the record my appreciation for a key component of the particular engagent which is the fact that we are operating in a multilateral operation with nato coalition forces and measures to institute a no-fly zone, and also to comply by initiative 1973. for my case, the objectives and the methods of odyssey dawn were made clear by the administration. with that said, i expect for the administration to work closely with congress as we mo forward. i recognize it is a developing situation, and we know that days ago the coalition convened in london to discuss next steps litically and otherwise. today, i look forward to getting more of the details and answers that will help to inform my perspective in the decision-making process of congress. >> tha you, sir. chairman chavitz.

>> thank you. my concern is that the administration had plenty of time to get the authorization of the u.n., and the arab league and yet they could not find time in that period of time between president obama indicating that gadhafi had to go, and actually taking military action, to actually consult the elected representatives of the american people. that should have been a priority under these circumstances, and there was time. president bush got the authorization of congress before going into iraq, afghanistan and his father did in kuwait, and that was a, i think, a key mistake on this administration's part, and also far too much confusion. for example on saying that gaafhas to go, and no, he es not necessarily have to go. i think that should be very ear. and we also have to have much better insight on just who these rebels are. thank you.

>> tha y so much. my list indicates that mr. connolly is next. recognized for one minute. >> thank you, madam chairman, and mr. secretary, job well done, and you will be missed. you know, it is important to remember that in this exercise of limited intervention by the united states, we are operatin under a legal framework and what makes thisifferen from other places like yemen and bahrain is that for the first time we had an arab league resolution calling for a no-fly zone in a fellow arab country. we had a u.n. security resolution and two of them, 1970 and 1973 calling explicitly for all necessary means to stop the bloodshed in libya. the united states is part of that lawful international community and responded. responded in a limited way with a coalition. i look forward to this hearing and i look forward in particular, mr. secretary, to

youroutlining not only and expanding on this legal framework of the president's response, but also howhe administration views the necessary consultation with congress as this event unfolds, and i was pleased to hear mr. rorback's support. >> thank you. >> i thank the chairwoman and once again the american people are suckered into one more war, illegal, unconstitutional and undeclared. we have been doing this since world war ii and we have been doing it and it is not good for this country. this is to be a preventive war. they say a slaughter, but so far, there has not been a slaughter slaughter. in checking the records the best i can, there is no slaughter, but it is reported already that our bombs have killed more than 40 civilians, so how can you

save a country by killing civilians? this is a bad war. if we got into it incorrectly, it will not help us and unfortunately, i don't see that this administration or any administration is the going to move back on this until we are totally bankrupt. it is important tos a sess this properly and the way we go to war is important. just not getting token permission, we should nevero to war without a full declaration, and it should be strongly bipartisan. >> thank you, dr. paul. mr. higgins of new york. >> thank you, mr. secretary. i look forward to the testimony today. over the last several days we have heard debate about our involvement in libya. everybody seems to be look g in for false clarity and the fact is that war is ambiguous and i would rather have cautious

ambiguity than fse clarity. having said that, we are involved in other conflicts in the region. i think that the libyan situation is different from that of egypt per se when that movement is organic or this is very different. we don't know what we wi get in the end. we are reminded of the united states efforts to assist the mujahadine to break the soviet invasion in afghanistan and that morphed into the taiban. this is a very, very complicated situation, and we have to treat it as such, and understand the complexities of the region and the country and apply them to realistic policies from whiche can proceed. i look forward to your testimony. >> thank you so much. the vice chair of the subcommittee on middle east and south asia is recognized. mr. pence of indiana. >> thank you for calling on me, madam chairman and i thank the secretary for his years of service to the country.

we are at war with libya. i know there is careful parsing of words to desibe our military action and no-fly plus and the rest. are at war with libya. though i am troubled with how we wento war in libya, i will never jeopardize support for thep troo but i don't believe that the president of the united states has the authority to take america to war without congressional approval where the safety and the vital national interests are not threatened. i also don't believe in limited war. i believe if america chooses to go to war, then by god, you go to war to win. the president said this week it would be a mistake to broaden our mission. he said quote we went down that road in iraq. we are going down a different rode. in iraq, we had objective and congreional bipartisan approval in both houses, and then through sacrifice of blood and treasure and we pro vail ev.

with no approval in either house, and spilling of blood, and i would like to know in the course of conversation today, why congress should not immediately bring an authorization to the floor of the housef representatives to define our mission or end this mission and bring the clarity that the constitution and the american people expect. >> thank you. thank you. mrs. schwartz of pennsylvania is recognized. >> thank you, madam chairman. i would also like to add my words of acknowledgment to the members of the armed forces who have once again stepped into harm's way, and this time as part of a international coalition to stop a gadhafi regime who is intent on destroying humanights. the administration has said that the crisis intervention be limited and have the endorsement

of the u.n. and the arab league and the african union. the president has upheld the promise by handing off the lead command to the international coalition. the fact that the international coalition is there is critical. it is a clear regional and international agreement on the use of military force to protect vilians and coalition leadership and that we do not assume sole responsibility for the operation costs. in addition to the involvement of the united states there is more pressure on gadhafi which is a good thing. we will hear more on that and freezing more than $30 billion of gadhafi assets. the capabilities have been seriously degraded, however, the outcome of the intervention is uncertain. i share the concern of so many americans about the weeks ahead, and the concern about the possible escalation or the cost

of increasing involvement. i look forward to the information provided in the hearing to answer the many quesons that we will pose on behalf of the american people. >> thank you so much. mr. wilson of south carolina is recognized. oh, i'm sorry, mr. wilson has the minister of the day, so we will go to judge poe, and that is just the way it is. >> madam chair, no question about it, moammar gadhafi is a world outlaw and because he is a bad guy, it appears that the president has used military force in libya. i am concerned about the legal authority for such milary action in libya. as the constitution and the war powers act has it been followed? maybe not. secretary of defense gates stated that libya is not in the vital interest of the united states, and why are we dropping bombs in the country? the president has indicated that gadhafi is treating the rebels in an inhumane way and therefore

this obama doctrine of war in the name of humanity is troubling. si since o u.s. national security is not at stake, what constitutional authority do we have to be at war with libya? the nstitutional may be inconvenient but it is meant to be. war is a serious matter and presidents and congress should be inkconvenienced on the roads to war. i yield back. >> thank you so much. . cicilline of rhode island. >> thank you, madam chairman and thank you for convening the timely hearing. thank you, mr. steinberg, for your testimony today. we all recognize tt libya is a complicated set of events in a rapidly changing set of circumstance, and many of rus concerned, but i think that we're gratified to hear that the

president's address to the nation, and while the ranking member has identified some issues where there is not absolute clarity or certainty, i'm anxious to hear from you so we c make the best decisions based on t most accurate decisions. i look forward to your testimony. >> from ohio, the gentleman? >> well, thank you for being here. with the onset of military action in libya, i'm troubled by theircumstances surrounding our nation's involvement there. having served in the united states air force for 26 years myself, my military experience has taught me that any mission must have clear objectives to be successful and unambiguous end state in mind from the onset. i appreciate the president providing the american people with the background leading to his decision, however, our engagement in this conflict should not have begun without a clear definition of the mission that whope to accomplish with

the military forces. it is troubling that the president did not discuss american involvent with the congress, but rather consulted with the united nations and the arab league for approval and i submit that is not who he gets his approval from. as we contue with the president's mission of protecting the people of libya, i hopto hear some clarification today on what the objectives are and the long-term national interests are, and what prompted the involvement there. >> thank you, sir. mr. cardoza of california. >> thank you, madam chair and your continued stewardship of the committee. i want to associate myself with the remarks of mr. ackerman, and mr. burrman and i echo them, and i won't repeat them. this is a serious time for pontiffication. i am concerned mr. secretary about who may have leaked the president's findings and whether

or not that puts the men and women that we may or may not have on the ground inthe intel jebs commu je -- intelligence in that country in jeopardy. we need to proceed cautiously, and this is a time for the committee to do the job and ask the tough questions, but also to understand the difficult challenge that the president and your department are engaged in. >> thank you, mr. cardoza. mrs. burkle. >> thank you, madam chair, and thank you for hosting this timely hearing this morning. thank you to deputy secretary steinberg for being here. if i could respectfully recommend that you buy a heavy winter coat and boots because syracuse university is in my district, and long hard winters there. i too, with my colleagues share the concerns we have heard here and i look forward to hearing the answers to the questions that we heard, why the u.n.?

why the nato and the arab league was consulted before the congress and the american people. i look forward to this morning's hearing. >> thank you. mr. cirrus of new jersey. apologize to my colleague, my fellow floridian, ted deutsche, and the one you love the most -- oh, no. mr. deutsche is recognized, and then we will go to our side. >> well, i will finish that statement later. >> yes, i stopped before i got myself in deeper trouble there. >> thank you, madam chair, and ranking members for holding this hearing. secretary steinberg, thank you for being here and good luck to you in the brutal syracuse winters. i would like to commend the state department and secretary clinton for her leadership in the passage of hr-1973.

monday i was pleased to hear the president define the goals for the operation and reiterate to the american people there will be no u.s. troops on the ground. the situation intervened with the international community was one to stabilize a region on the brink. i look forward to hearing from you today, mr. secretary, and speak to your thoughts about what pressure is going to be necessary to assist the opposition in the quest to remove gadhafi from power, and short of that, short of that, when will we know that this engagement can and should end? i yield back. >> thank you, thank you. sorry, ted. mrs. elmers of north carolina. >> thank you, madamchairman and thank you mr. deputy secretary for being with us today. of course, this is just such an important hearing. you know, i join with my colleagues and all of the concerns. i look forward very much to your

input so at we can understand these issues better. of cours my main concern is for our servicemen and women right now and their safety and especially at a time when we are stretched so thin inhe military actions. i hope that i'll be able to head back to my constituents and explain that this is a finite action and that we have a secure strong military strategy and with that, i yield back the rest of my life. >> thank you. mr. cirrus, do not be mad. >> thank you, madam chair. >> you are so small. it is easy to jump over you. >> mr. secretary, congratulations and good luck in your next endeavor. i want to compliment the president for acting so quickly and commend him on working with the international community, and the nato committee, and especially on protecting the lives of the civilians in libya, but i am concerned now after we have thrown the first stone what is our next step? i read this morning where the

gadhafi is taking back some of the cities. i was just wondering if you can comment on that and i wonder if you can comment on the foreign affairs ambassador who defected or is in france i think it is, and if you can comment on that if you have i in information from him that will help us to make aecision down the line. >> thank you. mr. moreno from pennsylvania. >> i yield my time. >> thank you. my other florida colleague, fredricka flores is recognized. >> thank youmadam chairman. it is very interesting to me to have listened to so many people urge the president to establish a no-fly zone, to do something. there's a genocide in the making. we must do something.

and then when he did something, the same people who urged him to do something are criticizing him. i think when he consulted with the leaders of congress which i am am sure i heard he did, i don't think that this is unprecedented. i think this has happened before, and i think that he is the commander in chief, and at some point in his ministration, and every commander in chief's administration, they must make decisions that benefit the greater good of the country of the world with without having the opportunity to get permission as we call it. so, on march 17th when ambassador rice explained the vote in favor of resolution 1973 by stating that the security council -- >> thank you. >> have responded to the

libyan's cries for help, the council's purpose is clear to protect innocent citizens. >> thank you, mrs. wilson. >> yes, madam chair. >> and now over to mr. fortenbury. >> thank you, madam chairman, for calling this hearing. we are called upon to help, and this has to dowith the american taxpayer, and it is difficult for us to watch by and watch humanity be slaughtered before our eyes and the third is that we are a unique and exceptional super power, but in order to understand where we are now, we shou look back a few short weeks when the united states was pressured to unilaterally pressured to implement a no-fly zone by this body, and when the french were willing to stop pontificating and put up their assets that allowed the u.s. to

be a part of a coalition. i know that the scope and duration of this remain, but the scope will remain as to the robustment of the arab league commitment, and it was important to get that affirmation up front, and we need to know what assets they will put up. and libyan must be controlled and libya and north africans. and where is the commitment of resources? >> thank you so much. lastly, mr. murphy of connecticut. >> thank you very much, madam chair. i take faith in the president's promise that we are not going to engage in a third large scale intervention, but i do think that there are some important lessons that we can learn from the mistakes made in the communication between the administration and congress with respect to the iraq and afghanistan. we need to talk about cost and be honest about it. i appreciate the administration putting numbers on the table so on and we have to make sure

they are worst case and not best case numbers. while i want clear objectives, i want to be honest about the fact that the terminology and the explanations are more nuanced than presented by congress and i appreciate that by the president's speech and the briefings given to congress that there has been honesty about the complexity of the objectives and complexity of measuring outcomes. if that kind of honest talk continues, it will make it a lot easier for us to judge whether this is an engagement continuing, worth continued investment. i yield back. >> thank you very much, sir. now, we are fortunate to have before us the u.s. deputy secretary of state, mr. james steinberg who has just been named as we've heard dean of maxwell school of international affairs, the university professor for social science, international law and law at syracuse university. best wishes, mr. steinberg on your future endeavor, and you have a long and distinguished career, served as

