work all that out. out. and one of the tragediesf this is tt the oil industry spends virtuly nothi on oil spill cleanup. it's an area, it's a back water in the industr and the technology tt they use is the same technology that they had 20 years ago and that hadn't changed much from the previous 20 years. weeally should have a scientific instituteedicated this and funde by the oil industry so that when the next spill comes, as it will, we at least have the best technology as we could. we have separated the good ideas from the bad ones. host: one more call, alexandria, minnesota. g ahead. calr:es. i ve a question for our guest. actually, perhaps two. on of e things about wind energy. i live in the state o minnesota and wind energy is a big thing out here. some areas.

and now whave cities that a passing moratoriums on wind engy towers and generators because of a number of conces they have, noise, birds in the towers. and it jusseems to me that if you're an environmentist you've got to be complaining a something all the time. th're not satisfied. what out the kennedys a the wind generator out in the bay there? you know. they're democrats. they're environmentists. they're alfor the enronment but not my back yard. guest: well, here's where i disagree. i think not in my backyard is sort of the core function o democracy. if you don care about what's happing in your backyard, you happing in your backyard, you really don't care abt what's happening in society and in your community as a whole.

so i think t solutioto these issues has got to be fine grained. we nee think about everodin our society has to think about where their energ is coming from and having the least imp on the envinment. and then they haveo make the call as to whetherhey want to do it with wind, it'socal, or hydro or whatever method they're going to use. they all hav tradeoffs and those need to be made on a local basis. anas soon you say notn my back yard aund discount their concerns, you've essentially disempowered em and taken them out of the equation. so that's where i would dispute the caller. and i think you said that's the last call. i welcome more questions on my web site. host: one more question for u. this is off of t. someone talked about health issues. t: there'' a varty o them. i have confidence that the

afood people are going to keep the seafood healthynd if people becom concerned about seafood d stop eing it, then that is sort of a secondary reay bad effect on that industry and thoseeople. so they need toee oil out of the human foodhain. and i'm sure they wi and they that in alaa.y succeeded with thether is the effect on rkers in alaska they were given no respirators, no kd of proctive gear of any kind. of proctive gear of any kind. there were long-term health complaints which were pretty serious, never really resolved. po the workers need to be protected. and then, finally, i guess there's a concernbout people getting into t oil or i've heard people concerned about is the oil going to come wn in the rain? i'm not too concerned about those things. i think people are sr enough if they e oil they're not going to get into it. gut: host: whats your web site? star.

i am a seni fellow he in government studies. thank you fo coming. will be very brief because i'm sure not a single one ofyou came to hear my voice. st to welcome david kris back to

brookings. i say back because he was actually wants to spend some time as a nonresident well before going back into government. dad is a very rare thing in government which is a sort of scholar practitioner wo has deep academic understanng and background in the material that he worksn as he does the kind of granularorking derstanding and working familiarity with a matter that he writes about. he's here to talk about the subject of l enforcement of the counterterrorism tool, the subject that won't surprise you has been on a lot of people's nds of feet, eithebecause of clmed inadequacies in te system or claimed success in the stem. we all have our opinions on

direction another on spects that. but david is going to presnt the argument, th case that we have undervalued lawenforcement as a tool in our counterterrorism arsenal and that it serves a strong corporate place, strger place thanhave given it. david hasbeen aistant attorney geeral for national security ince almost the beginning of the administration. he is before that serd i various capacities in the justice deptment across several ad miistration's. along other tings he as te incipal or one of the principal figures inhe 2002 litigation that brought on e proverbial wall between intelligence and law enforcement. he's also outside of government wrote a monumental treatise on the national security law

will have interest in time. it's a wonderful piece of work. i going to stop ere and turn it over to him. please welcome david kri triet [applaus >> thank yo for tha very ni introduction. and i'm grateful to brookings for roasting me. it wont be nearlys good. [laughter] how about now? okay. so thank ben for an introduction and brookings for hosting and all of youor coming out. i've been asked to talk about role of law nforcemt by which i mean the rest interrogation prosecution that kind of ting. as atool for counter terrorism and as ben was saying this is a

timely subject f you ha tside the beltway and you are at all conscious he will have noticed talk recently about whether and t what extnt the federal court should be used against international terrorts, and there a i think some pretty strony held views on the subject there are those who thik rely i think law enforcement should be the main or the only ssage with whiche combat terrism anthen there are also those who think we ought notto use all enforcement at all ainst terrorism d a suspect members of both caps are well and abl represented in this audience which is a great and with my luck the only thingou will be ableo ree on the end of this, whatever i say is clearly fr. so noetless, i'm goi to try to talk about the subject in four parts. first, i will review some of the

cent history of our national counterterrorism strategy as i untand and i will foc here a little bit on the origins and evolution of the national security dision a the doj which i have kning a little it about nsc be interestingo you in any event. i sort of hope it will be but it also an important part of how the country came to a kind of consensus at least until cently abou the propriate rule of law enforcement as a counterterrorism tool. second, i will try to sketch out a conceptuaframework for thinking about the role of law enforcement in the crent colict. e idea would be to try to identify t right question, th right way of thinking about an approaching the policy debate we are as a nationrigh ow for bett or worse involved in. identifying the right questions think is nots easy as it

sounds but it is in many thing critically important. d thenin the third part of the talk if anybody is still here i wiltry to answer he questions i have identifd d to do this i will briefly describe some of thempirical evidence about how law forcement has been used to combat teorism an i wil try toffer a comparison between civilianaw enforcement prosutionnd the federal courts on the one hand an its to sort of majand i tink comparablelternatives that is detentiounder the law of the war an prosecution and t military commissn. now, let me just give you a fair warning right now. this compariso may be a little bit technical, and it mht be a bit boring b it won't be nearly as detaile as what you would need i think to make really informed and intelligent decisions about public poicy, let alone about particular case but i hope it will give you a

sense of the major pros and cons each sstem s the least as iee them and again, sort of reinrce the idea how i approach and how we think we ought to approach the qestion. finally i will conclude with some idea on improving the effectivenesof law enforcement as a conerterrorism tool and more generally the effectiveness of the government as a whole in using all available lawful countertrorism torian will lk to you briefly about this idea of ossible legislation th resct to public safety exception to miranda that ou have heard dicussed of late. ok, so that's the plan. cookies in the backof the room i gather if thin get grm okay. so to begin with recent history often hea-- i have often heard many ways that before september 1 te us. government

took a qte on quote law enforcement approach to dealing with countertrrorism. and i think there is some truth that. but i also think it oversimplifies things a lile bit. if you look at he 9/11 commission report it found before september 11 that the cia was plainly th lead u.s. government agencyconfronting al qaeda. that law enforcemenplayed a, quote, secondaryworld and military and diplomatic efforts were characterizeds episodic. i was involved in nional security both before and after septembe11th as a member of the clinton and the bush admistration andwhat the reonable minds can dffer on the steep hills but that doesn't seem terribly far off the mar to me. ter septemr 11 of coue all of our national security agencies dramaticallyramp up their counterterrorism

tivities and ourops deployed to the foreign battlefields and as the intelligence committee expanded its operation the doj and the fbials revolved and we began that the solution with an important egal change that ben actuly referred to in his introduction, and that was tearing down the so-caed fisa war under law enforcement and intelligenceerlargely supportive enterprises and as a result law enforcement was correspondingly limited in its effectiveness as a counterterrorism tool. for those of you who don't, there may be for people in the room who don't know wha isa is coming and countourself lucky. it's a federal statuteenacted by congress in 1978 that gerns electronic surveillance, wiretapping and that sort o thing and physical searches as well of foreig intelligence taets in the united states.

it can't be sed against ordinary red blooded american criminals like bonnie and clyde was something like that but it is digned and available for ople like robert hampton or osama binladen, the terrorist, and it is, this is a critical point, etremely powerful and important investigative tool, and it's really vitay important to our security. if we couldn't do the kind things we d under sa i n't know what it would lok like but it would look very diferent ou counterterrorism posture. but unl the wall came down, e price of using the powerful tool of usin fisa and preserving your option to use it was a requirement to keep intelligence and law norcement at arm's length. so tearing down theall rmited intelligce and law enforcement to work together more effctively and allowed each of them to do better than they had one on their o and i

think this legal change of tearing down the wall refcted but also reinforced the conclusion that all in force that helps protect national security. not that law enforcement is the only ay to proect national security or even the best way to prott national security, but i think e years after mi 1 that we came to a kind of national consensus that law enforcement is one important way of protecting national security. certainly the executive branch, the bu admnistratiowhen i was therargued this position quite explicitly in publi statements and briefs we file and elsewhere the fisa cou for the courtof review and clarly express the endorsed the idea and congress certainly supported it on a bipartisan basiand a number of different pieces of legislatio

so, this consensus that law enforcement is one way, not te only way, not the bes way that the only way to protec the national security led to not only the legal change but structur change at oth the part of justice and the fbi. the bureau think the story is pretty well noted integratd intelligence law enforcement functions wiespect to counterterrorism and it dramatically increased its resources and focus on inteigence collection and analysis. this legal chnge also led to the creation of the national security position which i had, and it cbines terrorism nd espnage procutors on he one hand intelligence lawyers and pressors on the other and they are united with a single shared an overriding mission which is to protect gainst terrism and

her threats to the national security using all of the meage that are available to us. it's easy to verstate this but at some level, at some level ns the approaches this indifferent to the particular lawful consistent with our vales that is used to neutralize that spread. we don't nd if it's e precution solution for intelligence solution. we prefer theppropriate message that is most effective under the cirmstance. and i guess i thik from ling through and having stued some the history that that is more or less repesents the crystallized consensus of our goveme and he people of the united stes an the aftermath of /11. but just right now today i would

