it is precedent, and it is entitled to weight as precedent. now as you very well know, senator specter, there are times when the court decides that precedent is unworkable. it just -- it produces a set of chaotic results. >> what was unworkable about the wertz test for a reasonable basis contrasted with congruent and proportional which nobody understands? >> i wasn't -- i wasn't suggesting that the wertz test was unworkable. i think that the question going forward, and it is a question, i'm not stating any conclusion on it, but i think that something that justice scalia and others are thinking about is whether the congruent and proportionality test is workable or whether it produces such chaotic results and gives -- >> do you think it is workable? >> senator specter, i've -- i've not really delved into the question in the way i would want to as a judge reading all the briefs, listening to the

arguments, thinking through the issues from both sides, but i do know that the court needs -- that congress needs very clear guidance in this area. it's not fair to congress to keep on moving the goal posts. it's not fair to say, oh, well, you know, if you do this, this time, it will be objection but if you do that the next time it won't, so do i think -- >> ms. kagan, this is an issue we discussed weeks ago. this is an issue i raised in a series of letters which i'll put into the record. this is a standard which has been around for a long time, and you know a lot of law. senator grassley established that. is it a satisfactory test? let me move on to another question. i don't think i'm making too much progress. one of the grave concerns which has risen out of the -- out of recent confirmation proceedings with chief justice roberts and

justice alito, and i've spoken about this subject extensively on the floor citing how emphatic chief justice roberts and justice alito were on deferring to congress. it's a legislative function. it's not a judicial function, they say. if you engage in fact-finding, if the court does that, the court is transgressing into the %-ngressional area. and then you have a case like citizens united and others, and you have the declarations by the chief justice of modesty. you've adopt that had standard. his more emphatic citizen was not to jolt the system. is there any way you can look at citizens united other than being a tremendous jolt to the system? >> senator specter, as an

advocate this is one i've taken a strong view on which is that it was a jolt to the system, that there were -- there was a great deal of reliance interests involved, that many states had passed pieces of legislation in reliance upon austin, that congress had passed legislation after accumulating a voluminous record. >> ms. kagan, you have said that many times today about your advocacy in the case, but what i want to know is as a prospective justice, do you consider it a jolt to the system? >> senator specter, it's a little bit to take off the advocate's hat and put on the judge's hat, and one of the things that i think is important is that i appreciate the difference between the two, and i have been an advocate with respect to citizens united, and that's the way i came to the case. it's the way i approached the case. i hope that i did a good and

effective job in it, and i believed what i was saying, but it's a different role and it's a different thought process, and the role and the thought process that one would use as a judge. >> well, what i'm interested is what you should use as a judge, but let me move on again. there's a lot of concern in the senate about the value of these hearings when we have the kinds of declarations at that table, your predecessor nominees on deference to congress, and then there's none given, not to jolt the system and be modest. there's a 180-degree u-turn, and we wonder what we can do about it. judicial independence is the bull wart of this republican and

it's our most highly prized value and while the congress and executive branch fumbled on segregation for centuries the court came along and acted on the subject in a progressive way, a very progressive way and a very activistic way. nobody challenges it on either side of the aisle today, so we we willy have the highest respect for judicial independence, but what do we do when we confirm nominees and they don't follow through on very flat commitments? this is not just my view. the view of richard posner, very tough in his book "how judges think" and this is what he has to say about the subject i'm addre addressing. quote, less than two years after his confirmation, referring to chief justice roberts, he

demonstrated by his judicial votes and opinions that he aspires to make changes in significant areas of constitutional law. the tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to roberts' reputation for candor and furs debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings, close quote. now, we're trying to raise the level of that currency. i don't believe you want to make a comment about that, but if you do you're welcome to. >> senator specter, i assume the good faith of everybody who sits in this chair, and i -- there's no reason in my mind to think

otherwise. >> madam solicitor general, i agree with you as to good faith and raising these issues in a series of speeches on the floor i have explicitly sailed i'm not challenging the good faith of chief justice roberts or justice alito, and i understand the difference between sitting at that witness box and deciding a case in controversy that comes before the court, but that still leaves us with a problem. the best answer that a group of senators, and we talk about this with some frequency, to come up with is to put some sunlight on the court. as i said in my opening statement the disinfectant that brandeis talked about, sunlight, the best disinfectant. it's not quite a disinfectant, but i think if the public understood what was happening

there would be a strong temptation to stand by what had been said in these confirmation hearings. and i was really glad to hear you say in response to senator cole's questions that you favor televising the supreme court. i think we may be getting closer. i've been at it for more than a decade with a whole series of bills, and recently the judiciary committee voted out a bill to televise the supreme court 13-6, and we did it a couple of years ago 12-6, and i know it's going to be something the court is going to have to come to perhaps on its own, but the public views are increasing. a poll which was released by c-span just yesterday shows that

63% of the american people favor televising the courts, and among the 37% who opposed, when they were told that people can only be in the supreme court chamber for about three minutes which accommodates only a couple hundred people, 60% of those 37% thought the court should be televised which brings the total to about 85%. i know we don't run the court by public opinion polls, but isn't that fairly weighty as to what the american people would like to -- like to know? we talk about a living constitution and about the constitution expressing the changing values of our society, as cardoza said so eloquently in palco.

if the people of this country knew that the court was deciding all of the cutting edge questions, a woman's right to choose, who lives, death penalty cases for juvenile, who dies, affirmative action, who gets into college, freedom of speech and religion, the american people responded in a poll to citizens united, 85% thought it was a terrible decision. 95% thought that corporations made contributions to influence legislators. one of the great problems of the skepticism of the american people about congress, and is it heavy out there. it's open season on congress because of so much of what people think about. well, coming back to the court, wouldn't it be -- well, you've already said you're in favor of televising the court, but wouldn't televising the court and information as to what the court does have an impact on the

values which are reflected in the american people? >> i do think, senator specter, it would be a good thing for many perspectives, and i would hope to -- if i'm fortunate enough to be confirmed, to engage with the other supreme court justices about that question. i think it's always a good thing when people understand more about government, rather than less, and certainly the supreme court is an important institution and one that the american citizenry has every right to know about and understand, and i also think that it would be a good thing for the court itself, that that greater understanding of the court i think would benefit from its own advantage. from all perspectives i think that televising would be a good idea. i realize some justices have

views to the contrary, and i would want to hear those views and to think about those views but that's sort of my going in thought. >> i will put into the record what the justices have had to say. i've questioned almost everybody about this subject, and i've had the opportunity to question all of the people on the court now, but there's a lot -- there are a lot of those who have been favorably disposed to it or at least acknowledge its inevitability and remind them if they all appeared on television this year on c-span, and many of them have appeared over the years selling books and being -- in a variety of situations. >> it means i'd have to get my hair done more often, senator specter. >> let me commend you -- let me commend you on that last comment, and i say that

seriously. you have shown a really admiral sense of humor, and i think that is really important, and as senator schumer said yesterday we're looking for somebody who can moderate the court, and a little humor would do them a lot of good. in the case of richmond newspapers versus virginia, the supreme court said that a public pril belongs not only to the accused but to the public and press as well. people now acquire information o court procedures chiefly through the print and electronic media. that's a 1980 decision which upheld the newspapers' rights to be in court and observe a trial. isn't that some pretty solid precedent to say that as a

matter of law the court ought to have television to have public access because that's the way most people get their information these days? >> that's very interesting, senator specter. i had never considered the relevance of that case to the -- to the televising question, but i think that certainly the principles in that case, the values in that case are about -- about the public's ability to know how our governmental institutions work which is what's critical to this issue as well. >> let me move on to another subject which i consider to be of great importance, and that is the agenda of the court, the number of cases the court hears. in 1886 the court decided 451 cases. in 1987, a little more than 20 years ago, 146 cases.

in 2006, 67. 2007, 75, 2008 -- 2006, 68, 200767, 200875, 2009, finishing yesterday, 73. the court leaves a lot of circuit splits unresolved. the court does not hear a great many critical questions, and i discussed this with you in our meeting several weeks ago and wrote you about it as well. and that is the case involving the terror surveillance program. on the foreign intelligence surveillance act which arguably poses the sharpest conflict between the congress legislating fisa and the president asserting

article ii powers. the federal court in detroit found the terror surveillance program unconstitutional. the sixth circuit duck it had 2-1 with a very strong dissent on standing grounds which is traditionally a way of avoiding a case and the supreme court denied cert. congress has the authority to tell the court what cases to take. we've legislated giving you discretionary authority, but in cases, many cases, illustratively the flack burning case and mccain/feingold and federal labor standards act, we directed the court to -- to hear the case, so i think it's fair to ask if what you would have done, not how you would decide thatt case, but whether you woud take the case. had you been on the supreme court, would you have granted to grant cert in the terror

surveillance program case? >> senator specter, justify might to your first point which was the point about the court's declining docket, i do generally agree with that. i clerked on the court in 1987 which was pretty much at the high point of what the court was doing, about 140 cases a year, and it is a bit of a mystery why it's declined so precipitously, and i do agree with you that there do seem to be more circuit conflicts and other matters of vital national significance. >> the other issue i raised was much more important and there are only two minutes left. >> okay. >> senator specter, the issue about the tsp and the constitutionality of the tsp is i think one of the kinds of issues i previously set out three categories where the court might grant cert.

one which is circuit conflicts and the other is an invalidation of an act of congress and the third is some issue of vital national importance. in a case where the executive branch is determined or is alleged, excuse knew, is alleged to be violating some congressional command, it is i think one of the kinds of cases that the court typically should take. now, there is in this case the complexity that there is a potential jurisdictional bar and, of course, the court typically decides -- >> what jurisdictional bar? >> well, the question whether somebody has standing? so often the court will decline to take a case when there's a significant jurisdictional issue because the court will think, well, if we take this case we might hold that we don't have jurisdiction. >> well, they can take the case

and say they don't have jurisdiction. >> yes, you're exactly right, and i'm just suggesting that that's often a reason why the court doesn't take a case. >> i don't care what's often a reason. here we have a specific case. you've had a lot of notice. it's in concrete. would you have granted to vote cert? >> senator specter, i can just tell you there was this jurisdictional issue. the jurisdictional issue itself was an important one. it was an important one because how -- how is a person going to know whether -- >> the sixth circuit decided there was no standing after they heard the case. well, my time is almost up. ten seconds, and i was 13 seconds over last time. there a couple of other case, the holocaust survivors and the 9/11 survivors victims which i'll come back to when i have a green light. >> thank you very much, senator specter, and senator graham. >> thank you, mr. chairman.

>> and then we will, just for planning purposes, senator graham, we'll go for you. >> okay. >> and then we'll go to senator schumer and then we'll take a short break. does that work for -- >> that's good. >> okay. >> senator graham. it's all yours. >> thank you. >> so far has the hearings been what you thought they would be? >> i'm not sure i had -- i'm not sure i exactly pictured it. >> let's try to go back in time and z say you're watching these hearings and you are critical of the way the senate conducted these hearings. are we improving or going backward? and are you doing your part? >> i think that you've been exercising your constitutional responsibilities extremely well. >> so it's all those other guys

that suck, not us. >> i don't think -- >> it's all those other witnesses that were too cagey. all right. fair enough. now, do you know greg craig? >> i will say one thing, senator graham. >> please. >> it just feels a lot different from here than it felt from back there. >> i bet it does. >> it feels a lot different when you're the nominee, too, doesn't it? and if it didn't, i'd really be worried about it. do you know greg craig? >> i do. >> who is he? >> he was previously the will counsel to the president. >> do you know him well, pretty well? >> you know, okay, yeah. >> he's a good guy. i'm not trying to trick you. >> pretty well. >> i don't have anything against greg. i like him fine. he said may 16th that you -- that you're largely a progressive in the mold of obama himself. do you agree with that? >> senator graham, you know, in

terms of my political view, i've been a democrat all my life. i've worked for two democratic presidents, and those are, you know, that's -- that's what my political views are. >> and would you consider them -- your political views progressive? >> my political views are generally progressive, generally -- >> compared to mine for sure. okay. that's fine. there's no harm in that, and that makes the hearings a little more interesting. i would be shocked if president obama did not pick someone that shared his general view of the law and life and elections have consequences. do you agree with that? election dozen have consequences. >> it would be hard to disagree that elections have consequences. >> and one of the consequences is a president gets to fill a nomination to the supreme court. that's a power the president has, right? >> yes, sir. >> so it would be okay from your point of view if a conservative president picked someone in the

mold of a conservative person. >> i would expect that. >> there we go, good. we'll remember that, okay. we may have a chance to bring those words back. do you know miguel estrade snarks. >> i do. >> how do you know him? >> so miguel and i were classmates at harvard law school, but we were more than classmates at harvard law school. harvard law school has a way of -- has required seating in the first year, and miguel and i were -- >> trust me, i don't know, because i never could have gotten there but i trust you. >> miguel and i were required to sit next to each other in every single class in the first year, and can i tell you miguel takes extraordinary notes, so it's great. every time you missed something in class, you could just kind of look over, but that's how i know miguel and we've been good friends ever since. >> what's your general opinion of his legal abilities and his

character? >> i think shea great lawyer and a great human being. >> he wrote a letter on your behalf. have you had a chance to read it? >> i did. >> can i read part of it? >> i write in support of elena kagan's confirmation as associate justice of the supreme court of the united states. i've known elena for 27 years. we met as first-year law students at harvard where were assigned seats next to each other. see, your consistent for all our classes. we were later colleagues as editors of the "law review" and as law clerks to different supreme court justices and we have been friends since. elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree withous without being disagreeable. she calm under fire and mature and deliberate in her judgments. elena would also bring to the court a wealth of experience at the highest levels of our government and of okay demmics,

including teaching at the university of chicago serving as dean of the harvard law school and experience at the white house and as current solicitor general of the united states. if such a person who has been -- who has demonstrated great intellect, high accomplishments and upright life is not easily confirmable, i fear we will have reached a point where no capable person would readily accept a nomination for judicial service. what do you think about those comments? >> senator graham, i think that those comments reflect what an extraordinary human being miguel estrada is, and i was deeply touched when i read that letter, deeply grateful to him, of course, and all the nice things that he said about me i would say back about him double. >> well, i'm going to give you that chance because miguel estrada, as most people know, not everyone, was nominated by president bush to the supreme

court and never made it. i think it's one of the great tragedies of the country that he was never able to sit on an appellate court, but that's the past, and i do think it reflects well of him that he would say such things about you and quite frankly i think it reflects well of you, that you would say such things about him. in your opinion, ms. kagan, is he qualified to sit as an appellate judge? >> he's qualified to sit as an appellate judge and qualified to sit as a supreme court justice. >> well, your stock really went up with me. so, what i would like you to do since might one day be on the court yourself is to, if you don't mind at my request, write a letter to me short or as long as you like it about miguel estrada. would you be willing to do that for me? >> i would be pleased to do that. >> let's talk about the war. as solicitor general you represent the united states for

the supreme court, right? >> i do. >> let's shift gears, and you had to get confirmed before this body for that job. do you remember that confirmation proses? >> i do. >> do you remember me? >> i do remember you. >> oh, okay, good. >> do you remember when i asked you are we at war, and you said -- >> yes. >> okay. >> now that is a bold statement to make but an accurate statement. what does it -- who are we at war with and what does that mean in terms of this nation's legal policy? >> well, we're at war with al qaeda and the taliban and under the aumf the president has a wide range of authorities with respect to those groups. >> now, under domestic criminal law, as we know it today, is there any provisions in our domestic criminal law that would allow you to hold someone indefinitely without trial? >> not that i know of, senator graham. >> and quite frankly there shouldn't be, should there? >> no, sir. now under the law -- >> i feel as though we're doing

this again. >> we are. >> we're sort doing an instant replay. >> yes, we're going to do this again and i hope we get the same answers. that will help you a lot if we do. and if we don't, we'll have a problem. under the law of armed conflict, is it permissible to hold an enemy combatant as long as the holding force dream them to be dangerous? >> under the traditional law of war it is permissible to hold an enemy combatant until the end of hostilities, and the idea behind that is that the enemy combatant not be enabled to return to the battlefield. >> that's a good summary. the problem with this war is there will never be a definable end to hostilities also, there? >> that is exactly the problem, senator graham, and hamdi very briefly discussed this problem, the court in hamdi, suggesting that perhaps if this war was so different from the traditional law of war that there might need

to be alternative procedures to put in place. for example, one could imagine a system in which because of the duration of this war it was necessary to ensure the enemy combatants continuing dangerousness. that is a question that i think has not been answered by the court. >> do you believe it would serve this country well if the congress tried to work with the executive branch to provide answers to that question and others? >> well, senator graham, let me take the question and make it into a legal question because i think it's directly relevant under the youngstown analysis whether congress and the president do work together. >> when the two are together, the courts find more power, not less, right? >> that is correct. >> now you're still solicitor general of the united states. from that point of view, would you urge this congress to work with the executive branch to create statutes to help the courts better answer these questions? >> well, senator graham, i think i don't want to talk as

solicitor general as to legal policy here. >> okay. >> but i will say -- >> go ahead. >> -- as to the legal matter, that it makes a difference whether the congress and the president work together, that courts should take note of that, that courts should -- when that occurs, the action is -- ought to be given the most deference and that there's a reason for that. >> right. >> it's because the courts are basically saying congress and the president have come together. congress and the president have agreed upon a policy jointly and there should be deference in those circumstances. >> are you familiar with judge lamberth and judge hogan? >> i don't know either of them. i know who they are. >> fair enough. >> they are d.c. judges, federal district court judges who are hearing habeas appeals from

gitmo detainees, and i'll provide you some of the comments they have made. it is unfortunate, according to judge hogan, it's unfortunate in my view that the legislative branch of the government and the executive branch have not moved more strongly to provide uniform clear rules and laws for handling these cases. and i've got other quotes that i will provide you. what i'm trying to do here is lay the foundation for the idea that our laws that exist today do not recognize the dilemma the country faces. the administration has determined that 48 people held at gitmo are too dangerous to let go but are not going to be subject to normal criminal proceedings. in other words, we believe the evidence suggests they are members of al qaeda. they have all gone before a habeas judge, and the judge agreed, but they are never going to be tried in a traditional fashion. is the administration's decision

in your opinion consistent with power under the law of war to do that? >> well, as solicitor general, senator graham, i have argued the position, that this is fully legal. >> and i'm aware of that very well. you've argued that this president and all future presidents has the ability to detain an enemy combatant with sufficient process if the executive branch believes that they are dangerous and not require them to go through a normal criminal trial. and what we have to do is find out what that process would be, this hybrid system. you argued against expanding habeas rights to baghram detainees held in afghanistan, is that correct? >> i did, senator graham. >> as a matter of fact, you won. >> in the -- >> in the d.c. circuit. >> initially. >> you probably won't be able to hear that case if it comes to the supreme court, will you? >> that's correct. >> that's good, because we can take openly about it.