design of lynn done b. johnson affairs at university of texas and vice president and director of foreign policies studies at brookings institute, you served as deputy national security adviser to president clinton and held a number of positions at state department, including chief of staff, director of policy planning and deputy assistant secretary in the bureau of intligence and research. you hold a b.a. from harvard, a j.d. from yale. i'd like thank you for your help in securing the freedom of three journalists who had a direct link to my are in south florida. thank you for taking my call and so many calls about their predament. thank you for your help in making sure they got home safely. mr. steinberg, you are recognized. >> thank you, madam chairman. thank all of you for the kind personal words people working on the winter wardrobe and looking forward to wonderful winters in syracuse, but the beautiful

springs, summers and falls. i'm grateful for the opportunity to meet with the committee to update you on developments in libya and answer the important questions you have raised this morning and in other discussions. i won't cover them all in my opening statement but look forward to them in rest of our discussionses. i want to echo a sentiment, our gratitude toward the men and women serving the country so bravely and skillfully as they always do. in his speech monday night president obama laid out our goals and strategy for libya and the wider middle east. on tuesday, secretary clinton met with allies and partners in london, asell as representatives of the libyan transition national council, and yesterday she and secretary gates briefed members of the house and senate. i'm going to take this opportunity to underline their comments and continue the valuable exchange between the administration and congress that has been ongoing since after colonel gadhafi's regime ban to resort against violence against his own people. why we are part of this broad

international effort. the united states has played a unique role as anchor of global security and advocate for human freedo when our interests and vals are at stake, we have a responsibility to act. this crisis began when the libyan people took to the streets in peaceful protests to demand their universal human rights and gadhafi's security forces resnded with extreme violence. the u.n. security council acted by unanimously approving resolution 1970 on february 26th, which demand an end to violence and referred to the situation to the international criminal court while imposing a travel ban and assets freeze on the family of gadhafi and libyan government officials. rather than respond to the international community's demand for an end to violence, gadhafi's force continued their violence. with this imminent threat bearing down on them the peep of libya appealed to the world for help. gulf council and arab league called for establishment of no-fly zone. acting with nato, the arab world and african members of the

security council, we passed resolution 1973 on march 17th which demanded an immediate cease-fire, includinan end to the current attacks against civilians which said might constitute crimes against humanity, imposed a ban on all flights in the air flights and issued necessary measures to protect civilians and tighten sanctions on gadhafi's regime. as his troops pushed toward bengha behazi, gadhafi defied the international community declaring we will have no mercy and no pity. based on his decade-long history of butality we had little choice but to take him from his word. stopping a casualty of massive proportion became a question of hours not days. all of this has been accomplished consistent with obama's pledge to the american people our miller to role would be limited we would not put ground troops into libya, we would focus on our unique

capabilities of the front end of the operation and transfer responsibility to our ally and partners. the president defined the military mission succinctly at the outset, in his words the international community made clear all attacks against civilians had to stop, gadhafi had to stop forces from advancing on benghazi, pulled them back from ajdabiya and establish water, electricity and gas supplies to all area. humanitarian assistance had to reach the people of libya. as we meet, the north atlantic council with coalition partners has taken on full responsibility for the united nations mandated action against libya that includes enforcing no-fly zone, policing an arms embargo in the mediterranean, carrying out targeted air strikes as part of u.n. mandate to take all necessary action to protect civilians. as nato assumes command and control of military operations, we're confident the coalition will keep pressure on gadhafi's remaining forces until he fully

complies with resolution 1973. and we will support our allies and partners. we became involved in this effort because, as the president said monday, we have an important strategic interest in achieving this objectiv a massacre could drive tens of thousands of additional refugees across libya's boarders, putting enormous strains on the peaceful yet fragile democratic transitions in egypt and tunisia. it wou undercut democratic aspirations across the region and em bolding repesive leaders to believe violence is the best strategy to cling to power, undermine the credibility of the security council and ability to work with others to uphold peace and security. that's why the press concluded the failure to act in libya would carry too great a price. many have asked why libya, why not other caseses where we have seen forced use against civilians. as the president said, in this country, libya, at this particular hoemt moment we were

faced with the pros second of violence on a horrific scale. we had an ability to stop the violence, a broad alition prepared to join us, support of arab countries, and a plea from help from the libyan people themselves. we had the ability to stop gadhafi's forces in their tracks, without putting american troops on the ground. if i may, madam chairman, briefly, want to address three nmilitary elements of our strategy. first, on the humanitarian front, working with nato, the eu, and the u.n. and other international organizations to get aid to people who need it. the united states government has provided 47 million to meet humanitarian needs. the second track is to continue ratcheting up pressure and further isolate colonel gadhafi and his soesh greaassociates. the contact group sent a message we must move forward with a democratic transsituation dhafi has lost legitimacy to lead and must go. president obama has been equally firm that our military operation

has a narrowly defined mission that does not include regime change. if we tried to overthrow gadhafi by force the coalition could splinter it might require deploying u.s. troops on the ground, and could significantly increase the chances of civilian casualties. as the president said, we've been down this road before and we know potential for unexpected costs and unforeseen dangers. the approach we are pursuing in libya has succeeded before, as we saw in the balkans. our military intervention in kosovo was carefully focused on civilian protection. >> thank you, i think i'll get to your other points. >> just finish this last point? >> yes. >> i know that members are interested. because i want to remain us that though the operation, the military operation in kosovo ended with the end of the humanitarian crisis and the rit withdrawal of forces we kept pressure on. in one year from the time the military operation ended, milosevic was deposed and on his way to the hague. >> thank you, sir. last night the regimes of

foreign intielligence chief defected. will the u.s. government question him and any other former regime member about the attack over lockerbie scotland, that killed hundreds of americans, americans including my constituent, victoria cummick are demanding answers, and this man has them. have any of these former officials been deposed by the department of justice, what is the plan going forward to get information for them about that attack? and if i could remain the secretary to please respond to the letter delivered to her by the families of pan am 103, including my constituent victoria cummick. >> thankou, madam chairman. secretary clinton has taken a strong interest in the pan am 103 victims. she has a deep commitment there. and as i think you know, and i -- the department of justice has a considerable interest in a number of these issues, because

they're ongoing investigations, i'm not in a position to comment on them but the department of justice is actively involved in reviewing that and seeing whether there are actions that it needs to take. we take this decision the libyan foreign minister very seriously. it is an indication some of the efforts we're making to put pressure on the regime can be successful. i think while we should not overstate the significance of this we should not also understate the fact someone who has a long association with the regime has seen that there's no future there. the british are beginning to question h. this is obviously a delopment of less th 24 hours, so i can't say more detail but we take the point that you've raised that it is something that we take as an obligation very seriously. >> thank you very much. mr. bermen is recognized. >> thank you very much, madam chairman. just because so many members raise this whole issue of constitutional authority, war

powers authority, i want to take a little bit of my time to at least throw out my perspective on all of this. this is not the first time this issue is in front of us, and i'm sure congressman repoo rfrmt o rorhbacher remember grenada, ban ma, and i can cite 20 other instances where u.s. forces in conflict without any vote of congress, and in the early '70s, congress attempted to come to grips with that by pass and by overriding a president's veto the war powers act. and there is a tension here because no president has ever accepted the constitution alt of the powers ability but

congress recognized there will be situations -- and this was a classic case of one -- where action had to be taken before congress could authorize that action. i don't think there was plenty of time, given the position the administration had and i think rightfully so that they were not going to unilaterally impo a no-fly zone. this wasoing to be a coalitio effort or it wasn't going to be and itas going to be sanctioned by the security council or it wasn't going to be. so so far the president has complied, not in his words pursuant to the war powers ability, but consistent to the war powers ability with what he's sposed to do with congress. the test will really come 60 days from the date this start, the conflict started, when if there was no authorization for the use of force in this

particular conflict. and what the president does then, i don't know, because once again new york president's accepted the constraints imposed by the war powers ability and there's never been an ability to litigate it because no court will givetanding to the congressional branch of government and the executive. so let's put this in a historical context when we start leveling charges. >> what the administration did in the role of congress by passing the war powers abilict accepted the premise there would be situations where this would happen, and under the provisions of section 5 of that act, the time will come, and on any given day the speaker of the house, leaders of the senate, could, uld schedule for a vote an authorization or a denial of

authorization for this ifhey chose to do so. so, let's look inward before we level too many charges outward. now in my last minute, let me ask you, one, if you could -- given the position of the president world leaders that gadhafi must go, shouldn't we recognize the transitional national council as the french have done to help create the facts on the ground, that gadhafi is no longer libya's leader? would not such action be consistent with our statements and encourage other nations to do so as well further isolating gadhafi and sending a message to his supporters or those sitting on the fence that they should abandon him? and, finally if you have a chance, in that minute you'll have left, the misrata issue that i issued in my opening statement. >> thank you, mr. berman.

i'm sure i'll have an opportunity to discuss the issues you raised in terms of the authorities in the course of the conversati. i'll go directly to your questions. first, with respect to recognizing the transitional national council, i think we have deepened our engagement with them. we've had a great deal of contact with them. we're in the process of sending a special representative to meet with them in eastern libya. we want to be supportive of the efforts of those trying to achieve democracy there. at the same time we need to understand better about who they ar what their aspirations about. we welcome the statements they made in the last couple of days both making commitments to democracy and the strong condemnation they made and disassociation without al qaeda that they made yesterday, which is a positive sign. but before we move forward a formal recognition, it's important for us to have a better understanding of their goals, objectives, representativeness and the like. on misrata, we've had some success in achieving some humanitarian access and it's an important objective. there have been some ships gotten in by sea but it's

something we continue to pursue. >> thank you very much. acting with the consent of the ranking member, i would like to engage in a colloquy version of the authorize query. mr. deputy secretary, the committee would like to make a request of you on a different issue as part of the budget authorization process, the department has frequently provided the committee with draft legislative language for the changes in statutory authority that it is seeking as well as supporting expnations and information. i would like to ask the ranking member if he would join me on the record today in asking the department to convey any such requests to us, as soon as possible, so that we can give them adequate consideration as part of the state department authorization process. >> and the answers, i'm happy to join in that requt. i think that is the committee's responsibility and this information is critical to being able to perform our function. >> thank you, mr. berman.

mr. steinberg, can you commit to us that the department will at let let the committee know within the next week whether or not any requests for new or chans in the statutory authorities will be forthcoming, even if they have not been finalized? >> thank you, madam chairman. with that understanding, i'm not sure we will have all of the detail present but we certainly can give you a basic sense of what we will be looking for. >> that will be so helpful. thank you steinberg, mr. berman. i turn to mr. smith of new jersey. >> thank you very much, madam chair. thank you, deputy steinberg, for your testimony. i agree, no ground troops but, frankly why tell gadhafi? secondly, when first initiated military action, did we know who the rebels were and their plans foa post-gadhafi libya? especially as it relates to human rights, rule of law, and democracy? third, are the rebel fighters

defined as civilians in the relevant u.n. security council resolutions authorization of force? how is bad weather affecting the ability to deploy our air power? and finally, given the fact that gadhafi has engaged in international terrorism, obviously, we all know how horrific the consequences of that has been, how is his current ability, what is his current ability to strike at our interests outside of libya? doesn't his ability to use asymmetric means to hit back at us increase the longer he remains in power? >> thank you mr. smith, for those very good questions. first on the no ground troops issue i understand your point. having grappled with this issue in the context of kosovo a decade ago i appreciate the point behind this that. i think this is a slightly different set of circumstances, in part, because of the very strong conviction of our partners in the arab league and the neighbors about the risks associated with having u.s.

forces on the ground there. i think it's very important that, as part of our overall strategy, that we ve tried to make clear this is a humanitarian invention, thoses one that has broad support and this is not somehow an outset of outsiders. understanding that normally we don't like to preclude these things, i think there's a compelling case in this one instance, and i think it has broad support among the american pele, i think we could make the case, while it may not be generally the right way to go in this case it was justified. >> the secretary would yield on that, so nothing would preclude in our force or some other hybrid force, a whatever it might be, from going? >> i think that the -- there's language in the security council resolution that talks about on passion forces and one could have a discussion about what that constitutes. but i think that at least our decision is based on our national policy decision. in terms of knowing who they are, i think it's important to understand that we did not intervene explicitly on the side of the transnational council.

