by what justice stevens had to y in dissent. you have congress constructing a detailed record. 100,000 pages, and congress has structured mccain/feingold based upon the standards set by the supreme court in austin versus michigan chamber of commerce, and then as justice stevens noted, the court pulled the rug out from congress, affirming . . constitutionality that had been in effect for 100 years, and as justice stevens conclude showing, quote, great disrespect for a co-equal branch. i will try to make my questions as pointed as i can.

to the extent that you can answer them briefly, i'd appreciate it. we don't have a whole lot of ti time. what is your thinking on the disrespect for the congress when we take a supreme court decision and we structure a law based on those standards with the customary deference due congress on fact-finding. isn't that really what justice stevens calls it, disrespect? >> well, senator specter, as you know, i argued that case. as you know, i filed briefs on behalf of the unid states in that case, and in those briefs the government made a similar kind of argument, that great deference was due to congress in the creation of a quite voluminous -- >> i know what you've said. you've talked about that a great

de. my question is very pointed. wasn't that disrespect fful? >> senator specter, as i suggested before, when i walked up to that podium as citizens united, i thought we had extremely strong arguments. i was acting an advocate, of course, but i -- i thought we had very strong arguments. >> i'm going to move on. i know all of that. the point that i am trying to find out from you is what deference you would show to congressional fact-finding. >> well, may i -- may i try again because i think that t answer to that is great deference to congressional fact-finding. >> well, was it disrespectful or not? >> well, again, i don't want to characterize what the supreme court did. >> i want to me on. if you don't want to characterize, i want to ask my

next question. in.s. versus morrison involving the issue of violence against women we had a mountain of evidence assembled, as justice s 0 ter pointed out in dissent, and the court rejected congressional findings because of our, quote, method of reasoning. you haven't crossed the street to the supreme court yetu but do you think there's some unique endowment when nominees leave this room and walk across the street to have a method of reasoning which is superior to congressional method of reasoning so that we can -- so that a court can disregard voluminous records because of our meth of reasoning? >> to the contrary, senator specter. i think it's extremely important

for judges to realize that there is a kind of reasoning and a kind of development of factual material more particularly that goes on in congress. >> then you disagree with chief justice rehnquist. >> i think that it's -- that it's very important for the urts to defer to congressional fact-finding, understanding that the courts have no and the to do fact-finding, are not -- would not legimately, could not legitimately do fact-findin >> well, i know all of that, but what do you think of our method of reasoning? >> as i -- as i said earlier, senator specter, i have enormous respect for the legislative process, and part that have respect comes from working in the white house and working with congress on a great many pieces of legislation. >> i'm going to move on to my next question. justice scalia attacked the stan dand of congruence and

proportionality saying that this court is acting as congress' task master. the court ishecking on congressional homework to make sure that it is identified sufficient constitutional violations to make its remedy constitutional and proportional. i've picked out three instances. citizens united where justice stevens says great disrespect and the attack by rehnquist on our method of reasoning and scalia talking about proportionality and congruence, and that brings me to the question for you where you have been very explicit in the now

famous university of chicago "law review" article about dealing with substantive issues. we had the standard for determining constitutionality under the commerce clause from maryland versus wertz, 1968. justice harlan who acquired the standard where they have a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. in the city of bernie case, 1997, the court pulled out of thin air a new test, and the test is whether the legislation is proportionate and congruent,

and that is the test which justice scalia so roundly criticized saying it was flabby and it was an excuse for a judicial legislation. now, would you take harlan's test as opped to the congruence and proportionality test. >> senator specter, justice scalia is not the only person who has been critical of the test. a number of people have noted that the test, which is, of course, a test relating to congress' power to legislate under section 5 of the 14th amendment, that the test has led to some apparently inconsistent results in different cases so you have a case like garrett on the one hand and a case like tennessee versus land on the other >> i know those cases very well.

5-4. o'connor went the other way, but they used proportionate congruity. what i want to know from you is whether you think that is an appropriate standard to replace theational basis test of wertz. >> well, it is the standard of the court right now. it is precedent, and it is entitled to weight as precedent. now as you very well know, senator specter, there are times when the court decides that precedent is unworkable. it just -- it produces a set of chaotic results. >> what was unworkable about the wertz test for a reasonable basis contrasted with congruent and proportional which nobody understands? >> i wasn't -- i wasn't suggesting that the wertz test was unworkable. i think that the question going forward, and it is a question, i'm not stating any conclusion

on it,ut i think that something that justice scalia and others are thinking about is whether the congruent and proportionality test is workable or whether itroduces such chaotic results and gives -- >> do you think it is workable? >> senator specter, i've -- i've not really delved into the question in the way i would want as a judge reading all the briefs, listening to the arguments, thinking through the issues from both sides, but i do know that the court needs -- that congress needs very clear guidance in this area. it's not fair to congress to keep on moving the goal posts. it's not fair to say, oh, well, you know, if you do this, this time, i will be objection but if you do that the next time it won't, so do i think -- >> ms. kagan, this is an issue we discussed weeks ago. this is an issue i raised in a series of letters which i'll put into the record. this is a standard which has been around for a long time, and you know a lot of law.

senator grassley established that. is it a satisfactory test? let me move on to another question. i don't think i'm making too much progress. one of the grave concerns which has risen out of the -- out of recent confirmation proceedings with chief justice roberts and justice alito, and i've spoken about this subject extensively on the floor citing how emphatic chief justice roberts and justice alito were on deferring to congress. it's a legislative function. it's not a judicial function, they say. if you engage in fact-finding, if the court does that, the court is transgressing into the congressional area. and then you have a case like citizens united and others, and you have the declarations by the chief justice of modesty.

you've adopt that had standard. his more emphatic citizen was not to jolt the system. is there any way you can look at citizens united other than being a tremendous jolt to the system? >> senator specter, as an advocate this is one i've taken a strong view on which is that it was a jolt to the system, that there were -- there was a great deal of reliance interests involved, that many states had passed pieces of legislation in relianceupon austin, that congress had passed legislation after acculating a voluminous record. >> ms. kagan, you have said that many times today about your advocacy in the case, but what i want to know is as a prospective justice, do you consider it a jolt to the system? >> senator specter, it's a

little bit to take off the advocate's hat and put on the judge's hat, and one of the things that i think is important is that i appreciate the difference between the two, and i have been an advocate with respect to citizens united, and that's the way i came to the case. it's the way i approached the case. i hope that i did a good and effective job in it, and i believed what i was saying, but it's a different role anddit's a different thought process, and the role and the thought process that one would use as a judge. >> well, what i'm interested is what you should use as a judge, but let me move on again. there's a lot of concern in the senate about the value of these hearings when we have the kinds of declarations at that table, your predecessor nominees on deference congress, and then

there's none given, not to jolt the system and be modest. there's a 180-degree u-turn, and we wonder what we can do about it. judicial independence is the bull wart of this republican and it's our most highly prized value and while the congress and executive branch fumbled on segregation for centuries the court came along and acted on the subject in a progressive way, a very progressive way and a very activistic way. nobody cllenges it on either side of the aisle today, so we we willy have the highest respect for judicial independence, but what do we do when we confirm nominees and they don't follow through on

very flat commitments? this is not just my view. the view of richard posner, very tough in his book "how judges think" and this is what he has to say about the subject i'm addre addressing. quote, less than two years after hisconfirmation, referring to chief justice roberts, he demonstrated by his judicial votes and opinions that he aspires to make changes in significant areas of constitutional law. the tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to roberts' reputation for candor and furs debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings, close quote.

now, we're trying to raise the level of that currency. i don't believe you want to make a comment about that, but if you do you're welcome to. >> senator specter, i assume the good faith of everybody who sits in this chair, and i -- there's no reason in my mind to think otherwise. >> madam solicitoo general, i agree with you as to good faith and raising these issues in a series of speeches on the floor i have explicitly sailed i'm not challenging the good faith of chief justice roberts or justice alito, and i understand the difference between sitting at that witness box and deciding a case in controversy that comes before the court, but that still leaves us with a problem. the best answer that a group of senators, and we talk about this

with some frequency, to come up with is to put some sunlight on the court. as i said in my opening statement the disinfectant that brandeis talked about, sunlight, the best disinfectant. it's not quite a disinfectant, but i think if the public understood what was happening there would be a strong temptation to stand by what had been said in these confirmation hearings. and i was really glad to hear you say in response to senator cole's questions that you favor televising the supreme court. i think we may be getting closer. i've been at it for more than a decade with a whole series of bills, and recently the judiciary commitee voted out a bill to televise the supreme court 13-6, and we d it a ccuple of years ago 12-6, and i

know it's going to be something the court is going to have to come to perhaps on its own, but the public views are increing. a poll which was released by c-span just yesterday shows that 63% of the american people favor televising the courts, and among the 37% who opposed, when they were told that people can only be in the supreme court chamber for about three minutes which accommodates only a couple hundred people, 60% of those 37% thought the court should be televised which brings the total to about 85%. i know we don't run the court by

public opinion polls, but isn't that fairly weighty as to what the american people would like to -- like to kno we talk about a living constitution and about the constitution expressing the changing values of our society, as cardoza said so eloquently in palco. if the pple of this country knew that the court was deciding all of the cutting edge questions, a woman's right to choose, who lives, death penalty cases for juvenile, who dies, affirmative action, who gets into college, freedom of speech and religion, the american people responded in a poll to tizens united, 85% thought it was a terrible decision. 95% thought that corporations made contributions to influence legislators. one of the great problems of the skepticism o the american people about congress, and is it heavy out there.

it's open season on congress because of so much of what people think about. well, coming back to the court, wouldn't it be -- well, you've already said you're in favor of televising the court, but wouldn't levising the court and information as to what the court does have an impact on the values which are reflected in the american people? >> i do think, senator specter, it would be a good thing for many perspectives, and i wld hope to -- if i'm fortuna enough to be confirmed, to engage with the other supreme court justices about that question. i thk it's always a good thing when people understand more about government, rather than less, and certainly the supreme court is an important institution and one that the american citizenry has every right to know about and understand, and i also think

that it would be a good thing for the court itself, that that greater understanding of the court i think would benefit from its own advantage. from all perspectives i think that televising would be a good idea. i realize some justices have views to the contrary, and i would want to hear those views and to think about those views but that's sort of my going in thout. >> i will put into the record what the justices have had to say. i've questioned almost everybody about this subject, and i've had the opportunity to question all of the people on the court now, but there's a lot -- ther are a lot of those who have been favorably disposed to it or at least acknowledge its inevitability and remind them if they all appeared on television this year on c-span, and many of them have appeared over the years selling books and being --

in a variety of situations. >> it means i'd have to get my hair done more often, senator specter. >> let me commend you -- let me commend you on that last comment, and i say that seriously. you have shown a really admiral sense of humo and i think that is really important, and as senator schumer said yesterday we're looking for somebody who can moderate the court, and a little humor would do them a lot of good. in the case of richmond newspapers versus virginia, the supreme court said that a public pril belongs not only to the accused but to the public and

press as well. people now acquire information on court procedures chiefly hrough the print and electronic media. that's a 1980 decision which upheld the newspapers' rights to be in court and observe a trial. isn't that some pretty solid precedentto say that as a matter of law the court ought to have television to have public access because that's the way most people get their information these days? >> that's very interesting, senator specter. i had never considered the relevance of that case to the -- to the televising question, but i think that certainly the principles in that case, the values in that case are about -- about the public's ability to know how our governmental institutions work which is what's critical to this issue as well. >> let me move on to another bject which i consider to be

of great importance,nd that is the agenda of the court, the number of cases the court hears. in 1886 the court decided 451 cases. in 1987, a little more than 20 years ago, 146 cases. in 2006, 67. 2007, 75, 2008 -- 2006, 68, 200767, 200875, 2009, finishing yesterday, 73. the court leaves a lot of circuit splits unresolved. the court does not hear a great many critical questions, and i discussed this with you in our meeting several weeks ago and wrote you about it as well.

and that is the case involving the terror surveillance progra. on the foreign intelligence surveillance act which arguably poses the sharpest conflict between the congress legislating fisa and the president asserting article ii powers. the federal court in detroit found the terror surveillance program unconstitutional. the sixth circuit duck it had 2-1 with a very strong dissent on standing grounds which is traditionally a way of avoiding a case and the supreme court denied cert. congress has the authority to tell the court what cases to take. we've legislated giving you discretionary authority, but in se many cases, illustratively the flack burning case and mccain/feingold and

federal labor standards act, we directed the court to -- to hear the case, so i think it's fair to ask if what you would have done, not how you would cide that case, but whether you would take the case. had you been on the supreme court, would you have granted to grant certn the terror surveillance program case? >> senator specter, justify might to your first point which was the point about t court's declining docket, i do generally agree with that. i clerked on the court in 1987 which was pretty much at the high point of what the court was doing, about 140 cases a year, and it is a bi of a mysteryhy it's declined so precipitously, and i do agree with you that there do seem to be more circuit conflicts and other matters of vital national significance.