>> if i could just say, in general the solicitor general only signs her name to briefs in the supreme court. >> right. >> authorizes appeal but does not sign appellate briefs, but i determined that i should be the counsel of record on that brief because i thought that the united states' interests were so strong in that case based on what the department of defense told our office. >> well, i want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the united states when it came to that case, and you said previously that the first person you have to convince when you make -- when you submit a brief or take a case on is yourself, is that correct? >> i said that in reference to the cases that i argued specifically. >> mm-hmm. >> of course, when i -- when i write briefs, i write -- or when i sign briefs, when i'm counsel of record on briefs, i'm taking

the position of the united states, that i'm representing the position that i believe and that our office believes is most consistent with the long-term interests of the united states government. >> have you convinces yourself as well as representing the united states government it would be a disaster for the war effort if federal judges could intervene and require the release of people in detention in afghanistan under military control? >> senator graham, i chose to put my name on that brief as i said which is a very, very rare thing in the appellate courts because i believed that there were very significant united states -- >> well, let me read a quote. the federal court should not become the vehicle by which the executive is forced to choose between two intolerable options, submitting to intrusive and harmful discovery or releasing a dangerous detainee. do you stand by that statement? >> senator graham, can i ask

whether that statement comes from that brief? >> yes, it does. >> no, i -- that statement is my best understanding of the very significant interests of the united states government in that case which we tried forcefully to present to the court, and as you said before, the d.c. circuit, a very mixed panel of the d.c. circuit. >> right. >> upheld our argument. >> you also said the courts of the united states have never entertained habeas lawsuits filed by enemy forces detained in war zones. if courts are ever to take that radical step, they should do so only with the explicit blessing by statute. do you stand by that? >> anything that is in that brief i stand by as the appropriate position of the united states government. >> fair enough. >> the brief needs to be read by your supporters and your critics because some of your supporters are going to be unnerved by it and some of your critics may

like what's in there. i'm here to say, from my point view, that this area of your legal life, you represented the united states well, and i hope that congress will rise to the occasion working with the executive to provide some clarity so that we'll be able to find a way to fight this war within our value system and recognize the difference between fighting a war and fighting crime. the battlefield, you told me during our previous discussions, that the battlefield in this war is the entire world, that if someone were called in the philippines who is a supporter of al qaeda and they were captured in the philippines, they would be subject to enemy combatant determination. do you still agree with that? >> senator, i was speaking there as a legal policy matter representing the position of the obama administration. that's obviously a very different role as the advocate role that i played is also a different role. >> let's just stop there.

when you were an advocate, you had no problem advocating that position. >> there are certain parts of that that i -- that i think that we have not addressed in the united states government. so the united states government has argued that the battled ed extends beyond afghanistan and iraq. >> the battlefield and the hearts, the minds and wherever al qaeda may reside. do you believe that is a consistent statement with obama policy? >> senator graham, when i was here before you asked if i agree would the attorney general and i said that it would be bad to disagree with the attorney general given my position. i still agree with the attorney general. >> but you strike me as the kind of person that if you thought he was wrong, you'd say so even though it may cost you your job. >> i certainly would tell him if i thought he was wrong. >> and i think you'd tell me, so i'm going to assume you thought

it was right because that's the kind of person you are. i, quite frankly, think he's right. as we move forward and deal with law of war issues. christmas-day bomber, where are you at on christmas day? >> that is an undecided legal issue. the -- i suppose i should ask exactly what you mean by that. i'm assuming you mean whether a person who is apprehended in the united states -- >> no, i just asked you where you were at on christmas. >> you know, like all jews i was probably at a chinese restaurant. >> great answer. great answer. >> i could almost see that one coming. >> me, too. so you were celebrating --

>> senator schumer explained this to me earlier. >> yeah, he did. >> that's because no other restaurants are open. >> you were with your family on christmas day at a chinese restaurant? okay. >> yes, sir. >> that's great. that's what hanukkah and christmas is all about. now, what happened in detroit on christmas day? can you recall? what was so unnerving about that day? >> well, that there was a fail but only just failed terrorist incident. >> we were lucky as a nation that a bunch of people didn't get killed on christmas day or in the middle of hanukkah, whatever holiday it may be, aren't we? we're lucky that bomb didn't go off. >> it was a -- it seemed a close thing. i don't know more than i read in the newspapers about that incident. i was not, you know, involved in any of the discussions about what to do on that day. >> the times square incident, do you recall that? >> yes, sir.

>> we were lucky that van didn't explode. >> every time one of these things happens, it is extremely unnerving. and, you know, makes us aware of the need to take efforts to make sure that such a thing never -- >> tell me about miranda warnings. do we need to read soldiers -- do soldiers need to read people their rights captured in battlefield in afghanistan? >> senator, the way a miranda warning would come up is with respect to theed a missability of evidence in a criminal court. so to the extent that we're talking about a battlefield capture and not a criminal trial, in article 3 criminal trial, the miranda issue would never come up. >> so you agree with me that in

war, you don't have to read the enemy their rights because you're not talking about fighting crime. you're talking about fighting a war, right? >> the miranda issue is only applicable in article 3 courts as a matter of criminal law. >> okay. if you catch a person in afghanistan -- >> i should correct that. i should correct that. because i think that the question of whether miranda is applicable in military commissions has not been decided. >> right. well, you have article 31 rights, which are the same thing, but that is yet to be decided. but under general rule where you don't need the enemy the article 31 rights when you're in a fire fight. for these hearings to be meaningful and instructive, i think it's good to have an open discussion about when we are fighting a war and when we are fighting a crime. what is the consequences of criminalizing this war? my fear is that if we criminalize this war, we're going to get americans killed for no higher purpose. and that the idea that you would

take someone off an airplane or in times square and start reading them their miranda rights within a few hours is criminalizing the war because the reason we're captured these people initially is to find out what they know about the enemy. do you have any concerns that reading miranda rights to suspected terrorists caught in the united states would impede our ability to collect intelligence? >> senator, i've never dealt with that question as solicitor general. >> just as elena kagan. >> senator, i feel -- >> harvard law school dean. >> i'm a part of this administration, and i think that, you know, i should let the attorney general -- >> let me tell you the administration generally speaking has been pretty good to work with on this issue. we've had discussions about having exceptions to miranda so that we don't lose intelligence gathering opportunities and not criminalize the war. what does the public safety

exception mean when it comes to miranda? what's your understanding? >> so the public safety exception, which was -- comes from the floros case, it's right now, i think, a limited exception. it enables -- >> very limited. >> that's right. >> very undefined. >> it enables the police essentially to be able to question, to find the gun, you know, to find something that might pose an imminent risk of public safety. >> now, let's stop there. so the public safety exception is about protecting the law enforcement officers and maybe securing the crime scene. what i'm trying to illustrate is that the public safety exception i'm looking for would allow the intelligence community to find out about where this guy came from. where did you train? is there another attack coming? and right now, the law is very -- do you think it would be

in the united states' best interest to have clear guidance to our intelligence community, give them the tools and inflexibility when they capture one of these guys, whether it's in times square or detroit, to find out without having to do anything else at the moment, what's the next attack? what do you know about future attacks? where did you train? would that make us a more secure nation if our intelligence and law enforcement community had those tools, in your opinion? >> well, of course. it's a question that might come before the court in some guise as to whether the public safety exception should apply to -- >> i'm just taking about being an american. forget about the courts. as an american, a patriotic american, liberal or conservative, don't you believe that we would all be better off if we had the opportunity within our values, humanely without torture, to told a terrorist suspect and gather intelligence before we did anything else? because another attack may be

coming. not that a gun is in the next room, but somebody else may be coming our way. don't you think as an average, everyday citizen that would make us a safer nation? >> i suppose on this one, senator, i'm reluctant to say how i would think about the question as an average everyday citizen because i might have to think about the question as a judge and that would be a different way of thinking about it. >> let's talk about what i judge may think about here. if we applied domestic criminal law to the war on terror without any hybrid mix, would that be a good thing? i mean, if we took the -- the war on terror and just made it a crime, would we be limiting our ability to defend ourselves? >> well, as we discussed before, senator graham, i mean, the administration of which i'm -- >> here's what i don't understand. because you said to me previously that you understand

why this administration are holding 48 people without trial because they're enemy combatants and that makes sense to you. what i'm trying to extrapolate is if we took other parts of criminal law and applied it to the war on terror, would that create a problem for this country, like miranda warnings? >> the question of -- the tension of enemy combatants is ones that i've dealt with as solicitor general, one that i've argued as solicitor general. this is a question that i have not dealt with. i'm hesitant to make any comments about -- in a personal view or a policy view given these questions, i think, are likely to come before the court, the question of the good faith exception to miranda, how it applies to terrorism cases, is, i think, quite likely to get to the court. >> is it fair to say that the letter you wrote to me about the detainee treatment act amendm t

amendment, i think you -- you call the graham/kyle proposal, that it would lead to a dictatorship or something. >> no, i didn't say that. >> what did you say? i'm not easily offended. you can say it. it would probably help me in south carolina if you did say it. >> then i'll say it. >> back home it wouldn't hurt that the harvard law school dean was mad at lindsay. but you wrote a letter that was pretty challenging. what did you say in that -- >> it was a challenging letter. >> i've got it. i'll give it to you. >> i said we hold disitatctator to high standards. but i did criticize the initial graham amendment. >> and that's absolutely okay. that's absolutely okay. you did criticize the original graham amendment and i didn't take it personally. >> i'm glad to hear that. >> but you did say that's what dictatorships do, and i thought

that was a little over the top. but the difference between the graham/kyle amendment and the amendment that passed by 84 votes -- what's the difference between what i proposed and what passed? >> right. well, i think one difference was that military commission adjudications now receive d.c. circuit review. in fact, the letter we wrote was about that. was saying that military commission adjudication -- >> did you assume that we precluded final verdicts in military commissioners from article 3 review? >> well, my initial understanding of the initial graham amendment -- >> we didn't, but you could have had that understanding. i can assure you that wasn't my goal. the point i'm trying to make here is that the military commission act of 2009 has been a work in progress for many, many years. and we're trying, as a nation, to get this right. as solicitor general, do you

have confidence in our military commissions that we've set up? do you find that they're a fair forum to try people in? >> senator graham, i really haven't had any exposure to the military commissions as yet. of course, there's been no military commission proceedings. >> have you had exposure to military lawyers? >> i think that they are absolutely top-notch. >> what if i told you that the same lawyers who will be doing the commissions are also the same lawyers, judges and juries that would try our own troops. would that make you feel better? >> well, i do think that the military lawyers with whom i've had the pleasure and honor to work as solicitor general are stunningly good. >> is it fair to say that elena kagan, whatever day it is in 2010, doesn't believe that military commissions are a miscarriage of justice, or unconstituti unconstitutional? i'll strike unconstitutional. do you believe that this country

submitting a -- a suspected terrorist to military commission trial is within our value system? >> >> for more on the confirmation process, go to c-span.org/kagan. you can watch the confirmation hearings, previous appearances by the nominee as well as confirmation hearings of past supreme court nominees. you will also have access to additional documents, links, remarks by senators, and more. that is at c-span.org/kagan. the purchase dvd copies of the confirmation hearing, go to c- span.org/videolibrary. find the program you want to purchase and then click the "buy

now" button. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> one of the best quotes i have heard about money and politics is it is like water that finds a hole. >> tonight, we will speak with the national investigative correspondent for "the washington post" on c-span's "q&a". >> now day three of the senate confirmation hearing for supreme court nominee elena kagan. second round questioning from senators sessions, lindsey graham, and al franken. this is about an hour and 10 minutes. >> solicitor general kagan, i enjoyed our conversation yesterday but was disappointed a bit with regard to how he described the situation at harvard and the blocking of the

military to have full and equal access to the recruiting offices as requireddby law. recruiting offices as required by law. i think that the white house has been spinning that story inaccurately, and i believe your testimony was too consistent with an inaccurate spin and didn't frankly set forth what you did. and i was a bit disappointed at that. i'd like to follow up and go in a little direction today. ironically and almost amazingly, it felt like it was up to you the solicitor general to defend that law, the law of the united states, the don't ask, don't tell law that you oppose so much there.

let me focus on your responsibility and how you handle it. during your confirmation process, you stated that your, quote, role as solicitor general, however, would be to advance not my own views but the interests of the united states and that you were, quote, fully convinced that you could represent all of these interests with vigor even when they conflict with my own opinions, close quote. i think that was the right position, the only position you could take if you were to assume that office. and because of your widely publicized opposition to the don't ask, don't tell law and to the solomon amendment, you were specifically asked at the hearing if you would be able to defend those statutes as solicitor general, and you said that you would. you said, quote, that your approach, quote, to cases

involving challenges to the statute involving don't ask, don't tell policy would be the same and that you would, quote, apply the usual strong presumption of constitutionality as reinforced by the, quote, doctrine of judicial deference to legislation involving military matters. now, during your time as solicitor general, two cases came before you challenging don't ask, don't tell. they came up from the federal courts of appeals. one case was from the first circuit in boston, your old circuit, filed by 12 plaintiffs, individual, different plaintiffs. the aclu and your former colleague, lawrence tribe, represented that group. a second case witt versus department of air force came out in the ninth circuit. it was filed by a single plaintiff plaintiff, and the aclu was the attorney in that case or one of

the attorneys in that case. so in both cases the plaintiffs argued the supreme court's recent decision in lawrence v. texas admit that the don't ask, don't tell law, which says that people who are openly homosexual may not serve in the armed forces, should be struck down as unconstitutional. in the first circuit case, the court upheld don't ask, don't tell. the plaintiffs said the law was uncontusion nal as applied to them. the court agreed that lawrence versus texas was under scrutiny but upheld the statute at that time. but the ninth circuit did not approach it in that way. they did not apply the traditional deference to military issues as did the first. the ninth circuit invented a new standard of review for the substantive due process challenge requiring the government to make detailed

individual findings in these cases. most importantly, unlike the first circuit, the ninth circuit failed to acknowledge the need for uniformity in military policies, and so the court held that the plaintiff was entitled to a full trial and that every plaintiff, apparently, would be sbitd led to a full trial, something that the military had been resisting steadfastly for a number of years. and so in the first circuit c e case, interestingly, 11 of the 12 plaintiffs didn't ask for a review even though they had lost the case. i can only assume it's because they were concerned they may lose the case if the supreme court took it and had a clear view of the law. they had, as you know, upheld the solomon amendment 8-0. and i think based on the history we could expect the supreme court to affirm that statute in

my personal judgment. but the -- and so you told the supreme court they should not take the case up. one plaintiff did ask that it go up. and you contended that the ninth circuit was a better vehicle and the ninth circuit case had shortly before that moment, had already been remanded to the trial court to conduct a significant trial that was contrary to the position that the department of defense had been taking. and, indeed, it would be difficult if not impossible to force the don't ask, don't tell law if you have to have an individual trial in all of these cases. so it was a severe damaging blow to the department of defense and

the ninth circuit law would control 40% of america. it's the biggest circuit of all. and so, the result was neither case was appealed on the law, and the position which was contrary to the consistent position of the military and it undermined their ability to have i think an effective enforcement and even a fair enforcement on the policy. so i guess i would ask you why you made that decision. and it's important to me, based on your representation to the court, that i'll understand that you were fully committed to vigorously defending that law, because i think that was your responsibility. it was an oath you took.

and i'm having a difficult time of understanding why, even though it would have been an interlocutory appeal, i know it would have been, but it was an interlocutory appeal of the third circuit case that the supreme court took and promptly reversed their decision. and so i guess i'd just like to hear you state with as much specificity as you can why you felt it necessary not to appeal either one of these cases. >> true, senator sessions, i think that we have acted -- i have acted in the solicitor general's office consistently with the responsibility which i agree with you very much that i have to vigorously defend all statutes, including the statute that embodies the don't ask, don't tell policy.

so take the first circuit case first, where the first circuit upheld the don't ask, don't tell policy and mr. pietrangelo brought a question tho to that case and he was challenging a decision that the government very much approved of, which was a decision that upheld the don't ask, don't tell policy, and we told the court in no uncertain terms not to take the case, and we defended the statute vigorously. we told the court not to take the case because the statute was constitutional. so in that pietrangelo brief that i filed, and it's a brief on which i'm counsel of record, the argument is made vigorously that the don't ask, don't tell

statute is fully constitutional, given the appropriate standard of review and particularly given the deference that courts properly owe to the military. so the pietrangelo brief is a brief and, again, i'm counsel of record on that brief in which the u.s. government vigorously defended the don't ask, don't tell policy and statute, more importantly, and told the court not to take a case which challenged a decision to uphold that statute. now, as to the second matter, the witt matter, as you said, the witt matter is interlocutory in nature. and what that means for people who aren't familiar with these legal terms, is that it means that the case is in the middle and that the government can, after remand, at a later stage, continue to defend the don't

ask, don't tell statute in this very case. now, we engaged in very serious discussions with the department of defense about the appropriate approach here in order to defend the don't ask, don't tell statute, because i agree with you, senator sessions, that the ninth circuit decision undercuts that statute. it makes it harder for the government to carry out its policies under that statute. and the question that we had to decide was whether to challenge that ninth circuit decision, which i think does -- is in real tension with the don't ask, don't tell statute. the question we had to decide was whether to challenge that ninth circuit decision at an early stage or at a late stage

of the case. it was a matter of timing. and we talked a good deal about this, of course, amongst ourselves but also with the department of defense, an we decided that the better course was actually to wait on it and to accept the court's remand. the case is not at all closed. instead, the case is on remand in the district court, to take that remand and in the event that we didn't win the case on remand or in the ninth circuit again, in that event, then have the option to and presumably would take the case to the supreme court to challenge the ninth circuit's holding. and when we did this, we wrote a letter to the judiciary committee. it's called a 530d letter, which is a letter which the justice

department writes, whenever there is a moment at which it does not -- does not contest a decision that is inconsistent with a federal statute, we wrote a 530d letter to the senate judiciary committee, and we basically laid out this explanation. we basically said we still have the opportunity to approach the court and ask the court to take certiorari in this case, and we presume that we will use this opportunity if we don't get the case dismissed in the district court but that we think it's actually better to go to the district court to take the remand and then to come back to the supreme court if it's necessary to do so. and the reason that that approach was chosen was because we thought that it was -- it

would be better to go to the supreme court with a fuller record and with a fuller record about the particular party involved, maybe more importantly with a record that would show exactly what the ninth circuit was demanding that the government do, because what the ninth circuit was demanding that the government do was in the government's view and in -- particularly in d.o.d.'s view a kind of strange thing where the government would have to show in each particular case that a particular separation caused the military harm rather than that -- rather than to view it in general across the statute. and one reason we thought that the remand would actually strengthen the case in the

supreme court was because the remand would enable us to show what this inquiry would look like, what the ninth circuit's -- the inquiry that the ninth circuit demanded would look like and to suggest to the supreme court, using the the best evidence there was, how it was that this inquiry really would disrupt military operations. so that was our decisionmaking process. it was, as i say, a decisionmaking process that we wrote about to congress when it occurred and stated specifically that this was a timing issue for us that we were not going to the supreme court at the earliest possible moment but, instead, waiting. and i should just put one other factor into the mix which i left out along the way, which is that there is a supreme court presumption that cases should not be taken in an interlocutory posture, that instead the

supreme court ought to -- the supreme court ought to wait and the parties ought to wait before asking the supreme court to take a case until the case is sort of well and truly over, when it's not in the middle of things. now, i don't want to overstate that. that's a presumption. it's not a flat rule. it's a presumption against interlocutory review. but it was something that we -- that we weighed in the balance. here we had a presumption against interlocutory review, and we had some good reasons for thinking that our case would be made stronger if we did not take the case in an interlocutory posture but, instead, waited for the remand to be completed before we went to the court and asked the court to review the ninth circuit decision. >> well, i appreciate that position. i will look at it and review it. it does appear, however, that

