as i tried to lay out briefly, i appreciate the chance to expand upon it today, our first objective are the 211 graves that have been identified with map discrepancies. we are currently working through those, as i mentioned. i believe earlier we have resolved 27 of those. those will continue, and they have to this point been errors of mis-marking on the socalled master map. .

and where, for example, the map shows the graves, and there is no record or headstone, will we have done is unearthed them, and we have found that, indeed, the mac is in error, and those grades will be reclaimed and used for appropriate purposes for a fallen hero sometime in the future. i think clearly those who have lost loved ones in recent years are more concerned and aware of this. but at the end of the day, i should tell you that it is our intent upon implementation of a truly viable computer and i.t. system to run matches on all

330,000 of those grades, and where we find so would discrepancies to begin a process of validating or finding out what the issues are with each one of those discrepancies. as for reaching out to the loved ones, on the first day, the first day of the announcement, when i released the inspector general's report, we established a call center. we announced the number for that call center, and as of the last count i have available, we have had 867 calls into that center. of those, we have resolved 169 of those cases, and as we go forward, we are contacting each and every one of those persons who called and expressed concern to update them, and we will continue to do that until we work through the entire list.

we are not at this time calling people who have not expressed concern to we validate that, indeed, they do not have an issue. so the vast majority of family members, boat they feel, our conjecture is that they feel confident, but where we do have expressions of concern, we work with those people directly, and we will continue to do that until we have answered every concern boat and everyone's questions. >> my time is up, but much of the question was going to be, as soon as you finish with this, you do not think that the other cemeteries we have had any such problems like we encountered here at arlington? >> i cannot possibly know that. i can tell you that the cemeteries are operated by and large by the veterans administration note, the

monument commission. i can guarantee you they will take lessons learned from our experiences and apply them also. the chairman of the battle monuments commission, former senator max cleveland, has agreed to support us, as i mentioned in my opening statement in constructing an advisor korea and oversight committee, so he will be part of our process, and be in the great leader that he is, i know he will take our experiences and utilize them to whatever is necessary within their purview. >> i think the gentleman. the gentleman from texas, please. >> thank you. i do not really have many questions. one, i have great confidence in the achievement, " the secretary, and you will see this through to the end, and i look forward to working with you on how we get that done. if you have to disinter someone,

are the remains, the indication with the remains that will be able to be used, or will be used dna? what do you anticipate? >> i think the short answer is yes to all of those. each casket is, in theory tag on the outside. you should be able to identify if there are also for rented oriented ways to identify an era or a period, family members. we had one instance where they had contemplated disinter meant because they felt they had a very unique casket, and they would be able to identify based on the parents of the casket alone. we ultimately resolved the issue without going to that extent, but that would certainly be part of it, and if we are so authorized, and if it is necessary, we have not ruled out the possibility of actually opening caskets. although the composition is an

issue, they usually are identifiable, articles of a particular loved one in a casket, and should it become necessary for dna, assuming the proper authorizations are both key it and requested, that would be something we would contemplate, but we consider that a very extreme measure. >> certainly, that is a last resort. you said authorized. are there barriers you need relief from in order to make that, assuming the worst case, that you had to go to the very end of that process? is there something we would need to do to anticipate that? >> i do not think we need any additional legal authority. the legal authority is clear, but it requires, as well it should, that the designated next of kin person to the paper work at each soldier submits as part of their service in the military to request the it to validate it

up to a legal sufficiency. >> ok. one minor issue. two weeks ago, i think there was a brief television expose that had at least the granite headstone material was discarded into a creek. have you all been able to resolve what that was? >> to a certain degree. apparently, prior to, i believe, 1994, it was accepted practice, not just in army cemeteries and and other government run cemeteries to used damaged excess gravestones for building material boat, and the case that you mentioned, it was for bank and stream stability. >> these are not discarded headstands. this is just material that is suitable for headstones. >> there were headstones that were on graves that were discarded as a success, just as

an example. a soldier buried, his wife may pass at a later time. you bury the wife with the soldier. you need the prior headstone. it becomes a success, and those were used. our policy has changed, as i mentioned, since 1994. they are now broken up and ground up and properly disposed of, but it was a widespread practice. i am not sure how they justify that. it seems rather distasteful for me, but as far as we know, there was no intent or i think inappropriate use. >> again, mr. secretary, we appreciate it, and we have great confidence in your work. >> think you, the chair yields to the doctor. >> f.a.q, mr. chairman. think you, gentlemen, for being here -- thank you, mr. chairman. thank you, gentlemen, for being here.

we had this marked for official use only, and the cover letter was also marked "for official use only, so why did you not share with us the results of that investigation? >> yes, sir. sir, unfortunately, i cannot share much. we received the same report. late last night after work hours. i glanced at it this morning. the results, the bottom line found that the complainant was not apprised against, although she met the whistle-blower standards for an investigation. it was spam that she was not apprised against in her

employment. other than discussing it in terms of how long it would take them to complete their investigation, unfortunately, that is it. >> i think we are now in a position -- i consider that incomplete information and, perhaps, unfair to her. is it inappropriate for me to read a portion from the cover letter? it is marked "for official use only at the bottom. or should i phrase it another way? has there been any instructions to arlington national cemetery to provide an appropriate remedy for her? >> no, sir, not that i am aware of. she has ongoing litigation with the department of the army. >> let me do it another way. i have got to minutes 59 seconds. i will let some to bring this letter down to you, and you can paraphrase it given the

restrictions that i am under. may i do that? and while he is doing that, mr. secretary, i wanted to ask, there was an earlier hearing on the minerals management issue, another committee. as a legislative body, you have been there, too. we focus on incidents after we are very dissatisfied about what goes on. what role -- is easy for us to say the army did not do this, recognizing that the army has much greater turnover than those in this committee. what role do we have in this? where did we drop the ball in terms of missing these red flags? >> i do not want to characterize this committee as having dropped the ball. these problems were committed under the watch of the army, an army responsibility.

i would say, as we go forward, at such time as we have an opportunity to identify issues and to restructure ourselves, it would be very helpful to have this committee as part of its oversight processes, presumably at the subcommittee level, to have this at a periodic time of your choosing to do the oversight hearings that this committee does so effectively and 70 other operations of the military at large. the problem i think that existed here is that of all of the importance that the army places on this, arlington national cemetery was somewhat of a satellite, spinning off by itself. i ascribe part of that challenge or part of that reality coming out of the general orders 13, but it goes deeper than that. the army has direct reporting

unit. we have field agencies that, because of the nature of their structure operates somewhat independently. that has to be a part of this process and how we find ourselves where we did. the inspector general from this point forward to do buy annual inspections -- to buy yen deal inspections. -- to do buy annual inspections -- biannual inspections. i would view this as a very helpful step. >> general, do you have any other comments to make? >> i cannot talk about the dod. there is still ongoing litigation. it would be inappropriate for us to, on that " with the united states army. i started i cannot be more open.

>> you already made, that may not be a full picture of what occurred, but thinking. >> thank you. >> i want to thank both witnesses for the response that is of these refocused and sincere in terms of trying to remedy this situation. mr. secretary, you describe the process is, if there are calls that come into the 1800 number, families get attention, and there is going to be, i guess, an effort to work with them, and also, there is a chronological process. how does that work? if a family member calls in with a concern, it does that get moved up to the top of the list? >> we have a new system here. yes, sir. we're trying to get priority in two places. by and large, these are not identified or known to the public, so, obviously, with

these 900 calls, we have more expressions of direct concern from citizens, individuals, responding to those with urgency. >> and so, the calls are generally concerned that maybe one of their loved ones " was one of those 211? >> usually the basis for that, and i hate to broad brush it, because obviously every family member has his or her unique concerns, but generally, it is because they are aware that one of their loved ones is intered. it is not exclusively that case, but understandably, the majority of those are, so as we saw one problem -- solve one problem, there is it likely that the we are solving others, as well. it is not one per se. >> i think one of the materials here, this is a vietnam era area

of the cemetery where the problems were identified. is that correct? >> i defer to the inspector general. >> sir, we do not have exclusive areas where we locate the remains. most areas unless there are closed out for further burials, there is a general time frame, but there is not a vietnam area, not specific sections, but i do believe one of the grave site in questions was from vietnam. >> things. that is helpful in terms of any calls we made it. if i may, you do have section 60, which is by and large iraq, afghanistan, not exclusively but almost overwhelmingly. mr. skelton mentioned at the outset that testimony had been funded by the reserve officers association regarding a question of parity, having access to the cemetery. have you had a chance to review

or are you aware of that issue they are raising? >> i am not aware of the report. until the chairman has asked for its inclusion in the record. i can tell you generically, we would simply not want to tolerate any discrepancy in treatment between a reservist to fell. they are both equal heroes and served equally, but if the committee would share those concerns with us, we would consider them. >> your staff, i am sure, will that access to the testimony, but any written response you can give to the committee about trying to, again, eliminate any discrepancy i think would be something a lot of us would be very interested in in hearing. >> we will take a look at it. >> mr. secretary, i yield back. >> thank you, mr. chairman, and

thank you so much for joining us today. i want to begin by talking a a little about what has been identified for almost a 20-year period of being a dysfunctional civilian command structure there at arlington national cemetery, and i guess the question is this. knowing that there has been this dysfunction there, boat why did that continue? why was there continued, i guess, lack of response by the army or a lack of effort to try to fix that distinction there with the civilian command? is it something that the army control structure was not set up to be able to do or to identify or be able to respond to that? can you give us some idea about how the was about to continue to continue with that dysfunctional organizational structure, to continue? >> i wish i had all the answers to that, congressman. a lot of this is conjecture. we're talking that back in 1997,

1992, so well over one decade, and a lot of the people who were directly involved are gone. i will say this. there is no excuse why it happened. it was unacceptable then as much as it is now, and part of the way forward for us is to try to restructure this organization so it does not occur again, and i have taken, i think, an important step in doing that in rescinding the general order 13. as i mentioned earlier in my comments, i think there was real confusion among the various agencies that, be it cw or military district in washington as to who had exact oversight authority. well intended, but in my judgment, not a well written general order. i think it is important to note, though, that there were at least some attempt to address this issue. obviously, not effectively

enough, but i would defer to the inspector general to kind of walking through what was taken, at least as we have been able to discover, again, not to justify any of this but to fill out the picture. " >> it congressman, you are exactly right. what was identified in 1992 was a complete by an employee that talk about the command and management style at arlington. in 1997, when the military district of washington inspector general was directed by the commanding general boat, this was to deal with an organizational command climate assessment. this was for the run covered. the leader has several options once they discover a dysfunctional unit. you can counselee individuals. you can discipline them, and you can ultimately relieve them if it is serious enough. there is evidence that the commanding general, in the

general 1992 time frame, a different general officer, the superintendent and the deputy superintendent, there is also evidence that after 1997, the inspection and incessant, a new did the same thing, counsel them. i do not know what the results were. there is no indication of complaints or request for assistance. in the period from 1997 until the current time, there were complaints from employees requesting assistance due to the command climate. that started to surface in the 2009 directly to us. there was also in 1998 preview of the 1997 assessment it done

again by the military district of washington inspector general, and they went back in and look at the areas that were covered in the 1996, 1997 time frame, and they gave an assessment, so there was some action. >> ok. >> apparently not the right action. >> ok. one additional question. are there remains on the gravesides that do not have had stunt? and if there are, have we identified those remains, and if we have identified those remains, what are we doing to honor those deceased. >> the short answer is we have found no remains. the 117 were map discrepancies as described in the inspector general's report. we investigated 27 of those thus far, and in each one of those 27 cases, we found that the maps

were appropriately, marked as having remains when our analysis, including digging into those sites revealed that there were not. that does not ensure that we will not encounter circumstances you're concerned about, rightfully, in the future, but at this point, we have not had to do that. should we, obviously, we're going to have to take a number of steps, presumably if the outside tagging is appropriate. we would contact the next of kin and make arrangements for the appropriate and an honored korea interment in concert with their wishes, of course, but we have not had to deal with that as yet. >> i think the gentleman. >> thank you, mr. chairman. f.a.q for being here today. we appreciate your service. obviously. i have to begin by saying that i was disappointed when i read in