>> the other issue i raised was much more important and there are only two minutes left. >> okay. >> senator specter, the issue about the tsp and the constitutionality of the tsp is i think one of theinds of issues i previously set out three categories where the court might grant cert. one whi is circuit conflicts and the other is an invalidation of an act of congress and the third is some issue of vil national importance. in a case where the executive branch is determined or is alleged, excuse knew, is alleged to be violating some congressional command, it is i think one of the kinds of cases that the court typically should take. now, there is in this case the complexity that there is a

potential jurisdictional bar and, of course, the court typically decides -- >> what jurisdictional bar? >> well, the question whether somebody has standing? so often the court will decline to take a case when the's a significant jurisdictional issue because the court will think, well, if we take this case we might hold that we don't have jurisdiction. >> well, they can take the case and say they don't have jurisdiction. >> yes, you're exactly right, and i'm just suggesting that that's often a reason why the court doesn't take a case. >> i don't care what's often a reason. here we have a specific case. you've had a lot of notice. it's in concrete. would you have granted to vote cert? >> senator specter, i can just tell you there was this jurisdictional issue. the jurisdictional issue itself was an important one. it was an important one because how -- how is a person going to know whether -- >> the six circuit decided

there was no standing after they heard the case. well, my time is almost up. ten seconds, and i was 13 seconds over last time. there a couple of other case, the holocaust survivors and the 9/11 survivors victims which i'll come back to when i have a green light. >> thank you very much, senator specter, and senator graham. >> thank you, mr. chairman. >> and then we will, just for planning purposes, senator graham, we'll go for you. >> okay. >> and then we'll go to senator schumer and then we'll take a short break. does that work for -- >> that's good. >> okay. >> senator graham. it's all yours. >> thank you. >> so far has the hearings been at you thought they would be? >> i'm not sure i had -- i'm not sure i exactly pictured it. >> let's try to go back in time and z say you're watching these hearings and you are critical of the way the senate conducted

these hearings. are we improving or going backward? and are you doing your part? >> i think that you've been exercising your constitutional responsibilities extremely well. >> so it's all those other guys at suck, not us. >> i don't think -- >> it's all those other witnesses that were too cagey. all right. fair enough. now, do you know greg craig? >> i will say one thing, senator graham. >> please. >> itust feels a lot different from here than it felt from back there. >> i bet it does. >> it feels a lot different when you're the nominee, too, doesn't it? and if it didn't, i'd really be worried about it. do you know greg craig? >> i do. >> who is he? >> he was previously the will counsel to the president. >> do you know him well, pretty

well? >> you know, okay, yeah. >> he's a good guy. i'm not trying to trick you. >> pretty well. >> i don't have anything against greg. i like him fine. he said may 16th that you -- that you're largely a pgressive in the mold of obama himself. do you agree with that? >> senator graham, you know, in terms of my political view, i've been a democrat all my life. i've worked for two democratic presidents, and those are, you know, that's -- that's what my political views are. >> and would you consider them -- your political views progressive? >> my political views are generally progressive, generally -- >> compared to mine for sure. okay. th's fine. there's no harm in that, and that kes the hearings a little more interesting. i would be shocked if president obama did not pick someone that

shared his general view of the law and lifeand elections have consequences. do you agree with that? election dozen have consequences. >> it would be hard to disagree that elections have consequences. >> and one of the consequences is a president gets to fill a nomination to the supreme court. that's a power the president has, right? >> yes, sir. >> so it would be okay from your point of view if a conservative president picked someone in the mold of a conservative person. >> i would expect that. >> there we go, good. we'll remember that, okay. we may have a chance to bring those words back. do you know miguel estrade snarks. >> i do. >> how do you know him? >> so miguel and i were classmates at harvard law school, but we were more than clasates at harvard law school. harvard law school has a way of -- has required seating in the first year, and miguel and i were -- >> trust me, i don't know, because i never could have

gotten there but i trust you. >> miguel and i were required to sit next to each other in every single class in the first year, and can i tell youiguel takes extraordinary notes, so it's great. every time you missed something in class, you could just kind of look over, but that's how i know miguel and we've been good friends ever since. >> what's your general opinion of his legal abilities and his character? >> i think shea great lawyer and a great human being. >> he wrote a letter on your behalf. have you had a chance to read it? >> i did. >> can i read part of it? >> i write in support of elena kagan's confirmation as associate justice of the supreme court of the united states. i've known elena for 27 years. we met as first-year law students at harvard where were assigned seats next to each other. see, your consistent for all our classes. we were later colleagues as edito of the "law review" and as law clerks to different supreme court justices and we

have been friends since. elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree withous without ing disagreeable. she calm under fire and mature and deliberate in her juments. elena would also bring to the court a wealth of experience at the highest levels of our government a of okay demmics, including teaching at the university of chicago serving as dean of the harvard law school and experience at the white house and as current solicitor general of the united states. if such a person who has been -- who has demonstrated great intellect, high accomplishments and upright life is not easily confirmable, i fear we will have reached a point where no capable person would readily accept a nomination for judicial service. what do you think about those comments? >> senator graham, i think that those comments reflect what an extraordinary human being miguel estrada is, and i was deeply

touched when i read that letter, deeply grateful to him, of course and all the nice things that he said about me i would say back about him double. >> well, i'm going to give you that chance because miguel estrada, as most people know, not everyone, was nominated by president bush to the supreme court and never made it. i think it's one of the great tragedies of the countryhat he was never able to sit on an appellate court, but that's the past, and i do think it reflects well of him that he would say such things about you and quite frankly i think it reflects well of you, that you would say such things about him. in your opinion, ms. kagan, is he qualified to sit as an appellate judge? >> he's qualified o sit as an appellate judge and qualified to sit as a supreme court justice. >> well, your stock really went up with me. so, what i would like you to do since might one day be on the

court yourself is to, if you don't mind at my request, write a letter to me short or as long as you like it about miguel estrada. would you be willing to do that for me? >> i would be pleased to do that. >> let's talk about the war. as solicitor general you represent the united states for the supreme court, right? >> i do. >> let's shift gears, and you had to get confirmed before this body for that job. do you remember that confirmation proses? >> i do. >> do you remember me? >> i do remember you. >> oh, okay, good. >> do you remember when i asked you are we at war, and you said -- >> yes. >> okay. >> now that is a bold statement to make but an accurate statement. what does it -- who are we at war with and what does that mean in terms of this nation's legal policy? >> well, we're at war with al qaeda and the taliban and under the aumf the president has a

wide range of authorities with respect to those groups. >> now, under domestic criminal law, as we know it today, is there any provisions in our domestic criminal law that would allow you to ld someone indefinitely without trial? >> not that i know of, senator graham. >> and quite frankly there shouldn't be, should there? >> no, sir. now under the law -- >> i feel as though we're doing this again. >> we are. >> we're sort doing an instant replay. >> yes, we're going to do this again and i hope we get the same answers. that will help you a lot if we do. and if we don't, we'll have a problem. under the law of armed conflict, is it permissible to hold an enemy combatant as long as the holding force dream them to be dangerous? >> under the traditional law of war it is permissible to hold an enemy combatant until the end of hostilities, and the idea behind that is that the enemy combatant not be enabled to return to the battlefield.

>> that's a good summary. the problem with this war is there will never be a definable end to hostilities also, there? >> that is exactly the problem, senator graham, and hai very briefly discussed this problem, the court in hamdi, suggesting that perhs if this war was so different from the traditional law of war that there might need to be alternative procedures to put in place. for example, one could imagine a system in which because of the duration of this war it was necessary to ensure the enemy combatants continuing dangerousness. that is a question that i think has not been answered by the court. >> do you believe it would serve this country well if the congress tried to work with the executive branch to provide answers to that question and others? >> well, senator graham, let me take the question and make it into a legal question because i think it's directly relevant under the youngstown analysis

whether congress and the president do work together. >> when the two are together, the courts find more power, not less, right? >> that is correct. >> now you're still solicitor general of the united states. from that point of view, would you urge this congress to work with the executive branch to create statutes to help the courts better answer these questions? >> well, senator graham, i think i don't want to talk as solicitor general as to legal policy re. >> okay. >> but i will say -- >> go ahead. >> -- as to the legal matter, that it makes a difference whether the congress and the president work together, that courts should take note of that, that courts should -- when that occurs, the action is -- ought to be given the most deference and that there's a reason for that. >> right. >> it because the urts are basically saying congress and the president have come

together. congress and the president have agreed upon a policy jointly and there should be deference in those circumstances. >> are you familiar with judge lamberth and judge hogan? >> i don't know either of them. i know who they are. >> fair enough. >> they are d.c. judges, federal district court judges who are hearing habeas appeals from gitmo detainees, and i'll provide you some of the comments they have made. it is unfortunate, according to judge hogan, it's unfortunate in my view that the legislative branch of the government and the executive branch have not moved more strongly to provide uniform clear rules and laws for handling these cases. and i've got other quotes that i will provide you. what i'm trying to do here is lay the foundation for the idea that our laws that exist today do not recognize the dilemma the country faces. the administraon has determined that 48 people held

at gitmo are too dangerous to let go but are not going to be subject toormal criminal proceedings. in other words, we believe the evidence suggests they are members of al qaeda. they have all gone before a habeas judge, and the judge agreed, but they are never going to be tried in a traditional fashion. is the administration's decision in your opinion consistent with power under the law of war to do that? >> well, as solicitor general, senator graham, i have argued the position, that this is fully legal. >> and i'm aware of that very well. you've argued that this president and all future presidents has the ability to detain an enemy combatant with sufficient process if the executive branch believes at they are dangerous and not require them to go through a normal criminal trial. and what we have to do is find out what that procs would be,

this hybrid system. you argued against expanding habeas rights to baghram detainees held in afghanistan, is that correct? >> i did, senator graham. >> as a matter of fact, you won. >> in the -- >> in the d. circuit. >> initially. >> you probably won't be able to hear that case if it comes to the supreme court, will you? >> that's correct. >> that's good, because we can take openly about it. >> if i could just say, in general the solicitor general only signs her name to briefs in the supreme court. >> right. >> authorizes appeal but does not sign applate briefs, but i determined that i should be the counsel of record on that brief because i thought that the united states' interests were so strong in that case based on what the department of defense told our office. >> ell, i want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the uted states when it came to that case, and

you said previously that the first person you have to convincehen ou make -- when you suit a briefor take a case on is yourself, is that correct? >> i said that in reference to the cases that i argued specifically. >> mm-hmm. >> of course, when i -- whe i write briefs, i write -- or when i sign briefs, when i'm counsel of record on briefs, i'm taking the position of the united states, that i'm representing the position that i believe and that our office believes is most consistent with the long-term interests of the united states government. >> have you convinces yourself as well as representing the united states government it would be a disaster for the war fort if federal judges could intervene and require t release of people in detention in afghanistan under military control? >> senator graham, i chose to put my name on that brief as i said which is a very, very rare tng in the appellate courts