your position was in harmony with the position that the aclu took, who was on the other side of the case. and i see no harm in taking -- attempting an interlocutory appeal, and i do note that they took it in the third circuit solomon amendment case and promptly reversed and, you know, rendered a decision consistent with the government's position. i think the last refuge of a big government scoundrel is the commerce clause, it seems. everything -- when you have no other hat to hang your -- peg to hang your hat on, you claim it impacts commerce. you cited yesterday the lopez and morrison case a number of times, which seems to defend legitimate -- say that legitimate regulations defended under the commerce clause must, wonder of wonders, deal with

economic commercial-type matters. i guess, first, have you ever commented -- and you cited to senator coburn i think and to others that this could have an impact on his question which dealt with could you tell an individual american how many vegetables they should have for lunch every day or something to that effect. and what's your view -- have you expressed any opinions previously on lopez and morrison? they were very controversial at the time. and do you agree with those 5-4 decisions? >> gosh, i don't think that i've expressed any views in my academic writing or anything i can think of on lopez and morrison. you know, i've given a lot of speeches in my life but, you know, i can't think of anyplace

where i specifically addressed those issues. i think that they are settled law, that they are part of the jurisprudence of the commerce clause going forward. >> could i ask you about that? you said that it's settled law with regard to the gun case, chicago, mcdonald and heller. those were 5-4 cases. does your definition of settled law mean anything more than the normal precedent you would give to any of those kind of 5-4 cases? >> i think i've actually used that phrase with respect to a number of cases which people have asked me about. those are a couple. but -- >> if i was going to use the phrase interchangeably, precedent, which has a certain amount of power, and then you throw out settled law, to the layman seems to be a more firm

acknowledgment of the power of that ruling. but i want to know, do you mean any difference when you use those two phrases? >> i don't mean any difference. what i mean to say when i use those phrases is, these are % decisions of the court, they are decisions of the court that are entitled to all the weight that any decision of the court has as precedent going forward that wa have no thought, no agenda, no purpose, you know, remotely no plan to think about reversing any of them, that these are cases that i accept as decisions of the court going forward. >> all right. well, justice sotomayor said a similar thing about heller case, and it didn't bother her one bit to be in dissent in the mcdonald case monday. so you're not saying that you're binding yourself to be a 6-3 vote with now six members of the supreme court on the gun cases,

and you're not binding yourself and suggesting you feel bound by lopez and morrison, are you? >> senator sessions, it wouldn't be appropriate for me to bind myself with respect to any future case that came before me. it wouldn't be appropriate for me in any case to say, oh, i promise that i'm going to take a case like that and do, you know, x, y, z with it. that wouldn't be appropriate. >> well, i think that's what i hearing. i don't recall anyone disagreeing with him. do you disagree with that? >> no that sounds right. >> thank you. >> i don't think i would need a third round t i would ask maybe a little indulgence to go over if we can't get through it all very quickly. are you familiar with plessy versus ferguson? >> yes, sir. >> i thi most people are r it is an 1896 case and it

interpreted the equal protection clause how? what did it say? >> it said that separate but equal facilities were consistent with the equal protection clause. >> okay. now, that's in 1896. and do you know -- are you familiar with justice henry billings brown? >> i feel as though i should be, but i'm going to say no. >> you don't want him to be your hero. trust me. here's what he said in 1896. "we considered the underlying fallacy of the plaintiff's argument to consistent in the asuction that the enforced separation of the two races stamps the colored race with a become of inferiority f this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." now, that was the majority holding, one of the holdings,

and it didn't change until 1954. so to conservatives and liberals alike who believe a precedent can never change a case, this is a good example, i think oh of where the case can change. 'cause this is what happened in 1954/'55. justice warren. "to separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status and in the community that may affect their hearts and minds in a way unlikely ever to be undone. whatever may have been the extent of psychological knowledge at the time of plessy versus ferguson, this finding is amply supported by modern authority." so if you could, this could be a little bit of a teaching moment, nothing changed in the constitution, word-wise, did it? >> it did not. >> so it is the same words, looked at 50-something years

apart, th a different conclusion. how could the court do that and be consistent withstrict instructionism? >> well, senator graham, i guess a couple of things. the words of the constitution did not change but two things did change. ppthe precedence changed and understandings and circumstances in the world changed. so the precedence clearly did change. brown was not a thunder bolt from the blue. >> it was the last in a line of decisions, right? >> it was the last in a long line of decision and onef justice thurgood marshall's -- his greatest accomplishment was to lead up to brown,

step-by-step-by-step, case-by-case-by case. as an advocate, of course, you can have a strategy like that and he did. by the time the court got to brown, upholding plessy actually would have been inconsistent with a series of other holdings that it had reached over the years. and i do think that that sometimes happens in constitutional interpretation. and it also happens, i mean, we have talked a loot about the doctrine of precedent and about one reason to reverse the decision is when its doctrinal support has been completely eroded. and i think that is what happened in brown -- >> and i think most americans, if not universal as close to universal we will ever get as a nation, glad it happened, in this case. now, there's another court

decision called roe v wade, that's being changed over time. being interpreted diffently over time. the court basically held that before viability, the is right to have an abortion was of a state-imposed limitations on abortion was almost nonexistent. after viability, it was so of a balancing test. is that a general statement of roe v wade over time? there's a difference between viability and postviability in the eyes of the court? >> as i understand the law after casey, it's that after vie bit, the state c regulate as it please pleases except for situations where the woman's life or health interests are at issue. before viability, the question

is whether there is an undue burden on the woman with's ability to have an abortion. >> it is fair for the court to consider scientific changes when a fetus becomes viable as medical science evolves? >> senator graham, i do think in every area that it is fair to consider scientific changes. we've -- i've talked in the past about how different forms of technology influence the evolution of the court's fourth amendment jurisprudence. >> i'm glad to hear you say that because just as it would have been wrong to not consider the changes of how society what evolvedersus segregation of young children based on race, i hope the court would consider the modern concept of viability in the 21st century and whatever

protection you could give the unborn would be much appreciated on my part by considering science, not your psonal feelings because i think it is appropriate for the court to do s so. it is a great institution, some place i couldn't have got in, which would have are been special, because i couldn't get n. >> i would have taken you. >> no with my s.a.t. scores. i couldn't even play football at harvard. now this don't ask, don't tell policy, you thought to be unwise and unjust. you said that i believe? >> i did, senator graham. >> and you know what i think a lot of americans agree with you, some do some don't. the fact you have political opinions different than mine is absolutely okay and i hope the committee will, in the future, let that concept work both ways. i think the problem that senator sessions has it is one thing to have strong feelings.

the policy was not set by the military, it was a congressional enactment, which you thought to be unwise and unjust. now, i don't doubt your affinity and as mir racial for the mill taefrm you can disagree with the don't ask, don't tell policy and still respect the military. i believe that about you and about a lot of other people. the problem i have is it was the law of the land. did other schools at harvard prevent military recruiters from coming to intervene their students or was it just the law school? >> senator, i honestly don't know the answer to that i don't know what other schools, you know, have employers come and how they do it and i don't know whether any other schools have particular other policies respecting this. you don't know if -- obviously, it wasn't a campus-wide ban because the recruiters did meet with law students somewhere else on campus, is that correct? >> senator graham, the

recruiters could have met on campus as well. >> that's what i'm saying it wasn't a ban. >> and could have been -- >> not at the law school. >> could have met on the law school campus, the only restriction that we put on was that the office of career services couldn't provide assistance. >> which is the place where most students met employers? >> no it is just an office, r i mean, most -- 95% of interviews from employers at harvard law school -- >> here is the poin. it is clearly not just an office. it was a political statement that you were making, i think, maybe i'm wrong, but seems to me you were making a political statement. you're not taking the law in your own hand bus you are tryi to make a political statement on behalf of the law school that this office is not going to be used by the military because we don't like this policy. is that a fair statement or not? >> senator graham, i think what i was trying to do was on the one hand to ensure military recruiting, on the other hand, to enforce and to defend the

school's very long-standing anti-discrimination policy. so, it wasn't me making the political statement. it was me as dean of the law school, and that's what i was, i had an institutional responsibility. as dean of the law school, trying to defend an anti-discrimination policy that had had existed for, i don't know, 25 years. >> would it apply to the catholic church if they wanted to come and recruit lawyers from the law school 'cause they don't have women priests? >> well, wait we enforce this licy is if an employer comes, we give the employer a form and the form basically says i comply with the following policy and it says i will not discriminate on the basis of and then it says something like race and creed and gender and sexual orientation and actually veteran status aswell. and if the employer signs the form, the employer can get the services of the office of career service. and if not, not. >> okay.

so it wasn't a political statement on your behalf at all? you weren't trying to at the time world what harvard law school thought about this policy? >> it was not, senator graham. i was just trying to defend a very long-standing and -- >> it would have been okay with me if it was, i just disagree with you. i will take you at your word. now, you are an advocate for the -- you are a lawyer who played anned a very cat role in the clinton administration regarding formulation of policy, is that correct? >> i was two things in the clinton administration, i was a lawyer for about half the time and i was a policy person for about half the time. >> okay. well, when it came to the partial-birth abortiondebate, there's a memo we have here that talks about if certain phrases were used by the -- what was the group, acog, what was the acronym? >> the american college of obstetricians and gynecologist. >> as i understand it they were going to issue a statement that you thought would be a disaster.

and you waned to get the full statement into place. was that because you were worried that if you didn't get what you wanted in place, the court might seize upon that statement and make a different ruling no, sir. it was not. i mean, m -- this was. >> miss kagan, i'm shocked that you say that because if i believe the way you do, that's exactly what i would want. if i really didn't d believe tt partial birth abortion as being proposed was too restrictive and i think you honestly believe that, that you wanted to have the broadest definition possible when it came to partial birth abortion to allow more cases rather than less, that i would have been motivated to get the language most favorable to me. and are you saying you weren't motivated to do that? >> senator, i was working for a president who had clear views on the subject. >> but you were trying to take

him to an area where he even felt a bit uncomfortable. you were advocating from what i can tell, a broader view of how partial birth abortion would be interpreted. that when you met with the professional community, the doctors, they informed you early on in a private meeting, according to the record we have, that there would be very few cases where an abortion would be allowed under the way this thing is written. and somebody with your background and your view of this issue to me that seemed disturbing and you were trying to change that and broaden it. is that not true. >> with respect, senator, it's not true. i had no agenda with respect to this issue. >> wait a minute. i certainly have an agenda when it comes to an bortion. i respect the urts, but i'm trying to push the rights of the unborn in a respectful way. you can be pro-choice and be just as patriotic as i am. you can be just as religious as anybody i know but that's the

point here. it is okay as an advocate to have an agenda. i think alito and roberts had an agenda. they were working for a conservative presidentho was pushing conservative policies. it just is a bit disturbing that you, quite frankly, say you don't have an agenda when you should have had. if i'm going to hire you to be lawyer, i want you to have my agenda. i want it to be my agenda. >> i was trying to implement the agenda of the united states president whom i worked for. >> did you have a personal belief that partial birth abortion was as being proposed was too restrictive on a woman's right too choose? >> i was at all times trying to ensure that president clinton's views and objectives with respect to this issue wer carried foard. and president clinton had strong views with respect to this sniper here's the difference between being a lawyer and a policy person in a political shop. i would -- i just want to try

the best i can, it's okay if you did. i expect that presidents are going to hire talented intellectually gifted people who think like they do that will push the envelope when it comes to the law. and the record is replete here on this issue and others, you were pushing the envelope in terms of the left side of the aisle. i think the record was replete with alito and roberts that they were pushing the envelopen the other side. and that may make you feel uncomfortable. i hope it doesn't. i just believe it to be true and you don't agree with me there? >> senator graham, the two of us have agreed on many things over the course of this hearing. >> we don't agree on this. >> we don't agree on this. what i tried do was to implement the objectives of the president on this issue at the same time to provide the president with the best legal advice straight objective as i could. >> fair engh. and when i became a policy person, to enforce and to insure

that his policy views were carried out. >> i just quite frankly am surprised to hear that because if i believed the way did you and i had the opportunity to serve at that level, i'd do everything i could to push the law in my direction in a way that was ethical. i didn't see anything did you that waunethical. i did see an effort on your part to psh the law in a direction consistent i think with the clinton administration and your political beliefs, which is absolutely fine. ta activist judge is something none of us like. apparently. nobody on that side likes it and nobody on our side likes it. help me find one. >> i'm sorry? >> help me find one. can you think of aybody in the history of the united states that was an activist judge? pause we don't like these people. it seems to be an activist judge is somebody that rules the way we don't like. and it's gettingo to be no

more sophisticated than that. i'd like it be more sophisticated than that. so what is yo definition of an activist judge? >> senator graham, i think my definition is somebody who doesn't take three principles to heart. the first principle is deference to the political branches in making the policy decisions of this nation because that's who ought to be making the policy decisions of this nation. the second principle is respect for precedent, precedent as a doctrine of constraint and humili humility. and also stability in the law. and the thrd principle is deciding cases narrowly. deciding them one at a time, deciding them on narrow grounds if one can, avoiding constitutional questions if one can. >> well, our guys say that justice marshall was an activist judge. do you agree with that? >> senator graham, i'm not going

to characterize any justice as an activist judge, as a restrained judge. i think the best i can do is to set forth the principles that i think are appropriate and t say that if i'm so lucky if i'm lucky enough to serve justice kagan woman abide by those principles. >> yeah, ani totally understand the dilemma you're in, but we keep using that term. and justice mar shashl will go down in history as one ofhe icons of the law and one of the greatest justices in the history of the country even though i disagreed way lost his rulings. that's the way it should be. if our people say that's activism, so be it. i hope justice roberts, which i think is one of the most gifted intellectually gift people i've ever met is being called by my colleagues on the other side for two days now an activist court. and we've got somebody who is wanting to ben the court. can you name one person in the

united states that you think would be an activist judge livg or dead? >> you know, i have a feeling that if i do that, i'm going to end up doing many things that i regret. >> well, here's what regret. i regret all of us throwing these terms around without any definition to it other than we just, you know, we believe the way they judge is just not the right way. now, judge barack, this guy's not an activist judge, i don't know who would be. he's an israeli judge so maybe we shouldn't talk about israeli activism but i'm going to go ahead and do it anyway. senator kyl doesn't mind. here's what he said. the judge may give a statute a dynamic meaning that seeksings to bridge the gap between law and lie's changing reality without changing the statute itself. the statute remains as it was,

but its meaning changes because the court has given it a new meaning that suits new social needs." what the hell does that mean? >> i think it means that the court can change a statute and i think that that's wrong. >> i think the fact that you don't like what he said makes me feel better about you because this is so nebulous and so empowering to a judge, it would make an elected official like me feel very worried that the judge doesn't understand the difference between going out and gettg elected to office and reviewing policy made by elected officials. >> now we're back to agreeing, senator graham. >> we're going to end it there. i wish you well. you have handled yourself well. we have some differences. i think the hearings have been on the margins better but not a lot better than they've been in the past. been the -- i wasn't trying to trick you.

i think as an advocate in the clinton administration and other places you haveried to push the law in an ethical way. in a particular way consistent with your philosophy and your political leanings. and i just want my colleagues to know that is okay with me. the thing that would not be okay ith me if i thought you were unethical and you did it in a way outside the process that we call the rule of law. so i wish you well and i know your family's proud of you and i think you've accorded yourself well for the last several days. >> thank you, senor graham. >> thank you, senator graham. let me -- i don't think we need to do this but let me just go over your 2009 confirmation hearings when you were asked about the partial birth abortion decision. you repeatedly stated that you would respect gonzales vers carr hart which the court rejected a facial challenge to the federal partial birth

abortion act based on stare decisis. that's what you said in the last hearing. i assumehat's your position today? >> absolutely, senator, that the gonzales case is settled law entitled to all the precedent of settled law going forward. >> and iust really want to make a personal comment asdy in my opening statement. many of us believe role v wade is a matter of privacy and a woman's right of choice and is not really taking sides on abortion, not wther you favor or oppose abortions whether you favor a woman's choice and the right of privacy and what is the appropriate for the government to play in those types of decisions. with him senator graham sill here, i want to go back to one of the points senator graham raised on enemy combatants and their rights to certain proceedings. and i think i'm quoting him correctly when he said if we took the war on terror and made it a crime, we'd have a problem for our country.

i think that sort of misses the point. as solicitor general. >> think the point that the administration was seeking is that there are certain rights in our criminal justice system that will defendants are entitled to. they're different under military commissions for enemy combatants but that we have the right, not the enemy combatant, to determine which venue we can bring about the best justice. if we think that an action by enemy combatant was criminal, we want to use an article 3 proceeding and think we can get a better result, why would we want to take away that right. why would we want to limit our ability to hold a terrorist accountable for their actions, whether it is as an enemy combatant in a military commission or whether it's in an article three court under our criminal code. am i -- was that the position that the administration was taking when you were solicitor

general or you are still solicitor general? >> i'm going to say the same thing to you that i hope i said to senator graham which this is not a set of policy decision thatds solicitor general's office or that i personal little had anything to do with, and i feel uncomfortable discussing that. i think that these are questions that are better addressed to the people who are making policy within the justice department on this issue. >> and i respect that. i just really wanted to clarify the choice. it's not a choice between giving enemy combatants ctain additional rights. it's a question of where we believe we could hold a terrorist more accountable. >> if i could, senator, i guess that was a question for her but i'll answer it. see if you disagree with my answer. i really have no problem usg article three courts in the war on terror. in manyases they can be a better venue. i think military commissions can be a good venue to prosecute war

crimes, but the hybrid, the third bucket as we all talk about are tose enemy combatants that the court has deemed to be an enemy combatant but the evidence for whatever reason is not subject to criminal scrutiny whether it be a military commission trial or an article three trial or the evidence may be such that you under the rules of discoveryof both proceedings you couldn't divulge it without hurting national security. it's in those cases the 48 that thobama administration has identified that the congress needs to weigh in with the executive branch to understand that the law of attention is e only valid theory that you can hold someone in that third category. and when it comes to quite frankly the treatment of prisoners, it becomes about us, not them. %%love the geneva convention a a military lawyer. it is not an individual right. i want my country to abide by it to the fullest extent possible

and win this war within our values. when it comes to having your day in court as to whether or not you're an enemy combatant, i believe an indendent judiciary should look over the military's shoulder and have you to prove to an independent judge that the military's right, that you are an enemy combatant. i do not believe our laws should allow enemy prisoners to bring lawsuits against our own soldiers, medical malpractice cases against doctors or sue prison guards because they don't like the quality of the food. that to me is not consistent and that's what i oppo. >> i thank you. we've had this discussion in our committee, and i think solicitor general kagan you are correct. these are issues we're going to have to grip with as the legislative branch of government, hopefully working closely with the executive branch. the bottom line is that those who commit acts of terror against the united states, we need to have an effective way to bring them to justice whether it's within the military commission or whether it's within our article three courts and we should be able to choose

the best venule for holding those terrorists accountable. i know you had exquhang senator feinstein the interplay between the establishment and free exercise claus. and i want to talk a little bit more about that because i related to your opening statement when you talked about your grandparents coming to this country and one reason because of the religious freedom of this nation. which was so dominantly lacking ineurope. the same reason brought my grandparents to this country. so the freedom of religion is a critical part of this country's tradition. when we discuss the free exercise and establishment claus with senator feinstein when you did, you said there is some play in the jointses for the government to act to make reasonable accommodations for religion consistent with both the free exercise and establishment clauss. then you mentioned the lemon

three-part test from 1971, which you correctly noted has not been overturned but has not always been used by the court either. i want to focus on the test used by justice kennedy in the court opinion of lee versus wiseman wilhe struck down as unconstitutional school sponsored prayer at a public school graduation ceremony. i guess my question to you is what special protection should students have under the establishment claus? >> well, what senator kennedy focused on i think i saided to senator feinstein that some members of the court have used on certain occasions a coercion test. the question as to whether a particular governmental action coerces a person in his or her religious beliefs. and the levy-wise man case is one that does use that coercio test. in a way that provokes strong

disagreement, as well. the quell about whether that graduation prayer did coerce students in a constitutionally meaningf manner. senator ennedy, a majority of the court held that it did. as the court's precedentas come down, it seems a highly fact specific inquiry. certainly the coercion test is used most often when it comes to children. and the court, you know, the court's cas essentially see a difference between coercion of adults thinking that adults can kind of stand up for themselves ppand coercion of children wher there's a greater fear of the government's impact and coercive impact. i think that levy weiseman reflects that. but it is a contentious area in

the law with some people i think that that cas say good example of the way in which people can look a a a a a we have the secure room available at 5:00 to do the closed -- to do the closed session. senator franken? >> thank you, mr. chairman, general kagan. i'm extremely concerned about the proposed merger between comcast and nbc universal. media consolidation matters in a really fundamental way. i watch television for entertainment, but i also get a lot of my information there, too. so when the same company owns the programming and runs the pipes that bring us the programming, i think we have a problem. i'm interested in the ways that the supreme court affects the information that you and i get when we turn on the tv or read

the newspaper. 60 years ago in the united states, the associated press, the supreme court found that the first amendment supported aggressive antitrust enforcement. justice black wrote, this is a quote, the first amendment far from providing an argument against application of the sherman act here provides powerful reasons to the contrary. he then continues freedom to publish is guaranteed by the constitution, but freedom to combine to keep others from publishing is not. when i read black's opinion, i think immediately of comcast and nbc universal. comcast is already extremely powerful. it's the nation's largest cable operator and also the largest home internet service provider. if it owned both the pipes and the programming, it would have the ultimate ability to keep others from publishing.

they could just choose to favor their own programming over programming that other companies produce. and withhold its own programming or charge more for it and drive up cable bills. to make matters worse to me, if comcast and nbc merge, i worry that at&t and verizon are going to decide that, well, they have to buy abc news or cbs to compete. and that will mean there will be less independent programming, fewer voices and a smaller marketplace of ideas. that's a first amendment problem. it's also an antitrust problem. so, general kagan, here's my first question. do you agree with justice black that freedom to publish is guaranteed by the constitution. the freedom to combine to keep others from publishing is not.