say the consens is showing some signof potentially unveling just a little and that is why we lie in interesting times. in particular there are some who say today will enforcement can't or shouldn't be used for counterterrism. they appear to believe we sould eat all terrorists as argets for others that is mullefpi element o the intelligence community or for the defse department. and i mean, i don't want to oversimplify, but hereas i understand is the argument that is advanced. and a sort of comes in the parts. first, we are at war -- this is not a game o policeaction. this is a war. second, ouenemies in this war

are lethal inelligent and adaptable. thre not common criminals. they dn't rovno, liquor stor. and third, bause we ae at war, a because our enemy in the war is nt a bunch of common criminals w should figt the enemy ing military a inteigence methods and not all enforcement methods. >> this is simple in the sense of cle and rhetorically think very powerful argument. even saying it to u st of in character i it is retracted in many ways it sounds very good this is why i am t going to have a future in public speaking. [laughter] but i have to tell you and i mean this with all due respect because i take the argument for a serious i ave to say i don't agree with it. i think it's wrongnd i think it will if it were adopd and implemented in public policy

make u less safe than we are now. idon'tant to b overly dramatic, woul again it's not the case the law enforcement is always the right tool for combating terrorism. but it's also not the casthat it's nevethe right tool. the sort of middle ground by pushing f is that it's sometimes the right tool and whether it is te right tooln any given case depends in large pa othe specific facts o that cse. so in faiess to comre apples to apples here i my version of e three part argument. first we are at war will start from a common base when t prident said thamany times. the attorney general said many times, we are awar and our enemy in this format is lethal, adaptable and intelligence.

there are people who get up every morning and go to bed every night and think nothing else in between the o things than how many of us they an kill. second, and a warwith that kind of dversary your goal must be to win. no otheroal is acceptable in a war like tat. and third, to win the war we need to e all f te available tools and weapons that we have if they are consistent with the rule o law andour basic values. selecting in any case it will that is best under the circumstances. in other words, we nd to be more relentlesslyragmatic and empiril. i dn't think we can afford to limit our option under early in an artiicial way or to use sort of preonceived notion of itability orcorrectss. that is not to say that we don't

need broad policy guidance within the legal framework. but nly to say that the guidance has to be gounded i empirical experience we have to look dispassionately at the fac we are facing and then respond to them with the message that our values structure that would lead us to vict that is a fairly rhetoric. to put it in more concrete terms at i'm reall saying is when we look at the toolsavalable to us and consistent withr vals avto use the tool that is designedbest for the particular national security problethat we find urselves fang. so if you go utand look and survey the field and you see a problem that looks like a nai then we need to use a hamm but whenhe problem looks like a bolt we need to use wrench

hitting the ball with a hammer make very loud noise and sparks wi fly and it cn let's be hest be satisfying in a visceral way. i know this from failed attempt at compromise around my house but if you ought to turn the ball to shouldn't use a ammer. it's not effective and it's not smart. and if we want to in thiswar, and i feel we needo be both effective and smart. how ar weiving up their? if we take this ide i jut descrid seriously, and i kind of hope you do gin how much puinto it itcomplicates your strategic planning quite a bit because it ruires youo have a much more detailed understanding of our various counterterrorism tols.

if you are apragmatist fcus relentlessly on a winning then you can't make policy or operational decisionsfrom 30,0 feet up. you haveo me dwn. get in the weeds and understand the details of how the tools work at the operational level. you may end up etracting from that eperience make the policy, but you've got to understand the reality. and so in a way that leads me to sort of thendf the second part of this foepart speech and to ths queion. as cpared to the final defeat to a viable alternative, hat is about law enforcement in this war o is it categorically the wrong tool for the job at best a distraction from the of real world o at worst affiative and pedient. and to put my cards on the table in case you haven't guessed i

think all enforceme helpss win this war. and i want to make cler because i'm giving this speech in a very particular conxt and in a very limited setting as part of a larger nnal conversation i perceive and in light of that conversation, in lig of the ture of our current naional debate i want make cler when i say this am not primarily making a value based argment that is'm not saying fr t limit purses in this particul contexthat l enforcement helps us win in the sense that it is a bright shining cty on the hill that captes heart and nds around the globe. i do think it's wdely respected value is important both in nd of temselves and n their effect on us and our allieand

adversaries. i'm talingin tslimited context bout something mor dirtnd concrete. wh i say to all enfocement helps us when this war i mean it helps us of this rut, defeat, dismantland destroy our adversaries without destoying ourselves or our way of life in the process. anin particular, i want to say law enforcement helps us do that in at least three ways. first, it can disrupt terrist plots through the rest. second, itan incapacitate terrorists to incarceration that results from the successful prosecution. and fear, it can gather intellence thrugh interrogation and recruitment of terrists with supporters by cooperionagreements.

so that's the pitch. here's someof thevidence in supporof that argument. betweensetember, 2001 and march 2010. the department ofusti coicted more than 400 defendants in the terrorism related cases. some of these convictions involve what i would call terrorism offenses,crimes like providing material support to terrorists using weapons of ma destruction and the like. some of them iolve ordnary crime, docket of fraud, perjury and the like whre there's a particular factualaximus to terrorism. everybody knows about the gy from coladan that wento new york, david lee and chicago. both of these guys pladed guilty and theyare awaiting sentenng and now most recely we have had faisal shahzadrom times where there's been others from ramzi yousef, the first world trade center bomber the

various east african eassy bombs to richard reid to al mad pacoima these gs are serving a litime in prison al and we have had sentenced to 25 years foimplosive defeat of iraq. sentenced to 13 to 17 years for providing material pport to al qaeda and osama sentenced for atmpd to establish a jihadists training camp in the united tates. last year we also picked up a couple of ys in a separate but for a similar undercover operations after they allegedly tried to blow up buildings one in dallas texas and te other in springfld illinois and at the texas plead guilty to that crime and there's a unch of others. i feel that can't go on forever. i feel a little bit but not mentioning case is better know

as jihadis jan mr. elti from ne jersey. there are a bunch of them. now, not all of these cases make the head line and not all of these descendants we've convicted were hard-cor terrorists or ke terrori operatives. in tradition intelligence investigations,aggressive and wide-ranging counterterrorism efforts made up a lot of smaller fishlong with big ones. i think that is a good thing because i means we ay be disrupting plots bere they are consummated and bcause it may get the chance t recruit the small ish before they are fully radicalized and maybe get them working for us. andin fact we have also used the criminal justi system to collect valule intelligence. in effect, it has worked as with the intellince community would call the human collection platform. th is the plot from mechanisms

assistant for collcting human intelligence from and about her breasts. because the fact is when the government has a strong prosecution case in arties record the defedant knows this and knows he ill pend along time in a small cell whih creates powerful incentives for him to coopate with common law that those incentives always produce cooperation just in the run of cases they do that quite. there's a limit to what i can say publiclyabout this as you caimagine. but let me give you some examples, and i have bedded these wth the fbi and the communities. terrorism suspectsin the criminal justice systems have given information on things like this. a telephone numbers and e-mail adess by al qaeda. al qaeda recruiting financing and geographical. interest tradeaft to avoid detection in the wst.

experience in the location of a qaeda traning camps al qaeda weapons programs and exploves training. location of al qada safe houses. residential locations of al qaeda figes. al qaeda communications methods and security protocols, identification of operatives involved in pstore planned attacks and infrmation about plans to attack u.s. intert. and i can tell you from y work with our intelligence cmmunity partners, and i have a pretty good relatnship with a lot of these guy including the national country veron center for ple, they believe the criminal justice system ha provided usefulinformation that helps them do their jobs. so, that's the basicutline of thfirmativearument. and some of the evence for it. and there is somuch more that i coulsay that kind of want to live throug this so tat you all don't leave before i'm done.

andi think whai woulike do this sort of havinoutlined the basic rmat of argument let me take up some of what perceive to be the argument on th oter side. it is arguments agast using law enforcement as a counrterrorism tool. it seems only fair. the first argument and i've heard is theres some kin of inherent tnsn between national security and law enforcement. they just don't go togeer like oil and water. i guess i think this argumen confuses and ends ith meanand i thinit's important to sot of use this to clarify something. the criminal justice system is a tool. it's one of several tools that can be used o promote national security, to protect thecountry against terorism. sometimes it is e right tool. other times it's the rong tool. but at some conceptual level that is no different thn sayi

sometimes the best way to protect national curitys through diplomacy and other times the bestway to potect natial securitis through the reaction it just depends on the tool can do measured against the problem that you're facing. to put it in thee differeny, if you' looking it in this particular way from thiane, there is nothing special bout will enrce it. it is the means to an end, and it's consistent with our values. another arguent against using law enforcement goes like this. the crimal justice system is fundentally incompatible with national seurity because it's focused on defendant rights and national security is more important than that d we can't use the system that is so focuseon e ndiidual rights of particular criminal defendants. i gus i think this argument has t -- two flwas.

as a matter of fact this public criminal defense in the system to veto crowd. eye not fcused on the victim's right. ittrikes a balance between the rights and the interest of government society. and more important, look you can argue how the balanc should e stckand kill te or relibrating all for at purpose the end of e given the balance that we have the pirical fct is when a decion is made to prosecute a terrorist and federal court n fact he etsconvicted about 90% of the time. so to be sure criminal justice systemhave its limits, those limits are significant,he are notrivial, and in pa becau of those liits the criminal justice system is not always the ght tool f th job. t when the executive branch concludes that it is the right

tool as we have more th 400 times since september 11th, we in fact could still on target almost every time. the secondlaw i think in the fundamtal incompatily argunt is at least eql the sycophant in my vie the criminal justice system does face a whole host of legal constraints but it is ot alone in facing those conraints. all of the u.s. gornment unter terrorism efforts operate under the rules of law. so why give you an example. the us.military operates under rules that rqire at to forgo kinet strikes against terrorists if those strikes will inflict on dually dispropoionate harm on innocent ilians. that means you don't strike even when you could operationally in certai circumstances.