the washington post that those headstone's from arlington were found in a river bed on the cemetery grounds as well as patuxent research refuge, and when i saw the photographs that accompanied the washington post photograph, i guess i was particularly upset that there was a name on one of these headstands, and it happened deep throat a world war i veteran from iowa. that particular get home, obviously, and it hit me hard, and i was quite dismayed, and, again, there does not seem to be an explanation for how that headstone came to be there. i guess that is even more upsetting, and i know, mr. secretary, you try to answer to some extent the question about the current status of the headstones that were found there, so what the policy is with respect to headstones that

are replaced or whatever the case may be, could you a limit -- and elaborate more on that? i know there was a question when the congressman brought that issue up. what happens to those headstone's? >> just so i in clear, congressman. >> what is the normal procedure for the headstones in place now? >> when replace a headstone, and it has been this way from 1994, and to this point, we are not aware of any divergence from that policy, but what happens now is the replaced headstone is broken into and ground so that in the case that you cited, when there are considerable markings, there are no longer discernible, and they are disposed of. they are not utilized. they are disposed of in an appropriate manner. >> we do not know why these headstone's ended up where they are? we do not know that at this point? >> it seems obvious that this

was an accepted practice, as i mentioned, threat all government agencies or through many government agencies, and, indeed, senator operations in countered excess headstones. as they said the congressman, i cannot justify that. it was a currently acceptable policy. i find it hard to tell anyone picked to develop that as an accident policy. i find it rather abhorrent, but it was accepted policy, so what we are encountering is that these headstones were used in a variety of ways as building materials. it is distasteful. we do not do it any longer, and we are making every step, most importantly, to extract those headstone's from the stream. we have a way forward with the department of interior. in fact, i have a meeting coming up, i believe it is today,

actually, to talk about the appropriate environmental way forward. these are in streams and stream beds, and you do not want to cause environmental catastrophe or environmental challenge. they do in part hold up the stream bed, which validates the integrity of the cemetery land, so we want to make sure that from an engineering and environmental perspective, we are going ahead. according to current policy, we will grind them up and dispose of them in a more respectful way. >> two more points, and i think both of you can agree with this. it has been quite some time, and we have been successful in this country of bringing america around to appreciate our soldiers or airmen or sailors. after vietnam cut vietnam was a low point, as everyone in this

room knows, of the american public look at our military and to some extent our troops, as well and did not we appreciate them very much, i think as a result of vietnam, and korea been making a long, slow comeback i think on that front since that time, and i am very concerned, obviously, that what we have seen happen with these headstones, it is a real problem, obviously. it does not reflect well i think, and i think a lot of the american people are going to have a lot of concerns about this, and they already do, and the forward to working for a with you with how we can do that, providing whatever resources we need to provide as well to make sure that this does not happen again, and one final comment about the guard and reserve. please do with this report from the reserve officers association. we have 2900 national guard members you're going to be

deployed to afghanistan, and i think it is important that we do not tolerate any distinction between what happens with folks who have served active duty versus those who have been part of the guard, so i appreciate your taking a look at that, and a look forward to working with you on that front, as well. >> we will certainly look at that, congressman, and we appreciate your help. again, there is no justification for what happened. >> and my son is among those islands. -- iowans. i yield back. >> big you, mr. chairman, in general, mr. secretary, thank you for being here today, and those above, secretary, we regret that you are in the role that you are in on these issues, but we have faith, and i know that i have faith in you and that you want the best for our military.

as all americans, arlington national cemetery is a national shrine with the highest honors possible for our veterans under professional care on sacred ground. as a veteran myself and also with immediate family members, an army captain, a marine, a colonel who is a former staff member of mine who is buried at arlington, it is personal to me. all of us as americans expect the highest standards and compassion for our veterans and military families. with that said, mr. secretary, and you have addressed this, but it is so important it needs to be restated. the army inspector gen report suggests significant discrepancies at, even improprieties, and you have indicated that there will be a criminal investigation division -- investigation.

what will be done? >> well, the cid will use, and to the extent that they are available, and it is very early, as you noted, in the process, they are using those materials developed through the contracts, acquisition and logistics, contacting and procurement, office, they are the lead on a contract review that i have ordered. and is being supported by the but aaa of the army auditing agency. those materials, after they tried to develop those, they will be shared with cig along with all of the reports to try to make determinations if there is sufficient evidence to proceed in any way against anyone in a criminal manner. that is going to take some time,

because as was noted in the ig's report, there is a paucity of identifiable material in terms of what was spent and what was garnered for substantial millions of dollars spent their an army money in pursuit of not much gain. >> and i appreciate your looking into this, because it is beyond just incompetence. all of us, and i know you expect much more. >> the congressman brought it up, as well. as i did mention to the congressman, we are not just stopping at arlington. we want to make sure that the direct reporting unit and field agencies are subject to oversight. i have ordered the aig to do that. i know his people and he will comply, but we have to take lessons learned, and where we find deficiencies in our contract oversight process, we

will apply it across the army, as well. >> and the veteran the administration runs 130 national cemeteries. and the district i represent the beaufort national cemetery, the jackson national cemetery that was promoted by my predecessor, the late chairman floyd spence. the cemeteries have not had such problems as the been uncovered at arlington. do you see any benefit in bringing arlington national cemetery under the veterans of administration? >> well, as i responded to the chairman in one of his opening questions, " i have the highest regard for the secretary. he has been enormously supportive in the army efforts to try to rectify this situation, as you noted. they are on a very substantial network of cemeteries, and i know they do a fine job, as well

korea i also mentioned there are other agencies also, the department of interior and others. they serve as memorials. they service acted cemeteries to a certain degree. i think all of the agencies that run cemeteries have their particular challenges. there are reports as to certain deficiencies in these other agency operations. i think at the end of the day, unfair at best, it burdens some of the agencies with the army challenge. i mention as well, for 146 years, the army has been a major part in making this the most special place on the face of the earth in terms of honoring fallen heroes. we view it as our responsibility. the military use it as our responsibility to care for those fallen heroes, particularly in a time of war, to give them a final resting place, and we're going to regain that legacy that has been built for 1.5

centuries, and i will tell you, as i mentioned to the chairman, as a former 17-year member of this committee, i do think with all respect to other committees, it is important for this committee to keep jurisdiction over oversight and the final resting place of these fallen heroes, but when congress decides, we will buy, and we're going full speed ahead. >> thank you. before i call on mister johnson, let me make an inquiry of the general. now, general, you submitted in the inspector general report, am i correct? >> that is correct, chairman. >> when do submit that? >> chairman, we had reports and an investigation, two separate reports. i had two divisions that had both of those functions. >> approximately what dates? >> investigation was submitted to the secretary on 8 june boat,

and the inspection was submitted was not submitted to him. we were to from when it was completed to the first part of the year, april or may or so. >> now, as i understand it, there is another report, a department of defense inspector general report. am i correct? >> sir, on the general report, the one that i am aware of and the one that the congressman mentioned, which is the whistle- blower complaint line. this is at arlington national cemetery. it was opened in october 2000 age. that was recommended to dod, the department of defense, and we received the final results of it a week last night. >> will the gentleman from arkansas wish to inquire? >> you have piqued my interest. i sent a letter of inquiry

several months ago. mr. skelton got less but or yesterday afternoon. as chairman of the committee, and yet, when i asked about it, you had said you did not have time to read it, and understand the business of lies. on the other hand, you're attending a full committee hearing on these terrible things we do not like at arlington national cemetery, in your the inspector general of the army. you received an inspector general report from the department of defense involving a whistle-blower report. why could you not have found time to read this report and be prepared for questions about it? >> sir, i did read it. i told you i read it this morning. i got up. i read it. i have not had a chance to analyze the report that took almost 18 months for the department of defense inspector general to complete. i mean, that is the effect of it. >> but then you said you ventured a comment about it, which i thought was an

incomplete, about it, and then when i asked you to clarify, you said you could not talk about it begins to figure had not analyzed it. it seems to me, well, we are not adequately prepare to answer the committee's questions, but also, i appreciate clarification. >> thank you. mr. johnson. >> thank you, mr. chairman. i share the outrage that you expressed as well as feelings of great empathy for the families of our fallen soldiers who are buried at arlington national cemetery it as well as their loved ones, their spouses. that cemetery service as a memorial and a national monument to america's war heroes, so i look at the

situation very seriously. i do want to focus on boat the work force at arlington national cemetery and the investigative report spoke on fact that an unhealthy work environment exists and has existed at arlington national cemetery for some time. and what i wanted to know is how many complaints of racial discrimination have been made, lieutenant-general would come, to the appropriate authorities, arising from employment at the

arlington national cemetery it over the past, say, since 1990? >> i do not have the number. we looked at several issues, but what we did find is that there was an unhealthy work environment partly due to the leadership. there's the convoluted command and control but was talked about. there was the insular attitude by the superintendent to keep things at his level, the dysfunctional relationship between the superintendent and the deputy, but we did not find a hostile work environment that

would rise to the level but there are a number of these issues taking place on a regular basis. >> thank you. superintendent and deputy superintendent, were a of the same race? >> her, they were not -- sir, they were not. >> the superintendent was white, and the deputy superintendent was black. >> what was their inability to function as a cohesive supervisory unit? >> .sir, we did not determine that. it came out in 1992. the inability of these men to work together. it appears that they struck some kind of accommodation with a kept in separate lanes, although what we found an what contributed to the unhealthy working varmint was those lanes tend to overlap. you're talking about a small organization at arlington of about 95 employees, and so that

overlap caused that unhealthy working relationship and management at the cemetery. >> " the inappropriate hiring practices and instances of favoritism and nepotism which was also complained about, those issues as well as the use of inappropriate racial comments or vulgarity and intimidation of subordinate employees, those allegations were world to be -- ruled to be unsubstantiated or not founded in fact. how many such complaints in those areas that i just enumerated were there, and who or what agency was it that actually investigated those complaints? >> sir, in 1997, the commanding general of the military district

of washington, because of the command climate, it was the equal opportunity management institute that looks at equal opportunity to come into a command climate survey. we do not have a record of that survey being done. that survey would have been done as a standard practice and given to the commander or senior leader in the organization that requested it. i do not know whether the commanding general received it or whether the superintendent would have received it. >> is there still a problem out there a arlington national cemetery, where black folks feel like they are being treated badly and differently from others employees, and are there any, secretary, black folks

other than the assistant superintendent in positions of supervision, supervisory personnel at the cemetery? >> sir, there are, both a mix of races at arlington. the comments and allegations was also not just one race. it went both ways. discrimination boat comments against whites and against blacks, so it was not a one-week thing, but there are several supervisors of both races. >> thank you, mr. chairman. >> f.a.q, mr. franks. >> f.a.q, mr. chairman, and think you, mr. secretary for being here. i appreciate your service. mr. secretary, i know that a challenge like this is very complex logistically, that it is

a significant undertaking to organize something as large and, again, just the reality is of the challenges on the ground, but i guess, and i believe that you and all of us are more primarily concerned than anything else, and that is to assuage the grief and the difficulty of people that have dealt with this and that their loved ones are affected, and that those that they remember with such a love and honor that they are somehow, but that has been diminished, and so, i guess there are two things that i think we should focus on. number one, of is the, is to figure wrote what haven't got caught not so much for blamed but to be able to reorganize and restructure so that it does not happen again, so i guess my first question is, and least in

terms of the structure, some of the people it caught in the top echelons were at war with each other, and that seems to have filtered down and added to the confusion that may be at the base of what happened here that we're all concerned about, so my first question is, what has been done to restructure things? and no you covered this to some degree before, but just give me the information about what has been done to make sure there is a clear delineation of the leadership for this in the future. >> f.a.q, congressman. as i mentioned, i have taken several steps answered they do not preclude taking others, but the first was to rescind general order 13. that was the governing structure that, in my view, did just about everything. i have read directed the lines of authority.