>> well, senator franken, i -- first off, let me say that i think that that comcast merger is under review by the department of justice at the current moment. and -- so i want to steer well clear of -- >> i'm not asking you to -- >> yes, i mean, the -- you know, the first amendment does not provide a general defense, i think, to the antitrust laws. not saying that in any particulaa case first amendment principles might not be relev t relevant, but in general, the antitrust laws are the antitrust laws, and they apply to all companies. >> okay. let me talk about online. >> talk about --

>> speech that's online, over the internet and over the air waves. or over cable. many of the pipes that carry speech are in the hands of corporations. whether those corporations are cable companies or internet service providers. and i brought this up with then-judge sotomayor at last year's hearing. i asked her about net neutrality. she agreed that there is a first amendment interest in ensuring that the internet stays protected from corporate interference. i'd like to ask you a variation of that question, applying it to the merger context. let me start with a pretty simple question. do you believe that the first amendment helps to promote diverse public voices and opinions? >> one of the purposes of the first amendment is to ensure a

public sphere in which all kinds of opinions and views and thoughts can be expressed and we can learn from all of them. >> and would you agree that the first amendment governors actions or behavior by the federal government? >> of course, the first amendment governors actions and behaviors by the federal government as well as by the states. >> okay. so the first amendment helps to promote diverse speech and it governs action. given all of this, do you believe that the first amendment could inform how the government looks at media antitrust cases? >> senator franken, i -- i guess you could be thinking about that as a kind of policy matter as to whether the authorities that are responsible for approving

mergers and such ought to take into account so-called, you know, first-amendment values. not the -- and i think i would defer to people who know a lot more about antitrust policy than i do on that. so that -- i guess that's what i'd say. >> okay. thank you. a lot of people have been talking about judicial acumen. i'm grad that senator graham brought this up. he said, can you find judici judicial -- i can understand why you didn't want to -- i want to try to help. i want to -- i always want to help my friend, senator graham.

you said there are -- are three things that judges hold to when they're not activists. you said this. they respect precedent, they make narrow decisions, and they defer to the political branches, in other words, the legislature. and there are a lot of recent cases that we've been talking about that instinctively strike me and -- and a lot of other people as falling outside of these three guidelines. i think that these -- in these cases, the supreme court was legislating from the bench, which is being activists. in circuit city, which i discussed at length during my first round, the supreme court explicitly ignored congress. it gave absolutely no deference to congress' intent.

and this is on the specific provision protecting all workers from arbitration. the court read that provision in such a straight manner that even the legislative history indicated a quite different intent, that provision would exclude almost all workers. in gross and in rent-a-center and in citizens united, the court answered questions that it wasn't asked. they didn't rule narrowly. that was your second. in the legion case, the court struck down a century-old precedent. that's your third. that protected small business owners against vertical price fixing. so those are all three of your conditions. ignoring congress, the intent, ruling -- not ruling narrowly and overturning precedent. so i think that the judges who

decided these cases are judicial activists. under the guidelines that you laid out to senator -- my friend senator graham and that he seemed to like. now, let me distinguish this from -- from justice thurgood marshall. justice thurgood marshall argued brown v. board of edge kucation you and senator graham discussed, correct? >> yes, he did. >> and if i lumped brown v. board of education in with a list of cases i just mentioned, most people in the room would balk, don't you think? >> well, brown v. board of education is the kind of iconic case that doesn't belong on any list. >> well, there's a reason th that -- i mean, it is an

exemplar of overturning a precedent that needed to be overturned. is that correct? would you say? >> yes, sir, mr. franken, yes. >> and that's because there is a place for judicial review in our legal system. i'm trying to make the distinction between judicial activism and not judicial activism. there are certain situations where the supreme court really should subject the law to heightened scrutiny. and this is what i think justice marshall was talking about when he said that the court should show, quote, special solicitude for the despise and disadvantaged. the people who went unprotected by every other part of government and who had no other champion. now, in the opening statements, you were criticized for admiring justice marshall for believing this.

but i actually think that this belief, that justice marshall's belief is just good, constitutional law. are you familiar with caroline products case of 1938? >> yes, sir. >> are you familiar with foot note 4 of that decision? >> yes, sir. >> and you're familiar with that because the foot note is really important, isn't it? it's often taught in constitutional law classes, whether the first year, second year or third year, right? >> it is. >> and can you tell me what that foot note says and why it's important? >> senator franken, it seems as though you have it in front of you and you're going to do a better job than i am of it at this moment. >> you're a mind reader.

foot note 4 basically says that when courts interpret the constitution and try to figure out whether a law complies with the constitution, court should give special scrutiny to laws that violate the constitution, that restrict the political process and that affect, quote, religious, national, racial, and discreet minorities who have a really hard time getting help through the normal political process. now, to me, discreet minorities sounds a lot like the despised and disadvantaged that go unprotected and have no other champion. is it safe to say that justice marshall's belief is consistent with caroline products? >> well, there's no doubt,

senator franken, that racial classifications are subject to very high scrutiny under the equal protection clause and have been so for a long time. -- and the equal protection clause exists to ensure against discrimination on disfavored bases, very much in cluding the archetypal example is race and that it is not only appropriate but obligatory on the courts to enforce that prohibition on discrimination on the basis of race. >> so justice marshall's belief

that was criticized in the opening statements is really very consistent with established constitutional law. isn't it? >> senator franken i will say that when i wrote those words, i was not speaking of footnote 4 on the carolene products speaking about what i said several times this year, and that is justice marshall's deep belief in ensuring a level playing field for all americans and ensuring that each and every american, regardless of wealth or power or privilege, that each and every american gets fairly heard before the court, and when i -- when i wrote that tribute to justice marshall and wrote those words, that was very much what i had in mind.

>> so i'd like to leave you with this thought. justice thurgood marshall is one of the greatest lawyers and jurists in american history. this is the man who won brown v. board of education, who helped end segregation in our nation's schools and opened the doors to black americans. this is the man who proved that separate but equal ununharntly unequal but served with distinction as solicitor general, as judge on the second circuit and as the first african-american supreme court justice. this is a giant of the american legal system. and i think what i really want to say is that justice marshall wasn't some activist radical.

rather, his views were very much in the mainstream and in line with constitutional jurisprudence since 1948, since carolene, and i think we need to be aware of that and -- >> senator franken, i'll just say what i've said on many occasions in the

confirmation process, go to c- span.org/kagan. even watch previous appearances by the nominee, hearings, and confirmation of past supreme court nominees. you will also have access to additional documents, reference links, remarks from senators and more. all at c-span.org/kagan. to purchase tv the copies of the confirmation hearing, go to c- span.org/a video library. find a program that you would like to purchase, then click on the buy now button. >> one of the best quotes about money and politics, it is like

water that finds a hole. >> he won the pulitzer prize for his reporting. tonight we will talk with jeff smith, a national investigative correspondent for "the washington post." >> tuesday, general david petraeus told the senate committee that the july 2011 deadline for beginning u.s. troop withdrawal from afghanistan is the beginning of the process, not the date when the u.s. had for the exit. general petraeus replaces general stanley mcchrystal, who resigned in june 23 following an article in "rolling stone magazine" in which he and colleagues were quoted as making remarks about obama and top officials. . . d yesterday morning.

robert byrd was a member of this committee for nearly three decades. just as he did in all of his senate work, he was a relentless advocate for the traditions of the senate. including our respect for the legislative authority that the constitution places in our hands to exercise and to defend. . . >> his life's work and his legacy will held by this and will guide future senate this morning, the committee considers the nomination of general david petraeus to be commander of the nato international security

assistance force, isaf, and commander, united states forces, afghanistan. general, you testified before this committee on afghanistan just two weeks ago, and certainly no one foresaw the events that bring you to testify here again today. when confirmed, you will bring highly experienced leadership and a profound understanding of the president's strategy in afghanistan, which helped shape as commander, u.s. central command. i want to thank you for your willingness at the president's request to leave that position, to take charge of the campaign in afghanistan. we appreciate your sacrifice and to that of your family. your wife, holly, is with you this morning. and so, we all want to thank her personally for commitment and her sacrifices along the way.

i must tell you, general, that her understanding of your doing your patriotic duty as you are now doing again, taking over the command in afghanistan, for understanding and support of that is truly inspiring. we thank her. we profoundly thank you, mrs. petraeus. i also want to express my gratitude to general mcchrystal for his great service to our nation over three decades. it takes strange bounces at times, and working through them with the dignity and honor, as has general mcchrystal, is a hallmark of leadership and of character. the challenges in afghanistan are in many ways as complex or more complex than those that general petraeus 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, and surge in violence continues to threaten governments itself. the karzai government has yet to deliver services, to deliver allegiances locally. et to deliver services to win local allegiances. and recent reports suggest that afghanistan is minorities are concerned about president karzai is overtures to taliban leaders through pakistani intermediaries. at our hearing two weeks ago, general petreaus emphasized that "a counterinsurgency operation is a roller-coaster experience, "but in his view, the trajectory has been generally upward,

despite the tough losses. i have long believed that the number one mission in afghanistan is building the capacity of the afghan security forces to be able to take increasing responsibility for their country's security. general petreaus said that increasing the size and capacity of the afghan security forces is central to achieving progress in afghanistan. u.s. and isaf forces need to focus their resources and energy on this effort. there is a significant shortfall of trainers and of mentors. building capacity of the afghan security forces to provide security is not simply what we seek. it is what the afghan people seek. that is what we were told by 100 elders at a shura in southern afghanistan last year. when we ask them what they wanted us to do, they told us that we should train and equip

the afghan army to provide for their country's security, and then we should depart. the 1600 delegates to the afghanistan consultant it -- consultative peace jirga at the beginning of this month adopted a resolution calling on the international community to expedite the training and equipping of the afghan security forces so that they can gain the capacity to provide security for their own country and people. i remain deeply concerned by reports that relatively few afghan army troops are in the lead in operations in the south, where fighting is heaviest. the afghan now numbers around 120,000 troops, including over 70,000 combat troops. in the past, isaf reported that over half of afghan ballot hat -- at -- half of afghan

battalions were capable of conducting operations either independently or with coalition support. our recent report by the special inspector general for afghanistan -- corruption -- afghanistan reconstruction finds that the capability rating system overstated operational capabilities of the afghan security forces and has not provided reliable or consistent assessments. isaf agreed with that report and recently adopted a new standard for measuring afghan capability, by which measure of around 33% of afghan units are now determined to be effective, with coalition support, in conducting operations. even under that new measure, there are significantly more afghan army troops that could lead operations in kandahar than the 7250 afghan troops now in kandahar. the level of afghan security forces in kandahar, both army

and police, is scheduled to rise to only 8500 personnel by the fall, according to a chart provided by general mcchrystal last month. the influx of isaf forces in and around kandahar will outpace the increase in afghan forces by october according to that chart. the current slower pace of operations in kandahar provides the opportunity to get more afghan combat capable forces south to take the lead in operations there. adding the afghan army in the lead in operations in kandahar is the insurgency is worst nightmare -- the insurgency's worst nightmare. the afghan army enjoys the support of the afghan people and they are strong fighters. according to recent "new york times" survey, only 40% of afghans have a favorable view of

the united states. general petreaus, i hope you will promptly review the deployment of capable afghan security forces to try to get more afghan troops down to the south and in the lead in operations there before those operations are accelerated in the field in the fall. finally, a few words about the july 2011 date set by the president for the beginning of reductions in our combat presence in afghanistan. that decision also made clear that the pace of those reductions would be dependent on circumstances at that time, and that the united states would continue a strong strategic commitment to afghanistan. that july 2011 date imparts a necessary sense of urgency to afghan leaders about the need to take on principal responsibility for their country's security. we saw in iraq the importance of setting dates as a way of

spurring action. president bush in november 2008 decided to move all u.s. forces out of iraqi cities and towns by june 2009 and to withdraw all u.s. forces from iraq by the end of december 2011. that decision helped focus the iraqi government and military on the need to take principal responsibility for the security of their own country. the afghan success and ours depends on that happening in afghanistan as well. we have already seen a positive effect of setting the july 2011 date to begin reductions of our troops. lieutenant-general caldwell, who commands our training efforts in afghanistan, told us that when president obama announced the date, the afghan leadership made a greater effort to reach out to the local leaders and elders, resulting in a surge in

recruits for the afghan army. general petreaus has said he agrees with the president's policy setting that july 2011 date, and indeed has told me that if he ceases to agree, he will so advise his commander in chief, which of course he has a responsibility to do as a military commander. it is my hope and i believe that senator mccain and other members think so, that we can vote on general petreaus nomination by the end of even possibly today, so that the full senate can act before the july 4 break. senator mccain. >> thank you, mr. chairman. and let me thank our distinguished witness for joining us here today for a very unexpected and extraordinary hearing. i want to echo the chairman in welcoming general petreaus is wife, holly. we all know that general

petreaus, like all of our fighting men and women could never do his job for our nation without the sacrifice and support of his family. on behalf of our entire committee, mrs. petreaus, we sincerely thank you and we think he made a wise decision more than 34 years ago to except a blind date with a young cadet. as i said in our hearing two weeks ago, general petreaus, i believe you are one of our finest-ever military leaders. i hope it does not provoke the same reaction as it did and then. but we are all grateful for your willingness to answer the call of service again in yet another critical mission. you are an american hero, and i believe you will be quickly and overwhelmingly confirmed. before i go further, let me say a word of praise for another american hero, general chant -- stanley mcchrystal. is a man of unrivaled integrity, and what is most impressive

about his long record of military excellence is how much of it remains cloaked in silence. you understand fully how general mcchrystal systematically dismantled al qaeda in iraq, or how he began to turn around our failing war in afghanistan. these achievements and others like them are the true measure of stanley mcchrystal, and they will earn him an honored place in our history. the events that led to this hearing are unexpected and unfortunate, but they do not mean we are failing in afghanistan. i agree with the president that success in afghanistan is a vital natural interest, and i support his decision to adopt a counterinsurgency strategy, backed by more troops and civilian resources. this is the only viable path to true success, which i would define as an end -- as an afghanistan that is increasingly capable of governing itself, securing its people, sustaining its own development, and never

again serving as a base for attacks against america and our allies. in short, the same results we are slowly seeing emerge today in iraq. before heading out to iraq three years ago, general petreaus, you told this committee that the mission was "hard but not hopeless." i would characterize our mission in afghanistan the same way. nevertheless, many of the same people who were defeatist about iraq are now saying similar things about afghanistan. but afghanistan is not a ost cause. afghans do not want the taliban back. they are good fighters and it won a government that works for them and works well. and for those who think the karzai government is not an adequate partner, i would remind them that in 2007, the maliki government in iraq was not only corrupt, it was collapsed and complicit in sectarian violence.

a weak and compromised local partner is to be expected in counterinsurgency. that is why there is an insurgency. the challenge is to support and push our partners to perform better. that is what we're doing in iraq, and that is what e can do in afghanistan if we make it clear that as long as success is possible, we will stay in afghanistan to achieve that, as we did with iraq, not that we will start to withdraw no matter what in july 2011. i appreciate the president's statement last week that july 2011 is simply a date to begin a transition phase to greater afghan responsibility. and for those who doubt the president's desire and commitment to succeed in afghanistan, his nomination of general petreaus to run this war should cause them to think twice. still, what we need to hear from the president -- when our friends and enemies in

afghanistan and the region need to hear -- is that the withdrawal of u.s. forces from afghanistan will be determined solely by conditions on the ground. let me explain why i believe that the july 2011 date is so harmful. what we're trying to do in afghanistan, as in any counterinsurgency, is to win the loyalty of the population. convince people who may dislike the insurgency but who may also distrust the government that they should line up with us against the taliban and al qaeda. we are asking them to take a huge risk. they will be far less willing to run it if they think we will begin leaving in a year. one u.s. marine put it this way about the afghans she encounters, "that is why they will not work with us. they say you will leave in 2011 and the taliban will chop their heads of." the same goes for the afghan government. we were told that setting a date to begin withdrawing would be an incentive for the karzai

administration to make better decisions and to make them more quickly. i would argue is having the opposite effect. it is causing afghan leaders to hedge their bets on us. this is not only making the war harder. it is making the war longer. if the president would say that success in afghanistan is our only withdrawal plan, whether we reach it before july 2011 or afterward, he would make the war more winnable and hasten the day when our troops can come home with honor, which is what we all want. in additional to being harmful -- in addition to being harmful, the july 2011 withdrawal date increasingly looks unrealistic. it was based on assumptions back in december about how much progress we could achieve in afghanistan and how quickly we could achieve it. but war never works out the way we assume. secretary gates said last week, "i believe we are making some

progress, but it is slower and harder than we anticipated." i agree. mark begicmarja is largely cleae taliban, but the holding and building is not going as well as planned. our operation in kandahar is getting off to a slower and more difficult start than expected. the dutch and canadian governments plan to withdraw soon and it looks increasingly unlikely that nato will meet its pledge of 10,000 troops. i think is safe to say that the performance of the afghan government over the past seven months is not as even or as rapid as we hope. none of this is to say that we are failing or that we will fail in afghanistan. it just means that we need to give our strategy the necessary time to succeed. we cannot afford to have a "stay the course" approach to starting our withdrawal in july to about 11 when the facts on the ground are suggesting that we need more time to read this is all the

more essential now with general petreaus assuming command, pending his confirmation. he has proved that he can win wars, and we need to give him every opportunity and remove every obstacle to win in afghanistan. >> thank you very much, senator mccain. general petreaus. >> members of the committee, thank you for the opportunity to prepare -- to appear before you today and thank you for the rapid scheduling of this hearing. i am humbled and honored to have been nominated by the president to command the nato, international security forces in afghanistan, and had the opportunity if confirmed to continue to serve coronation, the nato alliance and partners, and afghanistan in these new capacities. at the outset, i want to echo you're so it to the extraordinary service of senator robert byrd. with his death, america clearly has lost a great patriot.