because i believed that there were very significant united states -- >> well, let me read a quote. the federal court should not become the vehicle by which the executive forced to choose between two intolerable options, submitting to intrusive and harmful discovery or releasing a dangerous detainee. do you stand by that statement? >> senator graham, can i ask whether that statement comes from that brief? >> yes, it does. >> no, i -- that statement is my best understanding of the very significant interestsf the unit states gornment in that case which we tried forcefully to present to the court, and as you said before, the d.c. circuit, a very mixed panel of the d.c. circuit. >> right. >> upheld our argument. >> you also said the courts of the united states have never entertained habeas lawsuits filed by enemy forces detained in war zones. if courts are ever to take that

radical step, they should do so only with the explicit blessing by statute. do you stand by that? >> anything that is in that brief i stand by as the appropriate position of the united states government. >> fair enough. >> the brief needs toe read by your supporters and your critics because some of your supporters are going to be unnerved by it and some of your critics may like what's in there. i'm here to say, from my point v that this area of your legal life, you represented the united states well, and i hope that congress will rise to the occasion working with the executive to provide some clarity so that we'll be able to find a way to fight this war within our value system and recognize the difference between fighting a war and fighting crime. the battlefield, you told me during our previous discussions, that the battlefield in this war is the entire world, that if someone were called in the philippines who is a supporter

of al qaeda and they were captured in the philippines, they would be subject to enemy combatant determination. do you still agree wi that? >> senator, i was speaking there a legal policy matter representing the position of the obama administration. that's obviously a very different role as the advocate role that i played is also a different role. >> let's just stop there. when you were an vocate, you had no problem advocating that position. >> there are certain parts of that that i -- tt i think that we have not addressed in the united states government. so the united states government has argued that the battled ed extends beyond afghanistan and iraq. >> the battlefield and the hearts, the minds and wherever al qaeda may reside. do you believe that is a consistent statement with obama policy? >> senator graham, when i was here before you asked if i agree

would the attorney general and i said that it would be bad to disagree with the attorney general given my position. i still agree with the attorney general. >> but you strike me as the kind of person that if you tought he was wrong, you'd say so even though it may cost you your job. >> i certainly would tell him if i thought he was wrong. >> and i think you'd tell me, so i'm going to assume you thought it was right because that's the kind of person you are. i, quite frankly, think he's right. as we move forward and deal wi law of war issue christmas-day bomber, where are you at on christmas day? >> that is an undecided legal issue. the -- i suppose i should ask exactly what you mean by that. i'm assuming you mean whether a person who is apprehended inthe united states -- >> no, i just asked you where you were at on christmas.

>> you know, like all jews i was probably at a chinese restaurant. >> great answer. great answer. >> i could almost see that one coming. >> me, too. so you were celebrating- >> senator schumer explained this to me earlier. >> yeah, he did. >> that's because no other restaurants are open. >> you were with your family on christmas day at a chinese restaurant? okay. >> yes, sir. >> that's great. that's what hanukkah and christmas is all about. now, what happened in detroit on christmas day? can you recall? what was so unnerving about that day? >> well, that there was a fail but only just failed terrorist incident. >> we were lucky as a nation that a bunch of people didn't gett killed on christmas day or

in the middle of hanukkah, whatever holiday it may be, aren't we? we're lucky that bomb didt go off. >> it was a -- it seemed a close thing. i don't know more than i rea in the newspapers about that incident. i was not, you know, involved in any of th discussions about what to do on that day. >> the times square incident, do you recall that? >> yes, sir. >> we were lucky that van didn't explode. >> every time one of the things happens, it is extremely unnerving. d, you know, makes us aware of the need to take efforts to make sure that such a thing never -- >> tell me about miranda warnings. do we need to read soldiers -- do soldiers need to read people their rights captured in battlefield in afghanistan? >> senator, the way a miranda

warning would come up is with respect to theed a missability of evidence in a criminal court. so to the extent that we're talking about a battlefield capture and not a criminal trial, in article 3 criminal trial, the miranda issue would never come up. >> so you agree with me that in war, you don't have to read the enemy their rights because you're not talking about fighting crime. you're talking about fighting a war, right? >> the miranda issue is only applicable in article 3ourts as a matter of criminal law. >> okay. if you catch a person in afghanistan -- >> i should correct that. i should correct that. because i think that the question of whether miranda is applicable in military commissions has not been decided. >> right. well, you have article 31 rights, which are the same thing, but that is yet to be decided. but under general rule where you don't need the enemy the article 31 rights when you're in a fire

fight. for these hearings to be meaningful and instructive, i think it's good to have an open discuion about when we are fighting a war and when we are fighting a crime. what is the consequences of criminalizing this war? my fear is that if we criminalize this war, we're going to get americans killed for no higher purpose. and that the idea that you would take someone off an airplane or in times square and start reading them their miranda rights within a few hours is criminalizing the war because the reason we're captur these people initially is to find out what they know about the enemy. do you have any concerns that reading miranda rights to suspected terrorists caught in the united states uld impede our ability to collect intelligence? >> senator, i've never dealt with that question as solicitor general. >> just as elena kagan. >> senator, i feel --

>> harvard law school dean. >> i'm a part of thhs administration, and i think that, you know, i should let the attorney general -- >> let me tell you the administration generally speaking has been pretty good to work with on this issue. we've had discussions about having exceptionso miranda so that we don't lose intelligence gathering opportunities and not criminalize the war. what does the public safety exception mean when it comes to miranda? what's your understanding? >> so the public safety exception, which was -- comes from the floros case, it's right now, i think, a limited exception. it enables -- >> very limited. >> that's right. >> very undefined. >> it enables the police essentially to be able to question, to find the gun, you know, to find something that might pose an imminent risk of public safety. >> now, let's stop there. so the public safety exception is about protecting the law enforcement officers and maybe securing the crime scene.

what i'm trying to illustrate is that the public safety exception i'm looking for would allow the intelligence community to find out about where this guy came from. where did you train? is there another attack coming? and right now, the law is very -- do you think it would be in the united states' best interest to have clear guidance to our intelligence community, give th the tools and inflexibility when they capture one of these guys, whether it's in times square or detroit, to find out without having to do anything else at the moment, what's the next attack? what do you know about future attacks? where did you train? would that make us a more secure %-tion if our intelligence and law enforcement community had those tools, in your opinion? >> well, of course. it's a question that might come before the court in some guise as to whether the public safety exception should apply to -- >> i'm juss taking about being

an american. forget about the courts. as an american, a patriotic american, liberal or conservative, don't you believe th we would all be better off if we had the opportunity within our values, humanely without torture, to told a terrorist suspect and gather intelligence before we did anything else? because another attack may be coming. not that a gun is in the next room, but somebody else may be coming our way. don't you think as an average, everyday citizen at would make us a safer nation? >> i suppose on this one, senator, i'm reluctant to say how i would think about the qution as an average everyday citizen because i might have to think about the question as a judge and that would be a different way of thinking about it. >> let's talk about what i judge may think about here. if we applied domestic criminal law to the war on terror without any hybrid m, would that be a good thing?

i mean, if we took the -- the war on terror and just made it a crime, would wee limiting our ability to defend ourselves? >> well, as we discussed before, senator graham, i mean, the administration of which i'm -- >> here's what i don't understand. because you said to me previously that you understand why this administration are holding 48 people without trial because they're enemy combatants and that makes sense to you. what i'm trying to extrapolate is if we took other parts of criminal law and applied it to the war on terror, would that create aroblem for this country, like miranda warnings? >> the question of -- the tension of enemy combatants is ones that i've dealt with as solicitor general, one that i've argued as solicitor general. this is a questio that i have not dealt with. i'm hesitant to make any

comments about -- in a personal view or a policy view given these questions, i think, are likely to come before the court, the question of the good faith exception to miranda, how it applies to trorism cases, is, i think, quite likely to get to the court. >> is it fair to say that the letter you wrote to me about the detainee treatment act amendm t amendment, i think you -- you call the graham/kyle proposal, that it would lead to a dictatorship or something. >> no, i didn't say that. >> what did you say? i'm not easily offended. you can say it. it would probably help me in south carolina if you did say it. >> then i'll say it. >> back home it wouldn't hurt that the harvard law school dean was mad at lindsay. but you wrote a letter that was pretty challenging. what did you say in that -- >> it was a challenging letter. >> i've got it.

i'll give it to you. >> i said we hold disitatctator to high stanrds. but i did criticize the initial graham amendment. >> and that's absolutely okay. that's absolutely okay. you did criticize the original graham amendment and i didn't take it personally. >> i'm glad to hear that. >> but you did say that's what dictatorships do, and i thought that was a little over the top. but the difference betwe the graham/kyle amendment and the amendment that passed by 84 votes -- what's the difference between what i proposed and what passed? >> right. well, i think one difference was that military commission adjudications now receive d.c. circuireview. in fact, the letter we wrote was about that. was sayiig that military commission adjudication -- >> did you assume that we precluded final verdicts in military commissioners from article 3 review? >> well, my initial understanding of the initial graham amendment --

>> we didn't, but you could have had that understanding. i caa assure you that wasn't my goal. the point i'm trying to make here is that the military commission act of 2009 has been a work in progress for many, manyears. and we're trying, as a nation, to get this right. as solicitor general, do you have confidence in our military commissions that we've set up? do you find that they're a fair forum to try people in? >> senator graham, i really haven't had anexposure to the military commissions as yet. of course,here's been no military commission proceedings. >> have you had exposure to military lawyers? >> i think that they are absolutely top-notch. >> what if i told you that the same lawyers who will be doing the commissions are also the same lawyers, judges and juries that would try our own troops. would that make you feel better? >> well, i do think that the military lawyers with whom i've

had the pleasure and honor to work as solicitor general are stunningly good. >> is it fair to say that elena kagan, whatever day it is in 2010, doesn't believe that military commissions are a miscarriage of juice, or unconstituti unconstitutional? i'll strike unconstitutional. do you believe that this country submitting a -- a suspected terrorist to military commission trial is within our value system? >> >> in a few moments, the second day of elena kagan's testimony will hear -- will be heard on c-

span2. mets, general petraeus' testimony. later, a look at how war contracts are supervised. we will hear from a special inspector general from -- for iraqi reconstruction. >> c-span is available in over 100 million homes. this is all as a public service, created by america's cable companies. >> david petraeus said he will want review the rules of engagement in afghanistan. this is about an hour and 50 minutes. >> good morning, everybody.

before we begin today's hearing, i want to comment on the loss that our committee, senate, and nation suffered yesterday morning. robert byrd was a member of this committee for nearly three decades. just as he did in all of his senate work, he was a relentless advocate for the traditions of the senate. including our respect for the legislative authority that the constitution places in our hands to exercise and to defend. . .