we intervened to prevent this humanitarian catastrophe. as part of the broader strategy we want to see an inclusive democratic transition take place and hopeful that the transnational council can be the core of something that leads to that broader group. i think the council itself would recognize it doesn't fully represent all of the people of libya and if we are going to move forward it's going to be more inclusive. we have been concerned about the human rights, your long commitment to that. that's one of the reasons we engage with them and encouraged about the statements they issued monday in london and then yesterday, both with respect to their commitment on democratic transformation, inclusiveness and respect for human rights and their strong condemnation of terrorism in general, and their distancing themsels from any association with al qaeda. these are obviously important commitments. we have make sure they're being honored in the fact as well as words. as several of you havesaid, the more we engage with them, the more influence we're likely to

have. that's one of the reasons why it is important that we engage. as i mentioned come onmcongress, we have deepened our engagement with them, including sending a representative on the ground. on bad weather in the military operations, i've long since learned i prefer to fer to military colleagues on that except to say operations do continue. i did check in before we came and the operations, even as we move forward with the transition, that these efforts are under way. >> on the issue of the terrorism? and his ability to strike? >> yes. obviously, it's something that we're concerned. we know the past record. one cannot distribute that. this is one of the reasons why it's important for the transition to take place and why we believe that gadhafi should go. >> just finally, i remember reading the book, the a of war, he made a powerful statement, many, one let your plans be dark and as inpenetrable as night, and when you move, fall like a thunder

bolt. when the president said all options are on the table, obviously the intelligence committees and key members of congress need to know, and i think there's no support for ground troops. i certainly doesn't support it, but again telling gadhafi may unwittingly, and mean that, convey to him that he has other options and he's not as at risk as he otherwise might be. just going forward i would hope the key members of congress, especily the intelligence committee and the leadership, be apprised. but for a short periods of time, some ambiguity might be helpful to ensure his demise. >> thank you, mr. smith. mr. ackerman, the ranking member of the subcommittee on the middle east and south asia is recognized. >> thank you, madam chair. i find it interesting that we're in favor of killing gadhafi but we don't want to be there when we kill him. i continue to betroubled, as i listen to some of our colleagues, both in this room

and outside of the room. and i welcome some of our friends to the newly found, newly discovered by them, question of the war power act. it's an interesting piece of work. ionder where those questions were, and to be clear i supported my president when we went to war in iraq. but where were those questions fromome of our friends who newly discovered the constitution about that war? where were the statements about the clarity of the mission when we engaged in that? where were the demand for the end game? eight year into that war, over eight days, and no then and for eight years demanded to know what the end game was. and it's interesting, eight days, eight days, into the action in libya, they're making demands where's the end game. more people died in iraq in the

past couple of weeks than in libya. and ye the questions are asked, under this president's action, than they were during any previous president that i can remember. the war powers act is vague. it doesn't answer all of the questions. war doesn't answer all of the questions when you start it. you don'know the answer to any of the questions until it's over. sometimes you don't know when it's over. nobody's tested the war powers act. the constitution aelt ality is argued and still in the courts and deliberately so. sometimes we have to understand the laws are written with deliberate ambiguity so we have flexibility to act in situations we can't fully understand when things begin.

maybe we need a different definition of war. i don't know. is it a war when you're fighting on behalf of the people of a country and against its leader, when you're not against the country, when you don't want to defeat a country, when you don't want to defeat its people but you want to help them liberate themselves from a corrupt and brutal and dictatorial leadership? is that a war? was france at war with england when so many there decided that their government's policy and its citizens would be support inof the american revolutionaries instead of the oppressive king? i think not. but if you think further about it, you know if a bomb dropped by a foreign government falls on your house, is it a war or just an intervention? maybe we don't want to define

war. maybe we're not in one. but we have to give these things some thought as we think about the policy. and why libya? a lot of my friends thoughtfully asked the question, why of all of the countries involved in the region are we going to get involved in every single one of them? but you know, if you're approached on the street by somebody asking you for a few cents and has their hand out and tells you their story and they're in need, and you're trying to figure out whether or not to reach in your pocket and helpr not, because there are so many beggars out there to help, but suddenly all of the street people say to you, help that one, maybe you have to take a look at that. and this is the first time that i can think of when not just one arab nation, but the entire arab league, which seems to be in a bit of difficulty on every

individual basis says to you, help that one. maybe there's cause for the exceptionalism that the president has indicated here. so i -- i want to thank him, and you, and the administration for taking the actions that they're taking. i mean this dictator in that country, who has threatened no pity and only brutality to those who opposeim -- we've heard that before -- had only roosevelt, the outset of -- during world war ii stepped up to the plate with the moral clarity and intervened when another dictator was annihilating people by the thousands and millions, maybe a million or millions of innocent people would not have been slaughtered. >> thank you mr. ackerman.

mr. berman? >> first of all, in answer to my good colleague, good friend mr. ackerman, congress approved going into iraq before we went into iraq. now, let me read what the war powers act says. the president's power, as commander in chief to introduce u.s. forces into hostilities or imminent hostilities can only be exercised pursuant to, one, a declaration of war, two, specific statutory authorization, or three, a national emergency created by an attack on the united states or its forces. it requires the president in every possible instance to consult with congress before introducing american armed forces into hostilities or imminent hostilities unless there has been a declaration of war or other specific congressional authorization. none of that happened. and yet we're spending hundreds of millions of dollars, and probably billions of dollars, involved in this conflict.

and my concern is -- and i hope you'll answer this, mr. secretary -- why are we not in the ivory coast? thousands of people are being killed every day by a lead who was thrown out of office and won't leave. because there was a democracy move there and he's still there. and he's killing people every single day. now why is thatot as important as what's going on in libya? and i'd like to know, this has been brought up a couple of times, how many of these citizen soldiers fighting against gadhafi, how many are people who are tied in with terrist organizations that killed americans in iraq and afghanistan, and do we know who they are? do we have any idea? the secretary of state, when asked this question a couple of days ago said, well, we don't know all of the players. we're look into it. it's a heck of a situation when we go into a conflict and we don't know who we're supporting.

i mean, this -- this could be the muslim brotherhood, it could be al qaeda, it could be taliban, it could be a combination of all three, and we really don't know. we haven't decided whether or not we're going to give arms to these people. will we be arming people who do to the have our interests at stake in the whole rthern tier of africa, in theiddle east, the persian gulf, the suez canal, the straits of hormuz, the gulf, all of that is up in an uproar right now. how far to we go in why isn't the congress consulted in advance? the war powers act, in my opinion, is very, very clear on this. we talk about the arab league. saudi arabia gets so much money from us, it isn't even funny. and many of the other arab countries are well healed. why can't they pay for this? if they aren't paying for this, why not? if they are paying for it, how much are they kicking in or is the american taxpayer on the

hook for all of it along with some nato allies? and one of the things that concern me, since we're going it try to be an septic about this and make sure we don't kill civilians, we're just after bad guys, if gadhafi's got cole of cities and moving into cities when clouds are overhead and can't impose the no-fly zone, weav got gadhafi's soldiers in among the civilians. how are you going to get them out? you're not going to gethem out by dropping bombs on them without killing civilians. there's no question, civilians will be killed. what do we do? do we support bootsn the ground? is france and britain and other of our nato allies go in there? and ultimately, will we go in there? all of these are questions that should have been looked into before we went into this conflict. you know there's a lot of places we can go to war if we want to, but we've got a war in afghanistan, we finished in iraq, that's still problematic, on a lot of people's minds, and we don't have money to do all of these things. we have a $14 trillion national

debt, we're sinking in red ink. we're $1.4 trillion in the debt this year. we can't reach an agreeme with the senate right now on cutting spending of $61 billion and now seeing -- i see there's a compmise of $33 billion and we've got $1.4 trillion deficit this year. th country is in big trouble and we don't need to buy more trouble by getting into a conflict that isn't necessary and in our national frp. i don't see libya in our national interest. obviously we want to protect civilians and people being kied, innocent civilians, how do you pick and choose? why aren't we in places like the ivory coast or syria or elsewhere? these are questions that need to be answered andhould have been answered before we went into this, and congress should have been consulted. the war powers act is very clear on this. >> thank you very much mr.

burton. mr. payne, ranking member and subcommittee on africa, global health and human rights. >> thank you very much. as i indicated before, i commend the president for waiting until there could be a consensus with the europeans and for the arab league for the first time to ask the west to intervene, i think, is something that we keep losing the importance on the -- the importance of that. just about gadhafi in general, you know, i think that his intimidation of many african leaders over the years have kept them quiet. as a matter of fact, though, if you want to put his hand on d dastardly group, charles taylor went into sierra leone and got together with the group, the ruf, who are chopping off hands of women and children to get the blood diamonds and so charles

taylor is a direct result of gadhafi. so i'm not so sure that african leaders really have that much of a real appreciation for gadhafi. they talk about the fact that we do not know who the persons are. i met with former amssador of libya, and he gave me the napes of the 27 pople who were in the provisional government at that time who are leading the discussions for libya. so, the governing group is not a total mystery. many people who have been imprisoned by gadhafi in the past are a part of the group. all a sudden, al qaeda comes up. i'm not so sure that al qaeda isser in libya but you throw that up and that sends a red flag up to say that we need to be careful. i do think we need to be careful but there will be somebody on

the ground to combat gadhafi's troops. and it's going to have to be libyans. i think if they're trained and are equipped, they had the will to fight because they are fighting for their freedom that they have been suppressed for decades and decades. so i think that the liberation persons will really have an opportunity because i also believe that there will be deflections from the military of libya. i have a question, though, about the behavior of some of the liberation people as it relates to subta sa hasaharan africans. it's been alleged there were mercenaries forcibly brought into libya gi gadhafi. i question w many will there are because gadhafi's forces are strong enough without sort of

ragtag group of mercenaries from subsaharan africa. however, the liberation people have taken out on black africans who are workers in libya and have threatened them and have brutalized some of them, some of them are afraid to go to the hospital because they think they might get killed in the hospital. so i wonder whether our government is looking into the liberation people's so-called good guys who are taking out on black workers in libya and also actually blacks who live in libya who are libyans because of the rumor about the mercenaries that are there. could you -- do you have any light on that? if we could have any message to these -- to the rebel groups that we should say that we don't think that this is right. >> thank you, congressman payne.

we are aware of reports that along the leines you've discussed. in general we would not want to see that happen, we made clear to the transition national council we would be concerned about that and they nee to do a very good job of demonstrating they're not like gadhafi and they provide human rights and decent treatment to all people involved. broadly we have been concerned about the possibility that gadhafi would seek to use mercenaries. again, conflicting reports of how many or how important it is, but we've been working with a number of countries in the region, particularly from africa to try to diswade them and discourage them from providing mercenaries. if i could, i would like to say a word about coat devoire ii. the u.n. secury council passes a new resolution. we have been a leader in recognizing the president and working with the west african countries and the au to see that transition to move forward.

unlike libya, however, we have not seen a call by the african regional organizations for military engagement. we have different tools for different circumstances but that does not mean we're not support inof the democratic transition. >> thank you so much. the chairman on submitty on oversight investigations is recognized. >> thank you very much. i apologize, i've been having to run back and forth between two hearingshat are very significant. so if i cover a question that's already been asked, i apologize. let me get to the cost. i have several -- made several contacts with the transitional national council, and those revolutionaries who are trying to free themselv from the gadhafi tynny. in fact, omar turby, right here, just returned from libya and has -- was meeting there with the transition. thank you, omar.