i like to begin this morning by also saying a few words about general stan mcchrystal, someone i of known and admired for nearly 30 years. general mcchrystal devoted his entire professional life to the defense of this nation, and he and his family have made enormous personal sacrifices. during his lengthy deployments of the past nine years in particular. his contribution during that time were very significant. i can attest for the success of the surge in iraq, it would not have been possible without general mcchrystal's exceptional leadership of our forces there. similarly, the development of the joint special operations command during his on president tenure commanding it was extraordinary as well. most importantly, he has made enormous contributions in leading the coalition in denver in afghanistan over the past

year. during that time, he brought impressive vision, energy, and expertise to the effort there. he made a huge contribution to the reorientation of our strategy and was a central figure in our effort to get the input right in afghanistan, to build the organizations needed to carry out the proper insurgency -- counterinsurgency campaign, to develop appropriate plans and concepts and to deploy the resources necessary to enable the implementation of those plans and concepts. we now see some areas of progress amidst the tough fight ongoing in afghanistan. considerable credit for that must go to stan mcchrystal. as we take stock of the situation in afghanistan, it is important to remember why we are there, which is never forgetting that the 9/11 were planned in southern afghanistan and that

the initial training of the attackers was carried about in camps in afghanistan before they moved on to germany and then on to u.s. flight school. it was in response to those attacks that a u.s.-led coalition entered afghanistan in late 2001 and defeated al qaeda and the taliban element that its headquarters and training camps in afghanistan. in the subsequent years, the extremists were able to regroup without caid establishing new statuary's in the tribal areas of pakistan, and the taliban re- entering afghanistan to reestablish the control it had in much of the country. in light of those developments, our path is clear. president obama has explained america's vital national interest there. we will not, he has stated, tolerate a safe haven for terrorists who want to destroy afghan security from within and

launch attacks against innocent men, women, and children in our country and around the world. in short, we cannot allow al qaeda or other transnational extremist elements to once again establish a sanctuary from which they can launch attacks upon our homeland or on our allies. achieving that objective requires that we not only counter the resurgent elements. we must also help our afghan partners develop their security forces and governance capacities so that they can overtimed take on the task of securing their country and see to the needs of their people. united states is not alone in seeing this is as vital national interest. 46 countries including our on our providing forces to the isaf coalition, and others like japan provide vital economic assistance. earlier this year, our allies

and partners committed well over 9000 additional troops to the average, approximately 60% are currently in place and when the rest are deployed, it will bring the number of non-u.s. forces to over 50,000. that expansion takes place as we are in the final months of deploying the 30,000 additional u.s. troops, a deployment slightly ahead of schedule that will bring the total number of u.s. service members in afghanistan to nearly 100,000 by the end of august. this number will be more than three times the number of u.s. forces on the ground in early 2009. complementing the military buildup has been the tripling of the u.s. civilian structure in afghanistan with substantial number still depllying. this is essential for the campaign in afghanistan being of fully integrated civil-military effort, one that includes an

unshakeable commitment to teamwork among all elements of the u.s. government as well as unshakeable commitment to teamwork with members of other nato and coalition governments, and the united states assistance mission in afghanistan, as well as members of the afghan government itself. i will seek to contribute to such teamwork and to the unity of effort among all participants. we know that we can achieve such unity of effort because we have done it before. during more than 19 months in iraq, i worked very closely with ambassador ryan crocker and members of the u.s. embassy, the united nations' special representative, and representative of the indices with which we partner, and we worked closely together with our iraqi partners. i look forward to working just as closely with ambassador karl eikenberry, the nato senior representative, the special

representative of the u.n. secretary general, the same position he held in baghdad, the e.u. special representative, and most importantly, president karzai and members of the afghan government. indeed, i have talked in recent days with all of these members of the team, including president karzai, as weel as with ambassador richard holbrooke, the special representative for afghanistan and pakistan. we are firmly united in seeking to forge unity of effort. as i noted in my testimony before this committee two weeks ago, i was part of a process that formulated the president's strategy for afghanistan and i support and agreed with his new policies. during its development, i offered my fourth ride military advice and i have assured the president that i would do the same as we conduct assessments over the course of the months ahead. he in turn assured me that he expects and wants me to provide that character of advice.

as i also explained to this committee two weeks ago, i specifically agreed with the message is of greater commitment and greater urgency that the president expressed his address at west point last september when he announced the new policy. the greater commitment was explained in terms of the additional 30,000 u.s. forces, the troubling of the u.s. civilians, and the funding for an additional 100,000 afghan security force members. to greater urgency was highlighted by the president's announcement to begin a process in july 2011 of transitioning to afghan forces an official and beginning of responsible drawdown of the u.s. surged forces, and the pace being based on conditions on the ground. it is important to note that the president's reminder in recent days that july 2011 will mark the beginning of a process, not the date when the u.s. heads for the exits and turns out the lights.

as he explained this past sunday, we will need to provide assistance to afghanistan for a long time to come. moreover, as president karzai has recognized and as a number of allied leaders noted at the jeep-20 summit, there will be a number of years before afghan forces controlling handle the security passed in afghanistan on their room. the commitment to afghanistan is necessarily an enduring one, and i the that taliban north afghan and pakistani partners should doubt that. however is in afghanistan have appropriately focused on protecting the population. this is to say -- this is a considerable importance. the human terrain is the decisive terrain. results have been notable. of the last 12 weeks, the number of innocent civilians killed in the course of military operations has been substantially lower than it was

during the same period last year. i will continue the emphasis on reducing loss of innocent civilian life to an absolute minimum in the course of military operations. focusing on securing the people does not mean that we do not go after the enemy. protecting the population inevitably requires killing, capturing, or turning the insurgents. our forces have been doing that and we will continue to do that. hard troopers and our afghan partners have been very much taking the fight to the enemy in recent months. since the beginning of april alone, more than 130 middle and upper level taliban and extremist love -- extremists element leaders have been killed or captured, and thousands have been taken off the battlefield. together with our afghan partners, we will continue to pursue relentlessly the enemies of the new afghanistan in the months and years ahead.

on a related note, i want to assure the mothers and fathers of those fighting in afghanistan that i see it as a moral imperative to bring all assets to bear to protect our men and women in uniform and the afghan security forces with whom we are fighting shoulder to shoulder. those on the ground have all the support they need when they are in a tough situation. this is so important that i have discussed it with president karzai, afghan defense minister, and the afghan interior minister since my nomination to be the head of isaf, and they are in full agreement on this. i am keenly aware of complaints about the application of our rules of engagement. they should know that i will look very hard at this issue. along with you and other members of the committee, i recognize

that enduring success in afghanistan will require the development of national security forces insufficient number and sufficient quantity. this is hugely important and usually challenging this is akin to building an advanced aircraft while it is in flight, while it is being designed, and while it is being shot at. there is nothing easy about it. our efforts have been overhauled and they are broadly on track for the first time to achieve overall approved goals and to improve afghan security force quality as well. afghan security force development has been advanced considerably by partnering efforts that were expanded under general mcchrystal's command, by the establishment of the nato training mission-afghanistan,

and by the appointment of lieutenant-general caldwell to run that administration. despite the progress in recent months in development, there is considerable work to be done to reduce attrition further and to develop effective leaders, especially with respect to the nash -- afghan national police. further progress will take greater partnering, additional training and temperament, and expanded professional education opportunities being pursued in each of these areas. recent salary and benefit initiatives are helping to improve recruiting and retention of afghan security forces. training capacity has been increased significantly and the density of trainer to train he had been increased from 1-79, to 1-30. and the unprecedented intensity of our team work with the afghan forces is also beginning to show results.

today, afghan military headquarters are sharing the same operating centers. in nearly 85% of the afghan national army it is fully partnered in the field. my staff and afghan forces to train together, plant operations together, and fight together. furthermore, i should note that afghan forces are now in the lead in cobble, and in a number of other areas. afghan units are now the support of lawrence's -- support forces, and already shouldering the responsibilities of leadership. an excellent example was the recovery operation from the crash north of kabul last month. afghan border police found the site. the recovery actions were planned and executed jointly by the afghan ministry of defense and interior at the afghan national military coordination

center. a recovery operation was executed by afghan caught -- afghan helicopters, and even the media were handled by afghan personnel. that is not the norm throughout afghanistan. nonetheless, the ansf are very much in the fight and sacrificing for their country and nothing more flights this more than the fact that their losses are typically several times hours. the taliban had been steadily expanding in the areas they control and influence. this year, isaf has achieved progress in several locations. the initial main effort has been in the central helmand river valley, and we have expanded

security there, though predictably the enemy has fought back as we have taken away as sanctuaries in the distance of -- in the districts of marja and elsewhere. nothing has been easy but six months ago we could not have walked through the market in marja, as i was able to do two months ago. we're now focusing on another area of critical importance to the taliban. we're working hard that our operations are based on a strong comic integrated civil- military and international approach to security, governance, and development. operations have been ongoing for some months. president karzai and his ministers have also conducted shura councils and a number of initiatives advancing inclusive big -- inclusive at in the

province, things that have been pressed -- stressed by president karzai appeared in the months ahead, we will see an additional u.s. brigade from the great 101st airborne division deployed into the district around kandahar city, well it will operate together with an additional army brigade. we will see the introduction of additional afghan police in u.s. military police to secure the city itself. along with other u.s. forces and civilians who will work together with the impressive canadian-led for ventura construction team that has been operating in the city. a combination of all these initiatives had been intended to slowly but surely establish the foundation of security that can allow the development of reliable, local political structures, enable the improvement of basic services, and of afghan leaders and local governments achieve greater legitimacy and support in kandahar. while relentless pursuit of the taliban will be critical in

kandahar and elsewhere, we know that from iraq and other counterinsurgency experiences that we cannot kill or capture a out of our industrial-strength insurgency like afghanistan. many need to be convinced to become part of the solution rather than a continuing part of the problem. the national consultative peace jirga was an important event. and the reintegration policy today, and i taught him about it on the way this morning, will be critical to the effort to convince reconcilable elements of the insurgency to lay down their weapons and support the %%w afghanistan. we look forward to signing this policy. recent months in >> recent months have seen tough

fighting and tops casualty's -- tough casualty's. gets tougher begorra it gets easier when a counterinsurgency operation tries to reverse and certain momentum. my sense is that the tough fighting will continue. it may get more intense in the next few months. as we take away the enemy's safe havens and reduce the enemy's freedom of action, the insurgents will fight back. in the face of the tough fighting, we must remember that progress is possible in afghanistan because we already seen a fair amount of it in a variety of different forms beyond a recent security gains. for example, nearly 7 million afghan children are now is billed as opposed to less than 1 million a decade ago under taliban control. immunization rates have gone up substantially and turnout in that 70-90% range nationwide.

cellphones that had been under the taliban days, though the taliban tries to shut down most hours at night. roads and bridges and other infrastructure had been repaired or build. commerce is returning to those parts of helmont isaf and afghan forces are present. even where governance remains weak, innovative efforts like the national solidarity program supported by american and international civilian as well as by our troops, have helped enable local shura councils to develop their own priorities and received a modern edge -- modest cash grants to pursue them. enabling further progress and successfully implementing the president's policy will require that our forces -- that our work in afghanistan is fully restored. it is essential for the conduct of this mission that the

supplemental funding measure now before congress be passed. this committee and the senate have passed it and it was heartening to hear speaker policy's call last week for the house to do so expeditiously. beyond that, as always, i also ask for your continued support for the commanders of emergency response program. these projects are often the most effective means to address the local community's needs. indeed, is often the only tool to address pressing requirements in areas where security is challenge. our commanders that usurp -- a value serb -- value cerp. i like to note the extraordinary work been done by our troops on the ground and around the world. our young men and women truly deserve the recognition they have earned as america's new greatest generation. there is no question that they

comprise the finest, most combat-hardened military in our nation's history. there is also no question that they and their families have made enormous sacrifices since 9/11 in particular. many of them have deployed on multiple stores to perform difficult missions under challenging circumstances against top, even barbaric enemies. we cannot in my mind ever thank our soldiers, sailors, marines, and coastguardsman enough, but what we had done to support those in uniform has been truly wonderful. indeed, nothing has meant more to our troops and their families than the appreciation of those here and at home. as you noted, mr. chairman, my wife holly is here with me today. she is a symbol of the strength and dedication of families around the globe who waited home for their loved ones while they engage in critical work in afghanistan, iraq, and elsewhere.

so what others on told spouses, children, and loved ones as their troops have deployed and continue to raise their right hand time and time again. our families are the spawn some heroes of a long campaign on which we have been embarked over the past decade. one of america's greatest presidents, teddy roosevelt, once observed that far and away the best prize that life has to offfr is the chance to work hard at work worth doing. there currently nearly 140,000 coalition troops and over 2 minute 35 afghan security force members engaged in hard work very much worth doing in afghanistan. if i am confirmed by the senate, it will be a great privilege to soldier with them in that hard work that is so worth doing in that country thank you, very much.

>> now that we have a quorum, we would do some committee business. there are pending military nomination including this list to be commander of u.s. joined forces, and these nominations had been before the real quick for the required length of time. all members say aye. opposed? the motion stands. we asked and answered questions of all nominees become a force. their standard questions. would you care to applicable laws governing conflicts of interest? >> yes. >> when you give your personal views? >> i do. >> have you attended any actions

that would assume the end of the process greater margin and i have not. >> would you answer questions for the hearing? >> i will. >> way you -- will those witnesses be protected from reprisals for their testimony? >> yes. >> deal agreed to appear and testify? >> yes. >> would you provide documents in a timely manner when requested by duly constituted committee regarding the basis for good faith in providing such documents? >> i do. >> there will be a seven-minute first round. general, you've commented on these questions in your testimony. i would ask them again to get very clear direct answers to them.

to the fundamental elements of the afghan strategy that the president announced in december 2009 are as surge of 30,000 additional u.s. troops by the end of the summer to help regain the initiative, and the setting of the july 2011 date for the beginning of reductions in our combat presence in afghanistan, with the pace of a reasonable drawdown to be determined by circumstances at that time. you agree with that policy? >> i do. >> do you agree that that setting a date to begin reductions signals of urgency to afghan leader that they must take responsibility for their country's security which is important for success of the mission in afghanistan? >> i do. >> a report released this morning by the special inspector general for afghanistan reconstruction concluded that the way has been measuring the

capability of afghan security forces was flawed. the command basically agreed and has revised its approach for measuring the capability of afghan forces, and now the isaf figures aren't that 30% are assessed to be effective. there were 120,000 army troops including 70,000 combat troops. taking just this lower combat troop level, that would mean that around 25,000 afghan troops can operate effectively with coalition support. according to figures provided in your answers questions, the afghan army has only 7250 afghan army soldiers present for duty in kandahar province. that is so essential to success in afghanistan.

that is less than one-third of the affected afghan forces that are available. would you agree that the afghan army has broad popular support and that the afghan people want the afghan army to be taking the lead were possible to provide security? >> i would. >> would you agree that they are excellent fighters? >> you have to walk your way through the areas, but that a generally correct. >> is in the interest of an exit -- a successful outcome to increase the number of afghan units who can lead, who can take the lead in operations? >> absolutely. >> why is that? >> we want them doing the fighting rather than us. >> what is the reaction of the afghan people?

>> that is another piece of that. we want afghan ownership of afghan problems. that is part and parcel of that, obviously. >> general, will you review -- i am not going ask you to confirm, because i am going to assume that with all these questions, so that we confirm, will your view -- if you are not allowed to confirmation, i am. when confirmed, will you review the deployment of forces in afghanistan to see how more afghan army is and police forces can be brought in to increase the number of afghan security forces in kandahar? >> it confirm, i will do that.

one where the other, we're going to count on you to do that. did general mcchrystal announced that he was slowing the operation of afghan and isaf forces in kandahar to allow more time for discussions with local leaders and get more of their eye and rigid -- bu-y-in. that will mean that we may have more afghan-lead operations in a few months. i was wondering whether not you agree, since we have slowed the pace f operations of afghan and isaf in and around kandahar that that would present an opportunity to bring in more afghan forces capable of leading in the kandahar campaign during this period? to get in fact, as i mentioned in my opening statement, there

is a plan to deploy additional afghan army brigades. and also additional afghan police battalions an individual police as well. >> and if there are possibilities to increase the numbers of afghan troops that can lead above that plan, would you also take a look at that? >> i will. >> do you know offhand how many afghan troops will be in kandahar by september? >> i think that it will be in the range of 7500-8000. >> what about in helmand? >> let me answer that for the record. >> that is fine. the figures that your office provided to my staff last evening were somewhat ppsurprising in that regard. i want you to just double check those figures.