i have created a clear command structure at the top in terms of cemetery operations by creating a position of the executive director of the army, cemetery operations, one of our most senior executive service professionals in that post, boat and she has begun to restructure below her in ways where the employees know where there has been a problem. she is constructing orders so people can look get this to understand when they encounter problems in their workplace environment or something operationally incorrect up into the cemetery grounds. they have a clear chain of command to go in to report those irregularities but. i have made her directly responsible to the secretary of the army. and every day, since this first

came to light, and i issued the publication of the inspector general report, she and i have talked, and we will continue to do that on the deal we basis for quite some time. >> this is a stark proclamation that they could give up whatever days had been remaining for our tomorrows, as it were, and one of the few things that we can give them back, of course, is the honor asking them to be heroes in our society. what are we doing now to try to express that to the loved ones who have been affected here, in what are we doing here so that the information or to logistics are that we can make sure that we honor these men and women in the future? >> well, if one were to read the

inspector general's report, i think he would find a very core validation that when it comes to the actual operation, things that i go to on a weekly basis, where the honor guards carry that to the final resting place, with their rifle a company's fire that 21-gun salute, the issuance of taps and the care for those families, that is done at the highest level. we feel very proud of that, and we want to make this an operation. but we'll feel confident about

working the system so that record keeping is brought into the 21st century so we do not have as we are encountering mad discrepancies. this is so people get will be calling a base line of insurance to restore the full glory of what we all understand and believe very strongly is the most special place of ground in america. >> i think you just gave us the key, mr. secretary, the electronic record keeping. electronic record-keeping will

be available. and i would hope that your office could keep us advised until the time as to the progress on this. that would be very helpful to have a separate hearing every time there is a key milestone that is met. we would appreciate that. >> we will do that. >> we appreciate your serious attention to this matter. and this is clarified, the, for the public, as well. there are related agencies. so it is not a dod appropriation. >> that is correct.

does that legally preclude the army from using army funds -- >> does that legally preclude the army? >> it does. >> if so, what legislative assistants do you need from the congress to provide a remedy to this limitation, or is that something else? >> i am glad you asked. it is an important part of the issue. it does not in any way explain the myriad shortcomings -- >> in terms of that. >> in terms of current operations, the army is restricted with " fixes or an infusion of money. relief ing to ask for

that. i do not want to say what that is right now and how we would structure that. of is the, committee jurisdictions come into play here, but i think it is fortunate at least on the house side, as you noted, ms. davis, but both the d.a. and the army dod appropriations bill through the same appropriations subcommittee. we will be coming back with a plan on that. >> i am wondering, perhaps the public would be questioning whether this would fit in note to the many, many challenges that certainly your budget faces. >> obviously, we have to make hard choices every day.

the operations of arlington, as i mentioned earlier, carrying our fallen heroes to their final resting places is important to us. in the first instance, we need to have been legal flexibility that goes with budget considerations. >> i think there have been some questions about personnel that were raised, but beyond that, the 95 individuals to serve now that have a much larger number of families that are seeking their help in making decisions, to enter their loved ones at arlington national cemetery, are you up to it to do the job? >> my instincts say no, but we are not going to operate on instincts.

under my direction, we have begun to conduct an analysis of personnel. i believe that will be done boat this month on july 27, a belief. that will be a hard analysis of the personnel situation where the need to exist. i expect you are right, because the reality is, as we call these things on your great committee, it has worked with these individuals dramatically through the war years in iraq and afghanistan. there is the country itself that has remained relatively stagnant. it just seems logical to me that they need more help. nothing in this report suggests that those cemeteries employees are doing anything but an outstanding job, and they have

actually kept that a good face of arlington to the families of these fallen heroes, and i think we owe them a great debt of thanks. >> i was noticing here, 135, 150 funerals every week, -- >> i am sorry, i did not hear this. this recent news to inter loved ones there? >> nothing that we have heard, but they are human beings. i think it is natural for a human being to react in said ways when a place that you of devoted yourself with such

credible measures are called into question, that is why i think it is important the first day, right after we conclude this press conference, i went down to the cemetery. we need them to be proud of that effort. they deserve it. >> thank you. >> thank you, very much. mr. secretary, i was privileged for many years to sit next to you, and it is really good to see you. and in thinking about this hearing today, i was impressed, i guess, with the concern that you all are showing. you are fighting to of awards.

this would appear to be a fairly low priority it is obvious tht you've spent a lot of time and have devoted a lot of attention to this. i thought of a biblical text in thinking about this hearing today to have done something and to a vote left something not done. something we should not have left undone, relative to the cemetery. i want to thank you both for what you have done. i do not get any specific question. i am sure all of the relevant questions have been asked. i want to talk about the concern you have for this and all of the energies that you have expended, both of you, in this area when

we are busy fighting two wars. it shows the respect we have for our fallen, and i want to thank you for the state you're making to all of our servicemen and to their families come to america in general that this really is important. thank you very much for your attention it. thank you. >> mr. kesler. >> thank you, mr. chairman, and i know that time is limited. i wanted to lead my time, so if i could just reserve my time when he comes back, i would appreciate that. >> miss? >> many also express my appreciation before them. they have a very tough challenge in trying to figure out a way to do this at arlington park, and i appreciate your swift and prompt

action of something that occurred " in someone else's time, per se, with the superintendent and the deputy superintendent. we do owe a great amount of honor to our veterans who were in church, and families need to know that once their loved ones are laid to rest, they will get the proper respect. the beloved soldiers deserve that respect for their service. i apologize i have missed some of this. some of the words that have been used, mist, was not in place, all of these different procedures and actions, and looking back at many of these problems and complaints occurring clear to 1992, almost 1992. i have to think i am thoroughly disgusted.

clearly some was not paying attention to what was going on with the complaints that were going on, and i know that you gentlemen are trying to resolve this, and the policies of obviously failing, it is the evidence was there. inspecting what you do not expect. .

n

organization. he is the director for leg and judicial studies here and has served in all three branches of

the federal government and now serves as a commissioner on the u.s. commission on civil rights. >> thank you. i want to tend my own party welcome to everyone in the audience and in the cspan and heritage audience and on behalf of our center for judicial and legal studies. i had the pleasure of introduccng two of my teachers and respected friend and if they don't provoke each other on their own, perhaps we will provoke them on their rebuttal. . i must give a regrettably short introduction relative to their achievements so that they could have more time to opine rather than be opined about. i will introduce them in alphabetical order and the speak . willdellinger is chair of the appellate practice and the heads up the supreme court and appellate practice clinic but it

is a visiting professor of law at harvard university. he is on leave from duke law school where he has taught as the professor of law for many years walter served in many other instances in his career for the two most no moral -- notable was the council from 1993-1996 where he was my boss. walter was also the acting solicitor general for the cou's term in 1996-1997 when he argued nine cases before the supreme court which is the most a solicitor general has argued in over 20 years. i bet that is even a higher percentage than the solicitor general's novel. he argued the dc gun ce on behalf of the district of columbia and the now infamous case in which he trekked justice

souter into writing is supposedly activist protest corporate decision striking down and out regis punitive damage award on the maritime law in exxon bursa's becker. he won all of his cases he argued this year even if his win on behalf of north carolina is not as well noted as of yet. to his left, but not politically [laughter] is richard epstein. he is a newly minted laurence a. tisch professor at new york university law school. the university of chicago law school where he taught me but more famously he was a long-term professor and acting dean and the former head of director of curriculum and lawnd economics richard is well known for his

research and writing in a broad range of constitutional economic, historical, and philoshical subjects. he has written more than a dozen important books and articles and has edited some influential lel journals instead of going into some of that, this will give you a flavor of the range of his expertise. here are the subject he taught at the university of chicago -- communications law, constitutional law, contract, criminal law, employment discrimination law, jurisprudence, labor law, property, roman law, eal-estate development and individual and corporate taxation. it was perhaps for this range of expertise that he was elected -- your bio is complete. >> left out -- u left out that he taught the same thing in every course. [laughter] >> ricrd was elected at a bright young age. the american academy of arts

and sciences in 1985. greg garr has taught constitutional law and supme court practice for several years at the george washington university law school. he was the 44 solicitor geral of the united states and the only solicitor general to have served in all three of the principal offices in that office. he was first assistant to the solicitor general and the principal deputy solicitor general and finly, confirmed by the senate unanimously as the 44th solicitor general o the united states. he has argued 30 or more cases before the high court. one of the most important in recent years was ashcroft verses ichbal, clarifying the pleading standard under federal law for a

highly improbable claims that might otherwise aalow illegal fishing expedition in search of a cause of action. according to the point of, this is another outrageous activist decision of the roberts court that they want congress to overturngreg won his mos significant case on behalf of the university of hastings brought by the christian legal society for recognition as an official student organization. i wish is able representation had not been successful in that case but i think all three panelists may, -- may comment on that case.+ why don't you come up? [applause] >> thank you for that kind introduction and thank you all for joining us today. i am honored to be here today. i am sure this did not happen to

any of my fellow panelists but when word went around that we would be involved in the scholars and scribes program today, i shortly receive a number of the mails from friends ?"ying, "a scholar dax scholar is a big deal for me. i thought i would start up by making a few observations about the roberts court and the term this year. i will talk about a few of the major courses pendingg-- cases bere the supreme court. i will also comment on justice stevens' departure. generally looking at the year at the court -- a fewwthings stand out. this is a big year for the roberts court and for chief justice roberts on that court. chief justice roberts was in the majorrty more frequently than

any other justice on the court. he was in the majority 92% of3 he dissented it almost -- almost only a few cases. the last most frequent dissenter was joseph kennedy. this eclipse justice stevens dissented 22 times this term. looking forward, justice stevens, the most frequent justice to disagreeith chief justice roberts is leaving the court which one might think would lead to even greater unanimity or at least greater agreement on the roberts court. second, i think it is fair to say that the court this yearas a conservative but minimalist court. it showed that it would walk

tall but perhaps take baby steps. it did so in number of cases in the free enterprise case, the court embraced a constitutional theory that held unconstitutional the four clause provision of the sarbanes oxley accounting board. it left the board in tact so it was a broad constitutional ruling but minimalist results. the court declined to validate that statute across the board on vagueness grnds. the big exception what this -- was the citizens united case. third, the court smed like a relatively happy place. we saw the fewest side court decisions in recent years, only about 18% of the cases were 5-4 decisions. last year, about 30% of the

cases were 5-4 so that s a fairly significant decline. about 75% of the cases were seven-two or more so broad consensus in the broad majority of cases. in the more interesting cases, there were not consensus. i would like to talk briefly about three cases wch i think illustrate different things abt the court agreed the first is the citizens united case corporate they areot afraid to go where it beliives police them. citizens united you all know about. it involved the constitutional challenge to a provision of the mccain-find cold finance reform act. in a nutshell, it prevented paying for adverrisements which

mentioned a candidate in the cycle leading up to an election directly through their general treasury fund for the law allowed them to pay for those advertisements through a pac but the constitutional challenge was brought by a nonprofit advocacy corp. that produced the movie called "hillary the movie" which was a fairly critical movie of the hillary clinton. they were going to broadcast it around for election. the election. the fcc said yes and they brought that case to the supreme court and the court in this 5-4 decision written by justice kennedy held the provision unconstitutial as applied to corporations. they sustained the disclosure requirements and a disclaimer

requirements. one significant thing is how the case got to be decided by the court and what was significant is the case was set for 3 argument at the end of last term. the court then proceeded to overrule a couple of recent decisions. the decision in mcconell a few years back. there was an austin decision that upheld -- that was upheld by the court in a similar way. justice kennedy had been an advocate in these kind of cases and the austin case. he had four other justices to agree with him in this case and he wrote the decision overruling the prior cases.

the court generally does not like first amendment theories that it believes will lead to book bag which is one of the example that came up in oral argument. -- book banning which is one of the examples that came up in oral argument. what chief justice roberts said in this case was that there is a difference between judicial restraint and judicial avocation. justice roberts has been very adamant and talking about restraints. it is on necessary to decide a constitutional ban is necessarr not to decide it. judicial advocation not to reach the important question that the court frrmed in this case. the seco case i wanted to talk about was two cases and they weren't juvenile sentencing cases for these cases show the justice roberts was trying to find a middle ground with the

court. that may explain why he is in agreement more with the other justices these cases involved an eighth amendmmnt challenge to the constitutionality of state sentencing practices that allow a juvenile to be sentenced to life without parole justice kennedy in a decision that repeated what he did in the roper case a few years back held that given revolving standards of decency and other factors, reached a conclusion that it wa+ disproportionate and therefore unconstitutional to sentence to the miles to life without even the possibility of parole. justice says alito, scalia, and+ thomas vigorously dissented. he said it was not constitutional -- he said it was

not unconstitutional in a categorical matter but he would look on a case by case basis. he found that it was unconstitutional to sentence a particular juvenile prisoner but he would not rule out another extreme case that you could sentence someone without parole. the last case is the cos case. it demonstrates that the roberts court does not always get what it wants. this is a 5-4 decision going the other way with justice kennedy joined by the more liberal justices on the court. this confirmed the ninth circuit and sustained the constitutionality of a public law school policy saying that any group of students that wants to join and become a school recognizednd school-funded group is free to do so, but you have to admit all comers.