general, you testified before this committee on afghanistan just two weeks ago, and certainly no one foresaw the events that bring new to testify here again today. when confirmed, you will bring highly experienced leadership and a profound understanding of the president's strategy in afghanistan, which you helped shape as commander of u.s. central command. i want to thank you for your

willingness at the president's request to leave that position to take charge of the campaign in afghanistan. we appreciate your sacrifice and that of your family. your wife holly is with you this morning, and so we all want to thank her personally for her commitment and her sacrifices along the way. i like to tell you that her understanding of your doing your patriotic duty as yoo are now doing again, taking over the command in afghanistan, her understanding as a part of that is truly inspiring. we profoundly thank you, mrs. petreaus. i also want to express my gratitude to general mcchrystal for his great service to our nation over three decades. eight takes strange bounces at times, -- fate takes strange

bounces at a time, and working through them with dignity honor, as has general mcchrystal, is a hallmark of leadership and character. the challenges in afghanistan are in many ways as or more complex than those general petreaus inherited when he assumed command in iraq. recent news reports indicate that progress in afghanistan is spotty. casualties among u.s., isaf, and afghan security forces are higher. while some normal activities have returned to helmand, insurgent intimidation and violence continues to threaten governance in the south. the karzai government has yet to deliver services to win local allegiances. and recent reports suggest that afghanistan is minorities are concerned about president karzai

is overtures to taliban leaders through pakistani intermediaries. at our hearing two weeks ago, general petreaus emphasized that "a counterinsurgency operation is a roller-coaster experience, "but in his view, the trajectory has been generally upward, despite the tough losses. i have long believed that the number one mission in afghanistan is building the capacity of the afghan security forces to be able to take increasing responsibility for their country's security. general petreaus said that increasing the size and capacity of the afghan security forces is central to achieving progress in afghanistan. u.s. and isaf forces need to focus their resources and energy on this effort. there is a significant shortfall

of trainers and of mentors. building capacity of the afghan security forces to provide security is not simply what we seek. it is what the afghan people seek. that is what we were told by 100 elders at a shura in southern afghanistan last year. when we ask them what they wanted us to do, they told us that we should train and equip the afghan army to provide for their country's security, and then we should depart. the 1600 delegates to the afghanistan consultant it -- consultative peace jirga at the beginning of this month adopted a resolution calling on the international community to expedite the training and equipping of the afghan security forces so that they can gain the capacity to provide security for their own country and people. i remain deeply concerned by reports that relatively few afghan army troops are in the

lead in operations in the south, where fighting is heaviest. the afghan now numbers around 120,000 troops, including over 70,000 combat troops. in the past, isaf reported that over half of afghan ballot hat -- at -- half of afghan battalions were capable of conducting operations either independently or with coalition support. our recent report by the special inspector general for afghanistan -- corruption -- afghanistan reconstruction finds that the capability rating system overstated operational capabilities of the afghan security forces and has not provided reliable or consistent assessments. isaf agreed with that report and recently adopted a new standard for measuring afghan capability, by which measure of around 33%

of afghan units are now determined to be effective, with coalition support, in conducting operations. even under that new measure, there are significantly more afghan army troops that could lead operations in kandahar than the 7250 afghan troops now in kandahar. the level of afghan security forces in kandahar, both army and police, is scheduled to rise to only 8500 personnel by the fall, according to a chart provided by general mcchrystal last month. the influx of isaf forces in and around kandahar will outpace the increase in afghan forces by october according to that chart. the current slower pace of operations in kandahar provides the opportunity to get more afghan combat capable forces south to take the lead in

operations there. adding the afghan army in the lead in operations in kandahar is the insurgency is worst nightmare -- the insurgency's worst nightmare. the afghan army enjoys the support of the afghan people and they are strong fighters. according to recent "new york times" survey, only 40% of afghans have a favorable view of the united states. general petreaus, i hope you will promptly review the deployment of capable afghan security forces to try to get more afghan troops down to the south and in the lead in operations there before those operations are accelerated in the field in the fall. finally, a few words about the july 2011 date set by the president for the beginning of reductions in our combat presence in afghanistan. that decision also made clear that the pace of those reductions would be dependent on

circumstances at that time, and that the united states would continue a strong strategic commitment to afghanistan. that july 2011 date imparts a necessary sense of urgency to afghan leaders about the need to take on principal responsibility for their country's security. we saw in iraq the importance of setting dates as a way of spurring action. president bush in november 2008 decided to move all u.s. forces out of iraqi cities and towns by june 2009 and to withdraw all u.s. forces from iraq by the end of december 2011. that decision helped focus the iraqi government and military on the need to take principal responsibility for the security of their own country. the afghan success and ours depends on that happening in afghanistan as well. we have already seen a positive

effect of setting the july 2011 date to begin reductions of our troops. lieutenant-general caldwell, who commands our training efforts in afghanistan, told us that when president obama announced the date, the afghan leadership made a greater effort to reach out to the local leaders and elders, resulting in a surge in recruits for the afghan army. general petreaus has said he agrees with the president's policy setting that july 2011 date, and indeed has told me that if he ceases to agree, he will so advise his commander in chief, which of course he has a responsibility to do as a military commander. it is my hope and i believe that senator mccain and other members think so, that we can vote on general petreaus nomination by the end of even

possibly today, so that the full senate can act before the july 4 break. senator mccain. >> thank you, mr. chairman. and let me thank our distinguished witness for joining us here today for a very unexpected and extraordinary hearing. i want to echo the chairman in welcoming general petreaus is wife, holly. we all know that general petreaus, like all of our fighting men and women could never do his job for our nation without the sacrifice and support of his family. on behalf of our entire committee, mrs. petreaus, we sincerely thank you and we think he made a wise decision more than 34 years ago to except a blind date with a young cadet. as i said in our hearing two weeks ago, general petreaus, i believe you are one of our finest-ever military leaders. i hope it does not provoke the same reaction as it did and then.

but we are all grateful for your willingness to answer the call of service again in yet another critical mission. you are an american hero, and i believe you will be quickly and overwhelmingly confirmed. before i go further, let me say a word of praise for another american hero, general chant -- stanley mcchrystal. is a man of unrivaled integrity, and what is most impressive about his long record of military excellence is how much of it remains cloaked in silence. you understand fully how general mcchrystal systematically dismantled al qaeda in iraq, or how he began to turn around our failing war in afghanistan. these achievements and others like them are the true measure of stanley mcchrystal, and they will earn him an honored place in our history. the events that led to this hearing are unexpected and unfortunate, but they do not mean we are failing in afghanistan. i agree with the president that

success in afghanistan is a vital natural interest, and i support his decision to adopt a counterinsurgency strategy, backed by more troops and civilian resources. this is the only viable path to true success, which i would define as an end -- as an afghanistan that is increasingly capable of governing itself, securing its people, sustaining its own development, and never again serving as a base for attacks against america and our allies. in short, the same results we are slowly seeing emerge today in iraq. before heading out to iraq three years ago, general petreaus, you told this committee that the mission was "hard but not hopeless." i would characterize our mission in afghanistan the same way. nevertheless, many of the same people who were defeatist about iraq are now saying similar things about afghanistan. but afghanistan is not a lost cause.

afghans do not want the taliban back. they are good fighters and it won a government that works for them and works well. and for those who think the karzai government is not an adequate partner, i would remind them that in 2007, the maliki government in iraq was not only corrupt, it was collapsed and complicit in sectarian violence. a weak and compromised local partner is to be expected in counterinsurgency. that is why there is an insurgency. the challenge is to support and push our partners to perform better. that is what we're doing in iraq, and that is what e can do in afghanistan if we make it clear that as long as success is possible, we will stay in afghanistan to achieve that, as we did with iraq, not that we will start to withdraw no matter what in july 2011. i appreciate the president's statement last week that july

2011 is simply a date to begin a transition phase to greater afghan responsibility. and for those who doubt the president's desire and commitment to succeed in afghanistan, his nomination of general petreaus to run this war should cause them to think twice. still, what we need to hear from the president -- when our friends and enemies in afghanistan and the region need to hear -- is that the withdrawal of u.s. forces from afghanistan will be determined solely by conditions on the ground. let me explain why i believe that the july 2011 date is so harmful. what we're trying to do in afghanistan, as in any counterinsurgency, is to win the loyalty of the population. convince people who may dislike the insurgency but who may also distrust the government that they should line up with us against the taliban and al qaeda. we are asking them to take a huge risk. they will be far less willing to run it if they think we will

begin leaving in a year. one u.s. marine put it this way about the afghans she encounters, "that is why they will not work with us. they say you will leave in 2011 and the taliban will chop their heads of." the same goes for the afghan government. we were told that setting a date to begin withdrawing would be an incentive for the karzai administration to make better decisions and to make them more quickly. i would argue is having the opposite effect. it is causing afghan leaders to hedge their bets on us. this is not only making the war harder. it is making the war longer. if the president would say that success in afghanistan is our only withdrawal plan, whether we reach it before july 2011 or afterward, he would make the war more winnable and hasten the day when our troops can come home with honor, which is what we all want. in additional to being harmful

-- in addition to being harmful, the july 2011 withdrawal date increasingly looks unrealistic. it was based on assumptions back in december about how much progress we could achieve in afghanistan and how quickly we could achieve it. but war never works out the way we assume. secretary gates said last week, "i believe we are making some progress, but it is slower and harder than we anticipated." i agree. mark begicmarja is largely cleae taliban, but the holding and building is not going as well as planned. our operation in kandahar is getting off to a slower and more difficult start than expected. the dutch and canadian governments plan to withdraw soon and it looks increasingly unlikely that nato will meet its pledge of 10,000 troops. i think is safe to say that the performance of the afghan government over the past seven

months is not as even or as rapid as we hope. none of this is to say that we are failing or that we will fail in afghanistan. it just means that we need to give our strategy the necessary time to succeed. we cannot afford to have a "stay the course" approach to starting our withdrawal in july to about 11 when the facts on the ground are suggesting that we need more time to read this is all the more essential now with general petreaus assuming command, pending his confirmation. he has proved that he can win wars, and we need to give him every opportunity and remove every obstacle to win in afghanistan. >> thank you very much, senator mccain. general petreaus. >> members of the committee, thank you for the opportunity to prepare -- to appear before you today and thank you for the rapid scheduling of this hearing. i am humbled and honored to have been nominated by the president to command the nato,

international security forces in afghanistan, and had the opportunity if confirmed to continue to serve coronation, the nato alliance and partners, and afghanistan in these new capacities. at the outset, i want to echo you're so it to the extraordinary service of senator robert byrd. with his death, america clearly has lost a great patriot. i like to begin this morning by also saying a few words about general stan mcchrystal, someone i of known and admired for nearly 30 years. general mcchrystal devoted his entire professional life to the defense of this nation, and he and his family have made enormous personal sacrifices. during his lengthy deployments of the past nine years in particular. his contribution during that time were very significant. i can attest for the success of the surge in iraq, it would not have been possible without

general mcchrystal's exceptional leadership of our forces there. similarly, the development of the joint special operations command during his on president tenure commanding it was extraordinary as well. most importantly, he has made enormous contributions in leading the coalition in denver in afghanistan over the past year. during that time, he brought impressive vision, energy, and expertise to the effort there. he made a huge contribution to the reorientation of our strategy and was a central figure in our effort to get the input right in afghanistan, to build the organizations needed to carry out the proper insurgency -- counterinsurgency campaign, to develop appropriate plans and concepts and to deploy the resources necessary to enable the implementation of those plans and concepts.

we now see some areas of progress amidst the tough fight ongoing in afghanistan. considerable credit for that must go to stan mcchrystal. as we take stock of the situation in afghanistan, it is important to remember why we are there, which is never forgetting that the 9/11 were planned in southern afghanistan and that the initial training of the attackers was carried about in camps in afghanistan before they moved on to germany and then on to u.s. flight school. it was in response to those attacks that a u.s.-led coalition entered afghanistan in late 2001 and defeated al qaeda and the taliban element that its headquarters and training camps in afghanistan. in the subsequent years, the extremists were able to regroup without caid establishing new statuary's in the tribal areas of pakistan, and the taliban re-

entering afghanistan to reestablish the control it had in much of the country. in light of those developments, our path is clear. president obama has explained america's vital national interest there. we will not, he has stated, tolerate a safe haven for terrorists who want to destroy afghan security from within and launch attacks against innocent men, women, and children in our country and around the world. in short, we cannot allow al qaeda or other transnational extremist elements to once again establish a sanctuary from which they can launch attacks upon our homeland or on our allies. achieving that objective requires that we not only counter the resurgent elements. we must also help our afghan partners develop their security forces and governance capacities so that they can overtimed take

on the task of securing their country and see to the needs of their people. united states is not alone in seeing this is as vital national interest. 46 countries including our on our providing forces to the isaf coalition, and others like japan provide vital economic assistance. earlier this year, our allies and partners committed well over 9000 additional troops to the average, approximately 60% are currently in place and when the rest are deployed, it will bring the number of non-u.s. forces to over 50,000. that expansion takes place as we are in the final months of deploying the 30,000 additional u.s. troops, a deployment slightly ahead of schedule that will bring the total number of u.s. service members in afghanistan to nearly 100,000 by the end of august. this number will be more than three times the number of u.s.