there is a total of 40,000 afghan and security forces in helmand while there is only a total of 11,000 in kandahar. if you could double check those figures and explain why there is such a significant -- so many feel word combine forces in kandahar than in helmand, a sense helped -- since kandahar will be the central effort. if you could take a look at those numbers and explain that for the record, i would appreciate that. >> i will do that. >> the press report last week that pakistani officials had proposed the car guys -- the karzai government with a proposal for delivering the haqqani network which runs a major part of the insurgency in afghanistan and an alliey of al qaeda into a power-sharing arrangement. the president noted that tends to draw afghanistan and

pakistan closer together is a useful step. i am wondering what you shared director panetta's potential for pakistan to broker reconciliation deal between the taliban leadership and the afghan government at this time? >> let me just say, first of all, this is an interesting item. in talking to president karzai in a vehicle on the way a great, he assured me that he has not met with a haqqani group leader in recent days or at any time. with respect to pakistani involvement in some former reconciliation agreement, i think that is essential. now whether that is possible, such an agreement, i think it is going to depend on a number of factors that will play out this summer, including creating a sense among the taliban that

they're going to get hammered in the field and perhaps should look at some options. we've already seen cases where lower and middle level taliban leaders have indeed sought to reintegrate, and there have been more in recent days. small numbers here and there. the reintegration decree that was approved by president karzai today will help codify the process for this. and that should help. if you recall in iraq, we did a substantial amount of reconciliation. but whether senior leaders can meet the very clear conditions that the afghan government has laid down for reconciliation, i think that is somewhat in in question. in that regarr i agree with director panetta. we want to forge a partnership or further partnership that has been developing between afghanistan and pakistan. those countries are always going

to be neighbors, and helping them develop a constructive relationship would be an important contribution. >> thank you very much, general. senator mccain. >> just a follow-up, the key to success in reconciling with the taliban is due first convince the taliban that they cannot succeed militarily. it is also true that the majority of the people of afghanistan are in opposition to a taliban return to power. is that correct? >> it is. >> there is no doubt about that. >> there is no love lost for the taliban. they remember the barbaric activities, the oppressive social practices, and the extremist ideology practice by the taliban. >> so you interpret that as an advantage over the situation you said found in iraq at the

beginning of the surge. >> that is correct, although overtime, we were able to hang around the neck of al qaeda in iraq the same kind of label and practices and so forth. indeed, that weighed them down. every time they carried out another act of indiscriminate balance, at the taliban had done, and we will work with our afghan partners to ensure that the afghan people know who has been killing the vast majority of the civilians in that country. >> is marja going as well as we had hoped last december? >> probably not as well as the optimistic assessments. i am very clearly on the record last year, this year, and so forth that this is going to be hard and hard all the time. i am not surprised by it. >> i am not, either. >in kandahar, we're not where we wanted to be seven months ago

and the afghan government is not performing as well as expected. when you agree with secretary gates that we're making some progress but it is slow and harder than we anticipated? >> i would, senator. >> that argues for a reassessment of for the july 2011 commitment to begin a withdrawal. let me tell you why americans are confused and why our allies are discouraged and our enemies are incurred. a short time ago a sunday, rahm emanuel said, "everybody knows it is a firm date. what will be determined that date for going into that date are the scale and scope of the reduction but there will be no doubt that it is going happen. july 2011 does not change. everyone agrees on that date." dave black rod -- axelrod, "that

continues to be the plan and we will pursue that schedule." another, "this is not an open ended one. that timetable is about getting in and out. there would be no nationwide counterinsurgency strategy. pentagon must present a targeted plan for protecting populations centers and beginning a real, not token, withdraw within 18 months of the escalation." that is why people are confused, general, and your and the position where you have to say it is based on conditions. last january, we're in one province and that a tribal leader who entertained us with stories about how he beat the rush and. he asked me if we americans were

staying or leaving like we did last time. and an article from the "new york times," the taliban had effectively use their deadline to the advantage. the deadline encourage people to hedge their bets and continue supporting people like haqqani network. they had been burned before and they have seen this movie before, the official said. that is the problem here and whether we're going to prevail and convince the people of afghanistan to come over to our side and to stand up against the taliban, rather than as the military person said, they say you will leave in 2011 and the taliban will chop their heads off. it is frustrating. general, at any time during the 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 am aware of. >> i thank you. do you think is of concern -- the situation with pakistan and the isi continue to work with the taliban? >> again, what we always have to figure out with pakistan, senator, is are they working with the taliban to subvert them or to recruit sources in the taliban? and that is the difficult, frankly, and assessing their activities in the federally administered tribal areas with haqqani network for the afghan

taliban. there no questions about the longstanding links -- remember, we funded the isi to build these organizations whenever helping to expel the soviets from afghanistan. certainly residual links would not be a surprise. the question is the character of those lands and what the activities are. >> one of the biggest problems we're facing is corruption. as one article said, corruption suspected. you have anything to tell us about that -- one of the more disturbing news reports that i have seemed -- and there have been actions taking -- that i have seen. >> there have been actions taken by the corruption body, the prosecution of certain cases, and also on our side, the establishment of the task force

2010 headed by ed two-start unable contracting officer who commanded the joint contract in command at supported us in iraq, that is going to examine where the contract money is going. not only the subcontractors, but who is below them. . >> is that of concern to you, that they would cut half of the necessary aid to the iraqi military? >> it is of concern, senator. we obviously contributed to the development of that particular

request. we think that money is needed at a critical time in the transition in iraq when we were transitioning from a defense lead on a number of these different programs to state department leads. to do that, the iraqi ministry of interior and ministry of defense forces have to get certain levels so that transition can be successful and indeed, therefore there is concern about that. i know the secretary has expressed that as well. >> thank you, general. we are deeply appreciative of your willingness to serve and your entire family. >> thank you. >> i thank you, general, and your willingness to serve, and your entire family. >> thank you, sir. >> thank you not only for your testimony today, but your service to the nation. in the course of your colloquy with senator mccain you indicated you do not let -- you

do not make a recommendation with respect to a deadline, but your public statements are in support of that, correct? >> that is correct. >> so, your support is of the beginning of the withdrawal in july of 2011. retsof let me be clear. not only did i say i supported -- >> let me be clear. not only did i say i supported it, but i agree with it. but this is based on what we will strive to achieve in afghanistan a full year from now. this was made on an 18-month projection at that time. when this was a double to izod most importantly as a message of urgency -- when this was established, i saw it mostly as a message of urgency.

we started with some 31,000 forces in afghanistan in 2009 and we will now be approaching 100,000 by the time the deployment of the final 30,000. this is a substantial additional commitment, complemented again by a message of urgency. >> we are looking forward to next year. when there is a conditions- based withdrawal of forces, [unintelligible] >> and it is not just our forces. there will also be nato forces and, more important, there will be substantial afghan forces. but again, based on projections right now. >> what is the time line, particularly if the taliban thought that this was the playing out our hand and leading -- and leaving?

the question remains, why would they be so active on the ground militarily? >> that is actually a great point. the reason they are active on the ground militarily -- probably a couple of reasons. one is, they are fighting to maintain safe havens and sanctuaries they have been able to establish in recent years. marja was the nexus of the taliban. it had ied producing factories, if you will. supplies, headquarters, medical facilities, and the illegal narcotics industry all tied into one. they lost a great deal when they lost marja and it is not surprising that they fight back. they're also fighting to break our will. this is a contest of wills. they can sense a concern in various capitals around the world and, of course, they want to increase that concern.

>> they are also, i think -- and i will ask the question. given our very aggressive operations, if we succeed in the next several months, their ability to be influential would have afghanis severely diminished, correct? >> that is correct. again, they are feeling pressure right now. no question about it and more in some areas than others. and there is also the fact that they are trying to expand in some areas also. as i mentioned, this is a roller-coaster existence. there are setbacks for every small success. but what you are trying to do is try to determine if the trajectory is generally upward. >> going back to marcia, civilians have returned -- back to marcija, civilians have

returned? >> that is correct. i walked through there about two months ago with the district governor. we sat there and ate bread that was produced right there. it was a great spread. and we chatted with the locals. we had dozens, if not hundreds of locals around. >> let me turn to an issue you alluded to in your opening statement, and that is, the rules of engagement. could you elaborate? because this is a very sensitive balance between providing effective fire support between troops in combat and also minimizing, hopefully eliminating, collateral casualties. >> we must remain committed to reducing the loss of innocent civilian life to an absolute minimum in the course of military operations. tragically, inevitably, there will be civilian casualties.

indeed, the taliban will try to create situations in which that is the result. it is essential, and again, president karzai knows that we will continue the commitment that general mcchrystal made in this area. we have rules of the engagement. those are fairly standard. we also have a tactical directive that is designed to guide the employment in particular of large casualties- producing devices, bombs, close air support attack helicopters and so forth. that is an area that you have to look closely at. if you drop a bomb on a house and you are not sure who is in it, you can kill a lot of innocent civilians in a hurry. having said that, as i mentioned in my opening statement, we have to be absolutely certain of the implementation of the tactical directive and the rules of engagement, that they are even drop a force and there are not certain levels that are perhaps making this -- threw out the

force and there are not certain level and are perhaps making this bureaucratic. when our allies are in a tough spot, we have to make sure that they get out of it. >> one of the persistent issues here is the lack of governmental capacity on the part of the afghanis. in marja, the siblings have come back, but the government has not. i know this gets into -- the civilians have come back, but the government has not. i know this gets into other issues, but one of the structural defects within the afghani government is a highly decentralized government. it needs much more effective provincial support, more independent governments. is that an issue that you and ambassador eikenberry are going

to take to president karzai to talk about how they can empower local officials rather than have a national ineffectual government? >> well, certainly. again, a key to this is helping the release -- to the reestablishment of a viable calo ", organizing structured -- a dot the reestablishment of a viable, organizing structures, if you will. president karzai is aware of the challenge is present at lower levels. he has empowered governors. interestingly, helmand province has one of the most active governors in all of afghanistan. the challenge there is not one of desire. it is literally a lack of human capital. and in predicting there, human capital that is willing to go into a really tough spot like that in marja where there are

requirements and demands and there are locations elsewhere that are safer. but that is certainly something that we have to address. you must complement the activities. you must build on the security foundation that our troopers and afghan troopers fight so hard to provide. >> thank you. my time has expired. >> i think the problem, general, in the discussion that we're having right now with the timetable and all of that is the mixed message. frankly, i was relieved a little bit when the president spoke at west point and he said there would be conditioned on the ground. and i think the perception out there is what ever you want it to be. mine personally is that we are not going to be pulling out until the conditions on the ground or justified. but i think the taliban has the perception of cut and run and that is what they're talking about. i have to say that what is

important policy when you are communicating about conditions, yes, we are in it to win. there is enough that has been said that would fortify that position. >> i tried to make that clear in my statement today. neither the taliban, nor are afghan and pakistani partners should have doubt about the fight. >> your thoughts about the program, i appreciate that. the we actually cut that by 300. was that a mistake? >> we ask for 1.1 because we believe we need 1.1. we're also where because we have not used some of those funds in the past, and we have returned them. the truth is, we return them to

the operation accounts so that those funds are used for very valid reasons. but we believe we need that and that is why we ask for it. and we hope to get it. >> i agree with that. i have heard you mention several times your conversations you have had with karzai. frankly, i was not aware -- >> as the centcom commander, senator. >> yes, i understand. in the years that i have been on this committee, when you go through confirmations, this is the first time i have heard the chairman say, when confirmed, not if confirmed. let's just keep that in mind. >> we have had three conversations, one before the nomination and two more in recent days. and by the way, he told me to give his love to senator mccain.

and now with the focus shifting to the afghan popular effort program of his national security team. >> i think that is very important. there are a lot of things that have been done in iraq that perhaps should be done, and i feel very comfortable that you will go in and take advantage of that. at one of them was this taskforce, observe, detect, identify and neutralize. its objective was to take back the roads. general patraeus, under your leadership in iraq, our forces were using that "take back the road to" strategy. the results were great. at least, what i have read. they have been credited with killing 3000 ied in placers and

capturing 50 high-value targets. i assume that has not been taking place in afghanistan. am i correct? is this something that would work there? is there some condition there that is different than iraq? >> there are small component of it, but again, you have to realize that when you only have 30,000 troops, which is what we had up until 18 months or so ago -- now what we have is that this has become the main effort, appropriately. and we are now seeing that kind of commitment. we shifted to the central commander and also with the support of the secretary and the president, we have been able to provide substantial surveillance and reconnaissance efforts. and those are some of what you have talked about. but many others, and this is a very comprehensive effort when you are trying to get the ied in placers.

>> is there some success in iraq that would also apply to afghanistan? >> many, many things. we have shifted a substantial amount of them over there and others are still being established. we have done a substantial amount of the infrastructure development. of course, that is what is necessary because you have to have platforms for all of this. we will take the same kind of approach there that we took in iraq. >> for the record, it would be good if you can send us some of these things that worked there that would perhaps be worthwhile. >> i would be happy to do that. >> an unnamed military official stated recently we are on an afghan timetable and the afghan timetable is not the american timetable and that is the crux of the problem. after general mills made the statement that i'm sure you recall that i am talking about, i think we need to import to our

afghan partners a sense of urgency. they understand there is a time line. the timeline that they referred to here -- how you referred to his statement? >> again, i have seen this movie as well. we talk about the different clocks that are out there when i was in iraq. you would be at the baghdad clock to see why it was going backwards, or to get it going forward. in the meantime, you were aware of other clocks, including perhaps the one up here that may be moving a little bit more rapidly. this, i think, is common to counterinsurgency efforts. they are tough and they are not quick. >> in 2004, aracoma 45th was over there. they had -- our coloma for if it was over there.+ they have the responsibility of training themselves. i weet over there. i am not sure if you were there. you certainly have people there. when i looked at the faces of

these guys, they were very proud that they were taking over. -pin that sense of pride was obvious. i was there for quite awhile because the 45th had been training for a time frame. i got nothing but glowing reports. then we get reports like the one that has been referred to here that was written up yesterday "new york times" where they talk about the united states talked about it was not working. general caldwell was in charge of the 20 over there and he said the report was inaccurate and general rodriguez said it was more accurate. i'm sure it is somewhere in between. but in terms of these guys and the expressions on their faces and a pride that they had, you think they have lost some of that, or do you think they still have the capability of being great warriors and taking this thing over?

>> well, they are great warriors, but they are in a tougher fight. it is easy to stand tall when the enemy is not that significant. again, we went through this in iraq as well with the iraqi security forces. they not only relatively went down, but absolutely because they were so trend by the deteriorating security conditions. that is what we have to make sure does not happen in afghanistan. if i could read the report by the special inspector general for afghanistan, general arnold bilbao -- by the way, we had a very good relationship -- general arnold fields. by the way, we had a very good relationship when i was in iraq and i think very highly to -- highly of him. the cbs radio, truthfully, more has been made of this -- the cbm radio, truthfully, more has been made of this then should be.

it really did not have the effectiveness in the fighting that it ought dot should have. what general rodriguez is pretty referring to is a new evaluation system that has been brought on line. he is the one who oversees the fight. general caldwell does the training, the equipping and the infrastructure, and then provides those forces, or the afghans provide those forces to partner outside the wire along with our forces who are under the command of general rodriguez. i think rightly, he has taken this on. this is a subjective evaluation of, can they fight and can they do it on their own? how much assistance to the needy? and so forth. i think that is where the debate is, and general caldwell is trying to point out rightly that over the past seven months or so there has been substantial progress in turning it over to afghanistan. the fact is that what we were

doing was recruiting police and then putting them in to fight. we were basically recruit, a sign, and then train when you get to it as a model. but that just cannot be. you have to recruit and then train and then assigned. the afghans are police -- fully supportive of that. i think these are the changes that have been made with general caldwell taking charge of it. >> that is a very voluble clarification. thank you. >> i want to have my welcome to general patraeus -- add my welcome to general patraeus and your wife polley. -- holly. i would like to congratulate you on your nomination to this critical position and i also thank the men and women that you lead. their dedication is appreciated

and honored. general patraeus, i understand secretary gates to have under -- to have said you will have the flexibility to reconsider the campaign plan and approach in afghanistan. i am sure that you will consider many issues as usf operatioos in afghanistan. -- as you assess operations in afghanistan. general, what are some of the key elements you will get in this assessment, and is there anything you plan to change immediately? >> senator, i think the campaign plan is sound. the first, i obviously contributed to the president's policy. by then -- at the central command we supported general mcchrystal and set a strike -- and ambassador eikenberry as they developed this policy.

we think it is down. one of those, of course, who oversees the process -- again, we will look hard at it as any new commander does when he comes in, if confirmed. as i did mention in my opening statement, i do think we have to look at the implementation of the tactical directive and the rules of engagement. that is something that clearly, our troopers in some cases, some units have concerns about and, therefore, they are my concerns. but by and large, i think this is more about executing nauert then it is about redesign. -- executing now than it is about redesign. this is of enormous significance. this has been under development for months. it capitalizes on the national peace jirga that was held

with nearly 15,000 participants in kabul several weeks ago. i think it codifies all of the processes that we have been waiting for to integrate thhse elements of the insurgency war reconcilable, an important element of any counterinsurgency -- who are reconcilable, an important element of any counterinsurgency effort. and it deals with those who are irreconcilable. and we will seek to empower and secure villages and valleys with local security initiatives. this is something also that president karzai and i discussed on the way over here this morning. it is the next big focus that he told me about that he and his national security adviser discussed yesterday, so that you have a fully comprehensive approach. that is what this takes, everything from the very hard

edge, targeted, special unit, operations to the reconcilable, to conventional forces expanding their cannot -- their security zones, in some cases so that you can hold and build. and also, local initiatives, some of them working around our great special forces a-teams who are out there working in villages to help and power and support local elements that want to resist the taliban as well. all of that, of course, complemented by a host of political, economic, even diplomatic initiatives that can help produce progress overall, and over time make it in during. really, that was the approach that we made in iraq and what you have to do in in the counterinsurgency effort. >> general, last week, the army

announced that it had exaggerated the three officers who were issued letters of reprimand -- it had exonerating the three officers who were issued letters of reprimand. the independent marine lieutenant general has recommended that the three officers should received reprimands. after your review, you added a third and concurred with the results. general, first, i am interested in your reaction to the army's decision to withdraw the letters of reprimand for the three officers. and second, would your recommendation concerning the letters of reprimand change based on any information presented to you by general campbell.com on was the army official charged with -- by

general campbell, who was the army official charged with the investigation of this report? >> in this case, senator, what we did at centcom, -- first, i'd directed a two star general, major perkins who worked with in baghdad. your characterization of our findings is correct. we did not recommend any action. and what we did is provide a result of our investigation. and then, provided that to the authority that has jurisdiction, if you will -- command authority in this case, which is the u.s. army. general campbell, a very distinguished, a great soldier. in fact, just about to retire. he took that on, did review the

investigation exhaustively, did a further review of his own. this is like any process where there is an original finding and then we read investigated another finding. and then again, a final review. we discussed that. i did -- i respecte his view in this particular case. i support the process, but i did not change the finding that i affirmed after the investigating officers provided it to me. but again, i support this began the process. >> thank you very much for your responses, general. >> senator chambliss. >> general patraeus, thanks to you and your family and to the commitment that you continue to make to provide protection to america, as well as literally

the whole world. i cannot help but note the number of combat stripes you have on your sleeve there, which is certainly an indication not only of your commitment, but of the fact you have been gone from your family for an awful long time for the last several years. i note also that those number of combat strides are comparable to those on the sleeve of generals daniel -- general stan mcchrystal. i was very pleased to mention -- to hear you mention him the number of times that you did in his own -- in your opening statement because he certainly has laid the groundwork for a successful operation in afghanistan. general mcchrystal has been a great military leader. he is a great man and military office that ordaz -- military officer that i had the privilege of visiting in theater when he was under your command, and i note the great work that he did there and i know it was recognized by you. i also know the great respect he

had a of the men and women that served under him. where life takes in now, we all wish him the best and thank him for his service. general, i want to make sure that you appreciate the seriousness of this issue of the deadline, as well as the issue of the rules of engagement. i will not really get into that because i think you have had the opportunity, and you have, adequately addressed those two issues. but if we are going to have military success in afghanistan, and there is no other option -- i know in our minds as well as yours. it is imperative that you have the tools with which you need to work, and as you review the situation on the ground leading up to july 1, 2011, i know we will hear more from you on that issue. i want to ask you about another side to the afghan situation and something that you and i have

had a a bit of conversation about. your success in iraq, particularly in the ramadi area where we saw a turn in the conflict there, was in large part due to the fact that the iraqi people got engaged and decided they wanted to seek a peaceful resolution of the conflict in iraq. and join forces with your army, as well as our colleagues and partners in iraq. and thus, we saw a complete change in the direction of that war. we have not seen that situation in afghanistan. and unless there is confidence on the part of the afghan people that we are going to be there, i do not think is going to happen. that is an issue that you will address with respect to this deadline. but there is another part to it. in iraq, there was an economy that could be built upon that was founded upon oil. it has been rebuilt on oil.