this case was bught by a christian legal group, the christian legal society that believed that that opened membership requirement infringed its free-speech and exercise rights. i will now turn it over to our next panelist. [applause] thank you] >> thank you so much for that. thank you, walter, for your peanut gallery remarks. [laughter] i woold talk about less of the demographics of the court but the substantive issues of the court. what gregg said about the new roberts dissension between judicial restraint on one step -- and one hand and judicial advocation shows conservative jurisprudence between judicial activism and judicial restraint pretty difficult it rns out to be that there is no way you can

maintain fidelity to two principal simultaneously. you can't do that at the same time that we see no evil and hear no evil because of institutional limitations thaa we cannot possibly intervene in these situations. justice roberts essentially took the old distinction and gave new terrs for it and now judicial restraint is judicial activism and judicial abdication turns out to be judicial restraint. when he starts to see things that of fenton, he is prepared to intervene and my view is that he would be more comfoable doing so if he were candid that the constitution takes precence over a bunch of statutes or a particular administrative ruling which does not have similar credibility. in order to demonstrate the way this works, i will talk about three types of cases3

i think they illustrate the attention's prefers is a case where i was on the opposite side, a case involving the christian legal society against the hastings law school with respect to the question as to whether or not they could deny the students of the christian law school. they were spences' bush's of homosexual behavior and openly proud of it. -- they were openly against homosexual behavior and to openly proud of their was a question of whether they were prooted under speech or religion analysis should not depend on whether or not we believe they are right or wrong in what they believe. i would like to say about political beliefs that it is possible for inconsistent believed to be wrong and it is not possible for them to be all right. the substance in the way inom

which we evaluate these kind of organizations. hastings did not agree with that. they wanted to deny them access to e-mails, meeting rooms, and formal recognition. there was a useless pitical wrangle as to whether isswas done under a take all comers policy which would apply to religious groups but to every group or under a barrel anti-%+ discrimination policies. that would say the organizations involved in this particular institution had to agree not to piscriminate on the grounds of sexual orientationnsurely this organization did. i have never heard of a less coherent, stupider, and less defensible policy. pusticc scalia said it was weird th the democrats have to admit the republican. it turns out that christians

have to admit jews into their organizations. there is no question that if we looked at this as a form of direct government, the idea that the united states could make every private voluntary organization into a common carrier when the whole purpose of meeting together is to form a common coalitions seems to me to be nothing short of a banal observe. at certainty. the supreme court agrees with this. they took the position sensibly with respect to organizations dealing with the intimate associations and a deeply held religious beliefs. it seems the next thing you have to do is to ask whether or not something which cannot be done by a direct correlation can be done by a sta organization in terms othe way in which it admits and excludes individuals. justice ginsberg was correct when she said this involved a

limited public forum she was woefully iorrect when she said that somehow or other you can impose the kind of regulations that you would never be able to impose by way of direct regulation. even if you take the stipulation that this was not done on a discriminatory basis, you would still have to say that the%+ statute was unconstitutional. the two other cases i would like to talk about is one of the is that political speech case. the first amendment gives itself a strong presumption. the only way where you could have liberty of speech is to allow voluntary associations to get together in order to put their views forward. at that point, the question is

do you for that this by the fact that to have limited liability? the answer to that question is no.no pair ♪ you have to look of the justifications and the dissent in cages iall sorts of idle speculation about the way in3 public life will pollute or drown out honest citizens in the way in which they speak. i have exactly the opposite are providing large corporations are congenitally cowds when it comes to the way they speak politically because there is a danger that the customers will abandon tm and they know that political people have so many ways to put the regulatory screws to them. they have to keep a low profile. the thought that this will drown out speech strikes me as a kind of pop sociology which may be worthy of the president of e

united states but is not worthy of anybody who wishes to do serious work on this question. [laughter] the third case i will talk about is the situation about the humanitarian law project here again hoplden. when you want to impose limitations, you have to show a fairly strong justification. the roberts court got this thing wrong when it said that the only question they have to worry about is the fund's ability of resources. you give aid to a terrorist organizatton, they will do nefarious things. the fact that they were using money in peacekeeping operations is if you get people to the table it will have the opposite effect. it will take activities that were otherwise destructive and move them to things that are

less destructive is that true or false? we could not find out in this particular circumstance because it was exactly the same problem you had in the moviease. the chilling effect was so palpable that this was brought to a declaratory judgment. we have no experience of these things should work. my own view is that the world is a dangerous enough place and i don't believe that every police correct but i don't believe the state as a correct as well it very cautious before you have denunciations' under these kind of statues as to what is or is not appropriate conduct what is the common theme? the constitution was designed to enforc a system of limited government. here are three cases where the limits were an issue. i've read the score card as 2-1 in favor of the bad guys. citizens united was the more

lucid decision. thank you. [applause] >> richard epstein and i have known each other for 45 years. during which time, richard has been remarkably consistent. he is a provocative boys in the public discourse. he is one of the great debates among conservatives which was the debate between professor epstein and judge scalia par. what year? >> 1984. >> the issue was -- is the conservative vision of the proper judicial role one of judici restraint as the been judge scalia somewhat ironically -- is the true view judicial restraint as he argued or is it a vigorous judicial

intervention on behalf of rights of property and contract as or richard seize the vision of the framers. this replicated a subsequent debate between charles fried solicitor general and charles cooper during the reagan administration. one of individual liber or is it one of states' rights? when they are in conflict of one another and when states was to regulate the economy against congressional pre-emption? you see these fall lines and jurisprudence. i want to give you a brief overview of where i think the roberts court is on one important question and that is the nature of judging. i want to read a brief paragraph from mike for rape her colleague at duke university, jefferson palle, about judges.

-- jefferson powell, about judges. in almost every decision, the judge will confront enter the choices which have multiple resolutions back unjustified by craftsman-like arguments for there is no algorithm that will result the conflicting claims of plausibility. a judge must decide in good faith. a judge acting as a conscientious judge will use legal craftsmanship not to conceal difficulty but to render arguments to himself and others with candor including an overt recognition of the ambiguities and uncertainties present in the constitution's text and any resolution of ny constitutional issues. constitutional decision making is a creative endeavor involving

the creation of new law and not just obedience to existing law. judges of wh ever radiological persuasion are far too inclined these days to write opinions as if there is complete search. certitude. the way in which a justice or judge acknowledges the way the of resolution not be. easy. when i listen to justice roberts and will be -- will he be a minimalist -- he said that a judge's role is to be an umpire calling balls and strikks. i thought," all my goodness, that is a formula for activism." i know that is counter intuitive. the reason i say that is if you

say to others or to yourself that your role will be to call balls and strikes, you deny your on agency in the choices you make. someone else is responsible for the decision.%+ you are just there to apply it. that makes you quite comfortable in setting aside the judgment of congress, the state, of local governments, or of other actors sprers.. the restrained judges cannily recognize the existence of choice. the constitution often had ambiguities. sometimes it was written%on purpose this way. judges recognize the existence of judgment, of having to make ccoices.

they have to ask themselves why are they justified in setting aside a choice made by congress or the state legislatures? the balls and strikes methodology gives you the confidence to say i am here to declaim. with that in mind, i think there is something of a mmxed role in terms of activism and restraint onhis court. the most dramatic example of each of theses the mcdonald decision applying the second amendment to the principles of the second amendment or the second amendment for the 14th amendment on the chicago ban on ndguns. it is a cautious opening in in terms of result in that the court lves open the question of what kinds of regulations may be consistent with the right to keep and bear arms and leaves the estionpen.

even mcdonald was even more cautious in justice alito's decision. he held that the second amendment protects not the right to bear arms, the right to for purposes of self-defense. we hold today that the due process clause of the 14th amendment incorporates the second amendment rig heller.ed inhe justice stevens in his dissenting opinion says that this is a substantive due

process case. he recognized there was a very strong argument that the liberty clauses of the fifth amendment and the 14th amendment due in the protect the right to self- defense and the right to possess a handgun in the home. the home has long been seen as a center of insulation from the government. much of our constitutional tradition draws boundaries around at the home. that are quite particular part o. they would talk about t differences between the states, the great differences between chicago and the one hand and wyoming on the other.

he correctly recognizes that this is a powerful libey case. the second amendment, i think is almost on the order of a trek, an amendment that does not actually address the state at all and of the fact that the gun rights is very relevant under the 14th amendment but that amendment stands on its own bottom parem. i will and now with the statement that this is a very great time of constitutiona conflict. as we saw a state of a union address. the president looked at justice roberts and said you're a bunch of political hacks and just as alito jumped up and said," you

log." [laughter] ie." [laughter] i am kidding but that illustrates the court [applause] . >> thank you all. we will now have one or two rounds of exchange between the panelists and we will recognize some of your questions before we have the order of presentation. if iight borrow one of iinore my request and it what youuwant -- walter is very interesting and had a worthy point that of judges pretend the act of judging his mechanical, it may hide their responsibility. this is the set of mcdonald opinions, i think it is 170 long

and they are fascinating. the scully a rejoinder to stevens was," just because you fret over it and run your hands and say there are four important factors does not necessarily mean you are doing a better job." in fact, it may allow judges to do whatever they want. i don't know who is right because i have no opinion. i am posing questions. without possible rejoinder g,reg, what wld you like to ad >> walter raises an interesting point. alternately, the responsibility of the court is to say what block is. in that respect, i don't think that is what judges have to do. in many cases, you see the justices go into these polar camps. you would expect them to

recognize a little bit more difficulty in the enterprise. they are deciding the most difficult issues. they have already decided the lower courts. this term use of more recognition in the decisions, that there was some difficulty. justice alito in his mcdonald that there was some room for debate on the history of the second amendment which i thought was prty interesting. he called justice stevens' dissent in that case eloquent. you would expect to see maybe more of that we see some of that on the court. i think it is also too soon to say whether citizens united really represents this game- changing moment in the supreme court or the robertsourt or the better of you being a better development.

i think it is too soon toay whether that decision is having the effect or says that this court is an activist court the way many critics have claimed. , a me respond to richard's about thecls case. i am duty bound to correct some argument -- some of his argument. >> not in this forum. >> let mm tell you why he is wrong. first of all, thelaim that this was a policy similagoing outcls and the supreme court said it was a quintessential viewpoint neutral policy. how much more neutral could to get than saying all grrups have

to admit all comers? this was a school that as many recognized religious student groups and previously recognized this group to comply with policy. e policy applied to groups favoring homosexual or gay rights just as it did christiaa groups. justice ginsberg explained this to say that this was a viewpoint policy. i think that is just stretching it too far. secondly, richard talked about what a stupid policy this was part os. is it the role of the court to go in and second-guess what is a stupid or reasonable academic policy? is this something we should generally leave up to the administrators of the schools? if you go back to the other cases mo likerse vs. frederick, you see a lot of discussion from

the justices on the importance of deferring to the school administrators. this case they might not like the result as much but this is an unresolvable stupid policy that the justices to reject should strike down. there's a bit of a role reversal there. in terms of the question of state power -- one critical thing to understand is that nobody was forcing the group to do any thing that this school where this was not the there was no prcriptive law that forced them to admit members. you don't have to become a school-funded group at hastings but if you do, you have to abide by the viewpoint neutral restrictions that they have on access which is to say that all groups have to admit all comers.

the majority of the supreme court sa thawas constitutional. >> let me respond first to whaa was said to about cls case and talk about mcdonald. what i argued it was that the fact unconstitutional as applied to substantive groups who have a viewpoints to express. i don't think you should force the christian group to force them to take in other students. it seems to me that the appropriate thing to say is that you could never impose this on them as an external constraint because the robbers decision makes it perfectly clear that matters of intimate association lead to discrimination policies.