and he assure me, as well as some of the other contacts that i have had, that the council has agreed that they will pay all of the cost of american operations in support of their efforts to free themselves from the gadhafi dictatorship. what is your understanding about that? >> congressman, i haven't heard anything specifically to that point, but we have had positive discussions about them about their support for what we're doing in trying to make this success for all of us. in general, we have taken the position that the assets that have been frozen are for the benefit of the libyan people. so were there to be a democratic transition that would be a decision. >> let's me ask you specifically, the administration does support, does it not, or maybe you can tell me they are not at this point supporting, the principle that if we are helping the people of libya free themselves from the gadhafi dictorship, that they will

pay -- rep us? >> i think we would welcome a representative government from libya taking that position. >> all right. the american people will also welcome that. and let us note that one of the thingshat tears at heart of the american people that is, when we get involved in things like this, quite often we feel that the country that we are helping or the people we are helping are not grateful to us, and i have -- whether it's omar or others who i have been talking to, it's clear people are struggle against gadhafi today in libya are grateful that the united states is playing a positive role toward their effort to free tmselves. as i mentioned in my one minute opening statement, this is not unlike the reagan doctrine. we are not sending troops overseas to do fighting for other people who are trying to win their freedom. we ended the cold war during the reagan years and, i might add,

did not have bipartisan support in many of these cases where we were supporting those elements that were fighting for their own freedom against communist tyranny. well, radical islam now threatens the peace of the world, and the freedom of people throughout the world, and i might add that this, by being involved with people who are fighting for their freedom, we are at least lessening the impact of radical islam if not offsetting it in important situations like this. maybe you could expand on that? >> thank you, congressman. first of all, thank you very much for your support. it's obviously very much appreciated. second, i think, as you said, i think there is a strong sentiment ere are a real resonance among the libyan people. it's only anecdotal but all of us were touched by the way in which our two downed pilots were treated when they were supported and helped by the people who they were trying to help, and i think that's a real reflection

of the recognition of what we're trying to do here. i think that, you know,s we go forward, this is an important set of principles and we have made clear, first, that we do expect, and look to the council and new representative government, to reject extremism, to reject terrorism, and the statement that the cncil made yesterday was a welcome and ex-police sweat clear statement. >> if we were not engaged, for my fellow colleague whose seem to be tryinging to sugst america shouldn't be engaged or engaged and nitpicking themselves in terms of finding things wrong with what the administration has done if we were engaged there wouldn't be no motive for those people who are on the ground to confront radical islam on site. right now they know if al qaeda or any of these other operative, who hate the west as much as th hate gadhafi, there would nobody reason to confront their

influence if it wasn't for the united states they're helping. i hope that we understand we are, this is in our interest, as it always is in the interest of the american people to stand with those people who are struggling for freedom and a democratic government. however, it is not in our interest to send our troops all over the world. maybe you -- i'm sure this has been covered before, but maybe you could reassure me that we have no plans to send american combat troops -- and let me note, reagan built up our military forces, but rarely did he dispatch em into any type of combat zones around the world. instead we supported those people who were fighting for eir own freedom. is this goi to be the case with this sflags. >> -- with this administration? >> we have no plans or intention to put ground troops in libya. >> if you do, i will just note

you will lose the support of many of white house are now supporting your efforts, if your plans include sending combat troops and putting them on the ground in libya. thank you very much. >> thank you. i would like to tell the members of our committee that the japanese ambassador to the u.s. is in the side room, if any of you would like to go d discuss the situation with the radiation leaks, the terrible humanitarian crisis that his country is undergoing and more than anything, he would like to thank the members of congress for the help that the u.s. has given to his beleaguered country. mr. sherman, the ranking member on the subcommittee on terror.

nonproliferation and trade, is recognized. >> i want to pick up on mr mr. rohrcher's comments. libyan assets used to pay the full cost, not the phony rginal cost of our operations and i know,mr. steinberg, you say that this money needs to b held for the benefit of the libyan people. first, i would think our actions are helping the libyan people and i see you nodding in agreement. and second, libya, normal times proeshg deu produces more oil per capita than any country you can find on the map without a magnifying glass. more oil per capita than saudi arabia. now, i know, if we were to seize those libyan sets and to the extent already expensed for the benefit of the libyan people, that that in foreign policy circles would be considered petty and presumptuous.

but in america, it is simply outrageous that we are going to hold this money and use american taxpayer dollars to carry out this operation. i'd like you respond to that for the record, because i've got another series of questions. the rebels include some very good people but people who seem to be willing to embrace whatever help they can get, not only from us, but from al qaeda or terrorists as well. have we demanded that the libyan rebels apprehend, extradited, or at least cease all cooperation with a of the terrorists in their midst? >> congressman, as i mentioned earlier, we were very appreciative of the clear statement that the transnational and national council made yesterday. >> that's a clear statement. have they apprehended a single

person? have they even announced that -- i mean, vague statements against terrorism are a dime a dozen, especially in english. have they ceased cooperation with the abdel hakim al sidi. >> we don't see signs of significant cooperation. >>kay. what you're saying there's some cooperation -- >> no, i'm not -- >> okay. is there -- what about al hacidi is he incorporated or commanding rebel forces or you don't re enough -- >> congressman, i think if we warn to get into the details we could have a further conversation in a closed session. what we can say publicly. >> i brought this up in the classified briefing yesterday and i got no answer and i'm sure if we do another classified briefing you'll give me no answer. >> but i think we share your concn. i think that it is important, and we have stressed this time

and time again -- >> you're serving -- how do i explain to american servicemen from my district that there's -- that those wh blood on their hands, american blood on their hands, are fighting in libya and we're risking their lives to defend those with american blood on their hands? how do i explain that to someone from my district? >> as i said earlier, our engagement there is in defense of the libyan people. it is not on behalf of an organization. >> one of the libyan peoplehat we're defending is abdulhakim al hacid. we're risk lives of our airmen to defend that man. how do i explain that to someone from my district? >> i can agree with that characterization. we are depending civilians -- >> he is rebel commander in the durna area. i want to pick up on mr. berman's comments.

i don't think your answer was all that specific. the war powers act is the law of the land. section 5 says that the administration cannot continue military action without a resolution for congress for more than 60 days. then if we do not pass such a resolution, there's a 30-day disengagement period. will this administration follow that law, yes or no, sir? >> congressm, in my future life i wl be spending a lot of time with hypotheticals but i don't know what the situation will be. >> is it the position of the administration that that law's constitutional and binding on the administration or not? that isn't hypothetical. that is what is the position of the administration a law passed long ago. >> the posion that is we have consulted with congress, we have notified congress. >> i'm asking about section 5 of the law, sir. >> the position of the administration that is the action that weto in this case, which is an action -- >> will you comply with section

5 or will you simply evade my question. >> it's not a question that can be answered in the abstra. the applicatn of any provision applies only in -- >> there's nothing abstract here. you can't guarantee this mission will be over in 60 days. >> again, congressman, it's a question that cannot be answered in the abstract. there are certain constitutional power dshz. >> thank you mr. steinberg. thank you, as well, mr. short term. the chairman of the subcommittee on terrorism nonproliferation and trade mr. royce of california, is recognized at this time. >> thank you, madam chair. i want to get back to something that i mentioned in my opening statement, and that other members have mentioned here, and that's the cost. one of the reasons i want to get back to it, mr. secretary, is because you didn't mention it in your opening statement and that caught my attention. and in london this week, secretary clinton mentioned there was discussion about

financial assistance to the transitional government, to the transitional council, i think, is the termology you used. what's envisioned in that sense? >> congressman, at this point the assistance we've given has been humanitarian assistance. we have given about $47 million in humanitarian assistance. on the military sie, i know secretary gates is testifying this morning, and i would defer to him on what the military costs are. >> i have seen those figures. >> and in terms of going forward, this is a conversation that we are having with the transition national council in terms of what might be appropriate assistance. we made no commitment. we need to understand better and this is something we will ntinue to consult with you as the opportunity emerges. >> i appreciate that. but what steps is the administration prepared to take to facilitate access, you know, basically, to seize the $33 billion in assets that gadhafi

has here that libya has here in the united states? >> congressman, under the security council resolution, the assets that we have fzen are frozen for the benefit o the libyan people. >> this is my concern, i mean, you're got two ways to do that. you could facilitate access to proceeds from new oil sales or you could access these assets but -- let me ask you another question along that line. we've got other coalition partners here. the arab league. what commitment he they made? and i say that because we're looking at a budget deficit of $1.6 trillion for this year. we're borrowing 42% of everything that we spend here in washington. this is why i wasushing early on for an alternative approach, jamming his communication system, which we didn't do at the time, so that gadhafi could

not, could not, four weeks ago communicate with the troops when they were defecting rather than an expensive proposition. we've seen this before. i remember pushing, jamming and broadcasting in yugoslavia before the election. milosevic became na close by being defeated, had it gone through we could have affected the outcome. we could have jammed the broadcasting of taliban radio in afghanistan all of those year. we could have done ourwn broadcasting in with radio-free afghanistan. that legislation passed after masood was killed. there's a lack of understanding here in terms of cost fective ways to do diplomacy or to change vernments, and there is a tendency to forget how to collect the check afte we've left. if we don't get that set up front, it's not going to happen. and that's why, you know, could

assets be used to repay the u.s. treasury for war costs? i guess that's the question. could they. >> i think -- let's plea answer two parts of your question first, because you did raise the jamming issue and i -- it seemed like we were avoiding that. what i can say in this session that is we are doing -- >> you're doing it now four weeks later. by the way, the former government started the bombing, started the broadcasting into yugoslavia, by the way the day of the bomb beeing. we started the broadcasting only after masood's death and the day before the bombing. we wait too late. there is a time which taken, you know, at the brink, leads to a decisive move, especially when talking about jamming your opposition when his generals are defecting. i just -- the defense secretary has said the military operations have been planned. i read this in the paper, on the fly. on the fly.

i hope this cost question isn't being dealt with the same way because, again, tt's how you get stuck with the check. and i haven't got a defenseti defensetivandefensetiv definiti answer here that commits to we will not get stuck. >> i very much take your point about the fact that while some countries are contributing by providing planes or other kinds of support, there is an opportunity for other countries that are not doing that to provide financial support. we're conscious of that and very much engaged with other countries to make sure they nd a way to support. >> i think i'm going to come back with legislation on this. i don't have a definitive answer yet. i'll tuk mr. sherman on that front. thank you. >> good point. mr. meeks, ranking member on the subcommittee on europe and ur rash shah is recognized. >> i heard iraq was going to pay for everything we did western

weenw we entered that war. amazing. let me say that, first of all, as i started out in my opening statement, the oceans don't protect, talking about american interests, and we want to be safe, lets be safe if we don't have any allies. how can we be safe if we don't have anyone else working with us. when we were attacked, a number of other alleys were not attacked. asked them to come with us afghanistan and iraq. they cooperated with us. they're a number of our allies now who said, we have a problem. we're supposed to be a team. we're a nato unit, we need your help now. you have unique capabilities. so we need your help. we want you to be a part of this. we didn't just go running into some place.

it's not justify the united states saying -- the united states saying it's my way or the highway because the las time we did that when somebody didn't agree with us, when we wanted to come in, we cot freedom fries in the capitol. here's the president who is being deliberate making sure we have our allies with us so that, as we fight al qaeda, and we fight terrorism, we have people because we know we need their intelligence, their help, their moving because it's a threat to all of us. it's a comn threat. so we working together. libya happens to be the country that our allies say we need to work together on just as we did as we asked them. so it seems to meo make sense that it helps the american people, and we all share in the cost, share in what our particular roles are. how dare we say, just united states, go on your own again, forget our allies, forget what they need, forget working with them, forget considering anything that they said, that's

unilateralism. that will make the american people unsafe. that's exactly what the terrorists want. they want to be able to isolate us and to say that we are just doing whatever we want, irrespective of everyone else. i'm dlad thglad that this presi hasn't done that and is working collectively with everyone else. let me give you the opportunity, you were trying in your opening statement and the first question ehad on my mind to talk about kosovo and what took place there and now, i know there's no exact situations, what the differences, and i was wondering what lessons could we have learned or did we learn from kosovo that we could apply now to make sure we get rid of a guy and move on about having some kind of groundwork for political options in libya and having something politically done? can you tell us about that. >> thank you, congressman.

as you correctly guessed, that's what i was going to go on toay if i had a bit more time. i know how pressed we are for time. as you say, no situations are identical but there are important similarities between the situation in kosovo because we did intervene there. it was done with nato. it demonstrated our commitment to work withur allies in a situation. it was also a case in which we defined the military mission, to stop the ethnic cleansing, stop the humanitarian crisis caused by milosevic attacks on the citizens of kosovo but stopped military operation when the humanitarian goal was achieved and the forces were withdrawn. but that didn't mean we said we're going toeave milosevic in place and don't care what happens. we understd the risk of his continued presence there we continue the sanctions and other forms of pressure, and working with the democratic forces in serbia, we led, one year late, didn't hpen overnight, one year later he was ousted from power. i think this idea we can have a different set of objectives for

the militar dimension and the broader dimension is one validated. it is a powerful lesson that the strategy can work d that's what we're trying to pursue here. as you also said i hoped so tsa a word about our attempt to build long-term democracy in libya. it is important as this evolves it evolves beyond the individuals take on that role to be inclusive, broad based, human rights, rejection of extremism and violence that we all believe in, and that's part of the reason we do engage with the council to make clear that we look forward to that kind of success but it has to be a broad-based one and one consistent with our princele. wha what we've seen through the middle east we've have a chance of succeeding and we are planning for it now. it's something we understand, we can't wait until the moment arises but that's part of the purpose of our engagement with both folks on the council and others who are interested in the >> thank you, mr. steinberg.