and it appears to be moving in the right direction. the iraqi people have a good feeling about it. . . the agricultural economy of afghanistan does have a lot of potential. i have an opportunity to observe what is going on with respect to what usaid and other partners are doing to build up that aspect of the economy. also, with the recent finding of minerals and metals in afghanistan, there's potential for providing the afghans with some sort of quality of life. but unless you have security in the country, neither one of those avenues for building that

economy is going to be possible. i would simply like you to comment, number-one, and your idea about partnering with the afghan people and the afghan government to start this economy and move it in a positive direction. second, how that relates with the ability to incorporate the mindset of the afghan people to understand why it is important we have peace and security there. have decent security there. >> first of all, there is a good partnership between the military side of the campaign, and again, the embassy director, and also problems -- proper emphasis that the ambassador holbrooke has put on the agricultural aspects. that has all been very positive. clearly what we have to do is

expand the security of all in key areas when it comes to agriculture, provide alternative crops to those who are growing the poppy, and so forth, and so forth and that is all very viable. cleaning the canal structure and that is something that usa ided put into afghanistan decades ago. region's central helmand valley is so fertile is because of a usaid project was useless successful. and they remember the americans for that. all of that is founded on security, to be sure. beyond that, there were some news stories honor present way that afghanistan is not without natural blessings in a whole host of ways, an upstart -- including extraordinary mineral resources. extensive resources when it

comes to lithium, iron ore, coal, 10, it has precious gems and so forth, but this all has to be -- you have to extracted to me that at the extraction industries and the line of communication and security. you also have a government structures in which that can function. there has to be a legal framework that provide sufficient incentives. but it is my hope in all seriousness that we could see what is called adventuress venture capitalist enter afghanistan who could see -- help the government take advantage of these extraordinary mineral blessings that they have. >> thanks, very much, general, and thank your commitment. >> thank you. >> thank you, senator jim was.

senator ben nelson, and then senator graham will follow center in nelson, and then we will take a 10-minute break. >> thank you and your wife in your family for your continuing assistance to our country. we appreciate it, and the country is in your debt for taking on this assignment. i would like to start off with a couple of questions that i had a couple of weeks ago about the afghan population and whether or not they believe that the country is going in the right direction with the nato and u.s. forces there directing it. one said that 59% of the afghan people were of that opinion. much has been made about the july 2011 withdrawal. is there a way that we can --

particularly with your leadership -- assure the afghan people that this is not a cut and run deadline or drop dead date for decision? that may impact what furtter exact sense -- acceptance of the effort on their behalf. >> we absolutely can, senators john. i have sought to do that with my encounters with the afghan government, and also with are pakistani partners with whom we work very hard to forge a good partnership. they've done such impressive counterinsurgency operations at high cost to themselves on their side of the durand line. and as you note, and the secretary did point out the number of balls that paradoxically seemed to show that although levels of violence have gone up, they have greater hope for the future in greater

optimism. that is something that we want to play on and to show them that their hopes are well-founded by our actions together with our afghan partners. >> there is some concern that many will withhold their support may be because they're concerned about the taliban coming back to chop their heads off, as you indicated, if they collaborated with us. if we could, by chilling our commitment, help them overcome that? >> i think it would be a mistake for them to hedge their bets forever. that is what we want to demonstrate by our operations on the ground, by our development of afghan national security fooces it in takeover these tasks and showed that that is not just possible but will happen. %%d also to demonstrate to the

taliban that they should not consider what they are doing either. they're not only incentives for reintegration but enormous penalties for not reintegration. >> with the potential withdrawal of some of the nato forces, will that be a bump in the road in terms of that perception, or will that be something that simply emboldens the taliban? >> i will not say that it would embolden them. it will perhaps give them a little cause for optimism. what we have to do is compensate. whenever there is a ship or a reduction, obviously you have to redo your battlefield geometry. and we have done that already to compensate for the expected departure of one nations forces.

and we will do that as we have to. and we are also accommodating the additional forces that are coming from georgia, and also from some of the country's in the central command region, and others around the world. >> in that regard, as is satisfy the government that we're there to stay and work toward building the confidence of the afghan people, will the rules of engagement, bayh clearly stating them as you have, also tell the taliban that it will be gained, set, match one of these days in terms of their future? >> what impresses the taliban has not the rules of engagement. it is the price -- the precise target operations that are

designed to to give them no rest. if you can get your piece into the jugular of the enemy, you do not let go. relentless is an important word to describe the campaign against the taliban, just as it also describes other efforts. they also have to be relentless and our commitment to help the afghan government provide a better future for their people. >> we talked a few weeks ago about the benchmarks and metrics of our success. in that regard, what should we expect between now and december just as a date employed of time? >> we will be looking at will be the security situation in districts, and in some cases, even sub-districts, because you have a fairly granular look at this.

then you can look at levels of violence within districts, for example, because that is what matters. it had been able to move the violence out of -- if you have been able to move the violence out of marja, that is important because it protect the population, allows markets to resume, schools to reopen and so that is important. then of course, the chairman focused on the afghan security forces and these different efforts and different locations. not just numbers, what level of contribution capability, quality, and so forth as well. and then you get into the areas of the establishment of local governance, of local services, and of that whole process of pointing to a better, brighter future for the people of that particular area. i think you have to do a very

granular fashion to understand what is going on. and also to confirm that their approach -- that the approach does do what we are trying to achieve. >> is it fair to say that strengthening the local government will have a positive impact on the central government of president karzai? >> it is, certainly, as long as that local government is distinguished by two important qualities. include city -- inclusivity and transparency, so everyone has a sense of what is going on, and where the money is going. that is a very important as well. judith is that why you say it is hard and it is hard all the time? >> that and many other reasons, senator. >> thank you and we're all depending on you.

>> thank you, senator nelson. senator graham. >> general petreaus, i cannot tell you how much it means to all of us that you are willing to do this and it is very important as general mcchrystal is resigning from the economy. i think about everyone here who is met him has nothing but great respect, and the incident that led to this was very unfortunate and should not be the end of his evaluation in terms of being an army officer. he was a terrific army officer and i want to let everyone know that mostly everyone he met believe that. i do not know how this translates, but it does not translate well for me in english. i would not use the word resentment with regard to the policy we are in working on.

but from what i can tell you, here's the summary of your testimony from my point of view. it does not appear they're going to be any civilian changes in terms of the team in afghanistan. >> that is beyond my purview. >> from what i can tell, there doesn't seem to be pared from your testimony, we will begin to withdraw from afghanistan. is that correct? >> what i have done is restate the policy as it currently exists, senator, and the policy i supported and agreed to back last fall, to begin a process in july 2011 under which tasks are transferred to afghan security forces and government officials, and de "responsible drawdown" of the surge of

forces to be confirmed and i -- to be determined by conditions. >> the vice president said that in july, we're going to begin in a lark -- began to leave in large numbers, you can bet on it. is that correct? >> is that an accurate statement? let me ask my question. is his statement, if accurate -- does that make sense in which you think the policy should be? the vice-president of the united states has been quoted in a book widely published in the united states that come july 2011, we're going to be leaving in large number, you can bet on it. is he right? >> let me stay something that he said that i can share with you and others. in the national security council

meeting that followed the meeting that i had with the president in the oval office, in which the president laid out what the future was going to be and described his expectations, the vice president grabbed me and said, you should know that i am 100% supportive of this policy, and i said, i am reassured to hear that and can i share that with others? and beyond that, i am hosting by president biden for dinner tonight, and we have another opportunity to continue that conversation. the third and final point is that secretary gates has said that he never heard by president biden say that remark either. for what it is worth. >> he is saying one thing to one person allegedly and another thing to you, and they do not reconcile themselves, and that is exactly my point.

it depends on who you seem to be talking to. a lot of little people in this country are being told directly and indirectly we are getting out in july 2011. how fast i do not know what -- but we're beginning to leave. and some people are beginning to doubt what the hell we are going to do if we do not stay in the fight. this is all about your problems, this is a political problem because i am assuming that july deadline did not come from you. you said it did not. you agreed to it, but someone other than you came map -- came up with they get out of afghanistan deadline. i think it is all politics and that is just me. the speaker of house said, i don't know how many votes they -- there are four that appeared we will see what the shape -- we

will see what the shape of it is the day of the vote. a democratic member from the council on foreign relations said that it is imperative to provide congress and the american people with a clear commitment and plan to withdraw -- u.s. forces from afghanistan. this should include not only the initiation of withdraw but a date for the completion and a strategy to achieve it. you are advising congress now. we fund the war. what would you say to that recommendation that war funding have a condition placed upon and that no funds can be expanded until you delivered to us, the congress, a withdrawal strategy? >> what i have stated here this morning is again first of all the importance -- >> what it was a fuss -- would

be wise of us to put such a condition on war funding? would undermine the mission? >> let's think about it from the enemies perspective and from the perspective of our friends. as i sought to do in my opening statement this morning, they should be assured that with respect to one, we're going to pursue them relentlessly, and we're doing that and make no mistake about it, you will see it once again. and we look forward having you as part of the forces. >> my time is up. you got a chance to advise the congress. should we put a link on war funding that would say you have to submit a plan for withdrawal by the beginning next year? does that undercut our mission or not? >> it would be contrary to the whole policy which we talked

about, condition-based. i think that is enough of an answer. >> thank you. >> thank you, senator gramm. we will take a 10-minute break. you guys wanna grab all that stuff? [unintelligible]

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>> following the senate's confirmation vote, 99-0, general petraeus of 4 afghanistan. today, he took command of u.s. and nato forces and the general declared we are in this to win. meanwhile, appearing on separate sunday morning talk shows, republican senators john mccain and bob lindsey graham voiced opposition to president obama's plan, with prosody based on conditions on the ground. you can watch the entire confirmation hearing on line c- span.org. now, a conversation about a recent discovery concerning thomas jefferson and the declaration of independence.

>> we want to introduce you to an interesting story about the declaration of independence on this july for. of the headlines. tod today's philadelph"philadelphi." they title it "appearing acts." jefferson erased a word preservation scientists at the library of congress discovered that jefferson, even in the act of declaring independence from england had trouble breaking free from rule. in an early draft he wrote the word "subjects" when referring to the american people. he then replaced it with citizens, a term he used frequently in the final draft. the library released the new of the word for the first time this past friday. on the phone we have the librarian of congress james billington to join us to tell us

more about it. dr. billington, good morning. happy fourth. how did this come about? >> it came throug a new technology where we know there was a little blur behind the word citizen. we never knew what was underneath. and it was what jefferson originally wrote. but you have to realize we are talking about exceptionalism, bringing the 13 colonies widely dispersed together, they were never met as a group until 1754 in albany and they later declared their independence. that is astonishing, really. up until that time they generally referred to themselves as subjects of the king. they were unhappy with much that the king was doing and it was a remote power and top-down philosophy.

they got together, and after they had actually, the congress, called us an independent nation on july 2, between the 2nd and #ed they -- 4th they had the debate of how to explain it to the world and write a document like a declaration that would explain it. then the process by which it came into being, which was a deba debate, there are collections in jefferson's rough draft that you can see on your website and in creating the united states it was an amaze iing production. they discussed the history of europe, the history of classic alan particularity tkantiquity d he wrote it after we were independent on the 2nd. and you can look at this imaging and read what was underneath, what was smudged out before. and instead of subjects they were all independent colonies

subjecof the king. they were not citizens of something new. the term had been used before but it was the accepted thing and the reason in a sense for declaring independents. there were not any more top down. everybody was a citizen and they had freedoms and responsibilities. and later they had rights. all of those -- most of those founding documents are in the library of congress and preserved in the original. here you see jefferson's rough draft and you see the collections that were -- you see the corrections. adams and franklin wrote corrections and jefferson penciled them in and so we are discovering by breaking down light and taking photographs you can see what is underneath the pencilling and ink covers or in this case a word that was smudged out and carefully wrote "citizens" over it. you can see it there. it is relatively dark. you can see the sort of smudging

around it. there is speculation of what was underneath but we thought it was "patriots" or some other word but it was a servile word of being a subject and being replaced by being a citizenn you take successive digital photographs and you break up the light into the component parts and you can see what is underneath. you see he tried to follow to some extent right over the original words so that even though they had been smudged out, they wouldn't be discovered, it would be more difficult to see the word underneath. you can do this for all kinds of things. the capitol was called the same kind of image, the reflective image. that diagonal thing is breaking up the light

which we think, but it was the infrared ban. in digital photographs, so the brogna of life, what is called optical dispersing. that means they do not have to sample that. its we have got the korean, untouched original version. that is why we are preserving these original versions. using this new technology, which combines digital photography with the breaking up of light into its component parts. >> thanks for coming on this morning on the fourth of july and explaining all of this for us. >> one of the best quotes that i have heard is that it is like water that finds a hole. >> he writes about political

action committees, and he won the pulitzer prize for his reporting. tonight, we will talk with jeff smith, the national investigative correspondent for "the washington post" on c- "q&a." >> a memorial service was held for senator robert byrd, the longest serving member in u.s. history. it took place on the steps of the capital in west virginia. you can see the entire service on our web site on c-span.org. in this hour-long version, we will hear from former president bill clinton and vice president biden. ♪

it was built by jesus on high ground and when we get we we never fell down ♪ i have heard of of land on a faraway land. ♪

it was built by jesus ♪ [chorus sings] ♪

[chorus sings] ♪ >> when our work is done won that last one has been on

♪ and when all of our trials they end ♪ [chorus sings] >> we will never grow old in that land where we will never grow old [chors sings]

>> never grow old we will never grow old [chorus sings] >> we were never grow old ♪ [applause] >> that was beautiful. ladies and gentlemen, it is my pleasure to present >> that was beautiful. ladies and gentlemen, let me present the 42nd president of

united states, my good friend, bill clinton. [cheers and applause] >> thank you. thank you very much. governor, all of the members of mr.tor byrd's pimm family, president, mr. vice president, mr. speaker, all of the members who are here, senator reid, and thank you, senator rockefeller, and thank you, vicki kennedy. i would also like to thank all of the people here who at the time of his passing note ever worked for robert byrd who helped him to succeed.

i thank them. [applause] and i want to think the martin luther king male chorus. they gave us a needed break from all of these politicians talking up here. i want to say first that i come here to speak for two members of my family. hillary wanted to be here today, and she paid her respects to senator byrd as he lay in state in the united states senate. before making a trip on behalf of our country to the central asian and europe. i am grateful to bob byrd for many things, but one thing people have not given enough attention to today in my opinion is why i always wanted

to be the best senator and always wanted to be the longest serving senator, he wanted every other senator to be the best senator that he or she could be, and he helped carry a lot when she came to represent the people of new york. -- he helped hillary a lot. i am forever grateful for that. everyone else has been canonizing senator byrd, and i would like to humanize him a bit, because i think it makes him more interesting and makes his service all the more important. first of all, most people had to go all of the way to washington to become awed by and you might even say intimidated by robert byrd. not me, i have had advance experience before i got elected president. the first time i ever ran for office, at the opening of

campaign season in arkansas, just below the ouachita and ozark mountains, which once were connected to the appalachians, we had this big rally, and the year that i started, do not you know, robert byrd was the speaker. 1974, april. i will never forget it. it was a beautiful spring night, and he gave one of those stemwinding speeches, and then he got up, and he played the fiddle, and the crowd went crazy, and, you know, in 1974 in a place like arkansas, west virginia, playing the fiddle was whole lot better for your politics than playing the saxophone. [laughter] so i am completely intimidated, and then all of the candidates gave a speech. they are all limited to four to five minutes. some went over. all of the candidates for governor, every state officer,

and then the members of the representatives, there were five of us, we were dead last, and i drew the short straw. i was dead last among them. by the time i got up to speak, it had been so long since robert byrd spoke, he was hungry again. [laughter] and i realized, in my awed state, i could not do that well, so i decided the only chance i had to be remembered was to give the shortest speech. i spoke for 80 seconds, and i won the primary, and i owed it to robert byrd. [laughter] [applause] , when i was elected present, i knew that one of the things i needed to do before i took the oath of office was go to the senate and pay my respects to senator byrd. in 1974 when i met him he had already been the leading

authority on the institutional history of the senate and the senate rules for some years and he certainly was, by the time i was about to become president. so i did that. and i got a copy of his history of the senate, and his history of the roman senate. and i read them and i'm proud to say still on my bookshelfs in my office in harlem, in new york city today because i was so profoundly impressed. now, robert byrd was not without a sense o humor. for example, iiwas once ragging him about all the federal money he was hauling down to we virginia. and it was bad for me i'm

from arkansas. we weren't much better off than you. we weren't any better off than you. every friend i had in arkansas. he is just a senator. you're sitting in white house. weedon't get squat. what is matter with you. i was getting the living day lights beadedden out of me once a week. i said early in first term, senator, if you pave every single inch of west virginia, it is going to be much harder to mine coal. and he smiled and he said, the constitution does not prohibit humble servants from delivering they can to their constituents. [laughing] and, -- [applause] but let me say something serious. he knew people who were elected to represent states

and regions and political fa losses were flesh and blood people means they never would be perfect. he knew they were subject to passion and anger and when you make a decision that's important when you're mad there is about 80% chance you will make a mistake. and that's why he thought the rules and the institution and the constitution were so important and he put them everything. even what he wanted. . .

>> that is now called the byrdr. they know who is running for senate. go ahead and named the rule for him. i said, you know, you ought to suspend because the budget will be bankrupt if we don't quit spending so much money on hlth care and we can do. so we offer health care to everybody. you looked at me and said, that argument might have worked when you were a professor in law school. [laughter] >> but, you know, as well as do it is substantively wrong. he wouldn't do it. been in his defense, he turned right round and he worked his heart out to break that filibuster and he was trying to the very and not to get me to give up the fight, because he

thought if we just tried we could find se errant republican whoould make a mistake and vote with us. [laughter] >> he uld never give it up. the point i want to make hi, he made a decision against his own interest, his own conviction, and that's one reason i thank god that he could go in his wheelchair, and his most significant vote the end of his service in the senate and vote for health care reform and make it. [applause] >> now, i will say this. you want to get along with senator byrd and to having one of these constitutional differences, it was better for your long-term health if you lost the battle. [laughter] >> i won the battle over the line item veto. oh, he hated the line-item veto.

he hated the line-item veto with a passion that most people in west virginia reserve for blood feuds like the hatfields like the hatfields and mccoys. you would have thought the line-item veto had been killing members of the byrd family for 100 years. [laughter] >> it made his blood boil. you've never been lectured by anybody until bob byrd has lectured you, you're never known a lecturer. i regret that every new president and everyew member of congress will never have the experience of being dressed down by senator robert byrd. and i'll be dark if he was right about that. the supreme court will for him instead ofme on the line-item veto. [applause] >> the point i want to make here is a serious one. he did as good a job for you as

he could. as far as he was concerned, there was no such thing as too much for west virginia. but the one thing he would not do, even for you, is a violate his sense of what was required to maintain the integrity of the constitution and the integrit of the united states senate, so that america could go on when we were wrong as well as right. though we would never be dependent on always being right. [applause] >> let me just say, finally, it is commonplace to say that he was a self-made man, that he set an example of lifetime learning. is the first, and as far as i know maybe the only member of congress, to get a law degree while serving in the congress. but he did more learning than

that. and all you've got to do is look around this crowd today and listen to that music to rememb remember. there are a lot of people who wrote these eulogies for senator byrd in newspapers, and i read a bunch of them. they mentioned that he once had a fleeting association with a ku klux klan, what does that mean? i'll teel you what it means. he was a country boy from the hills and hollows from west virginia. he was trying to get elected. and maybe he did something he shouldn't have done come and he spent the rest of his life making it up. and that's what a good person does. [applause] >> there are no perfect people. there are certainly no perfect politicians. oso yeah, i'm glad he got a logically but by that time he already knew more than 99% of lawyers anyway. the degree he got in human nature and human wisdom, the

understanding that came to him by serving you, serving in the senate, that the people from the hills and haulers of west virginia in their patriotism, they provide a disproportionate number of soldiers who fought for our independence from england. [applause] >> than provide a disproportionate number of the soldiers in every single solitary conflict since that time whether they agreed or disagreed with the policy. [applause] >> the failyfeeling, the clan loyalty, the fanatic independence, the desire for a hand up, not a hand out, the willingness to fight when put into a corner, that is often not

the people from whom senator rd and i sprang in trouble. because we didn't keep learning and growing and undertanding that all the african-americans who have been left out, left down, and lived for going to church you live forcing their kids get a better deal, and have their children signed up for the military, they are just like e are. that all the irish catholics, scots irish used to fly, everybody, the italian immigrants, the people from latin america who have come to our shores, the people from all over the world. everyone who's ever been let down and left out and ignored and abuse, who has a terrible family story, we are all unlike. that is the real education robert byrd.com and he lived it every day of his life in the united states senate to make america a better, stronger place.