these limits on the military and the relt of the wal of the war and associated rules are real and they are ot trivial. but they re not i think a reason to for wi altogether the use of military force against al qaeda. nojust toguard against any misunderstandings, the pnt of this argument anjust constructed is not to equate the lights in the two systems because they are obviously in a wholhostof ways very dierent. the point i'm trying to make is only that a of ur unterterrorism tools have th goal of limits associate with them. at's what it means to live undeand thos limits along th operatio capabilitie and a variety ofother factors should and do informed judgment about which tooleis best in any given case.

okay. so to me ultimately the worst of the criminajustice system -- ain i am speaking in a very narrow range and a articular coming at this from a paticular angle the wot of the criminal justice system is a relative thing. in other words its value as a counterterrori tool has to be compared to the value of other available ools. so comping the criminal justice stem to the use of military force or dplomacy is kindf difficult because it shares so lile n common in your quickly into an apples and orges situation where i really just isn't a good comparison. but as tool r disrupting turner wasent gathering inteigence and think the criminal justie system is readily compatible with two others. detention under the law of the war and prosecutionn the

military commission. so i'm going to try to do a lile comparison now between and among the systems. and if you think it's been a little boring up until now, ju wait and see. [laughter] it only gets r. fore i do the difference is, remember there are cookiesn the back of the room. [laughter] before i do the differencis a ki of think i should do the similarities particularly of the prosecution stems becausei think there's been some potential misunderanding. whether you are the defendant in a civilian court or military commiion, let me tell you what you've got. presumption of innocence, the requirement of proof beyond a reasonable doubt. right to aimpaial dision making. similar procedus fr selectg members of the jury or the commission in the ilitary context. the right to counsel and trace council. if you don't want council than a qualified right to self reesentation. right to be present during the

proceedings. right against self-incrimition to present evidence, cross examinthe govement wiesses and compel favorable witnesses. a right to exclude pejudicial evidence. the right to have access to excuatory evidence. protection against double jeop and the fact of laws and right to an apal. i think bothof these systems certnlthe position of th oba administration provides the basic mt americans would associate with a fundamentally fair trial. that doesn't mean there aren't a lot of differences and as to the differences and x cost comparison would require a ot longer discretion than we are going to do today. i keep threatening you. i have identified fiv wrolich of thvintages of our military authorities and five of the cilians. thiss a little bit of rhetoric at it again keep emsizis looking solely from the perspecve of

the governmentnd effectiveness in combating terrorism. and as a like kind of want to run through those or at let some of them depending on the pain on your face. i need to emphase those that really this is not as detailed the comprison as he would need to me an inormed judgment. this is the equivalent of a stone skipping across the surface of a very, very deep body of water. as kay. with that caveat that may lay out the five main advantages i see frm the overnment perspective of using militar authorities over civilian prosecution. this is the perspective of the prosecution and i will discuss each one or from fleming just quickly list them. first second, rules of confession. third, rules gverning clsure of court rom, fourth, here sables and fifth, classified evidence rules. so proof requirements. the militarycommissions the burden oof is the same as

the civilian court. that is proof beyond a reasonab doubt innd on capitacases only wo-thirds of t juro rather than all of them are needed for the conviction. under the law of he war, it is tested through a tedous the government needs to persuade not only one person that's he judge and by the preponderance of the evidence the petitioner, prisoner is part of al qaeda or a seceded forces although it turns out that is not always as easy as it might be as our tough results in the gtmo case. the risk of leaving it on too thick to back up and emphasize the point that the stone is getting across the water and the sort of depth it's true in the commission you only need two-thds of the jurors in the non-catal case. from t cover my pspective that is a advantae. but i just wnt to point up the way thatou can unpack thes things. inhe military commission, if

th jry votes say seven throop 05 and conviction that is an acquittal because you don'get two-thirds unless my math is off. in a civilan court by contrast thatvoteresults in a etrial that is the government second that can convict and persuade one juror number 2 from conviction and in capital caes even a military commission you doeed a unanimousverdict fr the death penalty just as you do in federal cour that the verdict in the cmiion in the capitol case has to come fro what amounts t the entire jury of panel which may be substantlly larger than 12 persons so that incipit being harder for the government to get. so i stillhink that the two-thirds rule is net aantage over all for the government in these commission and i just sort

of wanteto at the risk of just going on w too long to give you one example of howou can really draw down into this d get into the weeds how things started to burn out and turn around and get complicated and i wonder that again. second, after the preus requirement of the admissibility confession in the military commissionn like a federa court miranda warnings are not requed to use the defeants against them and while the same basic voluntary testies there's also exception for statements taken up and capture on or near abattlefield. and for the board detenti test is reliabiity in ect prtically speaking three similaat leastsomething like the basic voluntary requirements seems to me nowildly different. sir, closing the courtro, but

federal trials and military commissions proceeding i thnk will overwhelmingly be open affairs rather han the rules of exceptions. there may be some increase ability to close the courtroom in the mility commission and that can be helpfu to be dealing with clssified edence. there's certainly eater ability to close the courtroom d habeas proceeding and like the commission's and federal prosecns the petitioner doesn't have to be there which can be useful agaien you were dealing with cassified. fourth, admisibility of irsi. hir rules are somewhat more relaxed by tatute in military commissi and they are in federal prosecution and significantly more rexed in the hideous proceeding testing law of t detention andthe this week just saying pretty ch all of the hirsi comes in. the only queion is what way the judge assigns to it. this could be gd for the government in some cases particularly when you're taling about protecting sensitive source but what is good for the goose is alsoood fr the

gander and if you look at he home donner case, this is ama bin laden's driver, one of th three guys prosecuted in the commission underthe similar rule, in fact i told he used the hirsi rules greater effect and his military commission proceeding ended the government do these rule are symmetrical and they can cut both ways. finally, the classified evidence. the les of overning protection to the to classified informatn a similar in the two prosecutions and in both they are very good, not only on the substance but also as a atte of process making sure the government can plan a advance and no what informatiois going to need to make the tria go forward. the rules are beer i the military commissions because when we we asking for them we ask theongress to codify the criminal case law and adopt lessons we learn from litigang classified information ises in federal court and just to wrap up in the habeas proceedings

involving the dettion i would say the rules areoth more flexible and lss cerainthan th are in either of the other two. soho of the fighadvantag and i se them subject to all o the caveat, subject to all the caveat i laid outwhich reall are important. so now in order to st of answer theail ife too the otheside of the coin and i will move as rapidly as i can. let just ist he five relative advantas of using civilian prosecution as i see. first certainty and finality. second the scope, offered incentives through cooperation. fothsentencing. i've already talked about that a little bit, and fifth, foreign support. unceainty finality. the rules governing civilian osecutions are mor certa and that they are better established than those in te otr two systems. and this can speed the process, reduce litigation risks, promote

cooperatn and guilty pleasnd result in more reliable long-term incapacitation is. you know, i am now a wall full bottom bureaucrat and proud one. i used to be a litigator and i still hang out with some litigators and i wll tellyou from theerspective of a ligator th certainty, the finality of these rules is very importan its very tough tooperatin a new system and i think it is a pretty significant factor right now although hopefully it will recede over time as we gain more experience but figure would be wrong to disount it righ now second schog, civilian criminal justice system is mch broader than other two of. a lot more crimes to commit to cover everything from terrorism to captivating and it applies to everody. military commissions at the outset are not available for s. citizens. some people like faisal shahzad

and war al-awlaki,ou may haveeard of him they are just not going to get proseced the military commission. and neither commission for war detention is available for terrorist who are not ratedto al qaeda, the tibanor seceded forces. so we are lking about grups like has,hezbollah and th loanable st rmember t two guys i tked aboutho tried to blow up buildings and illinois and texa and they thougthat they we conspiring with al qaeda. iturns out they were actively conspiringith the fbi not nearlyas effec. but they don't have as a resul of that the actual requisite connection to terrorist groups said they areort of out of bounds. so the criminal justice system has broad reach in some cases it is what you're going to need to se third inctives for

cooperation, the criminal-justice system has mor reliable and developed mechanisms to help encourage cooperation to get information and intelligence rom somebody in exchange for changes to the conditns are the duratioof coinement. military commissns have borrowed the plea and sentencng agreement mechanism for the urt-martial senteed 105, and i think this y over tim witht and grows on a pretty good mecnisms but right now it really hasn't been tested and this is a market system esseially. the supreme court has talked about in that way and th kind of systems don't grow up over night. sentencing. i talked about this beore. in federal court judges impose sentencing based in large part on the sentencing guidelines and the military commissions seencing is done by the jury and membersithout any idelines so we don't have a lot of experiencing with sentencingn the commission.

but what we do hae suggests may be the sentencg isoing to be less pedictable. two of the three commission defendants convicted thus far including ti gy, the ama bin laden driver, got about five or sixears which meant with the credit of time served they wereeleas within a few nths and at larg under the aw of the war there is no sntence. the law of war detenti designed to take peoe out of the fight for conflict. attention is lawful the n be held unt the end othe war, but in the case the sreme court warned that as some pint this war turns out t be on like all the other ones and formed in the develoent of the law of the war this authority to detain me on a rafle. that is the record bupetraeu was the circumstans change, combatperations are completed someday. it's not like we're at least to

me how long intothe future the detention authority will endure. final point on the comparisons the internationalcooperation on fortunately so countries includinsome of our allies won't give us either the body or the idence that we ned to convicted terorists. unless we romise we want to prosecute them in a conditional hold th under the law of the rule -- walz the war because it is the only way to go forward. now let me just hasten to add mr. is a risk of misunderstanding. this is not a plea to subjec r counterterrorism effor re in the united states to me kind of global test of legitimacy. is is a pragmatic rconition than some cas if we want and need hel from abroad we are going to have to ely on law enforcement rather than ilitary prosecution to get the job done.