forces on the ground in early 2009. complementing the military buildup has been the tripling of the u.s. civilian structure in afghanistan with substantial number still deploying. this is essential for the campaign in afghanistan being of fully integrated civil-military effort, one that includes an unshakeable commitment to teamwork among all elements of the u.s. government as well as unshakeable commitment to teamwork with members of other nato and coalition governments, and the united states assistance mission in afghanistan, as well as members of the afghan government itself. i will seek to contribute to such teamwork and to the unity of effort among all participants. we know that we can achieve such unity of effort because we have done it before. during more than 19 months in iraq, i worked very closely with ambassador ryan crocker and

members of the u.s. embassy, the united nations' special representative, and representative of the indices with which we partner, and we worked closely together with our iraqi partners. i look forward to working just as closely with ambassador karl eikenberry, the nato senior representative, the special representative of the u.n. secretary general, the same position he held in baghdad, the e.u. special representative, and most importantly, president karzai and members of the afghan government. indeed, i have talked in recent days with all of these members of the team, including president karzai, as well as with ambassador richard holbrooke, the special representative for afghanistan and pakistan. we are firmly united in seeking to forge unity of effort. as i noted in my testimony before this committee two weeks ago, i was part of a process

that formulated the president's strategy for afghanistan and i support and agreed with his new policies. during its development, i offered my fourth ride military advice and i have assured the president that i would do the same as we conduct assessments over the course of the months ahead. he in turn assured me that he expects and wants me to provide that character of advice. as i also explained to this committee two weeks ago, i specifically agreed with the message is of greater commitment and greater urgency that the president expressed his address at west point last september when he announced the new policy. the greater commitment was explained in terms of the additional 30,000 u.s. forces, the troubling of the u.s. civilians, and the funding for an additional 100,000 afghan security force members. to greater urgency was highlighted by the president's announcement to begin a process in july 2011 of transitioning to afghan forces an official and

beginning of responsible drawdown of the u.s. surged forces, and the pace being based on conditions on the ground. it is important to note that the president's reminder in recent days that july 2011 will mark the beginning of a process, not the date when the u.s. heads for the exits and turns out the lights. as he explained this past sunday, we will need to provide assistance to afghanistan for a long time to come. moreover, as president karzai has recognized and as a number of allied leaders noted at the jeep-20 summit, there will be a number of years before afghan forces controlling handle the security passed in afghanistan on their room. the commitment to afghanistan is necessarily an enduring one, and i the that taliban north afghan and pakistani partners should doubt that.

however is in afghanistan have appropriately focused on protecting the population. this is to say -- this is a considerable importance. the human terrain is the decisive terrain. results have been notable. of the last 12 weeks, the number of innocent civilians killed in the course of military operations has been substantially lower than it was during the same period last year. i will continue the emphasis on reducing loss of innocent civilian life to an absolute minimum in the course of military operations. focusing on securing the people does not mean that we do not go after the enemy. protecting the population inevitably requires killing, capturing, or turning the insurgents. our forces have been doing that and we will continue to do that. hard troopers and our afghan partners have been very much taking the fight to the enemy in recent months.

since the beginning of april alone, more than 130 middle and upper level taliban and extremist love -- extremists element leaders have been killed or captured, and thousands have been taken off the battlefield. together with our afghan partners, we will continue to pursue relentlessly the enemies of the new afghanistan in the months and years ahead. on a related note, i want to assure the mothers and fathers of those fighting in afghanistan that i see it as a moral imperative to bring all assets to bear to protect our men and women in uniform and the afghan security forces with whom we are fighting shoulder to shoulder. those on the ground have all the support they need when they are in a tough situation. this is so important that i have discussed it with president karzai, afghan defense minister, and the afghan interior minister since my nomination to be the head of

isaf, and they are in full agreement on this. i am keenly aware of complaints about the application of our rules of engagement. they should know that i will look very hard at this issue. along with you and other members of the committee, i recognize that enduring success in afghanistan will require the development of national security forces insufficient number and sufficient quantity. this is hugely important and usually challenging this is akin to building an advanced aircraft while it is in flight, while it is being designed, and while it is being shot at. there is nothing easy about it. our efforts have been overhauled and they are broadly on track

for the first time to achieve overall approved goals and to improve afghan security force quality as well. afghan security force development has been advanced considerably by partnering efforts that were expanded under general mcchrystal's command, by the establishment of the nato training mission-afghanistan, and by the appointment of lieutenant-general caldwell to run that administration. despite the progress in recent months in development, there is considerable work to be done to reduce attrition further and to develop effective leaders, especially with respect to the nash -- afghan national police. further progress will take greater partnering, additional training and temperament, and expanded professional education opportunities being pursued in each of these areas. recent salary and benefit initiatives are helping to

improve recruiting and retention of afghan security forces. training capacity has been increased significantly and the density of trainer to train he had been increased from 1-79, to 1-30. and the unprecedented intensity of our team work with the afghan forces is also beginning to show results. today, afghan military headquarters are sharing the same operating centers. in nearly 85% of the afghan national army it is fully partnered in the field. my staff and afghan forces to train together, plant operations together, and fight together. furthermore, i should note that afghan forces are now in the lead in cobble, and in a number of other areas. afghan units are now the support of lawrence's -- support

forces, and already shouldering the responsibilities of leadership. an excellent example was the recovery operation from the crash north of kabul last month. afghan border police found the site. the recovery actions were planned and executed jointly by the afghan ministry of defense and interior at the afghan national military coordination center. a recovery operation was executed by afghan caught -- afghan helicopters, and even the media were handled by afghan personnel. that is not the norm throughout afghanistan. nonetheless, the ansf are very much in the fight and sacrificing for their country and nothing more flights this more than the fact that their losses are typically several times hours.

the taliban had been steadily expanding in the areas they control and influence. this year, isaf has achieved progress in several locations. the initial main effort has been in the central helmand river valley, and we have expanded security there, though predictably the enemy has fought back as we have taken away as sanctuaries in the distance of -- in the districts of marja and elsewhere. nothing has been easy but six months ago we could not have walked through the market in marja, as i was able to do two months ago. we're now focusing on another area of critical importance to the taliban. we're working hard that our operations are based on a strong comic integrated civil-

military and international approach to security, governance, and development. operations have been ongoing for some months. president karzai and his ministers have also conducted shura councils and a number of initiatives advancing inclusive big -- inclusive at in the province, things that have been pressed -- stressed by president karzai appeared in the months ahead, we will see an additional u.s. brigade from the great 101st airborne division deployed into the district around kandahar city, well it will operate together with an additional army brigade. we will see the introduction of additional afghan police in u.s. military police to secure the city itself. along with other u.s. forces and civilians who will work together with the impressive canadian-led for ventura construction team that has been operating in the

city. a combination of all these initiatives had been intended to slowly but surely establish the foundation of security that can allow the development of reliable, local political structures, enable the improvement of basic services, and of afghan leaders and local governments achieve greater legitimacy and support in kandahar. while relentless pursuit of the taliban will be critical in kandahar and elsewhere, we know that from iraq and other counterinsurgency experiences that we cannot kill or capture a out of our industrial-strength insurgency like afghanistan. many need to be convinced to become part of the solution rather than a continuing part of the problem. the national consultative peace jirga was an important event. and the reintegration policy today, and i taught him about it

on the way this morning, will be critical to the effort to convince reconcilable elements of the insurgency to lay down their weapons and support the new afghanistan. we look forward to signing this policy. recent months in afghanistan have as you noted been tough fighting in tough casualties. this was expected. indeed, as i noted in testimony last year and again earlier this year, the going inevitably gets tougher begorra it gets easier when a counterinsurgency operation tries to reverse and certain momentum. my sense is that the tough fighting will continue. it may get more intense in the next few months. as we take away the enemy's safe havens and reduce the enemy's freedom of action, the insurgents will fight back. in the face of the tough fighting, we must remember that progress is possible in

afghanistan because we already seen a fair amount of it in a variety of different forms beyond a recent security gains. for example, nearly 7 million afghan children are now is billed as opposed to less than 1 million a decade ago under taliban control. immunization rates have gone up substantially and turnout in that 70-90% range nationwide. cellphones that had been under the taliban days, though the taliban tries to shut down most hours at night. roads and bridges and other infrastructure had been repaired or build. commerce is returning to those parts of helmont isaf and afghan forces are present. even where governance remains weak, innovative efforts like the national solidarity program supported by american and international civilian as well

as by our troops, have helped enable local shura councils to develop their own priorities and received a modern edge -- modest cash grants to pursue them. enabling further progress and successfully implementing the president's policy will require that our forces -- that our work in afghanistan is fully restored. it is essential for the conduct of this mission that the supplemental funding measure now before congress be passed. this committee and the senate have passed it and it was heartening to hear speaker policy's call last week for the house to do so expeditiously. beyond that, as always, i also ask for your continued support for the commanders of emergency response program. these projects are often the most effective means to address the local community's needs. indeed, is often the only tool to address pressing requirements in areas where security is challenge. our commanders that usurp -- a

value serb -- value cerp. i like to note the extraordinary work been done by our troops on the ground and around the world. our young men and women truly deserve the recognition they have earned as america's new greatest generation. there is no question that they comprise the finest, most combat-hardened military in our nation's history. there is also no question that they and their families have made enormous sacrifices since 9/11 in particular. many of them have deployed on multiple stores to perform difficult missions under challenging circumstances against top, even barbaric enemies. we cannot in my mind ever thank our soldiers, sailors, marines, and coastguardsman enough, but what we had done to support those in uniform has been truly

wonderful. indeed, nothing has meant more to our troops and their families than the appreciation of those here and at home. as you noted, mr. chairman, my wife holly is here with me today. she is a symbol of the strength and dedication of families around the globe who waited home for their loved ones while they engage in critical work in afghanistan, iraq, and elsewhere. so what others on told spouses, children, and loved ones as their troops have deployed and continue to raise their right hand time and time again. our families are the spawn some heroes of a long campaign on which we have been embarked over the past decade. one of america's greatest presidents, teddy roosevelt, once observed that far and away the best prize that life has to offfr is the chance to work hard at work worth doing. there currently nearly 140,000

coalition troops and over 2 minute 35 afghan security force members engaged in hard work very much worth doing in afghanistan. if i am confirmed by the senate, it will be a great privilege to soldier with them in that hard work that is so worth doing in that country thank you, very much. >> now that we have a quorum, we would do some committee business. there are pending military nomination including this list to be commander of u.s. joined forces, and these nominations had been before the real quick for the required length of time. all members say aye.

