direction. you fundamentally will have a disjunction between the way military personnel operation and contractors doing the same function because of who they are responsible to a the end of the day. >> thank you. i didn't see mr. welsh was back. i didn't want to usurp his time. mr.welsh, i recognize you for five minutes. >> thank you very much. i thank the witnesses for the good work they are doing. one of the contradictions, of course, is the more we spend on contracting, the more we undercut the chain of command in the military. i want to just ask your opinions on things because you're not the ones who make the decisions. mr. solis, i understand it's recently reported there is $100 million contract for blackwater to provide security to cia bases. as you know, blackwater has an

incredible history. they shot all the iraqis which looks like a hair-trigger response. they authorized payments to allow a company to continue in business. the company's under continuing investigation with the foreign corrupt practices act. in '09, blackwater lost its state department contract to provide diplomatic security for officials in iraq because of the nisor square incident in. april 2010, federal prosecutors charged five former senior blackwater officials with weapons violations and making false statements. why in the world would we enter into any new contract with a company like that?

>> i don't think i can answer that in detail. when folks making decisions on those contracts have to look at past performance. obviously the way they worked in the past. things you raised would raise concern, i would imagine. not income the decision chain, i don't know exactly how that decision would have been made by the fks who are making it. >> ms. ugone, how about you? >> there are a couple of things. as bill had said, pest performance. we did an audit a few years ago. frankly, the population of past performance information, we are not doing a very good job of populating that. that actually would be quite helpful in having primes register that information. they have a section in the past performance information blocks for also providing information on subcontractors.

at the same time therelso should be a look at whether or not anyf these subs are on the excluded parties list or have been suspended or barred. there are numerous checks that the contracting officer can use. >> let me devel on this. obviously, you can have a list where the historyf the subcontracts is made available to the people that are going to be signing a contract. in the case of blackwater it's well known what their record is. that isn't aystery to the cia. one of the dilemmas i think we have and maybe mr. bowen, i'll ask you to comment on this. the urgent reirements providing security in this case to our cia officers and forward operating basis, which obviously has to be a compelling concern for mr. panetta outweigh considerations about crimil allegations, reckless use of violence by a company because they can get the job done. that internal contradiction

means that we waive decency in some respect absent and go back to blackwater despite their crummy record. >> we can't waive core principles of stewardship of the taxpayer dollars. mission accomplishment has to be balanced with the core principles of oversight and execution and country. mission accomplished does not trump those principles. i think though regarding the subcontracting issue, we talked about it today, souch of it is discretionary. what information you can as an oversight body get access to to find out what's going on below that surface so that you can, you and frank lit departments can make better judgments. that calls for some amendment of the federal acts regulation that will give you data, information, about subcontractors so that

from here, from this data you can make judgments about how the primes are doing. >> all right. i commend you for the good work you've been doing over the years. >> thank you, sir. >> i yield back. >> mr. lynch, would you care for further questions? >> sure. thank you. since the beginning of the war in iraq and up to the present there's been a trend to to contract out core government services. the argument initially made by the bush administration is this is going to allow us to save money here. there were efficiencies gained here. after all of our experience, i just don't see that. is there cause to revisit that assumption that contracting out, while it does allow us to tap into some expertise that is not available or wasn't available at

the time, is there cause here for us to review that decision to contract out government services rather than have, rather than to build inteally our governmentapacity to do this with government employees? >> yeah. i think i woulddivide that into two separate points. first is on the cost. and providing comprehensive costs comparisons between contractors and government personnel carrying out the same function and our gao colleague may be able to say more on this it's proved to be exceedingly difficult for a variety of reasons. one of the last year reports required data from the department of defense in orde to make this comparison, department of defense was unable to provide the data. there seems to be a difference in cost as you sort of move up the skills chain. if you're going to hire local or third party nationals to do

conruction, laundry or mail service, you're much more likely to save money than to do things sort of at the top of the skills, private security, more engineering function. if you hire americans you may pay on a per day basis more than an american official to do the same things. the benefits seem to be lesson the cost side often and more on quick deployability of contractors into a war zone. on the inherently governmental sid, there is certainly reason to revisit is whole issue. our recommendation has been to try to move away from trying to divide every single activity into interntly governmental and against a law to never contract out.

we might be able to have the flibility to do that, but that shouldn't be the run of the mill way we do our operations. >> in our recent experience we have found that our federal pension rules, you know, we have some very highly skilled experienced personnel who we could use in afghanistan and ir iraq. if we brought them back in as government employees and this goes to treasury, dod, the whole nine yards, they would have to, well, they would basically violate their pension rules and be penaliz for coming back. recently in the subcommittee i chair on federal employees, we actually entertained creating

flexibility there to allow folks to come back into government employment without violating their pension rules and without being penalized to come back on to the payroll and to provide that service for a year or 18 months. then go back into retirement. is that the type of flexibility that might lp us in some of those upper trench responsibilities that you referred to? >> the double dipping problem is a real issue. i would say that makes sense on the contract management level. a number of people pointed out correctly we do not have enough contract governors in the u.s. golfs. you cannot mint a qualified government contract officer in five days, maybe not even a

year. you often can't just pluck one who's neve do government contracting from the private sector. you may get folks who are contracts office who left the government, have pensions, don't have an incentive to come back in because they would have to give that up. be able to come back two years to serve their country and put their expertise to use. >> my time expired. i yield back, mr. chairman. >> thank you. >> you talk in your report about the department of defense being hampered by the department's inability to institutional contract support by accepting contractors as an integral part of the total force which is part of my reaction to that is you might as well make them part of the total force. assuming that, what i think is common sense, doesn't prevail, what are the major obstacles you think are preventing the department ofefense from doing that? from accepting contractors as an

integral part of their force? >> that is reiterating what the department had as qdr. that is what the reliance on contractors would be. they said their total force includes military members, da civilians and contractors. i thin in terms of trying to get to that point about institutionalization and, again, ieep hammering about planning, planning, planning. i think it's something while they do a lot of on the military side, military force structure pace, it's left out in gs. i think the army does what they call a total army analysis. there s talk before i came to this hearing there is a piece about doing something for contractors to. my knowledge, that has not ever been done.

what has to happen, i've got to look at what you're going to need for your military force structure. if i have gaps then you've got to make a policy decision. do i want to fill that with military members? do i want to fill that with civilians or fill that with contractors if i want to fill it with any of those, particularly contractors, then what are the risks involved with those? what are the requirements? then what am i going to need to absorb that contractor force into that force structure? i think again it's got to be something that the military makes as a top priority. i know the secretary has talked about this. admiral mullin talked about this. >> this is not the first hearing we had. do you know of any efforts that has gone from talk to action? >> again, it's been ad hoc. i think there have been efforts. the joint staff study which was

to look at reliance on contractors in iraq. i think there's efforts to put planners out to the different combatant commands to help them prepare and do the annex ws, but it's been slow. there needs to be more forceful effort at the highest levels to implement and do the things that are already on the books. there's a lot of guidance. there's work force planning guidance out there. that includes not only contractors, but military, the whole force structure of what you need to conduct your military operations. >> the slowness of activity borders on inbordination. it's frustrating from the policy and the legislation is in place. it's just the actual execution. we've got to think of strategy from our end and the white house to get this thing in gear. i want to wrap things up.