all rig things. iappreciate your not making a mass run fr the exit during this. i know it's not the most exciting thing ever but you can see the basic point i wagoing to try to make is that ou have to do this and believe me it could have been a lot worse. so let me just try to wrap it up. i think we can and we shouldn't immunize terrorists from prosution from the court any more than we ought to unite them from the military structure or other counterterrorism tools there's a couple of things to . firswe need to educate ourselves about all of the tools in the president's national securitytoolbox. within the gerent people who use hammers for a living the need to know something about wrenches and viceversa. there's a real danger of mypia

because at i have seen is to a person wose job is to use a hammer every problem starts to look like a ail. wean't have people, i will use prosecutors as and sable but it appliesto everybody we can't ve prosecutors refctive we thoughtlesy treating every national security threat as something at day and onlthey can deal with without considering the other approaches and that require acrosshe-board. we want to consider all of the tools. and mo generally outside of the government i think the american people should understand and have confidee in the tools the poly maers have put in te toolbox and those of youhat knowme know this public thing is not exactly my thing that it s a big part of why i came here today to tak abt. and the second point has always we need to nsider improving and sharpening the tools.

our adverrieas i mentioned are smart anadopt alan we have to do the same. secures oneexample rectly there's been some discussion whetr the congress might adopt legislion that would be useful on theissue of miranda warngs in terrorist cases. for the legal scholars out the obviously miranda is a cotitutional rule. you know that from thdecision on the supreme court. it can't be changed or overrules by statute. th is how the federal egal hiarchy functions. but te supreme crt's recognized exction to the branof roel in 84and case but said questioning prmpteby concerns about public safety don't have to be precedeby miranda warnings and to use the person who answers to those questions touport his conviction and incarceration a capacity since even if you don't ndized. now the quarrels didn't fault a

common criminal a guy who committed an amed robbery and ran from the police into a supermarket in cheese afr them and he had holster but no gun and where is te gun. it was in the art thng. the questin of the court said we know interrogation even thouh you didn't mirandize they can me in against because it was prompted by concern a public safety which is we don't want guns laying arou the supermarkets. however the public safety recognized by the supreme court put apply to aery different ntext and that is modern international terrorism because e threat posed by terrorism today is a lot more complex soisticated and serious and the threat posed by ordiny street corer crimes and precisely because of that i think there are some good

argunts the blic safety exceptioshould liwise rmit a ot more questioni wre it's in fact designed to mitigate the thrat and we would like to try to work in t congress to see if we can develop something hereha might hep us and ive a lot re clarity and flexibility in these very narrow cicumstaes now involving opeation terrorists basically because our goallways is o promote and protect national security nsistent with rules of law and values and impossible worth exporting this might be one way to hep. i th you for listeng and i would be happy to take your questions. [applause]

you put a huge amounton the table and what i wold like to do is spending alittle bit of time posing questions on mywn and th go to the audience in an little while. i would like to start before i begin as a diclaimer of front david is not in a position obously to address any pending cases or operational mtters. i'm not going to rai any with him if anybody on the audiene does i will clear at you and move o to the next questioner and you will ewastg evybody' time. i would like to start where you ended with themiranda questions. in the week of the attorney-general's comments on must talk shows rather about

is, they're has en a lot of commentary to the effect that pakistani-amican -- miranda doest pose a serious context. people like me argue the real issuis thnecessity of presenting to a magistrate in a very shortiod ofime and some people argue none of th pose a serious problem. i guess the question i'd like to address is what is this a miraa issue what extt i this a present issue and what extent is there a hybrid of two. >> that is a good question. i guess let me try to take the pakistani-arican dedee two mirandapart. can everybod here? okay. kind oa corresponding to the approach i took in the speech that is le e do a little empirical groundwork andthen pull bacand de conceptual

work to identify how think about the force. the empirical question on miranda is does it in fact have a bad efect on your inteigence collection. that is does it dcourage people from talking who otherwise would tak. there is a fair amount of scal science that has been done n this. but ere is suggests miranda doesn't really have a very profoundffect ithink they wod have criicisms studies pointing and dislein both directions studies and so forth but my sort of take away fro looking through me of it was it suggested a profound effect. i have to say i am a little bi more influenced by my conversatis i've had with a professial interrogators who do this for a living at the

federal bi to read a lo of federal interrogations' preceded by miranda warning, and i think at you get when talking to them at least would have goten is pople whore going to talk are going to talk aed on the interrogator, thesituation they are in and so forth and they are going to way, an people by and laewho don't wait and invoke and we now know from the suprem court we have to ivoke probably arnot going to tal any way n a volunty constraint intervw. that doesn't mean it won't have any effect, and i wouldn't go that far but ithink it is easy to ovstate, let me put it that way. for purposes thinking about it lets assume some inhibitory effect. i guess e way i tnk about marriage and in keeping with the approach the five talked abot here in the context of our current national conversation if

youasume mirandawarnings reduce somewhat your abili to get intelligence and assumptions that may get on the other side of the balance the of theis the hance your capacity to detain and incapacitate e terrorists bee they ge you evidenc at you can use that admissible in co that leads to posecution that leads to convicti that leads carceration. with intelligence selection and incapacitationof our national securityalues. both are good both need to be promoted anthere are tuations if you indulge this assumption where you may have t strike a balance beween them thin tension andy the way, this i not unique to the criminal jtice system. i have friends of the dod. taed to them. if you are in the defens

department in the litary and you are thinking about what to do with interest to you identified on the battleeld or elsewhere yo cou bically do a couple of different things. you could do a st opation to kihem assuming this is he lega an engaged in the w to readhat is a relatively low risk compared to the l their optio and have th chance that than a capre operation which is the main alernative by and large it is easier and lower the sk to kill themthan to put people in and t to capture them. the kill operation will have a higher chance of success and in incapacitating this enemy combat terrorist butobviously u won't doing any iterrogation and intelligence colleion. so that's one option he cold tryto cture approach. you will possibly get both.

you'll capture him and he will be incapacitated though detention rather than death he will also be available for you to interrogate an that will give yinlligence collections of this is a approach to econics as well as a bullghter can unrstand. you've got one opportuni which is sort of low risk and potential low yield. you have a high risk of some of potentially higher yield. you could think about in puly pragmatic perspecti that is nothe only way tt we could or should think abt this but it's the way that i'm talkinabout it for the puoses of oday. think abt arina in a milar way. ifyou mirandized some of you get the inteence nd the capacity to dtainin using ose statements. if yu don't, you may get the intelligence but you won't get the enhanced deteion option and we ought to be clear there willbe cases in which a miranded confession is all at snds een detaining the guy and letting him go. the case is nocome out every

day that they will ome up. so i think that at least is the way i thin about it in this pragmatic approach and that is why the public safety is an appealing one cause it would allow us to do the unwarra interrogatns'. so if theris a concern about the invntory effecve miranda wouldn't e present and get the sangs would admisible. ..

two waves guadalupe miranda rights, but their sentment. and i do thk both back tears are in play. i would say neither, you knw, makes th criminal justice system unusable and we are always looking for ws to turn up and improve the system is much as we can. but right now all we're really talkinabout so far as the public safety thing and t the present pace. >> talk a little bit about current threat environment. we tend to fous, fo obvious reasons, dmatically more of these issues when we've recntly had a ne miss case where e have reason to think that there is increased todvd. are we, you kno, the dhs code is always orange to letter what happens. so what kind of environment rbn?

>> yeah, i start every morning with the attorney general and the director of the fbi in a number of oter peoplegetting all the overnight intel and the threat picture. anit's really a terrible way to start your day. i remember when condoleezza rice was bein intervied after she was leaving. she said i particularly do not miss the starting ouwith the threat briefing every morning. you're right that these near mies or in some cses heads, i mean they doave rtain tendency to concentrate the mind. i guess it has been a very dynamic and very, very buy year for us in the national security community. and i think if i try to abstract back from sor of the ees to sort of see the forest, i uess i see maybe three or fourhings going on, which i would put under the heading that the

threat is evolving ina way that should be at least it look more diverse. and maybe also he eoraphy is becoming less relvant. so i a not, by the way, an intelligence analyst, so take this with a grain ofsalt. i've described sort of wha i see every morning, but they're professionals who do this for a living. couplef nenotes beyond sort ofthe fe top region. wee got a few ap, i'm reading andy yemen and we knowumar farouk abdulmutallab came out of that. and now we seem to have ptp, the pakistani taliban going. so we've got somenew node that can produce externally direct terrorist. bua u.s. person recruits, not the omette headlee, others, rather than what she saw maybe early ichi people coming in

fromutside and infiltring or enetrating. in fact,hich is god in david headlee a kind of weird situation -- wherit is not the right word, but an usual which is a u.s. rsphysically here but externally drect hit out of the united states for attacks within a few affiliates. so that kind of turns thing on its head. and then forth think we've seen, you kno, in this area of life and from all otheryou know, e increasing relevance of the internet which does not respect geographic boundaries. that is my analysis of th threat environment. i do thnk t seriou meant what said when i was standi there before ich is i think there's a lot of people who wake up every morning and go to bed everyght and think about how to kill us in those buding i think the threat is real. maybe some people don't agree