opposed? the motion stands. we asked and answered questions of all nominees become a force. their standard questions. would you care to applicable laws governing conflicts of interest? >> yes. >> when you give your personal views? >> i do. >> have you attended any actions that would assume the end of the process greater margin and i have not. >> would you answer questions for the hearing? >> i will. >> way you -- will those witnesses be protected from reprisals for their testimony? >> yes. >> deal agreed to appear and testify? >> yes. >> would you provide documents in a timely manner when requested by duly constituted committee regarding the basis

for good faith in providing such documents? >> i do. >> there will be a seven-minute first round. general, you've commented on these questions in your testimony. i would ask them again to get very clear direct answers to them. to the fundamental elements of the afghan strategy that the president announced in december 2009 are as surge of 30,000 additional u.s. troops by the end of the summer to help regain the initiative, and the setting of the july 2011 date for the beginning of reductions in our combat presence in afghanistan, with the pace of a reasonable drawdown to be determined by circumstances at that time. you agree with that policy? >> i do. >> do you agree that that setting a date to begin

reductions signals of urgency to afghan leader that they must take responsibility for their country's security which is important for success of the mission in afghanistan? >> i do. >> a report released this morning by the special inspector general for afghanistan reconstruction concluded that the way has been measuring the capability of afghan security forces was flawed. the command basically agreed and has revised its approach for measuring the capability of afghan forces, and now the isaf figures aren't that 30% are assessed to be effective. there were 120,000 army troops including 70,000 combat troops. taking just this lower combat troop level, that would mean

that around 25,000 afghan troops can operate effectively with coalition support. according to figures provided in your answers questions, the afghan army has only 7250 afghan army soldiers present for duty in kandahar province. that is so essential to success in afghanistan. that is less than one-third of the affected afghan forces that are available. would you agree that the afghan army has broad popular support and that the afghan people want the afghan army to be taking the lead were possible to provide security? >> i would. >> would you agree that they are excellent fighters? >> you have to walk your way through the areas, but that a

generally correct. >> is in the interest of an exit -- a successful outcome to increase the number of afghan units who can lead, who can take the lead in operations? >> absolutely. >> why is that? >> we want them doing the fighting rather than us. >> what is the reaction of the afghan people? >> that is another piece of that. we want afghan ownership of afghan problems. that is part and parcel of that, obviously. >> general, will you review -- i am not going ask you to confirm, because i am going to assume that with all these questions, so that we confirm, will your view -- if you are not allowed to confirmation, i am. when confirmed, will you review

the deployment of forces in afghanistan to see how more afghan army is and police forces can be brought in to increase the number of afghan security forces in kandahar? >> it confirm, i will do that. one where the other, we're going to count on you to do that. did general mcchrystal announced that he was slowing the operation of afghan and isaf forces in kandahar to allow more time for discussions with local leaders and get more of their eye and rigid -- bu-y-in. that will mean that we may have more afghan-lead operations in a

few months. i was wondering whether not you agree, since we have slowed the pace f operations of afghan and isaf in and around kandahar that that would present an opportunity to bring in more afghan forces capable of leading in the kandahar campaign during this period? to get in fact, as i mentioned in my opening statement, there is a plan to deploy additional afghan army brigades. and also additional afghan police battalions an individual police as well. >> and if there are possibilities to increase the numbers of afghan troops that can lead above that plan, would you also take a look at that? >> i will. >> do you know offhand how many afghan troops will be in kandahar by september? >> i think that it will be in the range of 7500-8000.

>> what about in helmand? >> let me answer that for the record. >> that is fine. the figures that your office provided to my staff last evening were somewhat surprising in that regard. i want you to just double check those figures. there is a total of 40,000 afghan and security forces in helmand while there is only a total of 11,000 in kandahar. if you could double check those figures and explain why there is such a significant -- so many feel word combine forces in kandahar than in helmand, a sense helped -- since kandahar will be the central effort. if you could take a look at those numbers and explain that for the record, i would appreciate that. >> i will do that. >> the press report last week that pakistani officials had proposed the car guys -- the

karzai government with a proposal for delivering the haqqani network which runs a major part of the insurgency in afghanistan and an alliey of al qaeda into a power-sharing arrangement. the president noted that tends to draw afghanistan and pakistan closer together is a useful step. i am wondering what you shared director panetta's potential for pakistan to broker reconciliation deal between the taliban leadership and the afghan government at this time? >> let me just say, first of all, this is an interesting item. in talking to president karzai in a vehicle on the way a great, he assured me that he has not met with a haqqani group leader in recent days or at any time. with respect to pakistani

involvement in some former reconciliation agreement, i think that is essential. now whether that is possible, such an agreement, i think it is going to depend on a number of factors that will play out this summer, including creating a sense among the taliban that they're going to get hammered in the field and perhaps should look at some options. we've already seen cases where lower and middle level taliban leaders have indeed sought to reintegrate, and there have been more in recent days. small numbers here and there. the reintegration decree that was approved by president karzai today will help codify the process for this. and that should help. if you recall in iraq, we did a substantial amount of reconciliation. but whether senior leaders can

meet the very clear conditions that the afghan government has laid down for reconciliation, i think that is somewhat in in question. in that regarr i agree with director panetta. we want to forge a partnership or further partnership that has been developing between afghanistan and pakistan. those countries are always going to be neighbors, and helping them develop a constructive relationship would be an important contribution. >> thank you very much, general. senator mccain. >> just a follow-up, the key to success in reconciling with the taliban is due first convince the taliban that they cannot succeed militarily. it is also true that the majority of the people of afghanistan are in opposition to a taliban return to power.

is that correct? >> it is. >> there is no doubt about that. >> there is no love lost for the taliban. they remember the barbaric activities, the oppressive social practices, and the extremist ideology practice by the taliban. >> so you interpret that as an advantage over the situation you said found in iraq at the beginning of the surge. >> that is correct, although overtime, we were able to hang around the neck of al qaeda in iraq the same kind of label and practices and so forth. indeed, that weighed them down. every time they carried out another act of indiscriminate balance, at the taliban had done, and we will work with our afghan partners to ensure that the afghan people know who has been killing the vast majority of the civilians in that country. >> is marja going as well as we

had hoped last december? >> probably not as well as the optimistic assessments. i am very clearly on the record last year, this year, and so forth that this is going to be hard and hard all the time. i am not surprised by it. >> i am not, either. >in kandahar, we're not where we wanted to be seven months ago and the afghan government is not performing as well as expected. when you agree with secretary gates that we're making some progress but it is slow and harder than we anticipated? >> i would, senator. >> that argues for a reassessment of for the july 2011 commitment to begin a withdrawal. let me tell you why americans are confused and why our allies are discouraged and our enemies are incurred. a short time ago a sunday, rahm

emanuel said, "everybody knows it is a firm date. what will be determined that date for going into that date are the scale and scope of the reduction but there will be no doubt that it is going happen. july 2011 does not change. everyone agrees on that date." dave black rod -- axelrod, "that continues to be the plan and we will pursue that schedule." another, "this is not an open ended one. that timetable is about getting in and out. there would be no nationwide counterinsurgency strategy. pentagon must present a targeted plan for protecting populations centers and beginning a real, not token,

withdraw within 18 months of the escalation." that is why people are confused, general, and your and the position where you have to say it is based on conditions. last january, we're in one province and that a tribal leader who entertained us with stories about how he beat the rush and. he asked me if we americans were staying or leaving like we did last time. and an article from the "new york times," the taliban had effectively use their deadline to the advantage. the deadline encourage people to hedge their bets and continue supporting people like haqqani network. they had been burned before and they have seen this movie before, the official said. that is the problem here and whether we're going to prevail and convince the people of afghanistan to come over to our

side and to stand up against the taliban, rather than as the military person said, they say you will leave in 2011 and the taliban will chop their heads off. it is frustrating. general, at any time during the ionsat the military shared with the president when he went through the decision making process, was their recommendation from you or anyone in the military that if we set a date of july to about 11? >> there was not. >> not any military person that you know. >> not that i am aware of. >> i thank you. do you think is of concern -- the situation with pakistan and the isi continue to work with the taliban? >> again, what we always have to

figure out with pakistan, senator, is are they working with the taliban to subvert them or to recruit sources in the taliban? and that is the difficult, frankly, and assessing their activities in the federally administered tribal areas with haqqani network for the afghan taliban. there no questions about the longstanding links -- remember, we funded the isi to build these organizations whenever helping to expel the soviets from afghanistan. certainly residual links would not be a surprise. the question is the character of those lands and what the activities are. >> one of the biggest problems we're facing is corruption. as one article said, corruption

suspected. you have anything to tell us about that -- one of the more disturbing news reports that i have seemed -- and there have been actions taking -- that i have seen. >> there have been actions taken by the corruption body, the prosecution of certain cases, and also on our side, the establishment of the task force 2010 headed by ed two-start unable contracting officer who commanded the joint contract in command at supported us in iraq, that is going toxamine where the contract money is going. not only the subcontractors, but who is below them. .

>> to do that, the iraqi ministry of interior and ministry of defense forces have to be at certain levels so that the transition can be successful. and therefore, there is concern about that. i know that the general and the

secretary of expressed concern about that as well. >> i thank you, general, and your willingness to serve, and your entire family. >> thank you, sir. >> thank you not only for your testimony today, but your service to the nation. in the course of your colloquy with senator mccain you indicated you do not let -- you do not make a recommendation with respect to a deadline, but your public statements are in support of that, correct? >> that is correct. >> so, your support is of the beginning of the withdrawal in july of 2011. retsof let me be clear. not only did i say i supported -- >> let me be clear. not only did i say i supported it, but i agree with it. but this is based on what we

will strive to achieve in afghanistan a full year from now. this was made on an 18-month projection at that time. when this was a double to izod most importantly as a message of urgency -- when this was established, i saw it mostly as a message of urgency. we started with some 31,000 forces in afghanistan in 2009 and we will now be approaching 100,000 by the time the deployment of the final 30,000. this is a substantial additional commitment, complemented again by a message of urgency. >> we are looking forward to next year. when there is a conditions- based withdrawal of forces, [unintelligible] >> and it is not just our

forces. there will also be nato forces and, more important, there will be substantial afghan forces. but again, based on projections right now. >> what is the time line, particularly if the taliban thought that this was the playing out our hand and leading -- and leaving? the question remains, why would they be so active on the ground militarily? >> that is actually a great point. the reason they are active on the ground militarily -- probably a couple of reasons. one is, they are fighting to maintain safe havens and sanctuaries they have been able to establish in recent years. marja was the nexus of the taliban. it had ied producing factories, if you will. supplies, headquarters, medical facilities, and the illegal narcotics industry all tied into

one. they lost a great deal when they lost marja and it is not surprising that they fight back. they're also fighting to break our will. this is a contest of wills. they can sense a concern in various capitals around the world and, of course, they want to increase that concern. >> they are also, i think -- and i will ask the question. given our very aggressive operations, if we succeed in the next several months, their ability to be influential would have afghanis severely diminished, correct? >> that is correct. again, they are feeling pressure right now. no question about it and more in some areas than others. and there is also the fact that they are trying to expand in

some areas also. as i mentioned, this is a roller-coaster existence. there are setbacks for every small success. but what you are trying to do is try to determine if the trajectory is generally upward. >> going back to marcia, civilians have returned -- back to marcija, civilians have returned? >> that is correct. i walked through there about two months ago with the district governor. we sat there and ate bread that was produced right there. it was a great spread. and we chatted with the locals. we had dozens, if not hundreds of locals around. >> let me turn to an issue you alluded to in your opening statement, and that is, the rules of engagement. could you elaborate? because this is a very sensitive balance between providing

effective fire support between troops in combat and also minimizing, hopefully eliminating, collateral casualties. >> we must remain committed to reducing the loss of innocent civilian life to an absolute minimum in the course of military operations. tragically, inevitably, there will be civilian casualties. indeed, the taliban will try to create situations in which that is the result. it is essential, and again, president karzai knows that we will continue the commitment that general mcchrystal made in this area. we have rules of the engagement. those are fairly standard. we also have a tactical directive that is designed to guide the employment in particular of large casualties- producing devices, bombs, close air support attack helicopters and so forth. that is an area that you have to

look closely at. if you drop a bomb on a house and you are not sure who is in it, you can kill a lot of innocent civilians in a hurry. having said that, as i mentioned in my opening statement, we have to be absolutely certain of the implementation of the tactical directive and the rules of engagement, that they are even drop a force and there are not certain levels that are perhaps making this -- threw out the force and there are not certain level and are perhaps making this bureaucratic. when our allies are in a tough spot, we have to make sure that they get out of it. >> one of the persistent issues here is the lack of governmental capacity on the part of the afghanis. in marja, the siblings have come back, but the government has not. i know this gets into -- the civilians have come back, but the government has not.

i know this gets into other issues, but one of the structural defects within the afghani government is a highly decentralized government. it needs much more effective provincial support, more independent governments. is that an issue that you and ambassador eikenberry are going to take to president karzai to talk about how they can empower local officials rather than have a national ineffectual government? >> well, certainly. again, a key to this is helping the release -- to the reestablishment of a viable calo ", organizing structured -- a dot the reestablishment of a viable, organizing structures, if you will. president karzai is aware of the challenge is present at lower levels. he has empowered governors.