with respect that misery loves company does not show that the policy is good, it shows that a bad policy applied to different people is 10 times as bad as when applied to only one. for many years, liberal commentators said that the last doctrine we want to rely on with state power is the doctrine of the so-lled right privilege distinction. if you want to join in operation, you have to accept the conditions we impose. the entire law unconstitutional conditions has alws said that the right privilege distinction does not work when you're dealing with institutions that have mopoly power over people or can tax them. we can't tax you for our tuition and other expenditures to support every other group but we won't support you in return. one of the truly disgraceful remark and the dissent was to treat this as though the christian legal foundation was asking for a subsidy. nobody was asking for a subsidy.

the last thing you want to do when you're talking about matters in intimate association is to adopt a policy of deference with respect to political leaders. this is not a disciplinary proceeding. >> can i ask you a question? you have long been an opponent of anti-discrimination law. >> yes, in private employment contracts. reasons. [laughter] would you say the same thing about ollie mcclon at ollie's

barbecue. he wants to express a view point. the anti-discrimination policy precludes him from doing so. >> there is historical context that anybody who has to tk about things have to talk abo them both. the great difficulty thattyou found with respect to all the southern policies on public accommodations is a large numbers of people wish to exercise those of rights and admit black people in those ranks and foundhemselves firebombed by the complex clan. the regrettable situation at that time was whether or not you had an anti-discrimination policy which protected the freedom of aociation of some or whether you try to go on individual liberty without being able to counteract the use of private force. in this transitional period, i was strongly in favor of title to and from a opposed to title 7 where i think the political dynamics worked in the opposite

way. this is a second best world. to the eent that to a private files on one hand and social rights and the other, you have to decide which you will have to yield. if you ask me today whether i would want to continue public accommodations law, it becomes clear they beeome more insidious. that is like telling the boys get to they can admit and could they cannot. i am not a fan of their homosexual and exclusion property -- policy. above the boy scouts were correct when they tried to soft pedal the issue. i think that justice rehnquist got it right when they do not have to see it from the tops of the trees to make their policy. they have delicate internal issues and the last thing you wann to do is have a loss to which forces them to come down on one side or another when they might otherwise be able to straddle the differences by

virtue of the fact that they like some things and do not lik+ others. you of modern public accommodation laws and disabilities and these are awfully harsh of the worst possible major given the kind of transfer paymentshey required for the last anyone to do is to say that you have an important state interest so association can be trumped by an antidiscrimination law. that is the role for a polital situation in which three people cannot associate. fr -ee people cannot associate. >> one more minute. >> i happen to think that the guy who argued mcdonald -- >> he is sitting on in this room. >> i know. he was right on that particular case. we are dealing with a regionalism and you have to make every word count. there's nothing about the notion of ai originalsm that allows you

to do what justice melia did in this case. this is important because the only clause in the article one section 8 that actually talks about cooperation between the state and federal government is the milia clauses. these losses, about a system of divided authority which is designed to allow the and militias to be autonomous at the state level but to be called uu into national service for limited purposes in cases of invasion. the recent use the word well regulated was referred back to that kind of division of authority very reason you use the words a free state is because one thing you were worried about in 1787 or i business by one state of another. there are many things in aicle one that deal with this independent of this. once you put this mass together,

you cannot read this clause out of the thing and have it make sense. it tells us that the only place the militia clause doesot apply is to washington, a d.c.. the second thing is that it'')s absurd to say you will use incorporatioo argument through any clause if what you do is you have a clause designeto protect the states from federal overriding and turn around and say that protect citizens from their own states. originalism does not necessarily mean a alito says it means. themendment of the states keep and bear arms it does not say to keep arms in your house for purposes of self-defense. if you go in for a dime, you have to go in for a dollar.

if you do not, you are not doing constitutional interpretation. it is one thing to talk about ai originalsm and it is another thing to do it. i thought stevens got closest to a. the trh fo once, walter was on the side of the angels [laughter] . >> i am yielding a lifetimegreg. toreg. your bigouth *g >> richards response was very telling. the reason i think that hastings is neutral is that they don't care why. if you look at it as an anti- discrimination law, hastings does not care what you exclude one of the individuals on the basis -- on the basis of

homosexuality or religion or military status, they don't care what leads you to that conclusion. the fact that the organization has a viewpoint objection to the anti-discrimination law does not make the anti-discrimination law itself entire viewpoint. -- anti-viewpoint. the issue was taken up to the and i believe this may be one of the cases that was won by advocacy. this may have influenced the outcome. not meet hisoes time. >> it is an intellectual catastrophe of the first order [laughter] .

go back to the situation in which we now have in all comers policy imposed by statute on all private organizations such that every religious institution in the united states by a f populariat has taken -- in the united states haso take in all people. i cannot run an organization in an effective position if i have% people that disagree with my fundamental position for the group. the oy all comers policy we have never had have been with that means you have to take all comers to sit on your air plan on was it turns on that their body odor is so foul that they will drive everyone else away. why would you do -- why would

, aadnt to take a rolule carried it over to voluntary institutions is terrible this thing starts to become first amendment doctrine and the regulatory face. it opens up the world to the most incredible form of government tyranny. go back to reynolds against the united states in 1878 on the question of how it is we managed to disenfranchise of the mormons. we assume that one man has to marry one woman and anybody else who does not is wrong. we would apply this policy to protestants and everyone this pocy remains that the most fundamental tool for ferreting out abuse is not to be applied+ a. and more if you go back to the antidiscrimination laws, this

would say formal discrimination only, due powwr is to be off the books for the fact that justice ginsburg did not understand what is gging on your shows that this is the kind of justice who can take; and the constructed inn to period or colon. behind procedural documents. i actually wrote my brief on the other side of this assuming they were talking about the all comers policy. i still thought was wrong. if i thought there was a single word in that opinion which explain the implication, i would sit down in silence, unaccustomed as i and [laughter] if you take the implications of this, freedom of association could be a dead letter because of the way in which state regulators want to go. i will stop there. >> let me pose to greg and

walt. we have a grandfather clause. we have a literacy test which is. is neutral. we don't allow a neutral and permissible statute to apply if the motive was beyond that. go ahead. >> richard doesn't like the the [laughter] sessio decision. one thing that conservatives have pointed to in prior cases is that because a law as a disparate impact on a particular group does not mean that it is viewpoint-based. the fact that eight neutral all have a disparate impact on some group does not mean it would be

viewpoint-based on the supreme court precedents part of i think it's interesting to look at the history of the all comers policy. if you go back centuries into old england and you think of the scottish innkeeper, it was the case that the innkeepers were supposedo admit all comers. this was not something concocted by law school in san francisco. there is an ages old historical basis for that pric. i don't want to upset richard too much. [laughter] >> you already have. >> this is a case of what a law school can do in the case of a limited public forum that has particular first amendment rules that the supreme court has long applied. the decision was very much focused on the standpoint of how we analyze this from the

perspective of a limited public for. um. all students are paying for a particular forum. there is divisiveness that could arise if some students pay report were not permitted to join groups they wanted to join the school decided that the best way to go about this waa to have a policy that said all groups who want to participate in a school for the policy should admit all comers. >> these enters increase my disquiet [laughter] you never want to have a public deeate in which the only thing you worry about is what liberals and conservatives think. there is an apt -- academic viewpoint. and if there is third position, you have to address it. . am not one of them ver

i went to great pains to explain the common carrier cases were cored by the all comers role because of the monopoly situation and because of thefungible nature of the services provided the only cases that talked about the common carrier situation also understood and applied that limitation without exception. the most definitive statement was in 1810 in england where ey said common carrier rules apply to all comers. you simply engaged in this kind of law history which does not go back and get the essentials with respect to the proolem. the third point is that the

vvewpoint by the state and the impact is deferential. when there are disparate impact of a pronounced a variety, should we ignore those things? first amendment law has been good. it has not been in different. and do you think we could pass a statute that says that every religious organization has to admit all comers regardless of their religious beliefs? would that be constitutional? you have to say yes. i don't believe that you believe that, frankly. >> i apologize for calling richard conservative. i did not need to apply a label to that. we have already talked about how it is focused on law school in this case in the context of a public forum.

>> walter, unless you have a quick word -- >> all comers policy are not3 when you have seminars, it is, and that professorr have to admit to everyone or have a lottery. even if you have a student- organized seminar -- if you want to do a seminar in feminist theory, you cannot limit it to women. at most schools. this is part of the university's own decision to say we will sponsor some groups but only if they are open to all of our students. >> can we and by some audience? [laughter] . .

>> all students were paying, including students who chose to

>> at do you and to express opinions? the plurality -- saw one of your initial bloggers and may be corrected it where you said that there is no majority for the holding because the plurality theories, but one thing you said there were five votes against due process and corporation which is correct. he said there is eight votes against religious communities. silent as to that but they obviously chose not to go there. >> my point is a simple one -- it is clear the decision is binding on lower court judges ii

full and it is a combinntion of justice thomas'opinion and for other judges that means that the court judges will -- a lower court judges are down. as a matter of precedent, a future supreme court justice can say i have to find a theory, i have to adopt a theory as to why subject to heightened judicial scrutiny or whatever. the question is if i look to the due process liberty theory, only four justices adopt and five others, including justice thomas, emphatically reject it. if i let to the privileges and immunities theory, only one justice but opposite. there may be others who are precedent of agreement so that if i agree with the analysis of

the majority of my prior colleague, i would not find there is anything i am obligated to give presents to. i just meant to suggest, for better or for worse, that the split in theory makes it somewhat shaky in terms of the president since the justice can say i agree with the majority of the colleagues on each of the two theories, in which case, i come out the way. >> walte's point is stronger than he knows. >> i'm sure many of my points are stronger. [laughr] >> there is a case decided in 1998, a case in which there weee four justices who felt this retroactiv legislation -- justice kennedy thought it was due process. it did not matter that the elements of the two casss were exactly the same. everr lower court which dislikes

the ability of the supreme court to limit what congress can do has pointed to the four-one split and said we have to read the decision airily. the lower-court becomes a construction issue and it is a supreme court case and when you look at the, they say this sort of law but they never find another case where they can apply it. judicial nullification issa common feature in modern litigation. >> i agree it is a possibility -- >> it is a certainty. >> it is may be a certaty but the ninth circuit will read it the way it wants. the supreme court said the equal protection clause applies to states and then they said they are the same thing. >> with racial segregation, it's

like public accommodation -- all bets are off. this case in 1955 said the equal protection clause which is in opposition to the due process clause and the 14th amendment is part of the process clause of otherwise it's exactly the same problem you have with a pellets. the of the district of columbia with the unique dicial ssatus and it cannot be bound by. it was a joke. they understood it. as my daddy used to tell me, sometimes when you're making important decisions, you have to learn to rise above principle. [laughter] >> maybe we have time for one more question. >> i'm just a retired old geezer. in 1884, just as matthews

writing in said "absolutely nothing in the -- said absolutely nothing in the 14th amendment out of its own words could bring forward against states the first eight amendments which weee designed as restraints on the unite states. that got broken a little bit in 1932 and after 1947, the dam broke and one by one by one by one, everythingiecemeal in the first eight amendments has been applied in the states. has anybody on the court reccntly in the name of the constitution as opposed to constitutional law, has anybody tried to dredge up antiquity in this way and say wait a minute,

we have been off course for a while? >> justice stevens says a bit in his dissent in mcdonald. i think the justices' opinionn that case was right. i don't believe in in corp. and think 's largely an academic mess -- at academicmyth. we know the bill of rights applies to the federal government. that has never been challenged. the question is whether the 14th amendment inc. the bill of rights by -- that was rejected in 1947. the court has never gone back on that. the 14th amendmen was -- nobody has ever disputed that. it has been decided that the

first amendment is inc. -- in 1926 and applies, but the court says no such thing. the court does not say the first amendment is incorporated, its as freedom of speech is part of theiberty protected against state interference by the 14th amendment which stands on its own bottom. it's a useful datum when you are deciding what the content of liberty is or if you take thomaa'approach that content approves immunity, at a foundational point in our history, we wanted to restrict the federal government from interfing with a right. if i think assisted suicide is an important right and you think freedom of speech is a right, he has on his de the framers

thought you need to put an amendment and to restrict that i have no such amendment for my right. in the procedural cases in the warren court, they adopted the procedures of the bill of rights as a way of getting content to some kind of law applied to the states where there is no loss of four police practices. but i think this is a due process case and every first amendment case against it and local governments is a substantive due process case because the 14th amendment stands on its own bottom. >> privileges and immunities as an imperfect overlap to some of the guarantees in the bill of rights. if that had been read, you not have had in corp., you would have diiect application. slaughterhouse comes along and to get to do process. the due process clause has no substantive functioning cannot include the first men aad+ because that's ever protection.