with that, but i thk it's a real threat and it's becoming more diverse. >> so on that point, there's a weird effect in e counterterrorism arena that the more successful you are, the le people tend to believe the threatis real. it's t sort of, yo know it's like kaiser say, you know, kindf counity that is esn't exist and that obviously affects people's wilingness to use a robust palette of tool you know, t address the oblem, their willingness to believe in the probl. when yo have these two near misses in six months, people tendo believe in the problem ateast for prposes of beliing the administration mishandled that. but i'm cuious, i mean, how does that effec to the abili to have a stable set of tools

over ime and inpropriate set of tools over time when there is a sort of waxing ad waning of intensitof belief in the problem? fit of all, i wuld be more than happyt be victim of our own success in that rgad. and are flat-out to stop every one ofthese cold. and i mean i thinkif y pull the camera back i talked a little bit abut history before. if you follow r national conversation in this rea, it' a lot like development of policy i think other aeas, which it is a document for thng hat occurs in some of that is naral. it isn't just so of a linear rational intelligent progressio with that plan is adopted and executed seamlessly for 10 years. is the backing and forcing and that's part of the amecan political system and it is i thk also part o he changing

rceptions about the threat environment and changing reactions to the threat environment. but as i said, while he do really fst and foremost is try to protect against these treats as best as we can. and then we eave the implications of that and the conclusionpeople want to draw, you know whe they ay. i've obviously commented on things like hat. so i don'tean to say that we st do it and forgetit. but i do want to emphasize, you know, whatever toolt that we are given and there are real questions about that, but you base questions and other questions. we'll use them as ell as we can, consistent with the guidance to preveneversingle one of these tings. >> so on that point, you know, u hear these two totally divergent narraves of the last several months. e of them, the public one to two year paricularly in

consvative ircles goes. we went for many years without a suessfulttack on the homeland. there weren the last several months o nar misses that happen tt failed only because ofluck nd this is conneted in some sense to a retreat from a war paradim a back towas a w enforcement paradigm. on the other hand th sense you get when you troll around the justice departmen for example, is people really have a sense that there's been an enormous operational successes ad, you know, yo hear phrases that the prident can say on television, but i can't say on televisio in terms of kickingarts of t enemy's anatomy. i'm curious how you assess, you know, how you assess it. i'm not aing for any operional detils, but how do

u see how it's gone? >> so i ws intheoj firm 2000 so003 ad then i went out and came back. and i got back in about march of 09. it's bee for s an extrmely sy, very hectic, very challengg for lite more than a year now. and we've done and i started reciting names andaybe some of you haven't heard about an, but wee ne a lot of cases. in those represent successes. and we've worked hard to sharpen our tools and improve our synergy, take adntage of the structurthat the natnal security division has and the tearing down of the fisa wall to work togther.

and you've got to take this with a grain of salt givewhat i do and where i work, buti m extremely proud and very gratied by the work that nsp on which i know best, and doj has done in this area and i ink we've done a lot of things extremely well. we can always dobetter. we are alays thinking aout improving things. but i would say the thrat is evolving into this in many my ways becoming more challenging anthere does seem to be i think -- i mean your views on this might be just as well-qualified as mine. there's a lot of it to be in this space right now. so i think we've done a lot we've sharpened our tools a lot, we've improvedur processes and we've learnewhen we don't names right. and i think we need to keep learning because this is not something that you sort of,you

know, fire frget. this is an inteprocess wher you have to constantly mong. i said the enemy was intelligent and aptable and they are and we need to be intelligent and adapble and responsive or want to keep out. >> why do we take some questions from the audience. yes. [inaudible] >> wait for the mic, please. >> tanks ad air and a student at u.s. amherst. i don't know if you read the recentruce hoffman article arguing that al qaeda is win the war on ideological grounds and is me successful because they're able to sortf went more recruits, rlenish their ranks. i was wondering what tools are in the toolbox and workplace law enforcement does in that areof counterterrorism. >> so, iaven't read the article, but maybe i shoul

in terms of, you know, dealing with the supplof terrorists as aware, as well as from the demand-side obviously doj coming and no, it intelligence law enforcement agency and so we are very focsed on stopping them, catchinghem, preventg, protect eam. we also, you now, wa to do outreach to communitie make sure that they'll tell us when they see things. d we don' wntto have an endlessupply of these things, of terrorists oming forward. and i guess it give me an opportunity sort of without going away outside ylaneand getting into the turf in the area of the state department say or something in that realm, rt of make a mu narrower point which is, you know, in this conversation that we've been having thus far and the spee i gave was pretty explicit abot

saying that i was coming at this from a pragmatic point of view, sort of samelook, put the tools in the toolbox you think are consistent with our vaues. ve us someuidance about how to use them consistent with or values and then let us try to make specific assessments about which tool is best. that seems har because of e ndf conversation were havi rit now. your question gives me an opportunity to say the'll e e importanas i mentioned and they do haven th five, not only on us a how we se ourselves, but ow are i'll ics and how th'll cooperate with us in our ad very yes. and i think you can be pragtic in your outlo that is coming you can b focused on winning and still think about value for something that helps you win. they're good in themselves, but they're also good in depriving your adversary of what it might consider to be eoral high

ground or if recruitment tools that might allow them to get more people. and so we ned to be conscious of that as we go forwa and try to, you ko duce their supply of recruits as much as we can. >> yes. >> thank you. danmark is eaching atamerica's law school. i want to ask a queion, david, about the inersection of your lk today about the prolem opposed to guantánamo. if mmemoryerves me right, none of the people have been prosecuted successfully inu.s. courts apart guantánamo detainees. and obviously a major setback that t administration has so far, perhaps not a permanent one is the inability to cse guantána nd transfer the detainees to the united states.

how much o a problem for using the law-forcement model where we should se it is that creating for you and the justice departmentnd nw matched has that problem been exacerbated by the reacti o the plas to try kss and he other higher level detainees in new yk? >> so i'll try to avoid comment on particular cas other than to say there is one on th in the seven district. he was i the fabriand bomber from the original indictment. you know, get now is a very besting problem. it's a very vexing problem nd 's a ve vexing pblem for this administration. and i don't think tha -- let me put it this way, you know, there's a converti goig on,

a political coersation going on and a poliy debateoing on about how to deal with and what tos are to be available for dealing with the gimo tainees, which is kind of a subset of a largerconversation that i've been talking about, which is how to deal with all terrism deanees. and so, my perspective on it, you know, as we are to make available to the operational folks all of the tools that we think are appropriate and coistent with our vaues. anpeople can disagree about that. there's a lot of room for disagreement here. i do think as i've tried to argue today that depending on the facts, law eorcement can be very affect his and protecting national scurity and incapacity and terrace for the long run and in gathering intelligence fromnd abo th.

that, you know, ultimatel i'm reactive to the tools that've put in the box. so whatever we have with the guidance that comes with that, we'll use it the best of our abity and i think that's as far i ca go withone. >> just to follow up on that -- >> i just about as far as i can go. >> youknow, if it's very hard to disagree in principle with the idea that t government should use all the tools in its arsenal direct at, you know, howerou define whatever those ols are. >> great. >> you kw, but one conquence of that is that if yo don't have aset of sortof known principles, if it's a highly site-specific inquiry related to this individual, which box s going to go in, which tools are gog to a reagans it

inevitably comes out looking like the answer to the question at tools you u is anut or the inconvenienc of the governme at any given time. nd there's a lot of criticism and the administration of the three twentieths -- alleged hijackers ended up into different systems. some of how he ends up in criminal cour, khatami and other military detention, u know, youhave your very diffent outcomes that seem to have no guiding principle to them. and i'm curious, you know, so you advocatecome you know, using other ols th are disposable, but at canlick a principle d how he could case gets disposed of? >> so look, imean, you can think of values or rt of other act yours in at least two different stages excuse me here

at first, this knd of a threshd determination which have mostly been talking about, which is deciding what tools will be made available. anyou can simply sayt the outset, certain tools not in the box, not consistent with our values, you know, not goto do it. there's a second order way in which values or other facto beyond justice sort of the path of least resistance or soething can inform jugments. president obama speech for example of the national archives last ma 2009 -- mean,he talk about five categories of detainees. the fifth category of which were people who we thought were dangerou couldt be released, can be prosecuted for a number of reaso and therefore would be held in mom for detention. that's not urfirst resort as i read that speech and the policy that goes with it. it's available,but it's not the first resort.

so there can be based on someing her than just raw pragmatism a kind an ordering or some policy guidan that es into the use of thee tools. but, you know, on the flipside of that, there are protocolsby which fera prosecutors deide whether somebody shoulbe prosecuted in deral court or in state court or in civilian court or use cmj if ey an the military and within a jurisdiction or within .s. court or foreignourt and they set out a u.s. attoney's big nasty ok that governs prosecutors and doj. and those that are his start withhe ssumption that all of th systems that are vailable, federal stat military use cmj ar fair ad are consistent with

our values. and then ty set out some fat tes. some of them are pragmat. wherare you going to build to make most effective case of the prosecution. some of emar he more abstract like who's the victim, what's the nature of the offense and where did the victims reside or something? and so, you know, you ha to decide at boh levels how you're going to do thatassessment. so i don't mean to suggest and i apiate the opportity to clarify thisn case there's any misunderstanding thatis just a one level etermination. you either religion or willit ouand you st get out of the way. th's not what i'm saying. i am sggesting that there is multiple levels at which we can do that kind of sorting and prioritizing. but do want to say that i think the poly guidance tha's

given should both based on lessons learned from the operational realities. i have always felt, i have often felt that theest poly is rived from abstract data operatnal experience in the lessons of what really happens in. please. and tha the plicies we adopt, if we think all ofthe various tools are fair, ought to eave relatively argemound of discussion because i do think a lot turns on the particular facts. but i don't want to go so far as to say just give us what'sn d then back up. thers obviously oom for and we would welco policy guidance within those bounds. >> shane harris. >> hi, daid. shane harris of washingtonian magazine. i nt to give it a little bit off the discussion of the department and sk ittle bit of self-intested. i take it youreot gong to