we didn't really talk a lot about background screening, tracking of local personnel, which did come up during our last hearing on the trucking situation. was an important factor. witnesses came up to us after to reiterate how important it was to identify the subcontractors out there. in iraq, mr. bowen we've seen them do it one way. in afghanistan they are doing it ad hoc to make sure there is some aspect on that. if there is a department of defensewide screening policy absent on that, do we know whether or not your agency mr. solis or ms. ugone, have down any work in this area or made recommendations? >> actually we have ongoing work right now on the issue of contractors occupying sensitive positions that don't have proof of kreernses.

there is excessing regulation in the department that needs to be xied. with the issue is a compliance issue. that report that we are working on right now, we are expecting it to go final in the next month or two. >> and the department of defense, are they moving forward, as well? it depends on their response to our report. we haven't received it yet as to, we are predicting they'll agree with us that there is an issue and they need to solve it. >> we'll track that. >> one obstacle is in the doj about the screening with the under secretary defense of

intelligence and screening local personnel. it seems like sort of fantastic that would bring things to a grinding halt that they wouldn't find a way toresolve that. would you give us an update whether they have resolved that particular dispute or found somebody to referee it? >> my understanding, i'm going to turn to my staff back here, that's been turned over now to at&l to resolve this issue in terms of ting to figure out what the background screening requirements are going to be. >> do you belie thatill happen? >> i don know it clearly falls in eitr spot. there needed to be some way of coming up with a plan that would incorporate what usdi would be looking for as well as at&l. my understanding it's been turned over to at&l and that's as far as we know at this point. they have not responded in terms

of what the specific things they e going to do. that is something we'll continue to follow up on. obviously, it's a very important issue in terms of the background screening. that is something we'll look into. >> finally, ms. ugone, you mentioned your report didn't get into an examination of subcontractors on that. do you think your examination of subcontractors would apply? >> yes. the process itself is critical, particularly when it comes to the requirements from translating it into a statent of work and the actual contract administration. those two areas we think are absolutely critical. you don't get it right in the beginning, aerogoing to have problems at the end. also contract administration has the payment function in it. that is a recurring problem in the contract administration, not having the invoices and receives of goods and services reconciled is a key issue.

>> i suspect we could go on for quite a bit of time because your written testimony with your oral testimony was very provocative and indepth and informg. i think we are going to stop at this point of time. i want to give each of you an opportunity to tell us if there is one thing you think we didn't cover deeply enough or didn't mention at all that we should have? that would be probably a good day to wind down. mr. soli >> i think we've covered a lot. i appreciate the fact that the subcommittee had this hearing. i think there are a lot of things that have gone on with operational contract support that need to be looked into. obviously, we talked about a lot of things they haven't done. i think there is opportunities for the department to move out and grasp these things. i think, again, as mr. flake mentioned, asked about best practices, i think they are aware of what they need to do. it's a matter of execution at this point.

i think there needs to be more planning for the use of contractors and con continuation sis. by doing that, that would mitigate a number of issues that would include things like station tracking prlems. >> as money flows into equipment and training, the afghan national security forces, the department needs to apply the lessons learned from prior contingency contracting practices, particularly paying attention to planning for the acquisition up front as billions of dollars are flowed in to do the mission. >> thank you. mr. bowen? >> mr. chairman, you were exploring the causes of these problems. when did they begin?

i think the decision to drastically reduce the contracting course. as outsourcing was eanding, the capacity to oversee and contract manage that outsourcing was contcting. the consequences there from are with us today. >> mr. fontaine? >> just one final point and it gets to training. if contractors are going to be part of the total force, which the 2010 qdr says they are, tn those military individls are civilians who go over to theaters who don't do contract management will need to know something about contractors, what they do, how to find out what they do, what the regulations are and whether they can order them to do something or not. currently, if you go out toone of the training places before the predeployment training, they are actually run by contractors, but there is almost no plain contractors. when they get over to afghanistan andiraq they'll find more of them than they'll

find of the military. same thing is true in war game, the role of contractors incorporated. in the 2008 national theirization act there was a requirement the dod issue a joint directive to bring together war gaming and predeployment training, the role of contractors integrate that. they have not issued that documenyet even though it was required in 2008. moving down that path would be a real step forward. >> great. my final final question. would each of you tell me what you think is the place or person at the department of defense, the state department and usaid where this committee should go to inquire on progress and make sure results occur? >> i'll say for dod because i'm not as familiar with state or aid, but it's combined between

dr. carter and the undersecretary for personnel writing. it would fall between those two. it's not only a contracting and contract issue, it's a four structure and personnel issue. >> thank you. miss ugone. >> nato training mission, combined security transmission command afghanistan. and the undersecretary defense comptroller. >> mr. bowen? >> only one is pat kennedy, undersecretary for management at the state department. >> thank you. >> mr. fontaine? >> since we are adding people as we go along the table here, at a.i.d. it's split. i think there's two areas at a.i.d., the bureau that handles conflict and humanitarian reconstruction would be the place to go. if you don't go above that to say is there one, the handle of

issues. >> thank you all once again for your written testimony and oral [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> the senate panel voted to confirm a general of david petraeus at the next commander in afghanistan this comes following the resignation of general stanley mcchrystal's post last week. for after this, and elena kagan.

>> c-span content is available on television, radio, and online. begin also connected this on twitter, facebook, and the youtube. >> general david petraeus held a senate committee meeting that he will review the process of engagement for th. it is about an hour and 15 in the -- an hour and 50 minutes. >> good morning. the following 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. to says he did in all of his senate work, he was a relentless advocate for the enduring traditions of the senate often the shah -- senate including our respect for the legislative authority. hands to exercise and to defend. . . his life's work and legacy will help guide dense and will guide future since -- and senates. we consider the nomination of general petraeus to be commander

of the need to international security assistance force and the commander of the united states forces in afghanistan. the general, you testified before this committee just two weeks ago. certainly, no one foresaw the events that bring you to testify here again. when confirmed, you will bring higher experienced leadership and a profound understanding of the president's strategy in afghanistan which you helped shaped as commander of u.s. central command. i want to thank you for your willingness to leave that position and take charge of the campaign in afghanistan pitt. and that of your family. yor wife holly is with you this morning, and so we all want to thank her personally forer 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 is 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 adted a resolution calling on the international community to expede the training and equipping of the afghan security forces so that they can gainhe 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 -- corrption -- 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 recentlydopted 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 -- thensurgency's worst nightmare. the afghan army enjoys the pport of the afghan people and theare 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 ira 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 happeni 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 th 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 sge 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 senar 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 tay 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 peaus, 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 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 afghhnistan is a vital natural interest, and i support his decision to adopt a counterinsurgency strategy, backed by more troops and civian resoues. 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 adeque 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 posble, 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 al 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 fect. 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 tops 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 withdr 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 theecessary 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 bore 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 afghanisn, 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 of known and admired for nearly 30 years. general mcchrystal devoted his entire professional life to the defenseof 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 be 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 efft 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 proer 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/ 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 tacks against innocent men, women, and ildren in our country and around the world. in short, we cannot allow al qaeda or other transnational extremist elements to on 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 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. 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 eikenbery, 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 predent'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 civilis killed in thcourse 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 afte 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 at 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 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 appotment 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 ginning 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 re 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 dense