-- first amendment because it has a separate protection. the all-purpose of the 14th amendment exercise -- water finds its best level and goes into process. everybody knew attacks subance the process, it's just a question of what is you want to incorporate and white. are we out of time? >> join me in thanking this first panel. [applause]

taught constitutional law and has a good deal of journalism experience which makes it thing he would oppose this panel. he has published articles in the "wall street journal" and others and is regular contributor to the national review online. he spent five months in iraq writing about issues raised by the war on terror. i will turn the battle over to him. >> i will not waste too much time on introductions as i'm sure we want to get to what they have o say. we're pleased to have a distinguished panel here today

and pleased they were able to make it. being supreme court journalists, they were at a reception for justice stevens at the court and were here to participate and we appreciate their efforts to do so. i must say at the outset that gen crawford was pulled out of town at the last moment and was unable to be here today. she extends her regrets and ensure is watching on c-span. robert burns has been a reporter and editor for the "washington post" for more than 20 years. he has covered politics and government since -- and since november of 2006, the supreme court. he served as the deputy national political editor at metropolitan editor and return to reporting in 2005 as a reporter and columnist and began covering the roberts court. our next panelist is a senior writer at the "wall street

journal" and a lecturer at the years the of california washington center. -- university of california washington center. he received his doctorate from the university of california berkeley. with that, robert barnes. [applause] go ahead a speak for about five or eight minutes and we'll open it up to the audience. >> maybe it can be a little less than that silicon answer questions. i thought this was an interesting year at the court for a couple of reasons. obviously, citizens united was a big decision for the court came early and in a way seemed to effect everything that happened afterwards, both the public view of the court a little bit and the court itself, obviously, the

state of the union shout out to3 in the tenor of the rest of the term and the public debate of the court. i thought this was the year we saw some movement between chief justice roberts and justice alito who had voteddtogether very closely the previous years and still voted closely this year but there were obviously some cases in which theyywent their own ways. i thought hat was interesting. i thought this was a year in which you saw a number of unusual alliance among the justices. criminal cases are always ones where the usual ideological differences did not break down

the usually do. i also thought this was a very aggressive court. i don't understand what people mean exactly when they say an activist court, because i think it is in the eye of the beholder. at least the way that's always the way it seems to work out through reporting. but there was an aggressiveness to this court that was interesting. i thought the way that it reached out to stay the telecast of the same-sex marriage trial in california was interesting. i thought the way it jammed into the arizona public campaign finance law while the election was ongoing said something interesting about the court. i think it reaches out to take cases that times were you didn't

see the usual circuit split that you might look for before the court takes a case. so i think it is a court that is very active and aggressive in that way. i woulddrather answer questions than talk. >> i would like to join roberts opinion about the court, but just to ask -- just add some details, justice brennan famously said the most important role of the constitution was the rule of five. since that's how many votes you need to have a majority+ decision. but this year, as in previous years of the roberts court, we of seen that for the conservative-leaning wing, there are often several paths to get to 5. we have not seen the real cohesion among the more conservative wing akin to what

you see on that the liberal wing. for instance, justice alito and the chief justice of split on another -- on a number of issues. we look to the case of animal cruelty videos and saw justice alito as the sole dissenter "videos. when we saw the decision involving life without parole for juvenile offenders, we saw the chief justice joining in the judgment on that case to strike down a life without parole sentence with justice alito dissenting. likewise, we found that in the case involving the takings claim against the state of florida for its nourishment program, although the court rejected the takings claim in that case,

there were four votes, to find the concept of a judicial taking to be constitutionally [unintelligible] while justice kennedy was not prepared to join the finding. although the court in many instances does reach decisions that many conservatives favor cannot agree on the reasoning behind those decisions to give a clear direction to lower courts. in addition to the citizens united decision, the term ended with some major cases. the biggest one was the mcdonald versus chicago case, striking down the gun ban in the city of chicago. that case, like citizens united, was like watching a train coming down the tracks for a very long time.

nobody was surprised by the decision since it was for told quite clearly by the d.c. case earlier. same thing, the nature of the hearing in the citizens united ordered a rehearing to address a question of its own devising in that case. it signaled a very strong likelihood of reaching the result did. even though, mcdonald like citizens united, had a big impact in terms of litigation. mcdonnell will have a bigger impact in the lower courts as we are already seeing challenges to very local ordinances on weapons to be worked out by lower courts over the following years. otherwise, there were a few notable eccentric moments this term that we tend to magnify because what ccunts as

eccentricity at the supreme court may not make a ripple in other fields of coverage. but the decision to close the front doors to the public entrance earlier this year, ostensibly for security reasons generated a published dissent by two justices -- as thh kind of internal dealings we don't see exposed. that showed perhaps a perraps a hint -- that showed perhaps there is some discord that goes on within the stores or perhaps not, but in he rehab project for the court building, security officials, as they tend to do, wanted to secure everything, at the topsf -- at the top of the steps. apparently seven members of the corps were willing to go along and to members thought it was a bad symbol to put out there for the public that the doors were shut and you have to go when in through the ground level floors and not up the steps.

we see the departure of justice stevens, that is the last time you'll see me wearing a bow tie, being today, since we had a farewell breakfast scheduled for the peanut gallery, as we are at the port. -- at court this morning. the departure of the longest serving judge might mean what the likely successor being elena kagan joining in the fall. otherwise, i'm eager to hear what is on your mind s well. >> i will take the moderator's privilege and ask the first question. i will note as is our custom that the first question, we will give the prior panel an

opportunity to ask any questions they might have. but i will lead off. for those of us who watched with some degree of some ambulance, the recent elena kagan hearinns, a frequent refrain heard from one side of the aisle was the activist, pro-business roberts court. you have written a piece awhile back which i cited in testimony saying that the robert scored defies a pro-business liberal. has the court maintained a series of cases that might earn it a pro-business label? is it fair to call an activist, pro-business court? >> i think it is a pro-business court. i don't know that it is an

ideologically divided pro- business court. i think a lot of the decisions that come out are not 5-4 decisions on a lot of it. if you take with the chamber of commerce cares about as a way to look at corporate issues, i think you cannot say those -- those are 5-4 decisions for the most part. there are some big exceptions. there were a lot of employment discrimination cases this year that the court decided in favor of the plaintiff. those were cases that corporate interests were quite interested in and did not come up with it wanted. i think the citizens united decision, with the president's remarks and the partisan divide you see in congress, that is the

loud voice in this. partly for political reasons, it works well for democrats to promote that image. >> if you ask the chamber of commerce if it is a pro-business court, they will cite a list of decisions where they did not get what they want. so the mainstream business community or -- they did not get what they wanted. there is a strain of employment cases where the court voted quite consistently for the plaintiff or the employee. those are retaliation cases, a subset of dissrimination cases where a person who is not the actual victim of discrimination is punished for pointing out discrimination. they file suit under the civil rights act and whether those

retaliation cases are permissible, the court as summit generally are, to the dismay of the business community. on the other hand, you can look at other cases and see how the court's majority is waiting the varying interests. one case the critics of the court bring up a lot,,one which was nullified by congress is the lead better case involving how to calculate the time limit from the act of discrimination that would permit someone to file a discrimination lawsuit. the majority and the dissenters -- this was a 5-4 decision along the traditional split, highlighted different aspects of the governing statute. for the majority, they emphasized the congresssonal aim to resolve these kinds of disputes outside of litigation, to informally resolve them and

use mechanisms within the workplace that makes it easier to run a business, that was the reason congress imposed was usually a 180 day time limit for filing a discrimination claims. from the point of the dissenter, that wasn't the point. the plan was to create a remedy ffr victims of discrimination. there is a time limit but it has to be construed from the first visible act discrimination or the last consequence of the act of discrimination. so they focused on a different aspect of the statute and waited more in the iisue of the purportedly discriminated against employee. if you ask if it is a pro- business court, if you look irrational the court sites in matters of interpreting statutes, it gives a clue as to

what priorities are more evident to the individual justices. >> with that, i will ask if any members of the last panel have questions. >we are surprised to see richard's hand. >> one of the interesting features about citizens united is the florio legislative proposals to implement the second generation of restrictions after the first one goes. this includes things like having to but the name of the ceo and various organizations and public places and lord knows what else. it is very clear there's not a single person in favor of these restrictions to actually supported the original decision. the same thing happened in mcdonald where you see the mayo3 cannot do this. now you have to get inssrance for guns and inspections, but the question is when these

things come back to the next generation of jews were hearings, bought 1 take into account the -- the next generation of these hearings, off one take into account, take into account the decision in arizona and grant the preliminary injunction on the ground given the motivations are so clearly indicating the antithesis the supporters of the bill have to the constitutional decision the usual presumption in favor of constitutionality ought not apply. that's one question. the second question this ought this information to be taken into account when you pass on the constitutionality of these things? this looks little bit like the same kind of massive resistance after brown vs. board of education. is that parallel overdrawn? >> we're not in the business of saying what the court ought to

do or ought not to do. i think we can try to describe it a bit. i think we can go back to see a parallel quite recently in the decade just past where the court issued a number of opinions involving the rights of detainees at guantanamo bay. i think you found there that the bush administration did not accept the reasonnng and foughh vigorously against those opinions and basically complied with them to stay 1 millimeter or inch on the side of defiance of the court's opinion, doing everything possible to frustrate the court cost point of view. this is not an unusual response for the losing party to find a way to get as much as a can within the four corners of the limits the court has prescribed. the court is striking a balance somewhere in the question is do these remedies -- are they

inherently suspect? i don't think the court will consider them to be inherently suspect. i think it will look at them carefully because they come in the wake of these constitutional decisions. look at the citizens united case. the court majority there cited disclosure as an acceptable burden as opposed to a restriction. when you look to the decision that came at the end of the term, the case involving the siinatures, the ballot initiative signatures in washington state, court said that despite fears of political retaliation against iidual voters for taking a presumed political stance, we are not going to create a constitutional rule that prohibits disclosure. since the court has indicated that disclosure is a way to

mitigate what ever perceived bills are involved in secret of political activity, i don't know those disclosure act will be struck down unless they are so clearly pretext for an outright- restriction. i don't know what the text of those bills look like right now and whether we can say but they are. >> i think is interesting in mcdonald while we did not expect to learn more, two years later, the corps was unwilling to go any further in saying what kind of restrictions would meet their test. it seems to me the court often is deciding the case nearly of letting the litigation come. once in awhile, you will get a dissenting opinion that talks about all this does open up more lawsuits.

justice thomas has written one and chief justice roberts did in the caperton case. they bypassed the details to get to judgment in the first case and but it go from there. >> greg or walter, did you have a question? >> i was wondering if you have any sense of whether there will be a fallout either of the side of the white house where the court from a comment at this -- the comments from justice toledo at the president? -- justice alito and the president. >> i get the sense there are some hard feelings from that. to lead to. what that's going i think it is what happened since then as well. i think the president goes out of his way to criticize the

court, as he did when justice stevens announced his retirement and as he did when he nominated elena kagan. i think there is definitely something there that's going to play out. how exactly it plays out, i don't have an idea, but i don't think each side thought the other is doing what it's supposed to do. views it as a winning bit of political imagery for itself. they have not all backed away from it. if one asks questions of the white house about that instead, they will simply recite their view of how wrongheaded the pitizens united decision was because they believe that crystaalized a lot of the democratic criticism of these alleggdly pro-business decisions the court has made. but it eems within the court

itself, some justices do have hard feelings about it. they do not deny the president or anyone right to criticize them, but the focus of time, place and manner of when the line was littered. we find these rather remarkable discussions about how many years of precedent were or were not overturn that whether you want to count state laws dating back to the progressive era as being also overturned or whether it's just a provision of the taft hartley act or -- there's a lot of microanalysis of that decision and it shows it did touch a nerve in a way that a lot of court opinions to not. -- a lot of court opinions do not. lot of democrats on the judiciary committee gave -- believe it gave them a chance to see is a line of rhetoric that republicans like to use -- the

concept of judicial activism. whether there is anything beyond a waahington story and it actually has an impact on how people vote or consider the court or consider how the judiciary functions, i believe experts believe that time will tell. >> while i don't think you can take much from the actual comments that people make on articles that i write, the two articles i wrote about this one, the one about the state of the union and justice alito and then when the chief justice talked about the state of the union at his speech at the university of alabama, they were the most commented upon articles i have written about the supreme court. i think it is an issue that got to the public in a way that a lot of supreme court decisions

to not. >> i'm going to step out of my moderator shoes for second. i think it is interesting. the question reminds me of what a judge friend oo mine said as general vice to oral advocates. the first rule of advice is don't insult the mind you seek to persuade. many people have focused on alito's response, but i think it's far more telling to see what the response from kennedy is as the first amendment is something he has marked our as a key aspect of his jurisprudence, and given the president's frontal assault, adds interesting to see whether he takes it as a personal affront. >> having followed the court all

term, what was the case or cases that most surprised you in terms of how the court came out and do you have a sleeper case from the past term that we were not following but you thought the decision was significant? >> one case that was surprising but falls into the dog that did not bark category was a case involving business method patents. pat and are provided under the original constitution and the patent right, what does that extend to? to what degree does it extend to processes as opposed to gadgets? the federal circuit court created a fairly restrictive test about what kind of processes would be protected and the supreme court tookkup on review.