discuss the dictment of thomas drake or the subpoena that's be issued to james rison, i like to ow gieon what ared to be an unusual numbe of publiclydisclosed cases of qualified information being leaked to the press andt publ. what is your opinion on whether or not jrnalistshould have legal privilege that protects them from ving to disclose the identity of their confidential sources? >> i think law-enforcement is an extremely meod of combating terrorism, shae. [laughter] and will bealng about that later. so credit where credit is due, ose two casesyou mentioned our work othe departments criminal division, not the tional security divion. i think te leaked cases are challenging to prosecute for obvious reasons. i think under doj policy tody

there are requirements as you well kw and not u.s. attorney's mineral when it is you can go and get information from a reporter. and that goesabove and beyond the constitutional protections that the supreme court has ruled on and branzburg and other cases and thee's obviously conversation going on about media shield and the like and y go here woulbe not tomake any news on that issue. [laughter] [inaudible] >> you're at the justice department you have to carry about the legal unrpinnings of what you're doing. when you read your briefs, for everythingou're doing that go beyond the law enforcement mode, you mu everything on authity and you inoke that

taste on the athorizatio use mitary forces in afghanistan that was passed a few weeks after 9/11, which specifically talk about retaliating against pele who attacked us on 9/11. here we are nine years later as you point out the reat is evolving. on onethe new des you talke about the ttp, pakistani policy and didn't exist at t time of 9/11 and now would you respond to people who say, we e alreadat the point ere you' stretching it by using evything based onnot auorization to use military forces. and, yo know, more broly thinking down he road at some int soon, don't you have to find a negal basis for couct i the kind of opationfor conducting around worl? >> i give you a procss-based answeto that than a substantive answer to it and then a little look down the road

to sort of lidate a little occurence of the question. in terms of process, we are reliant on the au and math and sort of a definition of who may be detained only f promulgateon mar 15,009, in th context o all of these habeas corpus s. and you know, the definition as i'm sure you know relies on pretty venable principles of the law for hh after all developed over a long period of time with respect to, you kow, al qaeda, talibannd assoiated forces under this principle of co-belligerence he. so i think there is a relavely well developed, not perfectly deveped and i think it develops further every day but there's a good solid body law underneath that. and so i do think this is not just something that wasmade p to deal with a short-term

crisis. havg said that, and i mentioned in the speech, in a humvee ce, the supreme court said we knowrom thecourt that it includes detention authority as sort of an accoutrement of using military force because it parof these milr foray force to deain these people in that concept. the court also said, you know, pretty explicitly if this conflict endures for a period of time that makesit unlike the other conflicts, at informed the devepment of the law of r, then the understanding that you may detain for the duration of hostilities mghtunravel. so in termsofprocess, we are in court. we're subject to judicial review. we're not just jus deciding this on our n in a lot of cases. there is habeas corpus to you in. in terms of testing i thin it

is based o a solid law of war prciples. the third, t cortes said at some point in the unravel if this one turns out tobe vry different than all the other and with that pot would obviously -- would like to be able to anticipate that andet out in front of it and certnly deal with that before it happens. >> you know, we still combat troops deployed abroad in ghanistan and that one of thebg fat or is that the court identified. so i think not right now, but you can't ignore altogether a statement like that from t supreme court. you need to be on the lookout for. >> there's time for one more question. >> hi, evan press, the "washington journal." the shahzad case in which he courtside distaste tht there was obviously waiver of miranda for several da withrationing

suested that perhaps you don't need any changesto mira me, t seemed to avert just fine. can youddress the queions might be arising from that? >> yeah, so n't ta about shahzad per sut i'll use it as a jping off point. i may e -- itink atsome point during this affair i talked about ae ran that in response to one of ben's first question and sort of the frst thing i did was to do the appear copious and doest in fact inhibit? as i said, adding that a lot of cases in which pele do inact waived their rights and talk voluntarily and te agents on the fbi whom i've dealt with sa, you know, if they're going to talk they're probably going twait. i dowantto overstated to say absoluty always brand that never has any effect. but i do think there have been a lot of cases according to what you say, should thought is one

of them where we have been able to get intelligence depite miranda. so i wouldn'want to leave the impression tht miranda prevents us from gathering intellince. you know, nonetheless, you don' absolutely know a prioi another case that that's oing to happen. and so again, that's part of what drives the interest of the public safety exeption. >> thank you very much. this has been illuminatg in every respect and we hope you'll do it again sometime >> thank ben. [applause]

>> coming up next on c-span, nato secretary general holds a meeting with security then president o'bama's testifying before the senate commerce commee. then at 7:00 a.m., "washington journal." what iran's sanctions mean for that country's nuclear program. today the senate's ranking member will talk about how his bill may affect the bill.

congressman bachus is interviewed, see it here on c-span. >> we've got three new c-span books for you. each with a unique contemporary perspective and something new to you perhaps about lincoln. to order go to c-span.org/books and each also a great idea for father's day. >> next nato rasmussen holds a meeting about the mission in afghanistan.

this is 20 minutes. espect yo >> good afternoon. the fact that i'm competing with the opening ceremonies of the world cup, i appreciate your commitment to journalism. [laughter] straighward. thstrategy is working. it i delivering the results. taliban are resisting every step of thway.

isef will stay as long as i takes to finish thjob. it is afghanistan where terrorism can find safe haven is a menace to us all. nace toward all. a stable afghanistaneans a safer world. our focus today was on two issues, transition and training. afghans. transition to afghan leader is not only desirable, but it is inevitable. whate discussed today was how ensure it happens in the right way. we wl agree with the afghan

government on the detail and road map. ree fundamental elements are already clear. fit, transition does not mean withdrawal of our forces. it means shiftg toward s upportg afghan forces and longterm training. the mitary and civilian conditions have be in place r a trantion tbe irversible. third, we wt those conditions to be in ple as soon as possible. which brings me to training. we have had real success in our training efforts. we establhed theraining

meeting about six months ago. 2300 trainers are require many are aeady provided. wetill need about 450. i have pushed them very hard to dig deeper to nd them. training is an investment in transition. the march, trainingh dide sooner transition comes sample population and smart investment. one look at the battlefield makes that cle nine yrs ago, the was no afghan army. today there are over 130,000 afghan soldiers on the ground and in the fight. ere are about 100,000 afghan

police. that is a real sucss. as they get better at defending their country, we will be able to take on a supportingole. ised on today's discussion, am sure that we will see more trainers soon. this morning, we met theefense minister in theato/tokyo commission. heeard a strong meessage of territorialgeorgia's integrity from all allies. if they think georgia forhe

strong contributn to t icef missions and they iterated a totnato's door remains open standards.en its meethe that day is notet here. there is a long road of reform still to follow. tehe elections were an encouraging sign. nato will continue to support the reforms. that is all from me. i am ready to te questions. >> bbc news. you said that you hope to the transition process which began at the end of this year. do you think that'll happen given that things othe ground seem to be moving more slly than you anticipated? >> i sll think its a

realisoal that the process can start b the end of this year. i have stressed that is a a ition and not calendar based process. the transition can start at the end of the year provided that the nditions permit a gradual transfer of respsibility to the afghans. that is exactly my point. we have to work hard from now on to makeure that the conditions a met. >> bloomber just a question of the opening of the suppl route through russia and central asia. w quily will this route be is the goal to ship the

majority or is it the the the proportion of suppes to tt route to avoid the me dangerous route to pakistan? >> i've is a, cannottgo into details about the obviously, i cannot g into details about our operational decisions. wel tak advantage o all the trsport routes available as soon as posble. >> german press agency. two questions. he said he pushed ministers very hard -- part. how d the respond? did ty promiseore trainers? what do you expect? on the afghan army and police, you told us about the quantity traid. yet not mtioned the quality. how would you rahe qlity of the afghan forces?

>> the two questions are inteinke an expansionf the capacity, improvement of the cacity of the afghan security forces is that only a question about quantity. it is also a question aut quality. the quality is also about trainingnd education. it is twoidesf the same subject. i t a positive response. nisters agreed training is key to fill r goal of starting transition and a process. the fourtheration is also a ocess. today we have had theolitical discussion. now our military authoties will renew their requests and

initiate contacts with individualies and partners. as i said, i am confide that we will see pledges in the coming weeks and months so that we can further expand the capacity o our trainin mission. >> to questions. prti a three yr. thefghan police is shown to be very much corrupt and the afghan army is not really could do well. how can you fht corruption in th cing months in thfghan force? how can you eip the afghan army in inust a few months? is the a specific budget for increasing the quit since -- the equipment? >> let me say tt i think the

ghan army isoing a great job. afghan soldiers are good fiters. of course, part of the expansion ofheir capacy is there that we gdually build up their military equipment. asar as the fight against corruptions conccrned, iis primarily a challenge for the afghan government. president carter's kar --zai and the government -- karzai and the government have committed themselves against corruption. i am cfident the afghan government will do its utmost to fight the corruption. i fully agreehat it is key to

establish confidence i government of in ortiz afghanistan. government authoritiesn afghanistan -- establish confidence in government authorities in ahanistan. >> geral mcchrystal is concerned of the rollback of some trips next year. he expects other allied countries to hav similar plans and that it is realistic. do you sharehat assessment? do youxpect others to start growg back troops next year? >> this statement is not a new statement or a new assessment. it has beenlear for quite some time that 2011 will be a year fo evaluation of the troop surge. we have decided on a troop

rg in this interview, general mcchstal has stressethat the transition wl be condition based. it will not be calendar driven. ife a in a position to change the role of icef troops during 2011,t will be because conditions permit and the capacity of the afghan security forces has been so well developed tt the afghan army and the ghan police can ke on these responsibilities.