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 fortheir 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 influee. this year, if 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 tak 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 distct 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 iself. 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 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 becomeart 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 expect. 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 ratesave 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 prident's policy will require that our fces -- 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 theirroops 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 ha 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 timel 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 fdamental 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 eir country's security which is important for success of the mission in afghanistan? >> i do. >> a report released this morning by the special inspector gener 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%re assessed to be effective. there were 120,000 army troops including 70,000 combat troops. taking just this lower combat oop 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 thanne-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 oo the afghan people? >> that is another piece o 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 aook athat? >> 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 dble 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 w 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 y 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 deliveng 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 summe 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 somewt in in question. in that regarr i agree with director panta. we want to forge a partnership or further partnership that has been developing between

afghanistan and pakistan. thoseountriesre 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, withdrrw 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 deliberations that 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 aware of. >> i thank you. do you think is of concern -- the situation with pakistan and the isi contin 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 th 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 ctivities 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 comma at supported us in iraq, that is going to examine 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 defense forces have to be at certain levels so that the transition can be successful. and therore, there is concern about that. i know that the genel 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? >> at 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 ext 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 plang 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 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 estion. given our very aggressive operations, if we succeed inhe 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 te 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 isn 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

certainevels 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 ck, 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 locaons 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 th operation accounts so that those funds are used for very valideasons. 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 rzai. frankly, i was not aware -- >> as the centcom commander, senator. >> yes, understand. in the years that i have been on this committee, when you go through confirmations, this is the first timi 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 ck 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 be 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 presidt, 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 dne 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 e 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 was going backwards, or to get it going forward. in the meantime, you were aware of other clocks, inclung rhaps 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 iyou were there.

you certainly have people there. when i looked at the faces of these guys, they were very proud that they wre 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 gneral 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 lo so 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 bthe 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 hi 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 genal 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 ose fces, 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 substanal 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 aigned. 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 yor 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 gat 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 immediaty? >> 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 develed 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 a the implementation of the tactical directive and the rules of engagement. that is something that clear, 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 beennder 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 discussedesterday, 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 th 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 recomndation 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 i correct. we did not recommend any action. and what we did is provide a result of our investigation. and then, provid 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. cannot help but note e 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 mtion -- 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 mannd 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 appreate 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, adequaty 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. d 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 at 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 t 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 ntral 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. therehas 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 d 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 smed 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 illing our commitment, help them overcome that? >> i think it would be mistake for them to hedge their bets forever. that is what we want to demonstrate by our operions on the ground, by our developmen 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 no only incentives for reintegration but enormo 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 nation forces. and we will do that as we have to. and we are also accommodating the additional forces that are comi 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, willthe rules of engagement, bayh clearly stating them as you have, also tell the taliban that it will be gained, set, tch 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 b the security situation in districts, and in some cases, even sub-districts, because you have a faiy 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 marke 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 svices, and of that whole process of pointing to a better, brighter

future for the pple 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 ledto this was very unfortunate and should not be the end of his evaluation in terms of being an army offic. 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,enator, 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 governme officials, and de "responsible

drawdown" of the surge o 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 flowed the meeting that i had with the president in the oval office, in whic 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, anthat 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. is 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 aut 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 nexyear? does that undercut our mission or not? >> it would be contrary to the

whole policy which we talked about, condition-based. i think th is enough of an answ. >> 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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committee. good morning, everyone. today -- today justice john paul stevens' resignation from the supreme court takes effect. i appreciated your recognition of his service to the country in your opening statements. general kagan -- he was the first person i -- the first supreme court nomination i was able to vote on. as a very young and very junior member of the united states senate. but you spoke eloquently about the rule of law securing the

blessings of liberty about the constitution. and about the respect of all three branches of our democratic government. and i appreciate your pledge to look at every case modestly in connection with principal aiple with accordance of law. so beginning our questioning, i talked about this, each senator each senator will have a 13-minute round and we'll go alternating back and forth. so i will begin the first round. so in general, kagan, you spoke yesterday about your parents, children of immigrants, person of families to attend college. i was struck when you said that your mother didn't learn english

until getting ready to go to school. the same with my mother and my wife. before we get the questions about the important role that the supreme court plays in american lives, you wanted to share some additional thoughts about the values your parents taught you to put you on the path of teaching and law and public service because that may give us a better idea of who you are. >> oh, gosh, chairman leahy, thank you for giving me that opportunity. that's a wonderful opportunity. my parents, of course, were -- they were loving, wonderful parents. but they were also people who worked hard for their communities. and i think that's what i most took away from them is the value of is serving the communities that you live in, serving other people. we got a little bit from each

side. my father, as i said, was a lawyer. he was a lawyer for ordinary people. he was the kind of lawyer who, if you needed a will drawn up, he would draw up your will. and if you had problems on your taxes, he would help you with that. then one of the things that he did quite a lot of is he helped tenants in new york city, the neighborhood that we live in was in the process of some change as i was growing up. and many people were sort of being forced out of their homes. and he made it part of his work to ensure that either they could stay in their homes or at least if they did need to move to another neighborhood, they could -- they could take something with them to establish a good life there. and he was also a person who spent an enormous amount of time thinking about that neighborhood. he was involved in lots of community boards and citizen groups of various kinds thinking

about environmental projects and land use projects. he really treated that neighborhood of new york city as just, you know, he -- he just so much cared about the welfare of it and poured his heart and soul into trying to improve it. and i think what i learned from him was just the value of public service, was just the value of doing what you can in your neighborhood or in your nation or wherever you can find that opportunity to -- to help other people. and to serve the nation. so that's what i most took away from my father. my -- my mother was -- she -- i said yesterday, she was the kind of legendary teacher. she died only a couple of years ago. and my brothers and i, we expected a small funeral. we didn't expect many people to attend.