>> i want to thank the deputy for your service to your country. i to wish you legal in your next employ. i want to gi you the opportunity to answer acouple of questions. i think you heard in my opening statement, i think it's important we say we are at war in libya. while i troubled about vars aspects of how we began this conflict, i will never jeopardize support for our troops. and i will always attempt to maintain the level of deference and respect that is due and owing to the commander and chief and executive in matters of war. but i want to say -- this sets up my question. i don't believe the president

has the unilateral authority to take america to war without congressional approval where our safety or vital national interests are not directly implicated. my first question, if you want to scribble it, because i'll give you three. you can pick whichever ones. the first is, how was the safety of the people of the united states of america or our vital national interests implicated in a way that justified the president bypassing the ordinary deliberation and consideration and authorization of the congress in one form or another? secondly qualify i also said, i think history teacs that the wisest course of action is not limited war. and that america has succeeded throughout our history when we have chosen to send our most

precious heros and our treasure into combat. if we made the decision, when you go to war, you go to war to win. my next question is what is the objeive here? i hear there is a political objective we hope moammar gadhafi goes. that's not the military objective. the second is how do we define victory? thirdly, the president said we should not repeat the mistakes of iraq. we've gone down that road before. he doesn't want the mission to involve regime change. i stipulate this is a very different road than iraq. we had a clear college bipartisan approval. we had careful military preparation. then we got international support. through trial and sacrifice of blood and treasure, we prevail.

here we have no congressional approval. military preparation, as was suggested, has been done, quote, on the fly. we have mixed international support. we're involved in an aerial bombardment campaign on the ground. why shouldn't the congress take up and debate and amend and consider and vote on a resolution authorizing the use of force in this case? and specifically lay out what the objectives and the mission and the goal of the american people is in libya? >> congressman, let me start with the last. we welcome members of the congress here. members of both party authorized the use of force when it's limited in scope and e raising. we have consulted closely with congress. we would welcome your support.

in terms of the interest, my opening statement, i quoted the president. i think it is a clear statement. i could repeat it, but i want to spend the time here. >> if i could interrupt. i respect your background and experience on this. when president reagan made the decision to launch missiles into the -- moammar ga ddhafgadhafi' compound, did that go on for more than a day? >> when the involvement is limited in ope and duration, they have the congressional authority to do it. >> that instance was a day. it was one launch, one attack. and we've been at had this in libya now with over 100 cruise missiles and air support and ground bombardment and talking about equipment andaybe more for several weeks. >> right. i think what's distinctive about this -- and there have been a number of instances.

i mentioned libya because you it's not the first time we have engaged in libya. we have significantly moved forward. the movement to nato control is aeflection of that. the president of conscious of that. as you said, it's important we define the mission. as i was discussing earlier with congressman meeks, we have examples where we have used limited force for humanitarian mission and succeededed in those. >> mr. secretary, thank you for being here. i'm one who based on the international framework that was created of calls from the arab league and u.n. security council for limited scope, no fly zone,

was cautiously supportive of the president's actions mr. that respect. i must say it is not often i myse find myself on common ground with mr. burton. you're about to into academia. tell me what, if anything, with respect to the war powers act do you believe is triggered in this particular intervention? >> congressman, as said before, this president and all presidents read the war power resolution consistent with their constitutional authority. although i am a lawyer by training, i'm mot here to represent the legal opinion of the administration. i would say that we consulted with congress and provid the

notification that's consistent with the war powers act, within 48 hours after the beginning of hostility. 're following the practice that administrations in the past have. >> do you believe that pursuant to the war powers act some act of authorization is required from this congress? >> i ink, congressman, when the president engages in the use of military forces where the action is limited in scope and duration, he has authored under the constitution to do that. having said that, we are mindful of the war powers resolution and have acted consistent with it. >> in previous no fly zones, particularly if iraq, in the north and subsequently in the south, what, if any -- what provisions of the war powers act did presidents at that time follow?

did they also follow the reporting rule? >> i'm not here as a justified witness, but the position of previous administrations of both parties is that they have had the practice of acting consistently with the war powers act while reserving the authorities they saw you with the president. >> would you refresh my memory? the authority in the constitution you cite for the president to go into libya or anywhere else for that matr is what again? >> his authority as commander in chief. >> from yo point of view, the commander in chief denovo is free to command roopz troops as he sees fit? >> i'm here as a lawyer, not a client. but the use of military force is limited mr. scope and duration. the president has certain powers under the constitution. but they are defined.

and the test is when the action is limited in scopend duration. >> i understand. i guess respectfully i'm prty strict constructist with respect on to war powers. the constitution couldn't be clearer that the war powers contained in the constitution are are exclusively and entirely with the congress of the united states. >> you are a good lawyer, congressman. you know the authority to declare war is with congress. that's the matter we're discussing. >> as the executive branch claims inherent powers, if we have under the constitution clear as a bell, the power to declare war. it couldn't be clearer there are inherent powers from that as well. including the decision in advance whether or not to employee u.s. military personnel. i don't agree with yo interpretation of the commander in chief powers. he gets to be commander in chief after we decide whether or not troops are to be deployed. but that's a fight tissue. >> it's a long-standing

conversation that executive branches have had. >> the last president to recognize that was franklin roosevelt. not a bad president. what if anything are we going to do with the frozen assets ta turned out to be much bigger than we thought of libya? and should we use any to finance this endeavor? >> this is something i know a number have asked. the asetsz were frozen for the benefit of libyan people. i think it's a conversation we'll have with the existing transnational counsel to find a od resolution that reflects the way there are many ways that could be done for the benefit of the libyan people. we're having an ongoing conversation. no decisions have been maeld. >> ms. berkle, you're recognized. >> thank you, madam chairman. thank you for being here i this

morning, mr. steinberg. i want to start out my questions with pan-am 103 and what our chairwoman mentioned. i'm sure you're aware 38 students from sir cute university were on that flight. we had an opportunity to interview secretary of state hillary clinton. i asked her, what will this administtion do to make sure we are collecting evidence and prosecute the parties responsible? and i would encourage you, strongly encourage you and this administration to pursue that. there are so many families waiting for closure. th have not had the one final piece put into place. on their behalf, we implore this administration. weave a good opportunity with the deflection of the foreign minister yesterday to take this

this opportunity to ask questions and find out so we can prosecute mr. gadhafi you for this heinous crime. >> i know you know how strongly secretary clinton feels about this too. it's something we intend to pursue. >> beyond that, i want to talk you a little bit. would've heard so much about ground troops. we're not -- you've nenmentione we're not going to pursue that. you mentioned occupation forces but didn't elaborate on that. can you take that phrase of u.n. resolution and expand for us what that means? and whether or not because we've just seen -- we witnessed this administration unilaterally applying authority for the missiles. now whether or not any further steps would be required by this administration to commit ground troops. if not, i'd like to hear your

thoughts on that. >> obviously, for us, the issue of precisely what would constitute an occupation force doesn't rise. the president has made a policy decision. he doesn't intend to send ground troops. this things change -- i think the president accounted not have been clearer about it. that's something we would welcome a conversation with ngress about. i find it very difficult to imagine in giving the strong position the president has taken, that issue is likely to aris >> what does the n. resolution call for with regard to this occupation forces? >> it does not authorize an occupation force. all necessary means to help the civilians but does not occupy rn

grant the use to use military force. >> you think the concern of the congress is that the policies have been so vague in our mission and our goal. what are we doing there? what is the end game that we were concerned that now committing ground troops there, it's not brought to the congress and not brought to the american people. and i think that that is the concern here. that this whole operation escalates. we're in this position without congress's extent and the consent of the american people, as my colleague, mr. pens mentioned, it s a unilateral authority ta got us into this. how do we prevent any further commitment of troops from our country? >> i'd say first -- and i haven't mentioned this before. we have had -- not only have we

had exfencive conversations -- the president cld not have been clearer about ground troops. what you're seeing is already a reductn in our military activities there. as we move forward with this it transition, the united states is stepping back from the front line. we are focusing on providing support on things like intelligence and those kinds of things. i think we have -- the president lived up to his commitment to the american people and the congress this is a limited effort. we are reducing our scope. we're moving in the other direction, which is to reduce the u.s. military role here. >> can u assure this congress that the u.s. would not commit ground troops without having a conversation with the congress? >> at this point, i could only say that the presidenthas made clear to us he has no intention of doing that. >> thanks for being here this morning. >> thank you to both. ms. bass of california is recognized. >> thank you very much, madam

chair. first of a, i wanted to congratulate you on your new role. i want to start my comments by commending the obama administration by making critical decisions which i believe prevented a massacre in libya. two questions. first, beginning with nato. as it's often said given the significant role we play in nato, what real difference did it make that we've pulled away d turned over the command to nato? i wanted to know if you would specifically distinguish the role of the united states versus the role othe other nations that are mr. nato? then my second question. you were asked earlier about building a democratic government in post gadhafi libya. i nted to know if you would expand on that. >> the perspective of transition

from u.s. to nato control means we are able to step ba and the protection of civilians to other forces, both nato and other civilian forces. we will focus on support 50s and reconnoissance and the like. we are definitely playing a less front line role in terms of the operational military activities. at the same time, we get the benefit of the well established, well oiled machine that can conduct effective military activity. we can be sure our forces are under military command. ultimately all the forces are under an american admiral. we have an opportunity to play less of anna operational role but still have the benefits of a disciplined nato command in control. inerms of the transition can of this is enormously important

to us. while we are working with the transition counsel and appreciate the efforts they've made to step up to provide some loirch and some coherence here, ultimately, this has to be broadened. as we move forward and have an opportunity to have a real democratic transition, we need to make sure it's broad based and the different voices are represented and it's consistent can the basic principles. and the same things we're looking for in touu nisia and throughout the middle east. their willingness to articulate principles. we need to milwaukee sure this is not just paper declarations by them but that they carry it out. we're beginning to work with the counsel and voices outside of libya and ngos to begin the

process so we're ready to go when that process comes. >> thank you very much. mr. duncan of south carolina. >> let me just remind the panelists we are still at war against terror. military strategist sun-soo said if you know yourself and your enemy, you needot fear the outcome of a hundred battles in operation in libya, do we know who makes up the rebel option? how do we know they're not worse for america's national security interestthan gadhafi? >> the top al qaeda propagandist

said this. the mujahadine are going thugh an upswing. this is according the new york times, march 30th. global muslim brotherhood leader usef gadari gave a sermon in which he called arab leaders to recognize the council to confront the terroristic regime in tripoli. do we honestly know who makes up the rebel opposition? >> haunk, congressman. i think we can had hear these claims by others. but the truth is what we've seen

throughout the region is that these movements, whether in egypt and tunisia are not driven by al qaeda. they may want to claim it because they're behind the curve. think they're trying to catch up because they don't have the support. what we've heard is they're not looking to al qaeda. they've rejected al qaeda. they issued a very strong statement the other day. i would ta these statements as a sign of groups that desperatelyme want to be seen. mathematic, our values, our principles are on the ascendency. when youead the words, those are words that would resonate for americans and people who believe in freedom and democracy. i don't take their statement as reflect they own these vements. it's precisely because we are engaging and supporting these movements they have a future. they look to us and the west as being their partners and being

on their side. we have to beattentive and alert. we know that al qaeda has had a presence in liin the past. we want to make sure it doesn't reestablish there. what we've seen so far is this is not a significant factor perform this is not something that the people we're engaging with seem to want. we need to let the rhetoric of others dissuade us. >> i saw on the news that the cia have gone into libya today. the president said on monday night in libya we are faced with the prospect of violence on a huge scale and had the unique opportunity to stop that violence. did we? you mentioned humanitarian intervention. humanitarian intervention is the esident's justification for action. tell me where we have not

invaded uganda. if it had is the obama doctrine, the united states wi intervene for humanitarian reasons. folks, tell me why we haven't invaded chad, baran, the ivory coast, sudan. other areas where we have seen humanitarian needs and civilian populations have been attacked by their government, decimated in local instances. is that what the obama administration is trying to spread, that we're going to send it to every corner of the world where there's humanitarian needs? that's a rhetorical question as well. i'm concerned we may be setting a precedence we may not be able to live up to.

i'm concerned that this it administration talked the u.n., nato and the arab league, prior on to talking to this congress. i applaud him for coming yesterday, the administration coming yesterday to bring us up to speed. madam chairman, i wish he would have informed us ahead of time. >> mr. sislynni. >> i want to begin by thanking and acknowledging the administration for its thoughtful deliberation and decision-making in a very difficult set of is circumstance s i want to commend secretary clinton and other for handle this situation for libya. on the one hand we accept the assertions of our president.