interestingly, helmand province has one of the most active governors in all of afghanistan. the challenge there is not one of desire. it is literally a lack of human capital. and in predicting there, human capital that is willing to go into a really tough spot like that in marja where there are requirements and demands and there are locations elsewhere that are safer. but that is certainly something that we have to address. you must complement the activities. you must build on the security foundation that our troopers and afghan troopers fight so hard to provide. >> thank you. my time has expired. >> i think the problem, general, in the discussion that we're having right now with the timetable and all of that is the mixed message. frankly, i was relieved a little bit when the president spoke at

west point and he said there would be conditioned on the ground. and i think the perception out there is what ever you want it to be. mine personally is that we are not going to be pulling out until the conditions on the ground or justified. but i think the taliban has the perception of cut and run and that is what they're talking about. i have to say that what is important policy when you are communicating about conditions, yes, we are in it to win. there is enough that has been said that would fortify that position. >> i tried to make that clear in my statement today. neither the taliban, nor are afghan and pakistani partners should have doubt about the fight. >> your thoughts about the

program, i appreciate that. the we actually cut that by 300. was that a mistake? >> we ask for 1.1 because we believe we need 1.1. we're also where because we have not used some of those funds in the past, and we have returned them. the truth is, we return them to the operation accounts so that those funds are used for very valid reasons. but we believe we need that and that is why we ask for it. and we hope to get it. >> i agree with that. i have heard you mention several times your conversations you have had with karzai. frankly, i was not aware -- >> as the centcom commander, senator. >> yes, i understand. in the years that i have been on this committee, when you go through confirmations, this is the first time i have heard the chairman say, when confirmed,

not if confirmed. let's just keep that in mind. >> we have had three conversations, one before the nomination and two more in recent days. and by the way, he told me to give his love to senator mccain. and now with the focus shifting to the afghan popular effort program of his national security team. >> i think that is very important. there are a lot of things that have been done in iraq that perhaps should be done, and i feel very comfortable that you will go in and take advantage of that. at one of them was this taskforce, observe, detect, identify and neutralize.

its objective was to take back the roads. general patraeus, under your leadership in iraq, our forces were using that "take back the road to" strategy. the results were great. at least, what i have read. they have been credited with killing 3000 ied in placers and capturing 50 high-value targets. i assume that has not been taking place in afghanistan. am i correct? is this something that would work there? is there some condition there that is different than iraq? >> there are small component of it, but again, you have to realize that when you only have 30,000 troops, which is what we had up until 18 months or so ago -- now what we have is that this has become the main effort, appropriately. and we are now seeing that kind of commitment. we shifted to the central

commander and also with the support of the secretary and the president, we have been able to provide substantial surveillance and reconnaissance efforts. and those are some of what you have talked about. but many others, and this is a very comprehensive effort when you are trying to get the ied in placers. >> is there some success in iraq that would also apply to afghanistan? >> many, many things. we have shifted a substantial amount of them over there and others are still being established. we have done a substantial amount of the infrastructure development. of course, that is what is necessary because you have to have platforms for all of this. we will take the same kind of approach there that we took in iraq. >> for the record, it would be good if you can send us some of these things that worked there that would perhaps be worthwhile. >> i would be happy to do that. >> an unnamed military official

stated recently we are on an afghan timetable and the afghan timetable is not the american timetable and that is the crux of the problem. after general mills made the statement that i'm sure you recall that i am talking about, i think we need to import to our afghan partners a sense of urgency. they understand there is a time line. the timeline that they referred to here -- how you referred to his statement? >> again, i have seen this movie as well. we talk about the different clocks that are out there when i was in iraq. you would be at the baghdad clock to see why it was going backwards, or to get it going forward. in the meantime, you were aware of other clocks, including perhaps the one up here that may be moving a little bit more rapidly. this, i think, is common to

counterinsurgency efforts. they are tough and they are not quick. >> in 2004, aracoma 45th was over there. they had -- our coloma for if it was over there.+ they have the responsibility of training themselves. i weet over there. i am not sure if you were there. you certainly have people there. when i looked at the faces of these guys, they were very proud that they were taking over. -pin that sense of pride was obvious. i was there for quite awhile because the 45th had been training for a time frame. i got nothing but glowing reports. then we get reports like the one that has been referred to here that was written up yesterday "new york times" where they talk about the united states talked about it was not working. general caldwell was in charge

of the 20 over there and he said the report was inaccurate and general rodriguez said it was more accurate. i'm sure it is somewhere in between. but in terms of these guys and the expressions on their faces and a pride that they had, you think they have lost some of that, or do you think they still have the capability of being great warriors and taking this thing over? >> well, they are great warriors, but they are in a tougher fight. it is easy to stand tall when the enemy is not that significant. again, we went through this in iraq as well with the iraqi security forces. they not only relatively went down, but absolutely because they were so trend by the deteriorating security conditions. that is what we have to make sure does not happen in afghanistan. if i could read the report by the special inspector general for afghanistan, general arnold bilbao -- by the way, we had a very good relationship -- general arnold fields.

by the way, we had a very good relationship when i was in iraq and i think very highly to -- highly of him. the cbs radio, truthfully, more has been made of this -- the cbm radio, truthfully, more has been made of this then should be. it really did not have the effectiveness in the fighting that it ought dot should have. what general rodriguez is pretty referring to is a new evaluation system that has been brought on line. he is the one who oversees the fight. general caldwell does the training, the equipping and the infrastructure, and then provides those forces, or the afghans provide those forces to partner outside the wire along with our forces who are under the command of general rodriguez. i think rightly, he has taken this on. this is a subjective evaluation

of, can they fight and can they do it on their own? how much assistance to the needy? and so forth. i think that is where the debate is, and general caldwell is trying to point out rightly that over the past seven months or so there has been substantial progress in turning it over to afghanistan. the fact is that what we were doing was recruiting police and then putting them in to fight. we were basically recruit, a sign, and then train when you get to it as a model. but that just cannot be. you have to recruit and then train and then assigned. the afghans are police -- fully supportive of that. i think these are the changes that have been made with general caldwell taking charge of it. >> that is a very voluble clarification. thank you. >> i want to have my welcome to general patraeus -- add my

welcome to general patraeus and your wife polley. -- holly. i would like to congratulate you on your nomination to this critical position and i also thank the men and women that you lead. their dedication is appreciated and honored. general patraeus, i understand secretary gates to have under -- to have said you will have the flexibility to reconsider the campaign plan and approach in afghanistan. i am sure that you will consider many issues as usf operations in afghanistan. -- as you assess operations in afghanistan. general, what are some of the key elements you will get in this assessment, and is there anything you plan to change immediately?

>> senator, i think the campaign plan is sound. the first, i obviously contributed to the president's policy. by then -- at the central command we supported general mcchrystal and set a strike -- and ambassador eikenberry as they developed this policy. we think it is down. one of those, of course, who oversees the process -- again, we will look hard at it as any new commander does when he comes in, if confirmed. as i did mention in my opening statement, i do think we have to look at the implementation of the tactical directive and the rules of engagement. that is something that clearly, our troopers in some cases, some units have concerns about and, therefore, they are my concerns. but by and large, i think this is more about executing nauert

then it is about redesign. -- executing now than it is about redesign. this is of enormous significance. this has been under development for months. it capitalizes on the national peace jirga that was held with nearly 15,000 participants in kabul several weeks ago. i think it codifies all of the processes that we have been waiting for to integrate thhse elements of the insurgency war reconcilable, an important element of any counterinsurgency -- who are reconcilable, an important element of any counterinsurgency effort. and it deals with those who are irreconcilable. and we will seek to empower and

secure villages and valleys with local security initiatives. this is something also that president karzai and i discussed on the way over here this morning. it is the next big focus that he told me about that he and his national security adviser discussed yesterday, so that you have a fully comprehensive approach. that is what this takes, everything from the very hard edge, targeted, special unit, operations to the reconcilable, to conventional forces expanding their cannot -- their security zones, in some cases so that you can hold and build. and also, local initiatives, some of them working around our great special forces a-teams who are out there working in villages to help and power and support local elements that want to resist the taliban as well. all of that, of course, complemented by a host of

political, economic, even diplomatic initiatives that can help produce progress overall, and over time make it in during. really, that was the approach that we made in iraq and what you have to do in in the counterinsurgency effort. >> general, last week, the army announced that it had exaggerated the three officers who were issued letters of reprimand -- it had exonerating the three officers who were issued letters of reprimand. the independent marine lieutenant general has recommended that the three officers should received reprimands. after your review, you added a third and concurred with the results. general, first, i am interested in your reaction to the army's

decision to withdraw the letters of reprimand for the three officers. and second, would your recommendation concerning the letters of reprimand change based on any information presented to you by general campbell.com on was the army official charged with -- by general campbell, who was the army official charged with the investigation of this report? >> in this case, senator, what we did at centcom, -- first, i'd directed a two star general, major perkins who worked with in baghdad. your characterization of our findings is correct. we did not recommend any action. and what we did is provide a result of our investigation.

and then, provided that to the authority that has jurisdiction, if you will -- command authority in this case, which is the u.s. army. general campbell, a very distinguished, a great soldier. in fact, just about to retire. he took that on, did review the investigation exhaustively, did a further review of his own. this is like any process where there is an original finding and then we read investigated another finding. and then again, a final review. we discussed that. i did -- i respecte his view in this particular case. i support the process, but i did not change the finding that i affirmed after the investigating officers provided it to me.

but again, i support this began the process. >> thank you very much for your responses, general. >> senator chambliss. >> general patraeus, thanks to you and your family and to the commitment that you continue to make to provide protection to america, as well as literally the whole world. i cannot help but note the number of combat stripes you have on your sleeve there, which is certainly an indication not only of your commitment, but of the fact you have been gone from your family for an awful long time for the last several years. i note also that those number of combat strides are comparable to those on the sleeve of generals daniel -- general stan mcchrystal. i was very pleased to mention -- to hear you mention him the number of times that you did in his own -- in your opening statement because he certainly

has laid the groundwork for a successful operation in afghanistan. general mcchrystal has been a great military leader. he is a great man and military office that ordaz -- military officer that i had the privilege of visiting in theater when he was under your command, and i note the great work that he did there and i know it was recognized by you. i also know the great respect he had a of the men and women that served under him. where life takes in now, we all wish him the best and thank him for his service. general, i want to make sure that you appreciate the seriousness of this issue of the deadline, as well as the issue of the rules of engagement. i will not really get into that because i think you have had the opportunity, and you have, adequately addressed those two issues. but if we are going to have military success in afghanistan, and there is no other option --

i know in our minds as well as yours. it is imperative that you have the tools with which you need to work, and as you review the situation on the ground leading up to july 1, 2011, i know we will hear more from you on that issue. i want to ask you about another side to the afghan situation and something that you and i have had a a bit of conversation about. your success in iraq, particularly in the ramadi area where we saw a turn in the conflict there, was in large part due to the fact that the iraqi people got engaged and decided they wanted to seek a peaceful resolution of the conflict in iraq. and join forces with your army, as well as our colleagues and partners in iraq. and thus, we saw a complete change in the direction of that war. we have not seen that situation

in afghanistan. and unless there is confidence on the part of the afghan people that we are going to be there, i do not think is going to happen. that is an issue that you will address with respect to this deadline. but there is another part to it. in iraq, there was an economy that could be built upon that was founded upon oil. it has been rebuilt on oil. and it appears to be moving in the right direction. the iraqi people have a good feeling about it. . .