i don't have a large family. instead, tons and tons of people showed up. we couldn't figure out who they all were. they're middle aged, 30-year-olds, 40-year-olds, whatever. they had had my mother as a sixth grade teacher decades ago. they were people who just wanted to come and pay their respects because they kept on coming up to me and my brothers and saying, at the age of 12, your mother taught me that i could do anything. she was really demanding. she was a really tough teacher. it was not -- you didn't slide by in mrs. kagan's class. but she got the most out of people. and she changed people's lives because of that. and if i look at my own career in this kind of strange way, not land, but in a strange way, part of my life is my father and part is my mother. part of my life has been in public service.

i've been blessed with the opportunities i've had to work in government and to serve this nation. and then part of my life is teaching, which i take enormous pleasure and joy from. i mean the -- i'm looking over your right shoulder -- your left shoulder right on my side. and there's a student of mine right there. and maybe there's some other students that are around the room. and it's kind of a great thing. >> these -- these things that i -- i mean, each one of us can speak about our parents and what they brought to us. seems to me they gave you pretty strong values. that speaks about who you are as a person. now we go to some of your legal abilities and criticize your background and your legalizing -- even going to what did you write on college papers. the chairman of the republican

national committee criticizing you last month for agreeing with justice thurgood marshall's observation of the constitution as originally drafted was imperfect. the criticism surprised me because everything you read about the founders, they knew that the -- they would lay down something that would not cover any foreseeable thing? how could they possibly foresee what the country is today? they wrote in broad terms. they couldn't foresee every challenge. what's your response to this criticism of you that's made because you agreed with justice marshall. how would you describe the constitution to you as amended the way it was drafted. >> the framers were incredibly wise men.

if we always remember that, we'll do pretty well. because part of their wisdom was that they wrote a constitution for the ages. this was very much in their mind, this was part of their consciousness. even that phrase that i quoted yesterday from the preamble of the constitution, they said that the constitution was to secure blessings of liberty. i didn't quote the next part of the stage. he said lessons of liberty for themselves and their posterity. they were looking towards the future. they were looking generations and generations and generations ahead. and knowing that they were writing a constitution for all that period of time. and that life -- and that circumstances and that the world would change. just as it had changed in their own lives, very dramatically. so they knew all about change. and they wrote a constitution, i think, that has all kinds of provisions in it. so there's some that are very specific provisions. it just says what you're

supposed to do and how things are supposed to work. so it says to be a senator, you have to be 30 years old. and -- and that just means that you have to be 30 years old. and it doesn't matter if people mature earlier. it doesn't matter if people's life spans change. you just have to be 30 years old. because that's what wrote. and that's what they meant. and that's what we should do. but there are a range of other kinds of provisions in the constitution of a much more general kind. and -- and those provisions were meant to be interpreted over time, to be applied to new situations and new factual contexts. so the fourth amendment is a great example of this. it says there shall be no unreasonable searches and seizures. well, what's unreasonable? that's the question. the framers could have given like a whole primer on police practices, you know? which searches were reasonable and which weren't reasonable and

lots of different rules for saying that. but they didn't do that. they didn't do that because of the incredible wisdom they had. the world is about to change and they didn't live with bomb-sniffing dogs and heat detectors and -- >> computers. >> and computers. all these questions that judges, courts, everybody is struggling with. police in the fourth amendment context. and i think that -- i think that they laid down -- sometimes they laid down very specific rules. sometimes they laid down broad principles. either way, they applied what they say, what they meant to do. and so, in that sense, we are all originalists. >> and we also made changes. i mean, the -- the bill of rights, my own state of vermont didn't join the union until they saw that the bill of rights was going to be ratified.

they did the -- the 19th amendment, expansion and votes for women. the 26th amendment, the -- allowing 18-year-olds to go. we see some major changes over the years. yesterday i talked about how the supreme court interprets plessi versus ferguson. overruled by brown versus board of education. same constitution. but if we -- people realize how changes are in society. i -- i can't imagine anybody saying we should go back to plessi versus ferguson. because that was -- that was decided first. i think -- i do recall you being a special counsel with senator biden on this committee during the supreme court confirmation hearing. i was here -- i was a little further down the -- down the road at the time. but you wrote a law review article and book review after in which you argued that these proceedings should be occasions to engage in the meaningful

discussion of legal issues. now, you set the standard. you probably reread those words. how are they -- >> many times. >> how are you -- i'll bet. i'll bet. as have i. and i guarantee you every single member of this committee. >> you know what? they've been read to me many times too. >> and probably will again. how will you live up to that standard? >> senator leahy, before i answer that question, may i say a little bit more about what you started with, about constitutional changes, just to show my commitment to being open, all right. >> okay. go ahead. >> you said something that sort of triggered a thought in me. i just wanted to -- as you said, there are all these many changes that have happened to the constitution. and i think it's important to realize that those changes do come in sort of two varieties. one is the formal amendment process. and i think it was senator

cornyn yesterday who had talked about the formal amendment process. that's tremendously important. when thurgood marshall said this was the constitution. they counted slaves at 3/5 of a human beinging, didn't do anything about that original sin of our country, and the 14th amendment changed that. the 14th amendment was an enormous break after the civil war. and created a different constitution for america. so partly the changes come in that way. but partly, they -- they come outside of the formal amendment process as well. what you said about plessi and brown is absolutely right. if you look at the specific intent of the drafters of the 14th amendment, they thought that the 14th amendment was

perfectly consistent with segregated schools. i mean, you just have to -- you can't really argue otherwise as an historical matter. but in brown, the court said otherwise. and, you know, step by step by step, decision by decision, in large part, because it's inconsistent with the principles of the law with the draft that the 14th amendment laid down is inconsistent with that principle to have sessiongregated schools. that's how change can happen as well. to go to your real question. i apologize to that digression. i have looked at that -- that book review -- many times. and have been pointed to it. and here's what i think. i still think that the basic points of that book review were right. and the basic points were that

it's to the supreme court. the senate has a constitutional responsibility and should take that constitutional responsibility seriously. and also that it should have the information that it needs to take that responsibility seriously. and part of that is getting some sense, some feel of how a nominee approaches legal issues the way they think about the law. and i guess that's my excuse for giving you a little bit more, even than you wanted about constitutional change. but -- but i would say that there are limits on that. now some of the limits i talked about in that article itself. i mean, that article makes very clear that it would be

inappropriate for a nominee to talk about how she would rule on pending cases or on cases beyond that that might come before the court in the future. so the article was very clear about that line. now, when i came before this committee in my hearing, senator hatch and i had some conversation because senator hatch said to me -- i'm sorry he's not here -- he said to me he thought that i had the balance a little bit off. he said, you know, in addition -- he basically said, it's not just the people can ask you about cases coming to the -- that come before the court. they can ask you a range of questions that are a little bit more veiled than that. but they're really getting at the same thing. if it's not right to say how you would rule on a case that's going to come before the court or it might, it's also not right to ask those kinds of questions which essentially ask you the