and also we have a strategic interest in preventing instability in this world, as emerging democracies in tunisia and libya are being born. we are in difficult and challenging financial times. i hope that part of e conversation with this this emerging political leadership in a post gadhafi libya will embrace the notion of accepting financial responsibility for this work. both as a way to compensate american taxpayers but as a real indication of the action of a responsible government. you know you've heard that from e committee loudly and clearly. whats your sense of what is the most gadhafi leadership like? are they lely to embrace that view of the world of some responsibility is? i agree with you, this money belongs to the libyan people. it would be a sign they accept

responsibility for the costs they're bearing. are there religious elements to this it transnational council? is it likely to form the basis of a new political leadership in a post gadhafi libya? i know we are deepening our engagement with them. if you could share with us what you know about that political leadershipship looks like. and whether the principles the support for a constitutional and democratic civil state and respect for human rights and guarantee the equal rights and opportunities for all citizens, whether they're lukely to have the opportunity to have the capacity for those citizens. >> we can't know for certain. obviously, libya is a country that sufyouered a tremendous destruion of the social infrastructure over four years. it will be a struggle for them to build the community and democracy that's more than just

anna election but civil society has protection of human rights. that's why we need to be part of this and help shape it and support these voices that are consistent with our values. our engagement and support increases the likelihood we'll have this suppt. if i coulmake a little commercial he. i think it's important as you consider your budget deliberations to make sure we have the resources to support ngos and the rule of law and all those forces that will allow us to be an effective force going forward. >> is there a historical precedent for our having persuaded someone we helped in this way to bear some of the costs? is that part of conversations that are currently under way with the transnational council? you i assume that has comeup. >> it's early days yet.

you've heard from other members they've heard that. i think what we are now focused on is what needs to be done to help them support. if the outcome is that they see that as something they would choose to do -- part of the reason we've been trying to be careful is because we don't want to be seen as telling them what's best for them. on the other end, encouraging them to do the right thing. i certainly understand the sentiments that have been expressed here. >> ms. schmidt of ohio. >> it is the opening day of the reds today. i'm walking my red scarf. i, like most americans, am concerned about in endeavor. concerned for a couple of reasons. the first is if we don't take gadhafi out, my fear is that he will be emboldened in the region and not just emboldened but what

he will do to the rebels, he said he will go after them and massacre them. and i truly believe he will. here the problem i have with the strategy. we're only going to do an air strike. an air strike clearly is not enough. gadhafi is smart enough to allow us to strike and let the rebels think they're going to take over a viage or their area. then he comes in and gets them. because the problem with the rebels are two fo. they don't have any training and they don't have real weapons to combat gadhafi's weapons. my concern is if it there's an effort to get them training and an effort to get them weapons, we have the security that the rebels will be better than gadhafi. or will theya be worse? the devil you know is sometimes better than the devil you don't know. these are gitimate concerns i have. i do believe americans have. that's my first question.

>> haunk, congresswoman. i think those are very good and serious questions. i would say first on the issue of getting ga daf ydhafi out, i we share your view. i don't think it would be a stable or successful outcome for gadhafi to stay. talking about kosovo, we demonstrated in the past you can have a military operation designed to blunt the humanitarian catastrophe. ongoing political strategy that can lead to the leader going. what happened in kosovo was a pattern we hope will happen here. we think we have the same tools and opportunity to do that. with respect to support for the opposition, i think you've raised the right questions. we believe under the second security council resolution that is an option that is available to provide support for the option. we want to make sure it would serve the broader interestsn creating a democratictable

libya. those are the questions we're discussing with ourselves and with others. that's something we have not yet made a decision about. >> you a couple of follow-up questions. while you might want to compare this to kosovo, there are different parts of the world. while one strategy might work in one area of the world, it may not work based on a variety of issues, including the terrain, culture, environment, the neighborhood and the other. so i wouldn't be so comfortable to compare this to the similar situation over 15 years ago in kosovo. but having said that, the second concern ta i have that i think a lot of americans have is that we chose libya. clearly as is some other folks suggested on this panel,hy libya? why do we go after gadhafi for the inhumanity he had has when u have folks in darfur that

have been suffering for almost a decade and we've been little to nothing for those folks. i'm surprised we put all of our eggs in this basket when there are other troubled spots around the world that might need the same human compassion. >> the president addressed that in his speech. i had an opportunity earlier to talk about that as well. i think we've made very clear that libya is a very specific case. it's not simply the humanitarian dimension. the instability in libya threatened the democratic transitions taking place. i don't think anybody would dispute we have a tremendous interest. second, we have a situation where we had the appeal of the arab league. which is not the case with some of the other humanitarian

situations. so each case has to be taken on its own terms. we have's deep engagement. on darfur, we are deeply involved. we helped broker the comprehensive agreement. we're involved in trying to support that in darfur. we passed a new security council resolution. each situation has to be dealt with both in terms of the national interest and the tools available. >> my final comment is, if we're going after the bear in the woods and you strike the bear. you better take the bear out because the bear will take you out. if we want stability in this region, gadhafi will have to go. if gadhafi remains, the region is not going to be more stable but less stable. thank you very much. >> thank you, mr. steinberg, for excellent testimony. we look forward to continuing this it conversation on such an important

>> today on "newsmakers" representative norman dicks. >> i think we will pass a compromise. i do not know for a candid than the next friday. but think it will be

demonstrations between now or when stare thursday where we come together and the subcommittees have worked out what should be under those allocations. it's still is not quite yet. but it is close. there's some flexibility there. speaker boehner and everyone else says there's no deal and everybody agrees on everything. a lot of them will have to come out if there will be in the democratic support for this. >> you can see the entire interview with congressman dicks on "newsmakers" today at 6:00 p.m. eastern on c-span. it is also available online at c-span.org.

>> now a senate subcommittee hearing on discrimination and hate crimes against muslim americans. you will hear testimony from thomas perez and former assistant attorneys general alexander a costacosta. this is about two hours. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

>> after a few of my own personal remarks, i will recognize senator leahy and senator gramm. i think it is appropriate to hold this under what is called the constitution's first freedom, the freedom of religion. many of our nation's founders fled religious persecution. george washington summed up the prevailing view when he said, "in this land of equal liberty, it is our post that a man's religious tenets will not for for the protection of the law." despite their best intentions, many religious minorities have faced intolerance. the lynching of leo frank in 1950 is one infamous example. and antisemitism continues to be significant in america. often, princess has been directed at the legends of recent immigrants. in the last century, it was catholics, from places like ireland, italy, and lithuania.

i brought this hearing a family treasure. 100 years ago, in 1911, my grandmother landed in baltimore, md. from lithuania. she brought with her my mother, two years old, and my aunt and uncle. and they came down off the boat in baltimore and found themselves -- found their way to my grandfather. i do not know how they made that journey without speaking a word of english. there's no physical evidence left of that journey but this will book. it is a catholic prayer book written in lithuanian, printed in 1863, which, at the time of their immigration, was contraband. these are had ordered that all prayer books have to be written czar had ordered that

all per books have to be written in russian. this freedom of religion and so much to my grandmother who is no constitutional scholar, but she knew that america guaranteed that freedom. and that is what this hearing is all about. attorney general eric holder said that bigotry is the civil rights issue of our time. this battle began after the 9/11 terrorist attacks. some americans wrongly struck out at moslems, arabs, and siehks. we continue to listen and receive the support of many muslim americans who love this nation and work with our government to protect it. at the same time, many law- abiding muslim americans face

discrimination and judges the they're not real americans because of their religion. this will continue, but terrorism is not the subject of today's hearing. we should all agree that it is wrong to blame an entire community for the wrongdoing of the few. guilt by association is not the american way. most americans are allowed to the same constitutional rights as every other american. president bush showed really should patronize/11 after he made it clear that our war was with those who perverted the teachings. commerce also spoke with a clear voice. i co-sponsored a resolution with john sununu who was then the only arab american in the senate to condemn any arab bigotry. they are a vibrant peaceful and

.aw-abiding community th even though president obama is challenged by a harsh voices, "they are -- voices, some have said, "there are too many mosques in this country." a prominent religious leaders said, "islam is wicked and evil." some of even question the premise of today's hearing, that we should protect the rights of islam and moslems. it is not surprising that in need to commit -- the anti- defamation league says we face "anti-muslim victory."

we have seen anti-muslim hate crimes, employment discrimination, bullying in schools, restrictions on moscow construction, and karan brings. this is a nationwide phenomenon, including in my state of illinois. a man was recently sentenced to 15 months in prison for blowing up the event of a palestinian- american family that was parked in front of the family's home in burbank, illinois. it is our government's responsibility to punish this kind of discrimination. it is incumbent on all americans who value this nation to make it clear and defend the civil rights of our moslem neighbors and it is as important as the rights of christians, jews, and even non-believers. of course, the first amendment not only exercises -- not only protects the free exercise of religion, but freedom of speech.

we have the responsibility to choose our words carefully. we must condemn anti-muslim bigotry and we will not tolerate religious discrimination in our communities. we can protect our nation and still protect fundamental freedoms of our bill of rights. how would like to acknowledge senator leahy. -- i would like to knowledge senator leahy. coalesce senator gramm make a statement. >> this is -- i will let senator gramm make a statement. >> this is a hearing about what it means to practice religion in america. that means i have to stand up for your right to pursue your religion. if i do not stand up for your right, you must data for mine. -- you will not stand up for my.

it is ok to argue, but there are lined to cannot cross. we are living in a rule-of-law society. i stand with senator thurmond or anyone else who wants to send the message -- senator durbin or anyone else wants to send the message. and to anyone who will wear the uniform and protect america, god bless you. that is the unique thing about america. we are able to attract a large group of people with different views for a common cause. i do understand where you're coming from. but there are some real issues to be dealt with. can we do two things at once? can we stand up for the rights of most americans? i think the answer is

unequivocally yes, we must. if anyone group suffers, all of us suffer. but we have two things going on in the world. there are things said in this country that are disturbing. there are efforts to recruit and radicalize young muslims in america. i can assure you the statistics. what is happening in europe, we are not immune from that. we're trying to get ahead of an enemy that is try to come to our shores and radicalize people in our country as a part of this war. and we are at war. what is going on in scotland, england, we had doctors attack an airport. a young man raised in london blew himself up in a subway. what should we be immune from that? we stand with you to practice your faith and be an enjoyable part of this country. but you will have to help your country, probably uniquely compared to anyone else and understand what is going on and fight back. the front lines of this war are in our own back door, in our own

neighborhoods. so to the american muslim community, i will stand with you as you practice your religion and you exercise your right to do so, but i am asking you to get in this fight as a community. and let it be known to your young people that there are lines you will not cross and that this radical message is spread by people who would kill every moderate moslem, joop, jintao, agnostic alike. we're all -- moderate muslim, agnostic, all of the like. we're all in this together. we are all in america together. we need to stand up for each other. senator durbin, i will try to do my part as a republican to let my party and anyone listening no that i totally get it when it

comes to freedom of religion and the ability to practice different faiths. but i would like everyone in the country to know, including muslim americans, that the agenda being set by people trying to radicalize young muslims here in america is just as bad for the most american community as it is for anyone else. it may be the worst offender law, someone who practices the faith, but rejects their ideology. people in the middle east who are trying to separate themselves from this radical minority movement within the muslim faith need our help and that is why we need to help those people in libya who are trying to replace gaddafi. we need to stand by these young people in egypt were trying to chart a different path. you'll never convince me that the young women who went into the square in egypt want to replace mubarak with the muslim brotherhood or al qaeda.

it is a very complicated and interesting time. but it always helps to keep it simple. the simple thing for americans is to understand that, if we cannot accept differences among faith, then maybe yours is next. it is a simple thing for every american to understand, that we are at war with an ideology that has no air force to shoot down and no navy to sing. 2 -- no need to sink. -- no navy to sink. >> thank you for holding this meeting. i think it is extraordinarily important. in the first hearing that you have with your subcommittee, we know that the fbi director's testified before this committee. in the past two years, there has

been a dramatic increase activity among hate groups. to make matters worse, some leaders, as senator durbin pointed out, have sought to sell fear and divisiveness against american muslims. fanning the flames of hate against those with different faith traditions runs contrary to our american values. our nation was founded in large part on the importance of religious freedom. i welcome the renewed focus by someone are fundamental charter, the constitution of the united states, but i remind everybody that the constitution is not a menu with options to choose based on the political whims of the moment. instead, it is a constitution that it's false freedoms and protections for all of us. the first amendment and bill of rights are the most defining

principles of our national character. it preserves all are the right, by guaranteeing a free press and the free exercise of religion. it ensures an informed electorate the freedom to worship god if we choose or not to with researchers. -- or not to if we so choose. in religions whose members have been systematically denied freedom and categorized, stigmatize, even exterminate, we must not forget them as we consider religious freedom and religious minorities in this country. all americans deserve civil rights protections in the freedoms provided by the constitution. it does not end with the vital freedom in the first amendment. it continues to ensure full --

due process and full protections by the civil rights laws that we passed to guarantee discrimination against religion. members of the committee worked with the late senator ted kennedy for the past several decades to ensure this fundamental freedom. we worked to give it to pass the religious freedom restoration act, the institutionalized persons act. it has been a bipartisan issue for a long time in the senate. more importantly, religious freedom has been a consistent american value. that is what really counts the most. american muslims, like all americans, must be protected by the rule of law that upholds these constitutional and statutory protections. we had the matty shepherd tate crimes that to speak -- the matthew shepherd hit crimes act

to respond to law enforcement concerns about bringing criminal prosecutions against those who target their victims because of their religion or ethnicity, race, gender, and so on. last year, in the run-up to the national elections, the rhetoric came to be more frightening. there were threats of karan earnings. some said that most americans are now entitled to the first amendment. those comments should shop and offend anyone who respects the constitution -- those comments offended one and who respects the constitution. that is nonsense. i would hope americans will remember why.