this area would get a fairly detailed prescription from the supreme court about how to go forward because processes can refer to things like software or biomedical engineeeing there was an iiportant need for clarity as to what is protected by patent at what can be protected with other intellectual property law. this came against the backdrop of the supreme court moving aggressively in the patent area, overturning the federal circuit time and again in cases where the lower-court hears patent appeals add other specialized areas of law had weighed the balance too heavily toward patent owners and not enough toward permitting dissemination of new ideas. judgingby the number of attorneys at law firms to have

publicists who seek to have them quoted in articles involving the large community, it turns out, that was the most important case because i'm sure bob's e- mail crashed with all sorts of offers for third-party experts to talk about this decision but instead the decision was nothing. the court held that the particular patent which was denied by the patent office and the federal circuit and+ ridiculed by the justices, even justices who were not sure about the difference between rrdio and television and other more recent inventions [laughter] that patent remained valid. it wasn't good enough. the end. in terms of something that could affect the economy and could affect the way high technology

firms operate was significant in its insignificance. >> i thought there were a couple of cases this year, and maybe i was wrong to have thought this, but i thought we would learn more when they came down that we actually did. the case about the cross in the desert i thought presented some interesting issues and it did have a very complicated and twisted legal journey to get to this point and the justices seem to focus on that more than they did the constitutional questions that arrse out of it. i may be expected a little more from them. i was a liitle surprised also on the case where iffyou read the concurrences and dissents, you

see an interesting dynamic at work and a lot of conflict. but the actual opinion did not really reflect the. i think it was not the best legal vehicle to decide those kinds of issues bbcause the court below did not look at the question we were interested in. i was surprised by cls. i think it's way the court in a way i felt surprising. -- i think it swayed the court in a way i felt surprising. >> let's go to quessions from the audience. give us your name and affiliation. please wait for the microphone.

>> this goes back to richard's questions about the disclosure requirements. you said quite correctly in your answer that in citizens united that disclosure is in principle ok, but what our requirements for the purpose seems to be to actually chill speech? whee that are and -- in that fall under naacp verses alabama ban -- if the real goal is to prevent certain kinds of corporations from speaking, that seems to me different from a genuine neutral disclosure requirement just as when the state of alabama made the naacp disclose so -- it was clear the purpose was to prevent the naacp from engaging in a speech activities.

what the think about how that will be held going forward given the presence of this kind of motivation? >> it is true that some of the sponsors of the coins in named disclose act do want to chill speech. senator sccumer and other -psenators who held a press conference on the steps of the supreme court made it clear that they want corporate ceos to think twice before dumping tons of cash to elect or defeat candidates. the question is, thinking twice, what does ttat mean? does that mean i'm going to have a cross burned on my lawn and my children will be pelted with a good school or just the thinking twice main consumers to hhve a going to buy, shareholders have a choice about voting their proxy's are which shares the

want to buy will know more about what this corporation is doing and can take that into account when they make purchases. i think that is probably more whaa he had in mind than the kind of raw intimidation we saw goong on in the 1960's. whether that is relevant to what the supreme court decides, we hear some say that all that matters is attacks on the statute. we cannot say what the motivation is from the 535 murders of congress when they -pvote for it. i think you will find a searching look there and if the court says disclosure is ok -- the voter having a chance to know what interest are behind the advertisement. that being a little different than the naacp case where it was

the state. the naacp to leave in the center -- in this instance, when voters are told the committee ffr -- the hurray for everything committee is sponsoring an ad that it is actually the good people of bp, the senators sponsoring the bill think voters should know that. i do not know the naacp was funding political candidates secretly in alabama or in some way launnering its funds to prevent people from knowinn thaa. i don't know how applicable that analogy is. >> i think it is an interesting question that the court has not quite gotten to, the issue of harassment and the issue of disclossre for harassment. it seems like that is a coming theme, but they have not

wressled to the ground yet. >> thank you. one of the more interesting opinions i saw, interesting because it was so unusually hard to decipher, was in the case of the juvenile justice parole case. chief justice roberts wrote a separate opinion. he did not join the majority in its reasoning, where he basically said this may or may not be unconstitutional, depending on the circumstances. it was a real mishmash to me, logically, trying to figure out what circumstances would or would not apply in terms of his

few of when life without parole for a juvenile offender would or would not be allowed. i'm going to ask someone to talk about his opinion in this case, not just for what it says about this case but what it says since his opinion was not dispositive because kennedy's was. what it says about hissapproach a overall too bright line rules continually come back to the courts again and again where the judges or justices and up splitting hairs on does that make sense? >> up with a very interesting decision also because if you come down to it, he thought some

crimes sounded really horrible and so the person should stay in jail for the rest of their lives somewhere not so bad so they should get a crack at getting help of jail. i thought it was especially interesttng on his dissent were he was -- he had a list of 40 qqestions that a judge would have to go through that this decision raised because the was no real rule and he thought it was a terrible idea. he thought was going to raise all sorts of the implications -- during the oral argument, that was his line of questioning --

shouldn't will be that the judge has to somehow certified he has taken into account the juvenile 's age in making the decision to justify this in some way. that is what he and the up writing. >> this was a case from florida which has approximately 150 juvenile or so sentenced to life without parole for crimes that are not homicide crimes. most of them are in florida for pome reason. in this case, it was a 16-year- old robert -- a 16-year-old robber who ended up with a life without parole sentence. this was the case the court acted upon. is it flat out unconstitutionall to impose such a harsh sentence? it is true theemajority opinion

by justice kennedy took what we can look at as the traditional way the court has handled these cases involving the eighth amendment ban on cruel and unusual punishment. is it cruel or unusual as measured against the evolving standards of decency that marked the prague -- mark the progress of a security -- mark the progress of a maturing society? the majority held that it did, using its methods of counting how many states impose these sorts of penalties and with the trend line is and so forth. the most interesting opinion was, because also unexpected, in its reasoning even if it was telegraphed after oral argument, was from chief justice roberts who wrote the concurring opinion who said it was too hard for this one guy but maybe it's not too hard in the general to impose life without parole.

the broader aspect that it raises and this is what i think is interesting is that the court has not lloked to what they call proportionality in eighth amendment cases. it has not look to the terms of years, how many years someone is sentenced and measured that against the prohibition on cruel and unusual punishment except in the rest of instances. as a result, you have decisions upholding the three strikes you're out cases where the third strike might be someone stealing a few videotapes or a slice of extraordinarily harsh sentence. the court does not want to get into the role of second-guessing legislatures on how many years is cruel and how many years is just shy of kroll and how many years is unusual and how maay are not that unusual.

the chief justice's opinion suggested that maybe there is room for the court to be making those kinds of evaluation for coming up with some method for lower court judges to begin looking at that kind of proportionality estimate in deciding whether a term of years as cruel. until now, as only looked at whether death is disproportionate to the crime, 100 years or 10 years is proportionate to the crime. >> picking up off the last point since we only have a couple of minutes left, i'm going to reclaim the moderator's prerogative and sees the last question for myself because i couldn't let you leave the panel without forcing you to put on your prognosticators have to see -- prognosticators hat to see if to change when justice is to change the entire supreme

court. what issit you might foresee that might change with the departure of justice stevens an+ the addition of potential justice ellen occasion? what clues might we have gotten from the hearings? . . so obviously we had some differentiation to how it is she testified, what it is we forsee -- how might kagan act as a justice? >> well, i think it's awfully hard to predict that.

you know, i think -- i'll say a couple of things. one, there was a lot of talk that sown sown -- ddsonson that sonia sotomayor. we'll throw in the usual disclaimer that the first year, doesn't mean you can predict that. but i don't think we saw that anywhere. but as far as how the court changes without justice steven, it changes a lot. he really was the leader of that side of the justices. and it sort of -- inside baseball to a great extent, but who gets to assign the opinions

will change greatly with justice stevens gone. he won't be the senior member there making the decision when the chief justice is not in the majority. i think it changes the dynamic of the conference, which some people have talked about, about the order in which the justices speak and lay out the cases. exactly how it changes depends on the cases they take, but i certainly think it is a big change. >> well, i'll -- because of the convenient scheduling of the confirmation hearings to conflict with the last day of the supreme court term, i missed the first two days, because i was covering what the court decided, so i can't say i know everything elena kagan said during the hearing. but two things she said are

perhaps worth watching for the future. one was she was more pointed than i would have expected at criticizing the con grunesy test of the justice. this is what the courts sometimes vints and goes when congress spess phase to one of its powers say to protect the right to vote or protect the due process of citizens or what have you under the 14th or 15th amendment. the congress can only exercise powers that the court defines as congruent to the enumerated power which basically means congress cannot only do what it wants. it can only do what justice kennedy if he is in the majority and the chief justice

isn't thinks they should. so it will be interesting how she addresses them when congress is alleged to have gone beyond a specific grant. that maycom up when we see the voting rights challenged, which we may see it in the future. but i think the most interesting case to watch justice kagan is is the case of schneider versus phelps. this is a case involveing the westboro baptist church, a church that expresses its faith by picketting the funerals of fallen service members with vullger plaquerds assigning their death to america's tolerance to gay rights and then posting online vicious attacks on the parents of the dead service members. and the fourth circuit court

found that the westboro church had a right to do that. and that is now on appeal to the supreme court. and elena kagan at several points during the confirmation hearing criticized to one degree or another the times versus sullivan decision from 19634, where the supreme court created -- from 1963, where the supreme court created very high standards for liable suits by high public figures and thought perhaps that standard was too high and was in that case which -- so i think it will be interesting to see what her interest is in speech and press cases and whether -- how she draws the balance there in the future, and whether she draws it in a different place than justice stevens might have. then you take that into account as well.

her position not in just citizens united which was a first amendment case, but also the u.s. versus stevens case, the animal cruelty videos where the brief the united states filed took a very, very broad view of congressional power to suppress speech if congress felt its social value was negated by its social cost, a position that was really not necessary to defend the statute. i mean, it was sort of in that sentence was called out by the chief justice, joined by seven of the other justices as being quote startling and dangerous. and again, we don't know if she wrote that sentence or how clearly that reflects her views. so i think that in that case, coming up in the fall, whether we see a church that has managed to offend the most

conservative members of the military with the most radical members of the gay rights movement being united in dislike of what this church has to stai say, whether elena kagan, whether her views are at all forced to hold by what she said at the hearing. >> with that, please join me in thanking the panel. [applause] that, please join men thanking the panel. [applause] and thank you for attending. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> on c-span this morning, former white house homeland security advisor on counterterrorism. then president obama talks about protecting our ports. senators' questions and comments and all witnesses online at the c-span online video library. to purchase any part of the hearing, just click the buy now button. c-span is now available in over 100 million homes, bringing you washington your way, a public service created by america's cable companies. and now former white house homeland security advisor francistousened. she talked about cybersecurity,

the sharing among government agencies, and she spoke at a recent security conference hosted by the aspen institute in colorado. this is about an hour. >> [inaudible] except that she has been an inspiratton to this conference. she was president bush's white house homelanddsecurity adviser. commandants for intelligence. admiral mullen -- it struck me that twice he kept talking about synergies between terrorist groups. how does that affect your

thinking on homeland security? >> let's start with remember they christmas day attempt. my successor came out and explained that the connection to al qaeda was somewhat surprising to them. this was a regional group that had targeted inside the homeland. then we had a christmas day and the attempt in times square. the administration explained the ttp had been surprised if it had expanded to directly make an attempt on the homeland. when the admiral talked about3 talking about is the difficulty in getting into the decision cycle for an attack. you find groups that don't share a membership, but a belief in tactics.