also, with the recent finding of minerals and metals in afghanistan, there is additional potential for providing afghans with some sort of quality of life. unless you have got security in the country, and neither one of those avenues for building that economy is going to be possible. i would simply like to comment, number one, on your idea about partnering with the afghan people and with the afghan government to start as a comedy -- start this economy in a positive direction, and how that relates with the ability to incorporate the mindset of the afghan people to understand why it is important have decent security there. >> first of all, there is a good partnership between the military

side of the campaign, and again, the embassy director, and also problems -- proper emphasis that the ambassador holbrooke has put on the agricultural aspects. that has all been very positive. clearly what we have to do is expand the security of all in key areas when it comes to agriculture, provide alternative crops to those who are growing the poppy, and so forth, and so forth and that is all very viable. cleaning the canal structure and that is something that usa ided put into afghanistan decades ago. region's central helmand valley is so fertile is because of a usaid project was useless successful. and they remember the americans for that.

all of that is founded on security, to be sure. beyond that, there were some news stories honor present way that afghanistan is not without natural blessings in a whole host of ways, an upstart -- including extraordinary mineral resources. extensive resources when it comes to lithium, iron ore, coal, 10, it has precious gems and so forth, but this all has to be -- you have to extracted to me that at the extraction industries and the line of communication and security. you also have a government structures in which that can function. there has to be a legal framework that provide sufficient incentives. but it is my hope in all seriousness that we could see what is called adventuress

venture capitalist enter afghanistan who could see -- help the government take advantage of these extraordinary mineral blessings that they have. >> thanks, very much, general, and thank your commitment. >> thank you. >> thank you, senator jim was. senator ben nelson, and then senator graham will follow center in nelson, and then we will take a 10-minute break. >> thank you and your wife in your family for your continuing assistance to our country. we appreciate it, and the country is in your debt for taking on this assignment. i would like to start off with a couple of questions that i had a couple of weeks ago about the afghan population and whether or not they believe that the country is going in the right

direction with the nato and u.s. forces there directing it. one said that 59% of the afghan people were of that opinion. much has been made about the july 2011 withdrawal. is there a way that we can -- particularly with your leadership -- assure the afghan people that this is not a cut and run deadline or drop dead date for decision? that may impact what furtter exact sense -- acceptance of the effort on their behalf. >> we absolutely can, senators john. i have sought to do that with my encounters with the afghan government, and also with are pakistani partners with whom we work very hard to forge a good

partnership. they've done such impressive counterinsurgency operations at high cost to themselves on their side of the durand line. and as you note, and the secretary did point out the number of balls that paradoxically seemed to show that although levels of violence have gone up, they have greater hope for the future in greater optimism. that is something that we want to play on and to show them that their hopes are well-founded by our actions together with our afghan partners. >> there is some concern that many will withhold their support may be because they're concerned about the taliban coming back to chop their heads off, as you indicated, if they collaborated with us. if we could, by chilling our

commitment, help them overcome that? >> i think it would be a mistake for them to hedge their bets forever. that is what we want to demonstrate by our operations on the ground, by our development of afghan national security fooces it in takeover these tasks and showed that that is not just possible but will happen. and also to demonstrate to the taliban that they should not consider what they are doing either. they're not only incentives for reintegration but enormous penalties for not reintegration. >> with the potential withdrawal of some of the nato forces, will that be a bump in the road in terms of that perception, or will that be something that simply emboldens the taliban? >> i will not say that it would embolden them. it will perhaps give them a little cause for optimism.

what we have to do is compensate. whenever there is a ship or a reduction, obviously you have to redo your battlefield geometry. and we have done that already to compensate for the expected departure of one nations forces. and we will do that as we have to. and we are also accommodating the additional forces that are coming from georgia, and also from some of the country's in the central command region, and others around the world. >> in that regard, as is satisfy the government that we're there to stay and work toward building the confidence of the afghan people, will the rules of engagement, bayh clearly stating

them as you have, also tell the taliban that it will be gained, set, match one of these days in terms of their future? >> what impresses the taliban has not the rules of engagement. it is the price -- the precise target operations that are designed to to give them no rest. if you can get your piece into the jugular of the enemy, you do not let go. relentless is an important word to describe the campaign against the taliban, just as it also describes other efforts. they also have to be relentless and our commitment to help the afghan government provide a better future for their people. >> we talked a few weeks ago about the benchmarks and metrics of our success. in that regard, what should we

expect between now and december just as a date employed of time? >> we will be looking at will be the security situation in districts, and in some cases, even sub-districts, because you have a fairly granular look at this. then you can look at levels of violence within districts, for example, because that is what matters. it had been able to move the violence out of -- if you have been able to move the violence out of marja, that is important because it protect the population, allows markets to resume, schools to reopen and so that is important. then of course, the chairman focused on the afghan security forces and these different

efforts and different locations. not just numbers, what level of contribution capability, quality, and so forth as well. and then you get into the areas of the establishment of local governance, of local services, and of that whole process of pointing to a better, brighter future for the people of that particular area. i think you have to do a very granular fashion to understand what is going on. and also to confirm that their approach -- that the approach does do what we are trying to achieve. >> is it fair to say that strengthening the local government will have a positive impact on the central government of president karzai? >> it is, certainly, as long as that local government is distinguished by two important qualities. include city -- inclusivity and

transparency, so everyone has a sense of what is going on, and where the money is going. that is a very important as well. judith is that why you say it is hard and it is hard all the time? >> that and many other reasons, senator. >> thank you and we're all depending on you. >> thank you, senator nelson. senator graham. >> general petreaus, i cannot tell you how much it means to all of us that you are willing to do this and it is very important as general mcchrystal is resigning from the economy. i think about everyone here who is met him has nothing but great respect, and the incident that led to this was very unfortunate and should not be the end of his evaluation in terms of being an army officer. he was a terrific army officer

and i want to let everyone know that mostly everyone he met believe that. i do not know how this translates, but it does not translate well for me in english. i would not use the word resentment with regard to the policy we are in working on. but from what i can tell you, here's the summary of your testimony from my point of view. it does not appear they're going to be any civilian changes in terms of the team in afghanistan. >> that is beyond my purview. >> from what i can tell, there doesn't seem to be pared from your testimony, we will begin to withdraw from afghanistan. is that correct? >> what i have done is restate the policy as it currently

exists, senator, and the policy i supported and agreed to back last fall, to begin a process in july 2011 under which tasks are transferred to afghan security forces and government officials, and de "responsible drawdown" of the surge of forces to be confirmed and i -- to be determined by conditions. >> the vice president said that in july, we're going to begin in a lark -- began to leave in large numbers, you can bet on it. is that correct? >> is that an accurate statement? let me ask my question. is his statement, if accurate -- does that make sense in which you think the policy should be?

the vice-president of the united states has been quoted in a book widely published in the united states that come july 2011, we're going to be leaving in large number, you can bet on it. is he right? >> let me stay something that he said that i can share with you and others. in the national security council meeting that followed the meeting that i had with the president in the oval office, in which the president laid out what the future was going to be and described his expectations, the vice president grabbed me and said, you should know that i am 100% supportive of this policy, and i said, i am reassured to hear that and can i share that with others? and beyond that, i am hosting by president biden for dinner tonight, and we have another opportunity to continue that

conversation. the third and final point is that secretary gates has said that he never heard by president biden say that remark either. for what it is worth. >> he is saying one thing to one person allegedly and another thing to you, and they do not reconcile themselves, and that is exactly my point. it depends on who you seem to be talking to. a lot of little people in this country are being told directly and indirectly we are getting out in july 2011. how fast i do not know what -- but we're beginning to leave. and some people are beginning to doubt what the hell we are going to do if we do not stay in the fight. this is all about your problems, this is a political problem because i am assuming that july

deadline did not come from you. you said it did not. you agreed to it, but someone other than you came map -- came up with they get out of afghanistan deadline. i think it is all politics and that is just me. the speaker of house said, i don't know how many votes they -- there are four that appeared we will see what the shape -- we will see what the shape of it is the day of the vote. a democratic member from the council on foreign relations said that it is imperative to provide congress and the american people with a clear commitment and plan to withdraw -- u.s. forces from afghanistan. this should include not only the initiation of withdraw but a date for the completion and a strategy to achieve it. you are advising congress now. we fund the war. what would you say to that

recommendation that war funding have a condition placed upon and that no funds can be expanded until you delivered to us, the congress, a withdrawal strategy? >> what i have stated here this morning is again first of all the importance -- >> what it was a fuss -- would be wise of us to put such a condition on war funding? would undermine the mission? >> let's think about it from the enemies perspective and from the perspective of our friends. as i sought to do in my opening statement this morning, they should be assured that with respect to one, we're going to pursue them relentlessly, and we're doing that and make no mistake about it, you will see it once again.

and we look forward having you as part of the forces. >> my time is up. you got a chance to advise the congress. should we put a link on war funding that would say you have to submit a plan for withdrawal by the beginning next year? does that undercut our mission or not? >> it would be contrary to the whole policy which we talked about, condition-based. i think that is enough of an answer. >> thank you. >> thank you, senator gramm. we will take a 10-minute break. you guys wanna grab all that stuff? [unintelligible]

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>> the senate on services committee voted to confirm david petreaus as the next commander of u.s. forces in afghanistan. this fall the resignation of general stanley mcchrystal last week. his nomination now goes to the full senate for a but. to watch this hearing online, go to c-span.org. house and senate negotiators met today to work on the financial regulation bill. that is next on c-span. last week, a u.s. army captain received $25,000 and pride in exchange for contracts to a company inflated corp. -- inflated prices. the hearing on wartime contract is let appeared after that, if you missed it, but confirmation

hearing for david petreaus as the next commander in afghanistan. all this week on c-span3, we have a live confirmation hearing coverage for supreme court nominee an elana kagan. you can watch this on c- span.org, and each day we read or -- reair in its entirety on c-span2. the house-senate regulation confirmation reconvene to make changes because of a number of republican objection. you need 60 votes in the senate to move this forward which the democrats did not believe that they had.

[inaudible] >> i am sorry. i thought it was on. no bill has been reported and i'll have reconsideration of the acceptance of the title involving the paid for it in the house. all those in favor of reconsideration, say aye. it is being reconsidered. the center is going to make a motion and then we will debate -- i wanted to knowledge that hard time will be satisfied.

>> it will be open for debate at. >> thank you, mr. chairman, and let me thank all of our fellow conferees and those of gathered together. i appreciated very much to reopen the conference for the consideration of a new proposal on the pay bofor provision from the bill. there was a reaction to that proposal. i thought it made sense and would work but adding that opinion does not guarantee you will build up the necessary support to succeed with legislation. we have tried to come up with alternative ideas that would reduce those concerns to meet the obligations under this bill. you may recall that we had in the senate version of the bill a fund of some $50 billion. the house have a larger

provision which would of left the legislation in the black, and i don't know what the impact was on the house version of the bill, but the colleagues felt that that was sitting out there looking like a bailout fund. senator shelby in i offered an amendment which struck that provision in the bill. we moved through the senate without a pay for, and house obviously requires pay for. coming back was an alternative, pay for is what brings us here today. what i will propose and what the language specifically is before you, legislative language, let me briefly describe what i will be offering as an alternative for that. i want to remove the financial crisis special assessment to, in

16 01 and 16 02 of the conference report. it effectively ends the target program by prohibiting any new programs are initiatives, reducing the total amount to authority to 475 billion, what has already been authorized. and it prohibits payments from being recycled into new obligation. the legislation calls for that after june 25 and so that there no doubt to concerns about new obligations under that program. . secondly, it strengthens the fdic insurance fund, amending title 3. it would increase the statutory minimum target for the fdic loss insurance fund from 1.5% to

1.35% for estimated insured deposits. the fdic would have an additional four years until the year 2020 to meet a higher minimum targets. in setting the assessment necessary to raise the minimum target from 1.5% to 1.35%, the fbi's i shall -- the fdic sell- off offset this on depository institutions that have less than $10 million in assets. banks with under $2 billion in assets will not pay for this increase. the last time the conference met, we adopted an offset by proposing a financial crisis assessment. we've heard from another -- a number of our colleagues about concerned with that provision. and so we have proposed a strike that. -- we have proposed to strike it.