iserot'tom perezampere' here. i'm glad to see that to the leading voices in the catholic churches here. his testimony reminds us that we also had our loyalty. not just in the early stage, but, in the lifetimes of many of us. my irish ancestors face this when they first came, even in vermont. my father, as a teenager, faced signs that said "no irish need apply" or, more directly, "no

catholics need apply." they were seen as different. my mother and my uncles and aunts spoke a strange language. but when they had mass, the priest would have to come in through the back door and the curtains had to be drawn. the shades had to be drawn. that would be inconceivable today. members of the senate of other faiths have their own experience. it would be easy to ignite bigotry and very difficult to extinguish. religious freedom is the story -- and the means of principles upon which this great nation was

founded. mr. chairman, i thank you. >> thank you. i appreciate that comment. i know the chairman takes great pride in his irish italian heritage. i am told that he is where the gaelic meets the garlic. [laughter] we have a returning member, senator ben cardin. he has gone on to other things. he still continues as co-chair of the u.s. helsinki commission on human rights. he has asked for an opportunity to give an opening statement and to participate in this hearing. >> thank you very much. the right to practice if a farmer cannot practice a faith in our country, for more than two hundred years, our first amendment states that congress

shall make no laws prohibiting the exercise thereof. it used to be the envy of the world. even before the first amendment was ratified, the constitution contains a very important provision that requires all federal and state officials to swear an oath or affirmation to support the constitution and provides that no religious test shall ever be required as a qualification to any office of public trust under the united states. in my state of maryland, only christians could have full participation in public life until the maryland general assembly acted in 1825 to pass the so-called to build. i think my ancestors would have been proud to see me elected to the maryland house of delegates, the house of representatives, and now the united states senate. among other reasons, my grandparents also can to this country in search of greater religious freedom and tolerance yet come today and, notwithstanding the protections in our constitution and laws,

i'm concerned that we see demonization of a particular religion. for the last decade, was the americans have been the target of a growing wave of bigotry. it is our obligation to talk about this crime problem and what steps the government can take to reverse this trend and protect the sorts of muslims and all americans. we have new tools to combat hate .rimes around the country an the justice department has stepped up its enforcement to combat hate crimes and discrimination against muslim americans. i applause these actions, whether in the criminal law- enforcement or in the portion of our civil rights act. tom perot's has been a real

leader in that regard. prerez has been a real leader in that regard. in my capacity, i have raised religious human rights issues in other countries, such as in france, where the parliament and burgers are the wearing of other religious articles or when the swiss restricted the making -- the building of a mosque. i have also raised human rights issues in the united states when we are out of compliance of the helsinki commitments. the u.s. is the signature for the 1975 helsinki final act and accepted the idea of international commitments dedicated to religious minority. the united states has pledged to promote a climate of mutual

respect, understanding, cooperation, and solidarity among all persons living in its territory without distinction to its ethnic or national origin or religion and willing courage the solution of problems through dialogue. -- and will encourage the solution of problems through dialogue. the helsinki commission has been on many related initiatives. the senate is taking another important step in complying with our policy commitment by holding these hearings. i applaud the chairman for

holding this hearing. we cannot allow groups liesr country's threastrength in its diversity. we need to stand up against intolerance and injustice. let us come together as a nation and move forward in a more constructive manner. >> senator carden, thank you. senator kyl. >> thank you. thank you for holding a hearing where you can entice carnal much carrot -- cardinal mccarr

ick to join us. the only way to start -- to stop terrorists is to understand where they're coming from. political correctness cannot stand in the way of those who would do less harm norcal we ignore the first amendment protections. i am perplexed by the focus of today's hearing. if we're concerned about the most egregious religious hate crimes, then i wonder where our -- why we're not talking about crimes against jews or christians, according to the last year for which statistics are available from the department of justice regarding hate crimes based on religious bias. 71.9% were victims because of an offender's anti-jewish bias. only -- almost 72%. 8.4 was because of anti-islamic

buys. i wonder for our priorities are. how about the persecution of some muslim communities, who were former muslims and converted to another faith or no faith at all. all bigotry is to be condemned. but we're only credible if we are principled in our condemnation. selective indignation is not helpful. thank you, mr. chairman. >> thank you, senator kyl. i would like to ask consent to added to the record the list of hearings held in both the house and the senate relating to discrimination against specific religious groups, including jews and christians and know that this is the first hearing relating to any discrimination against the muslim religion. i think it is obvious that we condemn bigotry against all

religious groups. >> thank you for conducting this hearing, which i think is, by no means, as i understand comings and it -- intended to exhaust the subject. i think that it really is designed to raise awareness and show our own commitment to fighting biggity, hatred, prejudice, and tolerance -- wherever it may exist. the united states is involved in the war against terror. in this very building, two floors below is, there is an ongoing hearing that springs from the war against terror. in that hearing, there is discussion about the service and sacrifice made by men and women

wearing the uniform in places around the globe that we can barely pronounced. they're there to defend those values of freedom and democracy that we celebrate today by having this hearing and recognizing the threats to our own freedom and democracy when we fail to defend it here at home. as intolerable as injustice and intolerance is in this country, as dangerous as and tolerance and injustice is indifference. when we are indifferent to hatred and dignity against anyone based on religion or the content of what people say, i believe that we are here today so that we can help protect those values at home that are

threatened by terrorists abroad and make sure that every individual is protected in his or her exercise of religion and speech. thank you, mr. chairman. >> at this point, i would like to turn to our first witness. is the assistant attorney general for the sole rights division of the justice department. we please stand first? raise your right thank you for being here. please proceed with your opening statement. >> it is an honor to be back in front of this committee. i know that senator kennedy is here in spirit today. it is a real honor to be here to talk about this critical issue.

within hours of the 9/11 terrorist attacks, arab- americans, south asian americans, and siehk americans were confronted with a powerful backlash. there has been assault, arson, and murder. two days after the attacks, and in individual attempted to set fire to cars in a parking lot outside of a mosque. on the same day, an individual said fire to a pakistani american restaurant in utah. the first person killed after 9/11 was a siehk pumping gas in arizona four days after 9/11. over 300 fuddling crushed -- 300 fedele investigations have been -- over 300 federal investigations have been initiated.

the federal government, under president bush's leadership responded forcefully. we treated it taskforce to address hate crimes and the civil litigating sections rappaport to combat other forms of discrimination. our predecessors built a solid foundation. over the last two years, we have worked to build on that and -- definition and expand in committees to make sure we are fulfilling our responsibility to protect their civil rights. one of my predecessors, who is here today, was the leader in the bush and administration. thiwe have continued to host regular meetings with

representatives of the arab- american, muslim, south asian pacific, and siehk organization. we have made it a point to expand our outreach. i have met with leaders from various communities, not just in dearborn and chicago, but also in the quincy's, roanoke, murfreesboro, tenn., and elsewhere. this allows us to not only learn about civil-rights violations where they occur, but also to build bridges with the community. regrettably, while nearly a decade has passed since 9/11, we can see a steady stream of violence targeting these groups. where i have met with leaders, have been struck with a sense of fear that pervades their lives, fear of violence, bigotry, hate, discrimination, the head wind

of intolerance manifesting itself in many ways. last year, three men were sentenced for vandalizing a mosque in columbia, tennessee. in my outreach, consistently hear complaints the children face harassment in school, called terrorists and told to go home, even though this is their home. america is indeed where they were born. we have a regrettably robust document of cases. in fact, the source of harassment cases are the largest category of religious discrimination cases that our education section handles. we continue to follow the leadership in the republican and democratic administrations to combat religious intolerance in the workplace. we have a number of cases of

people facing discrimination at work. many cases involve blatant and intentional discrimination, such as one filed during the bush administration on behalf of two iranian american employees who were continually harassed. we also continue to have the bipartisan tradition of pursuing religious accommodation cases. we have a teacher in illinois who was forbidden to take an unpaid leave for a program age to mecca, a requirement of her fate. this case is similar to the one filed by the eeoc in the bush administration at the tennessee hostile that refused to grant a muslim medical technician a leave of absence for a religious

pilgrimage. both administrations have fought hard to vindicate these principles. we have celebrated the 10-year anniversary of the 24 manners open by the civil rights division. last year, we filed a brief in a state court case involving a proposed moscow, the construction of a community center that included a mosque. there were neighbors to challenge that and argue that islam is not a religion and, therefore, the county was wrong to treat the mosque in the same way it would treat a church. our brief argued only one thing -- islam is a religion. we had to file that brief and the court agreed and dismissed the case. these issues are and will continue to be bipartisan.

our efforts are a reflection of our values as a society. as a nation, we believe strongly in an equivalent we in freedom of religion. this is embodied in the laws that we enforce. what they are facing is no different by the bigotry confronted by the groups in our nation's history. each wave of intolerance, our nation has indeed responded, passing new civil rights laws, striking down old laws the sanctioned discrimination, and eventually recognizing those who were needlessly shunned. we're using the longstanding tools in our arsenal to address an emerging challenge that threatens the freedom of individuals who want nothing more than for their families to be accepted in their communities, to live their lives, practice their faith, and realize the american dream. we will continue to use every

available tool in our law enforcement arsenal to transform this headwind of intolerance into a tail wind of inclusion and opportunity. thank you for the opportunity to participate. i look for to entering any questions you may have. yesterday, "it reinforces the false premise that muslims are having their civil rights violated." your testimony, of course, reflects the reality of discrimination facing most americans today. i would like to look at the justice department's own statistics. muslims comprise less than 1% of the american population. 14% of the department justice cases of discrimination against religious institutions involved muslims. over 50% of the justice department mosque cases that have been open since may 2010,

you believe that reflects an increase in anti-moslem sentiment. can you elaborate? >> i have had the privilege of travelling to probably have the u.s. attorney's offices across the country. as part of our visits, we make sure that we are aggressively enforcing civil rights laws and listening. we're listening and learning, as i did in chicago, from various stakeholders. it tears my heart out to listen to the stories. i will never forget my trip to tennessee, where an imam talk about how his son does not want to go to school because he is so scared. every day, there were telling him, "go home, you terrorist." that is his own. you see that across our country. there is a one-way -- there is a writer -- there is --

>> moslems account for 25% of the discrimination cases. "there is a level of animosity and hatred that is shocking. i have never seen such antipathy toward moslem workers." another example, the eeoc filed a case against any camp any -- against a meat company. "managers, supervisors, and other employees regularly throw me, blood, and bones at the somali employees." this notion that was astounded by someone in the other body, lack of evidence, have you

found in employment discrimination similar cases? >> these cases did not start until 2009. again, when to applaud the bush administration for aggressively pursuing these cases. 150% increase post-9/11 is an eye-popping figure. >> i want to give everybody a chance. in heard testimony, -- in her testimony, she argues that the current decentralized system is confusing for victims who want to contact the civil rights division. she also notes that the lack of a centralized line makes it difficult to track and collected

data on civil rights complaints, like a breakdown of compliance by race, national origin, and religion. we do not know how many american jews, christians, muslims have filed complaints with the civil rights division, and what is your reaction to this decision? -- division. what is your reaction to this? >> we now i shall have an 800 number for addressing these issues. but it is not the only portal. we wanted to make sure that people could file complaints in whatever mechanism was most comfortable. if you're living and working in phoenix, you may have a relationship with europe u.s. attorney's office. we did not want to preclude that. the collaboration and coordination we have done with

u.s. attorney's offices to make sure we are speaking with one voice is a critically important part of our effort to make sure we're tracking these issues. on the hate crimes statistics under that reporting is voluntary. there are many communities where there is no reporting at all. while those statistics under the hate crimes statistics that are useful, -- hit crimes statistics act are useful, the amount of violence we're seeing across the country, because of the voluntary nature of the reporting, those are the weaknesses in that data. >> i hate to preempt his testimony -- her testimony, but, since you're here, i am looking for a reaction. she noted that, under the title six of the sole rights act, it

covers discrimination on the basis of race or national origin, but not religious discrimination. so undiscriminating a person of a jewish faith is not prohibited under title 6. i would note that our former colleague, senator specter, and once chaired this committee, once introduced legislation to cover religious discrimination. what is your opinion of this loophole in a lot? does it make it more difficult to protect children from discrimination at school? >> we have a number of tools to attack religious discrimination. we have title ii that we use from the civil rights act which is the public accommodations provision. title for his contacts. fedele 7 is employment. -- title 7 is employment.

in addition, under title 6, although it does not have the word "religion" in it, discrimination against jews, arabs and muslims, seihks, and other religious groups, they can find prosecution. >> why would we not want to clarify that? wire stopping short of making clear that religious discrimination is -- why are we stopping short of making clear that religious discrimination is included? >> title six can apply in these situations. i am happy to have a further conversation with you to show how it can apply. >> but you for years service to the country. when cases too many.