same thing without doing so in so many words. i went back and forth a little bit with senator hatch both in these hearings and on paper, and i basically said to senator hatch that he was right. that i thought that i did have the balance a little bit off. and that i skewed it too much towards saying that answering is appropriate, even when it would, you know, provide some kind of hints. and i think that that was wrong. i think that in particular, that it wouldn't be appropriate for me to talk about what i think about past cases, you know, to grade cases. because those cases themselves might again come before the court. >> well, actually, that is going to another area you've been associate general, you've argued a number of cases before the supreme court. the last -- the last person nominated directly to the

supreme court not from a judgeship but from the administration was when justice rehnquist was working for the nixon administration and went directly to the supreme court. and then i was in dissent at that time. but i was there when he was being nominated for chief justice. i asked him to recuse himself from a case called laird versus tatum. now the laird case involved the nixon administration surveillance of americans. as the justice department's legal expert, when he's working with the justice department for the nixon administration, he testified before congress about that case. but then after his confirmation, he was probably five justice majority in the very case in which he had testified. and he voted to dismiss the complaint alleging unlawful surveillance of lawful citizens'

political activity. now our supreme court justices have to make up their own mind back and forth with justice scalia about some things in his relationship with the former vice president and ruling on cases involving him. i regularly ask questions of nominees, not just for the supreme court, but further courts about potential recusals. now, senator sessions and i sent you a questionnaire and in that we had the question recusal. and you answered it, appears to me, very seriously. tell me about what -- what principles are you going to use to make recusal decisions if you can do just briefly. but then tell us some of the cases that you anticipate you are going to have to recuse? >> senator leahy, i think certainly as i said in that

questionnaire answer that i would recuse myself from any case in which i've been counsel of record at any stage of the proceedings, in which i've signed any kind of brief. and i think that they're probably about ten cases -- i haven't counted them up particularly, but i think they're probably about ten cases that are on the docket next year in which that's true, in which i -- i've been counsel of record on a petition forfor certiori o something of that manner. i said i would recuse myself of any case that i played a substantial role in the process. i would be her tanlt because one of the things i would want to do is talk to the colleagues thereupon and make sure this is what they think is appropriate

too. but i think that would include any case in which i have officially formally approved something. so one of the things that the solicitor general does is approve appeals or approve am c -- amicus briefs to be filed in lower courts, or to approve interventions. >> i wish you would -- i was struck by former chief justice rehnquist's position -- i thought it was an open and shut question for recusal. the reason i mention it -- the supreme court also has to have the respect of the american people. and some cases they can expect a justice on a case in which they will or will not agree with them. so long as they have request for

the court, they will see that. they have justices involving a financial interest, which seems pretty clear cut. or other direct interests and then they rule on them, you can imagine this erodes the credibility of the court. i'm concerned about that whether it's the republican nominee or the democratic president's nominee. two years ago, the district of columbia versus heller, the supreme court held the second amendment guarantees to an american's individual right to keep and bear arms. i'm a gun owner, as are many people in vermont, and i agree to the heller decision. and yesterday, mcdonald versus the city of chicago, the court decided the second amendment right to establishing heller is a fundamental right that applies to the states as well as the government. that's not going to have any effect one way or theeother in

vermont because we don't have gun laws in vermont except for hunting season, we try to give the deer a fighting chance. otherwise, there are no rules. is there any doubt after the court's decision heller and mcdonald is a second amendment to the constitution, secures a fundamental right for an individual to own a firearm, use it for self-defense in their home? >> there is no doubt, senator leahy, that's binding precedent and entitled to all respect to binding precedent in any case. that is settled law. . >> as solicitor general, did you have a role in the president's domestic or foreign policy agenda? >> the solicitor general doesn't take part in policy issues. certainly -- the only policy issues i think i might have taken part of, and these are policy issues that would only

overlap with litigation issues is national security issues. but otherwise, the solicitor general is a legal officer. >> if you were involve in domestic or foreign policy agenda, would that not be something you want to consider in the issue recusal? you mentioned national security issues, for example. >> right. i think that anything that i substantially participated in as a government official that's coming before the court, i should take very seriously as you say. the appropriateness of recusal. >> now, i know when chief justice roberts were here, they'd worked for republican presidents. they assured senators as lawyers for presidential administration

they were representing the views of the president. all my friends on the other side of the aisle thought that was fine. and the reason i mentioned it is i was concerned as some were saying that almost a different standard because back a number of years ago, you worked for the clinton administration. would you agree with chief justice roberts as a lawyer of the administration the policies you worked in advance the views of the president's policy of whom you worked. >> i worked for president bill clinton. we tried to implement his policy views and objectives. >> let me ask you this -- we've heard you talk about harvard law school and military recruiting when you were a dean. and by enforcing the long standing nondiscrimination policy.

-- you provided military recruiters with the access to students had been successfully used for years under your predecessor dean clark for the approval of military recruiters and the department of defense. did you ever barre kreuters from the u.s. military from access of harvard law school when you were dean. >> senator leahy, military recruiters had access to harvard students every single day i was dean. >> let me ask you this, did the -- did the -- while you were there, did -- did the number of students recruited go down? at all? while you were -- while you were dean? >> i don't believe it did, senator leahy. so i'm confident that the military had access to our students and our students had access to the military

throughout my entire deanship. and that's incredibly important because the military should have the best and brightest people it can possibly have in its forces. and i think -- i said on many, many occasions that this was a great thing for our students to think about doing in their lives, that this is the most important and honorable way any person can serve his or her country. >> i -- always been my experience also that if someone wants to join the military, they're pretty motivated to join the military. my youngest son joined the marine corps out of high school. there weren't recruiters on the high school campus. but he was able to find whether the recruiter was in downtown burlingtop a ington and walked e and signed up. my wife and i were proud for him

doing that. here there's the implication given that somehow military recruit earles couldn't recruit harvard students. that was not the case, is that correct? >> that is not the case, senator leahy. the only question that ever came up -- as you stated earlier. this was a balance for the -- the law school. because on the one hand, we wanted to make absolutely sure that our students had access to the military at all times. but we did have a long stand going pack to the 1970s' antediscrimination policy which says no employee can use the office of career services if that group would not sign the plemg that applied to many categories, race, gender, sexual orientation, veteran status as well. but the military couldn't sign that pledge. >> because of the don't ask don't tell. >> because of the don't ask

don't tell strategy. >> which the chairman of the joint chiefs of staff said should be repealed. you said military service is the noblest of all professions. those cadets serve their countries in the most important of all ways. it didn't sound very anti-military to me. tell me why you said that? what you did at west point. >> i said it because i believe it. i was so honored to be invited to west point. they have a mandatory part of their curriculum and all students take a law course and they invite a person each year to talk to the students about any legal subject. and it was really the greatest honor i think i've gotten to be asked to be that person. i went up and i talked to the west point students and faculty about -- about something that i talked about yesterday, really, which was about the rule of law. and about how it applied in the

military context. and i was -- i was -- i just -- i loved that institution, the faculty, the students there. it was an incredible experience for me. but in addition, i mean, i tried in every way i could to make clear to harvard that veterans in the military at harvard law school and people going to go to the military, how much i respected their service. how much i thought they were doing the greatest thing anybody can do in their country. >> i tended to agree. i thought that way about our son. we worried about him but we were proud of what he was doing. speaking of marines, i read may 21 "washington post" op-ed, the captain of the u.s. supreme court. 2008 harvard law graduate. he's serving as a legal advisor to a marine infantry battalion in southern afghanistan.