similar targets in terms of targeting american interests. suddenly you find these like minded groups come together to want to share training, money, people. it becomes much harder. you are no longer targeting a single group, but this network of groups that share certain things in common. >> when you were at the white house was that already >> we began to see it. >> can you pull your microphone up just a little? >> we began to see a consolidation of effort. you saw a group in north africa to align itself with al qaeda. you began to see these alliances are around the world. all these groups began i will

not say strange alliance, but confluence of events. we understood they had a priority for those who were either americans are had american travel documents. we were working with our british colleagues to look at travel patterns around the world. we understood there was this network that was informing. we were watching it very closely. we are seeing some of the results of that effort. >> why is this happening? were we doing something wrong in which we are allowing the federation to occur? >> i don't think so. the current administration has been incredibly aggressive against al qaeda. the more you put pressure on the core of the network the more you

are likely to say -- that is part of what you are seeing. you are seeing a natural reaction to pressure started in the prior administration against the core of the network. >> how should we reaajust our tactics? >> we haae always understood that our relationship with foreign partners is important. not all foreign partnerships are -pcreated equal. not all partners had equal capabilities. some are more transparent. some are more consistent than others. you understand that as the home grown threat -- these loose affiliations strengthened and the threat rise you have to rely more on your partners.

you have to rely more on the state and local partners. the people who are mmst likely to see an anomaly or your local police forces. that relationship. importance o- we have to do a better job at engaging the american people. we have not seen a major attack in the u.s. since 9/11. we have seen increasing attempts, but when you compare it to the scale of 9/11, at uc a guy with -- you see a bad guy with a bad bomb in his underwear that did not go off. people take an unjustified comfort in that. it is a matter of emphasizing that the threat continues to be real. even state and locals will not

be successful without the help of the american people. >> when you say engaging the american public, are you asking people to watch out for their neighbors? >> i think of this in a number of different ways. we have to engage them in a very specific -- you don't want3 frightened about the next attack. that is not affect this. you want to be able to talk to people ss they are preparing their minds for what is inevitable. we were talkingg about 25 arress this year for terrorism. there have been many well-known attempts, whether it is the baakpacked bomb attempt, the times square the detroit plane. one of these will be successful.

talking to the american people to prepare them for what may be the eventuality of the next attack. if there is another attacked part of the reason we want to talk to them is to begin to understand that even a successful attack cannot if someone is hurt or killed, when you compare that to the level of success on 9/11, this will be their failure. you will not be able to say that in a crisis. you have to talk to the american people about what terrorism is. i don') think we do a good job of that. you have to tell them what you want from them. tell them what you need them to look for. finally, a matter of engaging them in the civil liberties debate.

the executive branch of government will make that balance for you. looking backwards, the american people will criticize how they the session got made. -- house the decision got made. you want to engage them now before the crisis, because the american people have the ability to affect by elections and public debate their views on how the balance should be made. there is a real value. if the response to this is why doesn't the government begin that debate? it has become the third rail of american politics. this notion of information sharing and what does the

government now? politicians don't see in in their interests. it requires a grass roots debate. >> have we calibrated is wrong that we are to fanatic about - this? >> there are ways to do it if we could have a conversation. i think there are ways we can do more. everybody here goes on to the internet and everybody will know that these sidebar ads of what you have been searching for -- all of the private sector does this. there are ways to do this. i think we need to talk about it, because we are not taking advantage of a capability available to us. >> it would seem part of the problemmis we are not

information sharing in the agencies. is there a problem with the fbi , state and local and departmenn of homeland security? >> look at what happened on christmas. we had a lot of information that we did not take advantage of. i think i can still say it. the american people were reasonably forgiving of the mistakes their government made on 9/11, but i would tell my staff that they will not be forgiving a second time. they have a right to expect the government not to make the same mistake twice. there are others -- this is one that makes me angry. the technology is exists.

this is not a technology problem. it is a failure of policy and leadership. when i was in government there was a national information sharing strategy meant to lead the agency through this, but it cannot be it is an acceptable mistake to not share information. is it is not ok. >> what is the policy failure? >> you see something like christmas day where iiformation is not adequately input or shared. it cannot be that we acknowledged that and there is no consequence. i venture to say if the president calls his cabinet -- we will have a chance to ask michael chertoff. if the president says the next

time this happens i will not hold the agency accountable, i will hold a cabinet. a cabinet member will be fired. you bet you that that will get shared. the cabinet secretary will take responsibility to make sure he beats his agency into submission. we will not see that. it is that important. it requires a clear vision and accountability from the white house because this is not an issue of malevolence. the notion that someone is making a conscious decision to take a report and high debb is not accurate -- and hide it is not aacurate. it requires a conscious decision -pevery single day that this isa

priority. i still don't see that passion in this issue. this is not the thing that people want to have to be there defining issue. if we don't do it well it can be the cause of an attack. >> it seems after 9/11 and the christmas day bombing, that is all the same, a failure of information sharing. >> to be fair to my colleagues, i think it is better. there is ever put against this, but i will tell you the problem is every time you have a problem there is a lot of attention put against this at senior levels and everybody goes back to their day jobs and it begins to dissipate. that is why it requires very senior level of tension and a whip at this every single day.

i wish i could tell you let's build the right system and it will go away, it won't. systems do exist that allow -- people really bought and and a demand is present. the system exists. you could have this happening, but agencies refuse to put data in. >> is there any one person responsible for data sharing? >> this is moved around a little bit. there is the office of information sharing. i will skip all of the controversy currently swirling around them. there is a person in the homeland security council. the homeland security adviser is responsible, -- far be it from

me -- what we do not need is one more czar, but this ought to be parr of the mission responsible for cyber security. cross government that solves this problem if there is the will. this is fundamentally a question of will. it can be solved. that is why i am frustrated. >> what would you do if you could issue an executive order? >> i think we have learned some lessons about trying to solve big problems in one gulp. the department of homeland security had the right effort. it started with too many agencies. you have to be mindful of solving big problems in a single

bite does not work the way you plant. you start with those things you care most about. there are legal restrictions on sharing that information. all those rules can be written to protect that information. to allow that information to be surfaced to the top and be looked at. all of that exists. the executive order as it say it to the law-enforcement community, this information is all going in. >> all going in what? >> into a single system. the agencies will not put it all in. i encourage you to ask someone whose troubles wiih this issue every day. you have all the systems that are present, but they are not

integrated into a single system. the agencies who own that data will not permit that to happen. there is a vulnerability inherent in putting them in a single system. if that system gets corrupted you have access to all of it. you are making my argument. i agree with you. the benefit in terms of identifying threats is worth the risk. the risk can be mitigated and you have lots of smart people in the room who are here to understand how to do that. >> are we moving in that direction? >> it is not fast enough. i don't see enough movement. for many of us over the last two

decades christmas day is a little bit shocking. people have worked on these issues. the notion that we find ourselves making some of the same mistakes is frustrating and deciphering to those we lost on 9/11. p> you have had a couple of shouts. give zoe and microphone. do we have a microphone? shout it out. i will repeat it. >> do you have a microphone? >> having said there is this an vulnerability, i will talk about this while they look for microphones. >> where are the microphone+ runners? did you want to say more?

>> no, i would like to hear the answer. >> cyber security. >> i think the president made an important speech and began a very important effort. i remember talking to succeeded me and said be careful of your vision and ambition when you get into office because the security of the in box gets in your way. . . nor what their sort of intentions and commitment is to it, the federal government cannot solve its problem.

. . different from anything we have done. you need a common physical location and a common understanding of the public and private sector where we stick together and talk about the intellectual capital and the capability in the private sector. we have some capability in the government, it is not what we need to solve the problem. what you find in washington is people make policy and not understanding second or third quarter consequences. we ought to invite the private sector in to help with a debate in conversation with how we ought to implement it. they own the critical about.tructure we're talking the government rights of private backbone. nowhere is that more obvious

than in the military. our allies, you need to bring the foreign allies in. there is deep suspicion among some of our allies. in terms of the u.ss cyber security effort. the u.s. government should not be the convening body. you will get the facts -- you have to have a platform and convenient authority. you need some non-governmental body to bring the international community and make a public- private partnership. have the dialogue and have it began as a non-governmental effort. i do not think this will be easy. the u.s. government will come with deep suspicion. we know from public reporting that the russians and chinese have a tremendous capability. nowhere is that more brightly than the private sector that it

stolen blind every day. our creativity and research and development dollars get thrown out the window when china and russia can steal things from us that we have paid for. we see little effort to protect or prosecute those -- the intellectual property. i think this is not only a required partnership but of a different nature than anything we've seen. >> a cyber attack, is the most likely to come from a major state actor like china or russia? or terrorist group or home? >> when you are in government you are worried about all that. it is less likely to be a terrorist act. we have had [unintelligible] i do not think it is likely to be in that vein. terrorist groups use the

internet to communicate and train and recruit and finance. it is less likely. i do think it is more likely you will see it from the state actors. >> have we already seen it? >> yes. people know it better that night. you will hear from folks like dick clark. we have seen multiple efforts. we had seen these what appeared to be state-sponsored efforts. >> would use a ublic park -- public private partnerships, are you talking microsoft or cisco? >> there are -- i remember having this debate. secretary rice was outspoken about the need to include when

we're talking about public- private partnerships, academia. mike mcconnell felt strongly about that. this is a broad base public- private partnership that is less about the government pushing information out, which is how -pthe government thinks about public-private partnerships. it is a dialogue. >> are you saying that, say cisco or google should collaborate with the u.s.+ government? >> there have got to be rules. the first thing my colleagues -- when i share information, we're not doing untoward things with the federal government. i am not suggesting they should be doing that sort of stuff. i am talking about sharing the intellectual capital. >> they should not -- >> there have to be rules and

understandings. there is a legitimate debate to be had about public-private partnership. i said why does the industry not do it? they are reluctant. they will be perceived as some sort of unholy alliance with the ggvernment. you have got to find a way to have that dialogue. it is not being had. >> do we have to have a week of call in surber security? >> my great fear -- i hope i'm wrong. my great fear is we are not going to see real progress in this area until there is some sort of cataclysmic 9/11 event. >> what is your nightmare? >> my two. why llmit yourself?

one is the financial system. i hasten to add that the many3 among the most sophisticated. they are reluctant to share information with the government reasons. the other is in a transportation or electricity sector. imagine your air traffic control system going down because someone has taken it down or the lights going on out. we played through the exercise as lights are going out across the northeast. >> with the creation of the department of homeland security -- was the creation of the department of homeland security a dumb idea? >> michael, durso for this question. i do not think it was a dumb idea. -- michael, prepare yourself for thissquestion.

because as i said earlier, when you decide to sell the big problem in a singll step, it does not always go smoothly. what we wanted in the department was the border agency that looked at people and things across borders. imagine a smaller scope department that started their. -- there. >> you could have added things. the department has overcome the challenge of trying to do too much. we heard the deputy secretary say we are not in the first year seven times in a row. i think we might have seen some of those gains if they were done more modestly. it was the right idea. >> do dhs and the fbi still cy lote information and not cooperate? >-- silo information and not

cooperate? >> i think people hide behind rules that allow them to keep information at of the system more away from one another. i think they are getting better. this is part of, enough will, you can solve this problem. dhs has got information the fbi wants and has trouble getting access to. to be fair, i do not think this is all on the fbi. it is on both sides. they want to saba, they cannot get out of their own way. >>-- solve it, they cannot get t of their own way. post 9/11, this has been an agency that has undergone a good deal of cultural change. i hate that sort of race. it has this new national

security division. -- i hate that sort of phrase. they are grwoinowing agents. ttat is a work in progress. there is a cultural shift inside the bureau. as with any big organization, they will go through growing pains. you have the department of homeland security that is neeson. this i-- nascent. it is fighting for its place at the policy table. that contributes to an environmenttwhere they find it difficult to understand each other and share. i think we have to be realistic about what the circumstances are that they are in. >> do you want to add to that or >> do you want to add to that or %-y something?