[applause] >> so, not long after, maybe right before senator byrd lost erma, i said in a fleeting world of instant food and attention deficit disorder, he had proved, and so had she, that some people really do love each other till death do them part. i've been thinking about that today, thinking maybe we ought to amend the marriage vows and say until death do us part, and until death do bring us back together. [applause] >> i admired senator byrd.

i like them. i was grateful to him. i loved our arguments, and i loved our common causes. but most of all, i loved it that he had the wisdom to believe that america was more important than any one individual, anyone president, anyone senator, that the rules, the institution, the system had to enable us to keep forming a more perfect union, through ups and downs in good times and bad. he has left us a precio gift. he fought a good fight. he kept the faith. he has finished his course, but not ours. if we really would honor him today, and every day, we must remember his lessons and live by them. thank you. [applause]

>> the next person that i have the honor to present is a man who has served with our beloved senator byrd 436 years in the senate, almost longer than any other senator. would you please join me in getting a west virginia welcome to the vice president of the united states, joe biden. [applause] >> bishop, reverend clergy, good moing, margaret, the entire byrd family. if you didn't already know it, it's pretty clear they incredible esteem your father was healthy. i know you have known that your

whole life. to my fellow members of the senate, you know, i was on the president when i got elected, the last time, a great honor of running with the president, i was elected vice president and united states senator the same day, my seventh term. and in talking to, and i got sworn in for the seventh term because we thought we might need a vote there in those first couple o weeks. and every time i sat with the leader, i never called senator byrd sender. i always called him later. when i sat with the leader, i could see that look in his face and he said, joe, are you sure you're making the right decision getting at the senator for vice president? [laughter] >> s. senator snowe, he revered the senate. going into the chamber when we're going to honor your

father, yesterday we walked in together, he said, you know, joe, if you state you would be number two. i'm still number two. [applause] >> i'm still umber two. ladies and gentlemen, mr. president, yesterday i had the opportunity to pay my respects to senator byrd as he lie in repose in the senate chamber. i met the family then, and again today. and the last time that happened was 50 years ago. the last time but that chamber i revere served asthe resting place for anyone was 50 years ago. but althoug i am icollege behind me reader the senate, robert c. byrd elevated the

senate. other great men and their families would have chon for them to lay in state in the rotunda, but bob byrd family chose to lay in state in the senate chamber. and to me, this is completey appropriate having served in their 36 plus years, for the senate chamber was robert c. rd's cathedral. e senate chamber was his cathedral, and west virginia was his heaven. [applause] >> and there's not a lot of hyperbole in that. every person in the snate, as my colleagues behind me can tell you, brings something special about them. i will never forget having privately criticized a senator when i was there the first year.

i was sitting with the previous leader, senator mansfield, an incredible guy, and he toldme that he said, why are you upset? and i told him about a particular senator railing against something i thought was very worthy, the americans disability act. and he went on to tell me that every member of the senate represented something in the eyes of their state that was special, and represented a piece of their state. well, if there was ever a senator who was the embodiment of his state, if there was ever a senator who in fact, reflected his state, it was robert c. byrd. the fact of the matter is, the pick of the banjo, the sweet

sound of the fiddle, dinners in the spring, country fairs in the summer, the beauty of the laurels and the mountains, the rush of the rapids through the valley, these things not only describe west virginia, but from an outsiders pointof view who has been there many times at the invitionf jennings randolph and robert c. byrd, it seems to me they defined a way of life. it's more than just a state. and robert c. byrd was the fairest, most ared defender of not ly the state but the way of life. i think themost fierce defender of the state has ever known in its history. you know, robert byrd did use the phrase when i die, will be

written on my heart. and i usually get them. has so many scots data, you n't recognize the guys name choice. when they use that phrase he never acknowledged that was james joyce's that when i die, it will be written in my heart. all he would do is laugh. the fact of the matter is, west virginia was not one but not his heart he worked on a street he took such pride in this place. he took such pride and off you. i remember he has been one of the few races he had come in was a race, becausei was a young guy and i came down and demonstrate to erybody that i could not keep up with robert c. byrd, which happened to be true. and i was, i think nick, you at the dinner, we had jefferson jackson day dinner, down here and robert c. byrd did something that never happened before at

all the dinners i've spoken it. he stood up and he said, we're honored o have senator joe biden from delaware here tonight, and, joe, i'd like to introduce you to west virginia. then he spent his neck all, remember, the next probably 10 minutes talking about everyone in the audience. by name, where they were from, what they had done, how they have thought through difficulty, and then he said, kind of like johnny, here's joe. well, i thought it was pretty impressive, literally. robert c. byrd asked me to speak, but he knew the privile was mine, not the people to whom i was speaking. he was devoted to all of you like to senators in the 37 years

i was there, 36 plus years i was there, that i have ever ever known. he w fiercely devoted, as you've all heard to his principles. even once he became poer, he always spoke to power. standing up for the people he proudly was part of, and you've heard it many times today, but it bears repeating again, for the constitution he revered. i always wear a flag pin, but i was afraid he would be looking down today because every time i would wear the flag pin on the floor, he would grab me, take my pen, and put on the constitution and. that's that then i'm wearing. so, boss, i'm wearing the pin. [applause]

>> robert c. byrd said many things, but he once said as long as there is a form in which questions can be asked by men and women who do not stand in awe of a chief executive, and one can speak as long as one seat will allow one to stand, the liberties of the american people will be secure. 11 presidents, new robert c. byrd. he served, as he pointed out, concurrently with them, not under them. [applause] >> and 11 presidents, with a author, and two are here, can attest to the fact that he always showed respect, but never difference. and he stood in all of none. he had an incredible prrodigious memory that i will not take the time to regale you about. i just never one time sitting with the queen of englaand at a formal dinner, and h recited

the entire, the entire lineage of the tutors, and every year each one had served. and she sat there, and i thought her bonnet was going to flip off her head. [laughter] >> she was like, what did i just hear? she learned about relatives you probably forgot she had. as also known, robert c. byrd was a parliamentary library, keeper of the institutn of the senate, and he was the institution himself. but to me, a many people here today like guys i see, bill bradley and jim sasser the lone left the senate for greener pastures, but and, i hope, better remuneration, we used to get about that, too, but i, for a lot of us he was a friend. he was a mentor and he was a

guide. nicanor talking a little earlier because, nick, i commute everyday for 36 years to the message said 250 miles a day. robert c. byrd was a stickler. about when he said those. an hour drive down from washington and i would callnick on this big old car phone i just had which was about that big, and i would say, nick, i can see the dom hold of the book that i can see the dome. finally, he caught on. center, how far away can you see the dome? can you hold a vote to more minutes for biden? as long as i was behaving, he held the vote. when i found myself in disagreement, i would stand there to catch a 7:00 train. he would set a vote for 7:00. and i would walk up to them and i need seven minutessfrom the chamber. and nick knows this, i would stand, i always do down in the well and he stood at the first riser, and i would say mr. leader, i note we have an

hour, i said you set the vote for seven. any possibility of setting it at 10 to seven signed a trade? he would go like this can look at the clock, look at me and say, no. [laughter] >> no. but that's because i misbehave once. i voted with george mitchell on a matter relating to minors. and that was a big mistake. [laughter] >> he literally took the roll call sheet, the sheets of the staff memos know, with every senator's name and how they voted. he took the roll call sheet, have it framed, had my name circled in red, and literally, literally had it screwed to the ornate doorframe in his office then as the chairman of the appropriations committee. so every single sender coming to see him would walk out and that

i hide they would seek biden circled in red, and no dogma they better not vote against robert c. byrd, ever. [applause] >> you think i'm jokg? i'm not joking. and then i got in hs good graces. i tried to run for president he said i do want any senators running for president. i said why, mr. leader he said because you never come back and thought when i need you. so i made a promise that no matter where i was when he called me and said he needed my vote, i would drop whatever i was doing and would come. and i kept the commitment, the only one, i might add. that got me back in his good graces again. the point is, that this is a man who knew exactly what he was doing. after i was elected in 1970 as a twin nine year old kid, i was number 100 out of 100 in seniority. and leader byrd offered up, he

offered his office to me to come down from dlaware so i could have a place to interview the staff members. it was in his office, and the connection his secretary put through that i received a call telling me about an accident which took the life of my wife and my daughter. and when they were buried, we held a memorial service a couple of days later in delaware where thousands of peopl showed up. it was a bone chilling, "slate" day of ran. and people couldn't get to church. and i never knew it, initially, but robert c. byrd, and i think you may have driven him up, nick, drove up on his own with nick, to that church. he stood outside for the better

part of an hour in a driving rainstorm, where the temperature was below 32. when my brother saw him and asked him to come in, he said no. he wouldn't displace anyone. he stayed there for the entire service. when the service was over, he got in the vehicle and he drove back. never attempting to be noticed. never seeking, as mike casey's wife uses a, the real measure of generosity, would you do it if one ever knew you did it? well, robert c. byrd did that. i was appreciative of what he did, but i quite frankly didn't understand until a couple of years later. i was in his office, and behind his desk was a huge booth in bronze. it was michael's bo, his

grandson's boot. and all of a sudden it came so crystal clear to me who this guy was. i had known him, but i understood immediately what he was about. for him, it was all about family. it was notjust erma, his beloved wife of 69 years. and it was not just his daughters and his grachildren, great-grandchildren, all of whom are in our prayers today. it was an awful lot of yo i bet if he were here, he could look out and name, name you. and tell you what your father or mother did for him, what your grandmother or grandfather did for him. and how you made such and such of yourself. clearly, his own life, robert byrd suffered a lot of hardships. you all know the story, losing his mom, being raised and

adopted by an aunt and uncle, growing up in a home without electricity or water, having to work at every age. he had an incredible, incredible determination. one that i don't think any of my call legs have ever witnessed. but, you know, this man was, wasn't just that as president clinton pointed out, that at ae 47 as a sitting congressman, or 45, he went and got a lot of greek. i don't know if you know, you probably do, mr. president, he got a lot of grief without having a college degree. and at age 77, he went to marshall university and completed his work, getting his college degree. because, to him, in my view, and i don't know if family would tell you this -- [applause] >> in him i think he thought there was something wrong with the fact tt he got the law

degree without graduating. he didn't need that undergraduate degree. but it was bob byrd who quoted john stennis, plaut to the end of the row. remarkable thing about him is he traveled a hard path, he devoted his life though to making that path a little easier for those who followed. this is a guy who continue to taste and smell and feel the suffering of the people of his state. he tasted it. that's what it was so deeply ingrained in him. it wasn't just a moral obligation. this guy remembered, and he unapologetically wanted out, improve the money by stealing money that he could possibly get. remember, governor, the two campaigns. he was getting beat up two campaigns ago, have the fbi

moved out down to west virginia. and the national press was beating him up, and i was on the floor with him and he just got ripped in a press conference about that. and you know used to grab you by the arm, walk you back and say, joe, i hope they keep throwing me in the briar patch. [laughter] but i tell you what, you west t virginia's oh a lot of people in delaware for a lot of money. we should of got that you got. i just want you to know that. so be nice to the rest of us. [laughter] [applause] >> and by the way, if you doubt it, just drive here, crossed the robert c. byrd drive, the robert c. byrd library, clinic, robert c. federal building in charleston and on and on and on. but ladies and gentlemen, of course it's more than the name we're not going to forget. it's his courage. he died like event.

he died like he lived. he never stopped fighting. how many people would have hung on as long as he did? how many people would've had the ability to get back out of that hospitaled and get in a wheelchair and come in and vote, vote for this? he never stopped thinking. about s people and the things he cared about. speaking several weeks ago, this week actually, when senator byr said, quote, like jefferson and adams, i'm inspired to continue serving the land i love to the very best of my ailities, to the whole, for the whole of my ars. he served the land he loved. he served the people he loved. he served the people who were in his blood.

and because of that service, you have gained greatly. and with his loss, you are the first to feel that loss. but it's not just west virginia alone. it's all of us. i said to him, i said of him when i learned of his death, i was on an errand for president in cleveland, and i said, you know, paraphrase the poet, you shall not see his like again. had he been there he would have said, joe, that's shakespeare. hamlet act i, scene two. [laughter] >> and the actual quote is i shall not look upon his like again. mr. leader, wee not going to look upon your like again. i'm not even going to ask god to bless you because you're a has, and i know where you are. may god bless your family.

may god bless this state in this country, and may god protect our troops. thank you. [applause] >> it is truly an honorfor west virginia to host all these special dignitaries that came today, and i really, on behalf of these great people and this wonderful state, i want to thank each and every one of you. and it really just showsow many lives senator byrd has touched. over two months ago, the man i'm going to introduce to you honored us by coming in paying tribute to our fallen miners. at upper brig branch, and we appreciate that so much in honoring them and honoring their families and all the people who work so hard to make this

country what it is calm and keep it strong and free. ladies and gentlemen, it is truly my honor now to present to you the president of the united states. [cheers and applause] >> thk you. mona and marjorie, and to senator byrd's entire family, including those are adorable great granddaughters that i had a chance to meet, michle and i offer you our deepest

sympathies. to senator byrd's friends, including the speaker of the house, the majority leader, the republican leader, president clinton, vice president biden, vicki kennedy, nick rahall and all the previous speakers, senator rckefeller for the outstanding work that you've done for the state of west virginia, to his larger family, the people of west virginia, i want you all to know that all of america shares your loss. but maybe all find comfort in a verse, a scripture that reminds me of our dear friend. the time of my departure has come, i have fought the good fight, i think in the race, i

kept the faith. it's interesting that you've heard that passage from several speakers now. because it embodies somebody who knew how to run a good and long race. and somebody who knew how to keep the faith. with his state, his family, his country and his constitution. years from now when i think of the men we have memorialized today, i will remember him as he wawhen i came to know him. his white hair full, like a main, his gait steadied with a cane. determined to make the most of every last breath, the

distinguished gentleman from west virnia could be found at his desk and to the very end up doing the peoples business. delivering soul stirring speeches, a hint of the appalachians in his voice, stabbing the air with his finger, fiery as ever. use in the 10th decade, he was a senate icon, he was a party leader, he was an elder statesman. and he was my friend. that's how i will remember him. today, we remember the path he climbed to such extraordinary peaks. rn cornelius calvin junior, corning, he joked for short, his mother lost her life and the great influenza pandemic of 18.

and from beyond an aunt and uncle who raised him, and west virginia's coal camps, he gained not only the byrd may but a reverence for god almighty, a love of learning, that was nurtured in mark twain's school. and there he met erma, his sweetheart for over 70 years, by whose side he will now rest for eternity. unable to afford college, he did what he could to get by, finding work as a gas station attendant, a producer husband, and meat cutter, and a world in the shipyards of baltimore and tampa during world war ii. returning home to west virginia after the war, he ran for the state house of delegates, using his fiddle case as a briefcase. better to stand out on the

stump. before long he ran for congress, serving in the house before jumping over to the senate where he was elected nine times, held almost every leadership role imaginable, and proved capable of slaying others, as standing alone. marking a role of milestones along the way. longest-serving member of congress, for nearly 19,000 votes cast. not a single loss at the polls. a record that speaks to the bond that he had with you, the people of his state. transplant to washington, his heart remained here in west virginia. in the place that shaped him with the people that he loved. his heart belongs to you. making life better here was his only agenda. giving you hope, he said, was

his greatest achievement. hope in the form of a new jobs and industries. hope in the form of black lung benefits and union protection. hope through roads and research centers, schools, scholarships, health clinics, and industrial parks that bear his name. his early rival and late friend, ted kennedy, used to joke about campaigning in west virginia, when his bus broke down, said he got a hold of the highway patrol who asked where he was. he said i want robert byrd highway. [laughter] >> the dispatcher said, which one? [laughter] >> it's a life that immeasurably improve the lives of west virginia and.

of course, roert byrd was a deeply religious man. a christian. and so he understood that our lives are marked by sins as well as virtues, failures as well as successes, weakness as well as strength. we know there are things he said, things he did that he came to regret. i remember talking about that first time i visited with him. he said there are things i regretted in my youth. you may know that. and i said, none of us are absent some regrets, senator. that's why we enjoy seeking the grace of god.

and as i reflect on the full sweep of his 92 years, it seems to me that his life been towards justice, like the constitution he tucked in his pocket like our nation itself, robert byrd possessed that quintessential american quality, and that is a capacity to change. a capacity to learn. a capacity to listen. a capacity to be made more perfect. over his nearly six decades in our capital, he became too seen as the very embodiment of the senate. the history and the four farms he gave to me, just as he gave president clinton.

i, too, read it. i was care he was going to quiz me. [laughter] >> but as i soon discovered, his passion for the senate passed, his mastery of even its most arcane procedures, it wasn't an obsession with the trivial or the obscure. it reflected a profoundly noble impulse, a recognition of a basic truth about this country that we are not a nation of men. we are a nation of laws. our way of life rests on our democratic institutions. precisely because we are fallible, that falls to each of us to safeguard these institutions. even when it's inconvenient, and pass on our republic, more

perfect than before. considering the vast learning of this self-taught senator, his speeches sprinkled with the likes of cicero and shakespeare and jefferson, it seems fitting to close with one of his favorite passages in the literature, a passage from moby dick. there is a catskill eagle in some souls, that can block down to the gorges and soar out of them again and become visible in the sunny space. and even if he forever flies within the gorge, that gorge is in the mountains. so that even in hi lowest swoop, the mountain eagle is still higher than any other byrd on the plane. even though they soared. robert byrd was a mountain

eagle. and his lowest swoop is still higher than the other birds on the plane. may god bless robert c. byrd. may he be welcomed kind by the rights under righteous judge and may his spirit scored like a catskill eagle high above the heavens. thank you so much. [applause] >> he will be buried at the columbia gardens cemetery next to his wife. >> one of the best quotes is that it is water going through a

whole. >> he writes about political action committees and won the pulitzer prize for his reporting on jack abramoff and tom delay. tonight, we will talk with jeff smith with "the washington post" unc-span's "q&a." [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> members raise concerns of the impact on jobs and the economy on prime minister's questions. "prime minister's questions," >> senator jeff bingaman, democrat from the mexico and chairman of the energy and national resources committee, thank you for being our guest this week. joining us for questions is stephen powers from the "wall street journal"