i've been to that part of afghanistan with the group. ppnot an easy place to be. he writes -- if elena kagan is anti-military, she certainly didn't show it. the firm advocate of the veterans association. the most thoughtful thanks of all just graduating from harvard law school. the supposedly anti-military elena kagan sent a handwritten note thanking me for my military service and wishing me in my new life as a judge advocate. i want to thank you for doing that too. ly pi will put it in the record. captain merrill's op-ed. >> senator leahy, this has been a sort of a long process, this process. sometimes an arduous one.

i've only cried once during this process. and i cried when i woke up one morning and i read that op-ed from captain merrill. that it meant just an enormous amount to me. he's a magnificent man doing great things for our country. and his praise meant more to me than anybodies. >> i haven't met him, but i was very touched by it. senator sessions. >> thank you, mr. chairman. and i value our relationship and we disagreed over documents in a few things. but i believe you tried to handle this committee in a fair way. no one's had more experience at it. and fundamentally, i hope we had dean kagan, a good hearing. i hope you can feel free to tell us precisely how you think so we can evaluate what you might be like on the bench. we can have brilliant and wonderful people. and we have an approach to judging that i think advised

them to be faithful to the law. to not take the -- to be able to honor that oath, which is to serve under the constitution and the laws of the united states, then we've got a problem. and i don't think that's judging. i think that becomes politics or law or something else. and so i would say that to you. i look forward to all of our members asking a number of questions to probe how you will approach your judgeship. let me ask you this -- >> thank you for those kind words. >> thank you, mr. chairman. and i meant that. one thing before i get started, i would like to ask about your discussion of constitutional change earlier. you indicated that there is an amendment process in the constitution in two ways to do so.

in the constitution. is there any other way than those two ways that the constitution approves to change the constitution? >> well, senator sessions, the constitution is an enduring document. the constitution is the constitution. and the constitution does not change except by the amendment process. but as i suggested to chairman leahy, the constitution does over time -- we're asked -- where courts are asked to think about how it applies to new sets of circumstances, to new problems, the things that the framers never dreamed of. and in applying the constitution case-by-case-by-case, to new circumstances, to changes in the worl world, the constitutional law that we live under does develop over time.

>> well, developing is one thing. and many of the provisions as you noted, they're not specific. but they are pretty clear, i think. but not always specific. but on -- you -- you're not empowered to alter the document. and change its meaning. you're empowered to apply its meaning faithfully in new circumstances. wouldn't you agree. >> i do agree with that, senator sessions? that's the point i was trying to make. however inartfully you take the fourth amendment and you say there's unreasonable searches and seizures and that provisions stays the same unless it's amended. that's the provision. then the question is, what counts as an unreasonable search and seizure and new cases come before the court and the court tries to think about to the extent that one can glean any

meaning from the text itself, from the original intent, from the precedents, from the history, from the principles embed in the precedent. and the court step by step by step one case at a time figures out how the fourth amendment applies. >> i do believe there's some out there who think that the court really has an opportunity to update the constitution and make it say what they'd like it to say. i know we've seen a revival in the idea of the progressive legal movement that people in the early 20th century advocated views for changing america. they felt the constitution often blocked them from doing that. and they were very aggressive in seeking ways to subvert or get around that constitution. the informant -- colleague at university of chicago, richard emstein, said any constitutional doctrine that stood in the way

of the comprehensive, social, or economic reforms, he's referring to the progressives, had to be rejected or circumvented. and he noted that the progressive influence continues to exert itself, he's talking about today, long past a new deal in modern supreme court decisions that address questions of federalism, economic liberties, and takings for public use. i believe that's a dangerous philosophy. i believe that's a philosophy not justified by any judge on the court. and i'm worried about the trends. i think the american people are. greg craig, the former chief council to president obama who's known you for sometime, i understand, said of you -- she's largely a progressive in the mold of obama himself, close quote. do you agree with that? >> well, senator sessions, i'm

not quite sure how i would characterize my politics. but one thing i do know is that my politics would be, must be, have to be, completely separate from my judging. and i -- i agree with you to the extent that you're saying, look, judging is about considering the case that comes before you, the parties that comes before you, listening to the arguments they make, reading the briefs they file, and then considering how the law applies to their case. how the law applies to their case -- not how your own personal views, not how your own political views might suggest, you know, a -- anything about the case. but what the law says, whether it's the constitution or whether it's a statute. now sometimes that's a hard question -- what the law says. and sometimes judges can disagree about that question. but the question is always -- what the law says. and if it's the -- if it's the

constitutional question, it's what the text of the constitution says, it's what the history says, the structure, the precedent. but what the law says, not what the judge first -- >> i agree. the point i just wanted to raise with you is that this idea, this concept of legal progressivism is a foot. i noticed echlt j.dionne in yesterday's "washington post" had an article started off, the second paragraph as saying, democratic senators are planning to put the right of citizens to challenge corporate power at the senator of their critique of an activist conservative judging. offering as a case that has not been offering a case that has not been fully aired since the great progressive era of justice lewis bran dice. and i think we do have this national discussion going on about a revival of progressivism. let me ask you about this. vice president biden's chief of staff, ron claim, who served on chief council of this committee

skilled lawyer, was vice president chief of staff -- chief of staff to vice president gore, also, i believe, who's known you for a number of years said this about you -- elena kagan is clearly a legal progressive. i think elena is someone who comes from the progressive side of the spectrum. she clerked for judge mick, clerked for justice marshall, worked in the clinton administration, the obama administration. i don't think there's any mystery to the fact that she is. as i said, more progressive role than not, close quote. do you agree with that? >> senator sessions, it's absolutely the case that i have served in two democratic administrations. and i think -- >> i'm asking, do you agree with the characterization that you're a legal progressive. >> senator sessions, i honestly don't know what that label means. i work in two democratic

administrations. snarlt graham suggested yesterday and i think you're right that you can tell something about me and my political views from that. but as i suggested to you, that my political views are one thing -- >> i agree with you, exactly, that you -- you should not be condemned for being a political believer and taking part in the process and having views. but i'm -- i'm asking about his firm statement that you are a legal progressive which means something. i think he knew what he was talking about. he's a skilled lawyer that's been in a debate of justice and politics just as you have. i'm asking you again, do you think this is a fair characterization of your views? certainly you don't think he was attempting to embarrass you or hurt you in that process? >> i love my good friend, but i guess that i think that people should be allowed to label themselves. and that's -- i don't know what that label means.

and we're not going to characterize it one way or the other. >> i'm saying having looked at your overall record, having considered those two people who know you very well, i think you have to classify you -- i would have to classify you as someone in the theme of a legal progressive. one of the things i want to test is your willingness to follow the law, even if you might not agree with it, and senator leahy has asked you about harvard and the military. isn't it true, isn't it a fact that harvard had full and equal access to the recruiting office, the office of career services, when you became dean? and isn't it true that -- well, isn't it true -- well, when you became dean.