>> how can they insist the country? what reeorms must take the future? >> speaking abou reforms, in

georgia, i think focushould be on reforms of the defense in sick. e defense anecurity sector. we crossed a more broader reform enda. we discuss this sectoreforms. we go beyon that with the refos of the demtic system. they are off the judiciary. we discuss all aspects of reforms necessary to prepare a country for a possible futur membership of nations. with regard to the summit, i think the most important mes for couutries with aspirations

will be at nato's door rains open. our policy is bed on the principle that each individual countrhas a right to decide on its alliance affiliation itself. it is as simple as that. it is stated that the alliance may invite any democratic country to further the principles of natures. we bay and fight any suc country to join the allian. -- we they fig any such couny to join the alliance. we reiterate them at the summit. >> "washington post." added follow-up question o trainers.

you've been asking for the trainers for several months without much to show for it. why have nato members been so unwilling to revi therains thaturkey tohe strategy? aren't you getting frustrated this time? >> we are faced with a more basic problem. it is not lack of will. it is much more a lack of capacity. it is a new thing for nato alli to engage in such traing mission we established a traing mission six months ago. to be a train it require some specic il. it is a gradual process. we have to adapt our alliance to

this new task to train and educate local forces. i think we will deal with this aspe in the new concept. new allies have raised this as an issue for discussn. taking into consideration the need for training and education of loc forces. ey engage such training activities. in my opinion, that is one of the leons leaed from our ssion in afghanistan. in conclusion, it not lacof will. is in the short term a lack

of capacity. we work hard to develop that capacity. the longer-term perspective, i think it might leadthe conclusion that we need this trning cacity as one and the nato's capabilities. >>he process and afghanistan is under review. how you seeakistan and the other neighboring countries? >> pakistan can pull a -- play a crucial role in our endeavors to improve the security situation in afghanistan and to be very dire about it. we cannot solve the pblems in ghanistan wiihout a positive and strong engagen of pakist.

but weake this opportunity to -- let me take is opportunity to commend the pakistani military for their determined fights against extremism and terroris in the border region. i would vermuch likto see cooperation with pakistan further developed in the coming years. we hav alreadyaged in an tensive high-level political dialog. i uld als like to see an intensified military cooperation based on demand from kistan. in conclusion, wneed strong partnership and will grisham.

>> coming up next, president ebama's -- at 7:00 a.m. eastern, it's "washington journal." topics include the liberal wing of the democratic party and what the recent u.n. sanctions mean for that country's nuclear program. after "washington journal," news makeers with congressman backus. -- bachus backus. this week president o'bama makes a tour to the west coast. he'll tour mississippi, alabama and florida. tuesday, the heads of the largest oil company testify on u.s. energy policy and before

tte house and subcommittee on environment. the white house has invited b.p. executives to meet with the president on wednesday and tony hayward makes his first appearance before congress. both of those hearings, live this week on c-span 3 and on c-span radio. with the confirmation hearing for supreme court nominee elena kagan, today c-span takes you inside supreme court to see the public places and those rarely seen spaces. hear from the justices as they provide insight about the court and all its history, the supreme court home the america's highest court today on c-span. >> the democratic the congress for 40 years, and there was a certain level of corruption that had taken hold and we're rallying againss that.

so it's so ironic that years later i would be the face of a similar type of corruption to a whole different group of people. >> director alex gibney talks about corruption on capitol hill in his new book, about the life and times of convicted lobbyist, abramoff. >> coming up next, president obama's testifying before the committee. discussed was improvement to the airport screening process and the terrorist watch list. the third person to be nominated for this position. this lasts an hour and a half.

>> good morning, eb. the two most important members of the committee are here and trod work. we are theory consider the administrator of the t.s.a. it's embarrassing. such an enormous undertaking doesn't have the leadership that it needs. i am quinsed that you can provide that leadership on the basis of work we've done in the intelligence committee and the conversations we have had on this topic. there's no question in my mind about it. we can't ignore we've been without one for far too long and we've fade price for it. this country has endured an attempted christmas day attack, an attempted times square

bombing. and where the terrorist pulled off the plane was about to take off for dubai. and they pulled him off. and just this weekend two men were arrested again at j.f.k. as they attempted to board a flight to egypt on their way to somalia. well, that's a good combination. and they were planning on joining a terrorist operation. we've got to get this right. our vast and open transportation system which is american in its nature are part of everybody's lives and in towns and small economies and they connect our cities to a wider world. it's what makes our transportation such a powerful tool for terrorists. we open ourselves to that nature and pay a price for it. it's not even really that hard, but it's going to have to be.

and they are constantly looking for new ways to make a taxt to do things. they are single operators. they can be less sophisticated. they can do it before -- because they are mad at america and they are americans sometimes. wherever people are having trouble economically or in this country and people get mad and frustrated they want a way out and something to belong to so they can say it gives them identity and unfortunately terrorism is one of the ways in which they can do that and feel like they are strong men and women. as i indicated, we've had concentrated discussions on a variety of things over the years in the intelligence committee common sense very important to me, because i know that some of this is that you have they are thinking about st is. and what has been attempted. what has been attempted and

hasn't worked and what has worked. and itts very upsetting. so t.s.a. takes on this tremendously new dimension of one needing too-- good morning. and one to need to make lines more efficient to get people less angry all up against a budget freeze, which we have to talk about. and the same time, be a ahead, if possible, of terrorists. skilled administrator.enced and and we need that person now to lead the t.s. anlt to lead the workforce, because people can work hard, but if they don't have a leader, something hhppens to them eventually. and you, i think, are that kind of leader. we just need all of this, period. i, myself, speaking as one

senator are confident and you, far as i'm concerned. as director mr. pistol is the second in command. muller then john pistole. and a large agency that does things all over the world and you've worked with him for 27 years, which is a tad more than, you know, a learning experience. you've been a special agent. you've served in many different leadership roles, specializing in white collar rights and civil rights and participateed in investigative and recovery agencies for the egypt crash off road island and later appointed to the inspection counting k evaluations and

audits of field offices and head quarter divisions. that was giving you the run of the campus to find out what was wrong and the run of the nation. after september 11, and in 2001, director muller appointed you, john pistole to the u.s.'s counterterrorism division where you testified before the 9/11 commission. we all watched all of it on a panel entitled prepareding future attacks in the united states. closed quote. with such a broad background and i think the disciplined nature of the john pistole i know, tte hard worker, tough guy, i firmly believe that you have what it takes to exact this agency. so we have to make that change,

we have to have an effective leader at t.s.a. i think it's one of the most difficult position ins all of washington, because you have all of america in magnificent se consequence and they are mad at you because of their inconveniences and there will have to be more if they don't want to do that well, so it's just such an important job. let me enddup by saying that t j. let me end up by saying that the commerce the congress committee has a tremendous effect on oversight. we take it seriously. e know at, and we taket very, very seriously. this committees currently drafting two ver important security lls. one is the tsa thorization obviously and the other is the to have those ready to introduce

within several weeks withi a week or two. mr. pistole, should you be confirmed, i very much intend to work wit you to make sure that tsa succeeds. it's just so imrtant. it's life and death stuff, and it's at the heart of american traveling and the essence of freedom that people feel and the things come in conflict at some point. i expect you and the administration to communicate with andork withongress to make sure that tsa has the funds it needs so i tally thank you. read your fbi reports. they were -- they were utterly boring. they were so clean. i yield now to my vice chairman, my parer senatoray bley hutcson. well, thank you, mr. chairman. mr. chairman, i really apeciate that you called this hearing so quickly because there is no question thathis imrtant agency not having a

head that has a strategy and a an and an ability to manage 50,000 people across the country and the wld is not theay it ould be a so i appreciat that we acting quickly and, mr. pistole, you and i have met and i too have read your fbi report and i would concur with my chairman. i'm going to tel you funny story later. bu think that honestly i believe the president has made the right decision this time. i'm not going to read an opening statement, but just a couple of points. as younow and wealked about this, am very concerned about this obvus pressure toll collective bargaining b t employee i am adamantly ainst at.

i will a you that questn as i told you i would, because law forcement and security personl are just in a different category, and that is recognized fro local govnment all the way to the fbi and others. you can have ght-hour day yoha to be able to respond to emerncies, and you he to be willing and wan too that, to take thi job, the tsa inspector, you have to want t keep america saf and you hav to be willing to go thextra mile a not be a 9:00 to 5:00 type of employee. there are other jobs for you if that is what you want to do,o i will be asking you about that and as we go forward, if y are confirmed, we're going to ask you dow the roadhat the atus ofhat is because you'll

have to make that decision and i hope that with your background, it is the right e. and the oth pnt that i wou just makes that y having servedn the fbi are serving in angency that h what 102 years of history, but you're going in to be the top of an agen that has been in business for nine years, and there have been a few stumblinglocks and, you kn, we were here wn we were writing the bill that created the tsa, and we looked carefully at all the different ways to organize ind we gave it to homd security and we made i a separate agency there and we wanted to make sure that we do all o the right things for this important position and so there have been kinks b

largely it's worked and i hope that you will be the one that sets the standards for the fure for the way the agey operates. and it has to be efficient. and it h t also not encroach on the traveng public tooo grt a degree and the's just a fine balance there. iant to say that my experience in the airports, for stance, th employees at tsa do a great job and they're friendly and they're nice and they understa the frustrations of the passenger that has to be the one who is screed and i certainly have had that experience myself and it's not fun, but they've been very, very nice a polite and derstanding, so i think that it is a good agey in the main, but we also hav other besides air sues.

we heorts andillant input on port securi, because as i mentioned to you i my home state of texas, we have the second largest chemical complex in the world right next to port and so we need to make sehat wee d everythin to secure our ports,ur trains, all of the --buses, all of the traveling mod tt our people use d that are used i commerce, so is a big job. i think you'r up to it and i have seen notng that wld give me pse and t people who really know you and haveorked with you,hich i haven't also give you the thumbs up. so i'm looking forward to workin relationship with a no-nonsense law enforcent background person like yourself thatill get on the job and n take n for an answer. thank you very much.

>> -- to gives a very short comment and senator begich, make a short comment then we'll g to you. >> thank you, mr. chairman. it's not very, veryhort but it iseablyrief by senatorial standards. >> this is a bad begiing. >> by house sndards over here. >> the one nute. >> mr. pistole, goodo see you again. ank you for many cld g by my office. i enjoyed our conversatn and i believe you are well qualified fothis position. want to make the same point to you that i've made tother nominees that the ability of tsa toe ae to quickly rpond to threats isssential toir effectiveness. abandoning the current policy that prohibits collective bargaining by transportatn secuty officers will

significantlyundermine tsa's ity toespond to threa and proct the nation and it's a chge that hope you will counsel the president against. i implore you topproach every policyssue at tsa wh a simple qution, what will this do to improve securi? and we all know the predent s made political promise to the unions in return for their supporto force collective bargaini over 50,000 transportation security office. but your pmise has to be t keep the american people safe. i ask the secretary of homeland security a few months ago ts question, how colctive bargain at the tsa will improve securi? her answer was that the tw weren't mutually exclusive. hernswer wasllustrative because clearly she coun't come up with a good answer of why collective bargaining was going t improve security. when the secretary o homeland serity can't tell us how a

change to homeland security policy wl improve security, it should stop us in o tr. this should be a clearessa that collective bgaining at the transportation security administration remains a threat to aviation safety and the only reas to adopt collective bargaining is a pba to political allies. having been a career civil servant who spent his life seing th nation under administrations of both parties, i hope you wil provide aice to the president that turns on th sine question, how will is impro security? as i've mentioned collectiv bargaining will not only not improve security it will have a direct negative impact on security first it will impose a 19th century industrial persoel managent melo a 20th century information a that. the threat we see in the aviation sector is creative and nimble and our response needs to be creative and nile. we need toontinually improve what we do at tsa. e men and womenho protect

the aviation sector need to be able to quickly respond to changing counterterrorism tactics so wean thrt adv adversies and ptect paengers without gting a sign-off are a union boss. the secret service, coast ard, theilitary andhe fbi where you re second in command realized this lon ago and prohibit collective aining. additionally youan't have a security workforce tha has rigidtandardized ocedures. the procedures tt are pt and parcel of aollective bargaining agreement are exactly th kind of produres terrorists can survey and defeat. it's frurating that the ameran feration of government employees on their website, they ask for exactly that theysk howt would -- what would it mean to you? the union states they're promising that workplace rules will be improved and standard. this is a threat to national security and complety unacceptable and i hope you wil

do everything you can to ensure that the union demands -- yes, sir. i'll jusinclude the rest of this in my questions but i think ow your colleagues at the fbi will laugh a you if youver try to make the case that security forces need third-party gotiations. thank you, mr. chairman. i yield back. >> thank you, sir. mr. pistole, we welcome you here. we would like very muchor you to introduce your wife and two daughters. and then hear your statement. >> well, thank you, chairn rockefelleand ranking member hutchison and i would lik to take that privilege of introducing my wife ofearly 31 years kathy harp and lawyers lauren and jenfer who are with mere hertoday. i thank them for their unwaiving love and support because without them it's a very difficult j to do so thank you for being here and to the committee, appreciate the opportunityo be here today and i appreciate your very kind opening comments,

chairman, and ranking member and to be here as the president's nominee as the assistant secretary for tsa i'm honored b the president's call to service and by sretary napolitano's support a in addition to exessing appciation to this committee r what you've been through and dng now for this impoant position, i would also like to eress my personal appreciation to those in del, state, local tbal law enforcement and in t u.s. intelligence community tt i've had the privilege of working with these nearly 27 years. and i'd also b remiss if i didn't acknowledge our internatnal partners with whom i've had the privilege ofor because it's without their help we wilbe unable to fully dress the worldwide terrorist threats which may impact the homeland. we know that national security and counterterrosm are familiar territoryor me and during my careerith the fbi, i think it's as provided me the skills and experience necessary toead tsa and address the chalnges of keeping the

nation's transportation system secure. r exple, in 1992 worked with the italian authorities inveigating the assassination by t siciln mafia of the two top anti-mav yo judges and what could be described as a surfac transportation bom and then later aehicle born ied spectily in two different assassinations in 1999 as you mentioned i help lead the investigation recovery efforts of egy air 990. off the coa of new england whichilled over 230 op. and after the tragic events of 9/11, i was put inharge of helping transform the mission and focus of the fbi's new a greatly expded counterterrorism effos. in may20 i led an fbi teamo riyadh, saudi arabia, inveating the al qaeda affiatedvehicle-borne bombings targetinghree western housinmpoundwhickilled 40 people including 8 americans and as you ned for the last 5 1/2 years i served as deputy

direct o the fbi to protect the homeland. these experiences in the years spent as a streetgent in minneapolis and new york, partularn a joint fbi/nypd joint organized task forcend as field supervisor in indianapolis, assistant in charge in boston, inspector as you noted then as strucker at the internationalaw enforcement academy in budapest all of these tgh me the critically important lesson of developing key partnehips. all designed to protect our citizens from those who would cause us harm. now, we know since the creation after 9/11, tss played aital role in securing our nation's transportation systems. th rely upon a dedicated workforce including over 47,000 tsos at airports throughout e nation. theyre tsa's field office, the front line in a layered network protecting our aviation from adversaries. i will dedice myself to protecting them and ensuring the hiest standards of

professionalism and i also confirmed will assess tsa's nonaviation surface transportation efforts in concert with ste and local thorits. additional i will work in close collaboration with all stakeholders including other deral agencies, state, local an tribal governments, private industry, our international partners and of course the traveling public. in closing i look forward to advancing tsa's critical mission and so, mr. chairman,nd ranking member hutchison i thank you r the opportunity to appear before you today distinguished members of t committee and welcome your questions and if confirmed look forward to working with you and meers of the commiee. thank you, sir. >> thankyou, mr. pistole, very mu i am going to open the questioning by asking you to try and give a thumbnail skeh of how you see the terrism threat and therefore the use of airplanes and, therefore, the use of dection equipment and how satisfactory is it.

how doou see the terrorism threatomg from oversees? how do y see it from people o come from overseeso be embedded here and how do you see it coming from america themselves as anger grows, which, of course, it is? and then how does that mesh into how youchange amplifyr whatever t technology that people have to go through to be searched, because tt is an absolute oigation and the wide body imaging thing is anatha to a lot of people, but i don't know how you get around at, so can youalk about how y see the wave, t sequencgfhe threats, the magnitude of the threats a fro ere, and how do you address tecoly to try and count that? >> thank yo mr. chairman and

that actua addresses my top priority if confirmed into going to tsa to ensure that the men and women of tsa and all those who deal with itee it as a threat-based inlligence-dven agency with theational security focus answering the queson o how doe manage risk we know that al qaeda and its affiliates including ttp, for example, associated with shahzad on times square and a number of other afil quitted aqaeda groups have the intento commit attacks in the homeland. the question is, their capability so what've been doing in my current job as deputy director is try to work with all the interagency partners to identify those threads of intelligenc which may help inform our actions here in thehomeland. and i think at tsa i becomes especially criticalor example given the christmas day plot and the concealment technique that was used in ttlo which has to be ud to help inform the peop on theront lines as to

what type of detecon is appropriate,s theest suited to detect those type of new concealment methods knong that there was a great deal of sophistication inhat device and what itomes back to is making sure that tsa has the latest intelligence, the latest training, the latest techniques and the latest technology to work as part of that layered fense. the best scerio is we have intelligence through the intelligence community to say there are threa at this particular lation whether it's an airport, a port, a cargo ship,e know obviously from madrid and march of '04nd london in july of '05 both july 7 and 21st from mcow two months ago two female scide bombers on the subway, from mumbai in 2007, othncidents in india terrorists are interested in soft targets so e moree harden our targets, the more we see opportunities

that the terrorists are loong for t hit us such as in times square, somebody as you mentioned the freedomse have here in the country. somebody can drive in, park a car, walk away and explo a deviceausing maximum carnage so that's what we have to do, ma sure we're threat-based intellen drin allocating it to the risk and factors into what is t tecology wre acquiring, how do we trainur people and how do they go a doing their jobs as part of that layered security. >> so you're really making the security factor the main factor in terms of these of imaging and technology and what it is that people have too through? i mean -- >>absolutely. >> we started with shoes. that was bause t shoe bomber. >> right. >> you know, when we have more than a three-ounce tube of toothpaste we t to pitch it. people don't like it. i don't know whether that's related to security but it sure

could be. >> sure. >> so is that -- is that what rules in making decisions about imaging and equipment and what people have to go through? >> yes, i mean security is paramount, mr. chairman. the whole purpose of the agency and all the u.s. governnt forts sce 91 have beeno enhance security obvioly trying to balance civil liberty and privacy issue that are tendant to being citizens of e unit states. in myurrent job i've had a lot of opportunities to do that in how we investigate u.s. citizens and those others to make sure that we're doing everything legally possible t prent b things from happening whi precting the civil liberties and privacies of those who we don't have an investigative interest in. that leaves a watch list and the watch list was violated recently. >> yes, the watch list is important tool in the overall toolbox, if you will, thathe u.s. government has. it is constantly being eluated modified to eure it is t best information