>> senator sessions, the military had full access to students at all times, before i became dean -- >> that's not the question. >> let her answer the question. >> but -- you know, you'd -- you -- go ahead. >> so the history of this is harvard did have this anti-discrimination principle and for many, many years, my predecess predecessor, bob clark, had set up a system to ensure military access, but also to allow harvard to comply with its anti-discrimination policy, which prohibited the office of career services from providing assistance to employers who cou not sign the anti-discrimination pledge. and the accommodation that bob worked out was that the veteran's organization would instead sponsor the military recruiters. so the only thing that was at issue was essentially the sponsoring organization, whether

it was the office of career services or, instead, the student veteran's -- >> please, let me follow up on that. in august 26 of 2002, dean clark, your immediate predecessor, act wiquiessed fro failure to comply with the law which requires not just access, but equal access to the offices on campus. he replied in this fashion to the government -- this year and in future years, the law school will welcome military -- the military to recruit through the office of career services, closed quote. so that was with the rule when you took office, was it not? >> it was the rule when i took office. and it remained the rule after i took office. for many years, d.o.d., the department of defense, had -- >> well, not for many years --

well, how many -- >> well, for a number of years, for a great number of years, the department of defense had been -- had been very accepting. had approved the accommodation that we had worked out. you're quite right in 2002, d.o.d. came to the law school and said although this accommodation has been acceptable to us so far, it's not acceptable any longer and instead we want the official office of career services assistance. >> but before -- and harvard acquiessed and agreed to do so. >> the dean decided to do so. >> on the direct threat of cutting off funds, and otherwise he indicated in his statement, he would not have done so. when you became dean, you personally opposed a don't ask don't tell policy and felt strongly about it. >> i do oppose the don't ask don't tell policy. >> and you did then. >> and i did then. >> and you -- in '03, not long

after you had been -- became president, you said, quote, i abhor the military's discrimination recruitment policy, close quote. i consider it, quote, a profound wrong, a moral injustice of the first order, close quote. you said that not within six months or so becoming dean. and that's the e-mail you sent to the entire law school. >> senator session, i have repeatedly said the don't ask don't tell policy is unwise and unjust. i believe it then and now. we were trying to do two things. we were trying to make sure that military recruiters had full and complete access to our students but we were trying to protect our own anti-discrimination policy and to protect the student with whom the policy was supposed to protect and who have

gay and lesbian students. >> in fact, there was a protest on campus, the next year and you participated in that protest and spoke out saying, quote, i'm very opposed to two government policies that directly violate the policy of nondiscrimination and directly impact our students. the first is "don't ask don't tell," the second one is an amendment, which effectively forces educational institutions to make this exceptions for policy. you said that at that meeting. and in addition to that, a lawsuit was filed in addition to that circuit, a third circuit. and you agree in the don't ask don't tell policy.

is that correct? >> senator sessions, that's not correct. the law school brought a challenge to the don't ask don't -- to the solomon amendment. we did not participate in that challenge. what the brief that i filed did do is try to argue harvard's accommodation that allowed -- that welcomes the military on campus but through our veterans organization what we tried to argue that that accommodation was consistent with the solomon amendment. that's what we argued to the third circuit. >> and eventually the supreme court did not agree with that. but after the third circuit rule, 2-1, questioning the constitutionality of the statute, are you immediately the very next day changed the policy at harvard and barred the military from the office of career services, the equal

access to solomon amendment had required. is that correct? >> senator session, after the third circuit ruled the solomon constitution unconstitutional, and the third circuit was the only appellate court to have issued a ruling on that question and did rule it unconstitutional. i thought it appropriate at that point to go back to what had been the school's long-standing policy, which had been to welcome the military on to the campus but through the auspices of the veteran's organization, rather than through the auspices of our office of career services. >> well, the and that was not the equal access that the solomon amendment, which i worked on to pass, required. congress, frankly, was very frustrated at the law schools. we passed four or five versions of the solomon amendment to get around every maneuver that occurred on the campus. now, isn't it a fact that the

mandate or the injunction never issued by the third circuit that the third circuit holding did not apply to harvard at the time you stopped complying with the solomon amendment, and isn't it a fact that you were acting in violation of harvard's agreement and the law when you reversed policy? >> senator sessions, we were never out of compliance with the law. nobody ever suggested that harvard should be sanctioned in any way. the only question was whether harvard should continue -- continue to remain eligible for federal funding. and after dod came to us and after dod told us that it wanted law schools to essentially ignore the third circuit decision, that it wanted -- that it was going to take that decision to the supreme court, and that it wanted law schools to continue to do what they had been doing, we did change back, we did precisely what dod asked

us to do and dod never withheld -- >> ms. kagan, you didn't do what the dod asked you to do. just answer this -- put your legal hat on for a second. the third circuit opinion never stated the enforcement of the solomon amendment at harvard, did it? did that law remain in effect? >> senator sessions, the question was -- >> no, that's my question to you. did the law remain in effect at all times at harvard? >> the solomon amendment remained in effect, but we had always thought that we were acting in compliance with the solomon amendment, and for many, many years dod agreed with us. after the third circuit, i thought it was appropriate to go back to our old policy, which previously dod had thought complied with the solomon amendment. when dod came to us and said, no, the third circuit hasn't changed matters because we're

going to take this to the supreme court, and we want the law schools really to ignore what the third circuit said, dod and we had some discussions, and we went back to doing it exactly the way dod wanted it to. >> let's get more basic about it. the military, you stopped complying and that season was lost before the military realized frankly you never conveyed that to them in a straight up way like i think you should have. you just started giving them a run around. the documents we have gotten from the department of defense say that the air force and the army says they were blocked, they were stone walled, they were getting the run around from harvard. by the time they realized that you had actually changed the policy, that recruiting season was over. and the law was never not in force. i feel like you mishandled that.

i'm absolutely confident you did, and but you continue to persist with this view that somehow there was a loophole in the statute that harvard did not have to comply with. after congress had written a statute that would be very hard to get around. what did the supreme court do with your brief, how did they vote on your brief attacking the effectiveness of the solomon amendment to assure equal access at harvard? >> senator sessions, if i might, you had suggested that the military lost a recruiting season. but in fact the veterans organization did a fabulous job of letting all our students know that the military recruiter were going to be at harvard during that recruiting season and military recruiting went up that year, not down. now you're exactly right that the supreme court did reject our

amicus brief. we filed an amicus brief saying that essentially the harvard policy complied with the solomon amendment. the supreme court rejected it 9-0, unanimously. >> but even before that, the military said the law was still in effect. harvard had no right to get around it. and they should comply even before the supreme court issued a ruling and they had to contact the university's counsel and the president, mr. larry summers, onthey -- mr. summers agreed that the military should have full and equal access before even the supreme court ruled. but after you had denied equal access. isn't that right? >> senator sessions, we had gone back and done exactly what the department of defense had asked us to do prior to the time that the supreme court ruled. we had done it -- >> wait a minute. you asked them what they asked

you to do, after the third circuit ruled, you denied them access, they had to insist and demand that they have equal access because the law was still in effect, you did not agree to that, you had reversed that policy and the president of the university overruled your decision, according to the internal dod documents. they say that president summers agreed to reverse the policy, the dean remains opposed. >> senator sessions, larry summers and i always worked cooperatively on this policy. i didn't ever do anything that he didn't know about and he never did anything that i didn't approve of with respect to the decision that you're talking about, this was a joint decision that larry and i made that because dod thought what we were doing was inappropriate, we

should in fact reverse what we had done. that period lasted for a period of a few months and my six-year deanship. and long before the supreme court issued its ruling in the fair versus rumsfeld case, we were doing exactly what dod asked us to do. >> so it is your testimony that the decision you made immediately after the third circuit opinion, you concluded was inappropriate? you and president summers and you reversed that policy later? >> senator sessions, what i did after the third circuit decision was to say, look, the only appellate court to have considered this question has struck down the statute. we have always thought that our policy was in compliance with the statute. the appropriate thing for me to do, really the obligation that i owed to my school and its long-standing policy was to go back to our old accommodation policy, which allowed the military full access, but

through the veterans organization. when dod came to us and said it thought that was insufficient, that it wanted to essentially ignore the third circuit decision because it was taking it up to the supreme court when they came back to us, we went through a discussion of a couple of months, and made a decision to do exactly what dod wanted. >> you did what dod wanted when they told the president and the counsel for the university they were going to lose some $300 million if dean kagan's policy was not reversed. isn't that a fact? >> senator sessions, we did what dod asked for because we have always, you know, tried to be in compliance with the solomon amendment, thought that we were. when dod had long held that we were, when dod came back to us and said, no, notwithstanding the third circuit decision, we maintain our insistence that

you're out of compliance with the solomon amendment, we said, okay. >> well, in fact, you were punishing the military. they protest that you had -- that you spoke to on campus was that the very time in the next building or one or two buildings nearby the military were meeting there. some of the military veterans when they met with you the first time expressed concern about an increasingly hostile atmosphere on the campus against the military. didn't they express that to you? >> senator sessions, i think, as i said to senator leahy, but i tried in every way i could throughout this process to make clear to all our students, not just to the veterans, but to all our students how much i valued their service and what an incredible contribution i thought that they made to the school. >> i don't deny you value the military. i really don't.

and -- but i do believe that your actions you took helped create a climate that was not healthy toward the military on campus. but let me ask you this, you keep referring in your e-mails and all to the military policy. isn't it a fact that the policy was not the military policy, but a law passed by the congress of the united states, those soldiers may have come back from iraq or afghanistan, they were appearing to recruit on your campus were simply following the policy of the united states congress effectuated by law, not their idea, and that you were taking steps to treat them in a second class way, not give them the same equal access becauue you deeply opposed that policy. why wouldn't you complain to congress and not to the dutiful men and women who put their lives on line for america every day? >> senator sessions, you're, of course, right that the solomon

amendment is law, passed by congress. and we never suggested that any members of the military, you know, should be criticized in any way for this. quite to the contrary. we, you know, i tried to make clear in everything i did how much i honored everybody who was associated with the military on the harvard law school campus. all that i was trying to do was to ensure that harvard law school could also comply with its anti-discrimination policy, a policy that was meant to protect all the students of our campus, including the gay and lesbian students who might very much want to serve in the military, who might very much want to do that most honorable kind of service that a person can do for her country. >> i would think that that's a legitimate concern and people can disagree about that and i respect your view on that. what i'm having difficulty with

is why you would take the steps of treating the military in a second class way, to speak to rallies, to send out e-mails, to immediately without legal basis because the solomon amendment was never at any time not in force as a matter of law. why you would do all those things simply to deny what congress required that they had equal access as anyone else. >> senator, the military at all times during my deanship had full and good access. military recruiting did not go down. indeed, in a couple of years including the year that you're particularly referring to it went up. it went up because we ensured that students would know that the military recruiters were coming to our campus, because i talked about how important military service was, because our veterans organization and the veterans on campus did an absolutely terrific job, a terrific service to their fellow

students in talking to them about the honor of military service. >> i would just say while my time is -- is running down, i'm just a little taken aback by the tone of your remarks, because it is unconnected to reality. i know what happened at harvard. i know you are an outspoken leader against the military policy. i know you acted without legal authority to reverse harvard's policy and deny those military equal access to campus until you were threatened by the united states government of loss of federal funds. this is what happened. >> the senator's time has expired. but you can respond to that if you want. >> -- did not happen in that way and i think if you had any complaint, they should have been made to the united states congress, not to those men and women who we send in harm's way

to serve our nation. >> especially because of the number of people including the dean of west point who has praised you and said that you were absolutely not anti-military, i'll let you respond, take time to respond to what senator sessions just said. >> well, thank you, senator leahy. you know, i respect and indeed i revere the military. my father was a veteran, one of the great privileges of my time at harvard law school was dealing with all these wonderful students that we had, who had served in the military and students who wanted to go to the military. and i always tried to make sure that i conveyed my honor for the military and i always tried to make sure that the military had excellent access to our students and in the short period of time, senator sessions, that the military had that access through the veterans organization. military recruiting actually went up.

but i also felt a need to protect our -- to defend our school's very long-standing anti-discrimination policy and to protect the men and women, the students, who were meant to be protected by that policy, the gay and lesbian students who wanted to serve in the military and do that most honorable kind of service.our effective role as ranking member. >> may we start at 30 minutes on my clock without senator session's interjection. >> madam solicitor general, i begin with concern of separation of powers which is the foundation of the constitution, and the concerns i have for what the supreme court has done really in having a consolidation of power. a lot of it goin to the court, a lot of it going to the executive branch, and it's all coming from the traditional

power of congress. before i move into that area, i want to take up a couple of points. senator sessions has raised the issue about you being a progressive, a legal guest: process clause of the 14th amendment and remember how many objections were raised to the activist liberal warren court for doing that. i was a prosecutor at the time, and > > >'66, and now we have the five conservatives