>> i agree. >> you have an example in america where one person is being abused because of their faith, then you need to have all of us step been. i don't know what the numbers are, but one for me is to many. for those who have freedom us beach, as a gift given to you by people risking their own lives, when you say things here at home and you do things here at home based onte tension religious differences, particularly when it is the muslim community involved, that puts our soldiers at risk. we have soldiers all over the world with a variety of the legends fighting on -- variety of religions fighting on the side of america. my view is that there are plenty of moderate muslims out there that need our help and we should be helping. it is better to fight this war

over there than here. at the end of the day, we're all in this together. about thes talk school case in berkeley, illinois. it gave some examples of conduct that i think almost every american would find offensive. i am sorry that the child is having the bad experience at school. we should all speak out against it because there are plenty of muslims wearing a uniform and we need to understand that we are all in this together. the administration made a curious decision. you had a math teacher who basically wanted to go for a three-week pilgrimage to participate in haj. she was the only math lab instructor in that school district and it was during the school year.

the school district said, "we do not want to to take three weeks off because we need you to finish up the school year." as i understand civil rights law, it requires the employer to adequately accommodate, including employees to wear religious headgear or arrange voluntary ships for co-workers on the seventh period -- on the sabbath. quite frankly, this is a stretch of the concept. can she go on the haj during the summer? >> the law says that an employer has an obligation to reasonably accommodate -- >> a question is could the lady in question met her religious

obligations during the summer when school was out? >> no. i cannot get into the specific facts of the case. >> i am no authority on the haj. but is is the only three weeks of the year that this lady could go? >> it is based on a lunar calendar. >in this particular year, it was during this three-week period. >> put yourself in the school districts position. if i say as a christian, if i want to go to rome during the school season, i would say no. my point is, it is my understanding that she could have met her religious obligation without creating this burden of being the only math

lab instructor in the school district. i think that is going too far, quite frankly. the fact that you took up this case will do more damage than good. >that is my two cents' worth about it. my question is simple. are these the only three weeks in her life as she could do this? >> i cannikin into the specific facts about this case. >> -- i cannot get into the specific facts about this case. >> i know you are not an expert on when you take a pilgrimage. but my point is i do not think so. i think she could have accommodated her religious beliefs without leaving the school district in the lurch. it is nothing about her religion. i would set about any religion. i think you're doing more harm than good on that front. on the cases you describe, i am with you. you fight back and you push back. you take cases to court for people are being mistreated and

abused. my two cents' worth is that this is the wrong case to take their. >> i know you want to make sure the record is complete. this is strikingly similar to a case brought by the bush administration in 2007 where an individual requested a three- week leave of absence for a pilgrimage to mecca. >> will they were wrong, too. [laughter] is it ok to disagree with the bush administration? a lot of people have been doing it lately. [laughter] so they were wrong, too. this is a good case study that went too far. the other cases you describe, i agree with you, and all of us should stand up if anyone is being treated especially if material is being thrown at a mandate kid cannot go to school. that is not american.

but i think the administration has made a mistake here. one final question is radicalization of american muslims on the rise? >> a civil rights experts. it is hard for me to say that. >> fair enough. here's what's attorney paul thomas said. "we have seen an increased number of arrests of individuals -- here's what attorney general in the potano said. "we have seen an increased number of arrests of individuals plotting terrorism." first amendment to me means one thing. it is not subject to compromise. it means that someone can practice their religion i do not

agree with. if we ever get into the fact that that is not true, then you wish to say your religion is not next? so i am with you there. but i do understand the concerns that a lot of americans have, that what is going on in europe is now coming to our shores. i wish the obama administration would be more forceful in their approach to fighting homegrown terrorism. i think that is a weakness. not reading a terror suspect their miranda rights when they're caught trying to blow up a van in times square is not productive. it is not helpful. i wish the administration would look at the practice and insists -- at the practice of insisting that surrender rights be read to those in those situations. i think the obama

administration, quite frankly, needs to change some of its policies when it comes to fighting terrorism here at home. and i will stand with you to push back against legitimate cases of thdiscrimination. >> i do not have any questions. i would just know that the obama administration has come up with new directives on the use of miranda. sometimes we hear this tossed around by commentators who are miss stating -- are misstating

of the rule of the of ministration. i would be interested to see your response on senator gramm's question about the haj. i have no questions. >> i will certainly provide a response. >> good morning, senator. >> one of the cases brought up is the case of edmund abdullah that brought up a firestorm of criticism because of fbi tactics. it is one of the examples to its use law enforcement agencies of overstepping their bounds and unlawfully in targeting the muslim american community. by understand your office

investigated the abdallah case and determined that no criminal investigation was warranted. is that correct? >> we determined that no current prosecution -- >> ok. you reviewed similar allegations of misconduct. could you characterize for the committee your overall impression of our law for some agencies procedures and tactics in these situations? >> our review that particular case and generally is to ensure that come in the course of carrying out their duties, there was not any violation by federal law. in this particular case, it would be the law that says that anyone who is acting under the color of a law who willfully deprive someone of their rights guaranteed by the constitution, in this case, the right to be free of the intentional use of excessive force. that is what we were examining. our review focuses generally on whether a law enforcement agent

has evidence of deprivation of constitutional right. that is a very thorough review. we concluded that the case did not present -- that the constitutional rights of the individual you for reference was -- that the constitutional rights of the individual you referenced were not violated. >> and up procedures and tactics? >> procedures and tactics, in what context? >> as nearly 2 situations like this. >> -- as they relate to situations like this. just trying to get a general perception of how we're doing. are we doing better? are we doing worse? >> we are a working closely with all of our state and federal law enforcement colleagues to make sure we're doing the best

possible job. enforcing the law and ensure protection of the constitution, those are not mutually exclusive. i spend a lot of time in your lens making sure that we are building a blueprint for sustainable reform so that we can reduce crime, sure respect for the constitution, and enjoy public confidence in law enforcement. those are the real benchmarks for our work. whether it is bedroll or state or local law enforcement, those are the real benchmarks for success in our policing. we certainly work with our colleagues in federal law enforcement -- i personally participated in trees at the border patrol academy, police integrity issues and civil rights issues. our colleagues in law enforcement across the board encourage our collaboration.

it succeeds in reducing crime and respecting the constitution. >> last friday, i attended a dinner of american muslims who complained to me about being intimidated and even threatened by other muslims. these folks believed in separation of mosque and state and people who threatened and intimidated them, well, intimidated them because of those particular beliefs. i am sure that your office would be just as willing to investigate where appropriate and prosecute those cases as in a situation where the non-moslem is doing the intimidating. >> correct. if we have credible violations of potential violations of civil

rights laws, we will investigate. the first prosecution under our new hate crimes law, we are aggressively applying that new law. we will follow the facts and make deeper bridge judgement of the application as it relates to the law. >> one young woman asked me, it in thereporteing city, she said she got no satisfaction at all. i would give back to her and tell her our conversation and see if maybe communicating with the u.s. attorney in arizona is a way they can be done, but there can be relief in cases like that. >> i would be happy to answer any questions your constituent may have. >> thank you. >> thank you for your very dedicated and distinguished work. >> thank you.

>> and the work of the department of justice in this area. i want to go back to the question that senator durbin was pursuing. should federal laws be enhanced to provide more effective tools for federal enforcement? if so, in what areas? >> and feel like we have an ample number of tools right now. we're using them in a very robust fashion. the biggest challenge is always to make sure you have the budget to carry out the laws. i really appreciated the leadership of the president and the senate and the house in enabling us to get additional resources in the fiscal year 2010 budget. with those additional resources, that was the line just issuance of resources in our division's history. we're able to expand the work in this and other critical areas so that we could, again, do the

work. we see this headwind of intolerance rearing its ugly head in a zoning context. we had a case in the suburb of chicago. the education setting, that is one of the two or three of the comments that i get when i do not reach. it is about bullying in schools. if you are in a learning environment where you cannot learn for whatever reason -- and in particular because you are muslim or arab or siehk or south asian and you're told to go home and this is your home, this is a growing area that we must address. my biggest wish list is that we continue to have the resources to enforce these laws. >> your challenges primarily in the area of enforcement, not so much the substantive authority. >> we feel at the moment like we

have a large number of tools to do the work we need to do. we are always willing to listen -- >> let me ask you then, would it not make sense to engage or involve the states and local governments more accurately -- more actively in this effort to? >> we have a very active program of engagement. our community relations service has provided training to over 750 law enforcement agencies across the country on precisely these issues. after the passage of the matthew shepard james burke act, we use that new crimes lot to engage law enforcement. we have trained thousands of officers across the country. trained thousands across the country. civil rights enforcement is a joint venture between federal, state, in local law enforcement.

>> like connecticut, laws that specifically prohibit crimes. >> i had the privilege of spending a day in new haven a week ago and we had a wonderful conference with the u.s. attorney. we had a lot of state and local officials there. we stand a very strong message to the residents of connecticut. your point is very well taken. >> i was wondering if you had some guidance that we could take back to the state and local level as to how they can be more active partners in this effort. >> communication is the key. we have set up a number of critical coalitions. i was in detroit recently with the u.s. attorney.

she had a very wide-ranging coalition of community people. federal, local, state authorities that come together on a monthly basis to discuss issues. sometimes those meetings can be tense. they have built trust through that coalition. once the trust is established, once an incident occurs that tests the trust, you have a reservoir that you can build from. if you wait for the train wreck he will seldom be able to forge the necessary defenses. that coalition building has really borne fruit for us and for the communities as well. >> is there a written protocol or procedure that you follow in determining whether the enforcement of a hate crime prosecution?

it is a critical matter that is a violation of state laws and federal laws. that issue frequently arises as to choices of jurisdiction or venue. in the civil rights area, do you have one that applies in hate crimes? >> i spent the better part of a decade doing hate crime cases and the short answer is that we do, yes. the most important protocol that we have followed and will continue to follow is what is in the best interest of the case. i have personally been involved in a number of hate crime cases where we have worked them up and if it was in the best interest of the case, the state took it. the murder of a sikh america and in the aftermath of 9/11 was a state prosecution.

it was in the best interest of the case for the state to take done. the case in texas involving white supremacists that started a race war that targeted african-americans, in that particular case the district attorney came to us. he had just been elected and was just building his staff. be deputized one of his people and that enabled us to secure the conviction of the three defendants in that case. i think that the most important guideline will always be what is in the best interest of the case. >> thank you very much. one question that i would like to ask, staff research on the issue raised by the senator relative to teachers asking for

three weeks for a visit to mecca, i do not know why illinois keeps popping up in these cases, but it turns out that other cases have been considered. in 1995 it was about accommodating an employee who requested release to attend a religious festival. there have been other cases involving this particular religion. i have also found cases involving discrimination against those who have asked to be scared being scheduled on the sabbath. cases involving jewish people, christians, muslims. and i not correct, and i hope my staff is correct, that these cases are very specific

regarding the impact on the employee's religion and the hardship on the employer? the case can be made to determine whether an absence causes hardship in either or both directions? >> it is important to note that the employer has appurtenance of providing reasonable accommodations or demonstrating undue hardship. there are a long line of cases dating back decades, some of them are private cases that relate to seventh-day adventists. cases involving accommodation one day per week, people working the sabah. if you work in that facility and you do not observe the sabbath, you will work more saturdays and friday's.

that was upheld in jurisprudence. i am very proud of the work we're doing in this case. >> let me move into one area we have not touched upon. timely, controversial, still being debated. many states are considering prohibiting islamic laws around the country. oklahoma adopted a ballot initiative cribbing courts from using it. we are familiar with the way that it is interpreted in iran and saudi arabia. hardly a day goes by that there is not a report in the press of some of the use of this wall by western standards. for american muslims includes rules for personal matters, like a prayer, fasting, marriage, and inheritance. there is a fear that a strict ban would inhibit their freedom

of religion. by an oklahoma they challenged the initiative on first amendment grounds, arguing that the law would prevent courts from carrying out will that was drafted in accordance with islamic law. is this civil rights division monitoring anti sharia laws to determine if they do violate civil rights of american muslims? >> i am aware of the oklahoma matter and to this conversation in other states. in tennessee this issue was discussed and raised by one of the litigant. we will continue to review these laws to see if there is a potential civil rights violation. i am aware of oklahoma.

>> at this point there is no case pending or opinion on your part? >> we have not reached an agreement on the oklahoma matter or any other matter where this issue might be raised. >> thank you for your time. >> appreciate it. >> of like to invite the panel to come up, if they would. i would like to read their bios as they approach the table. first, thank you for being here. our first witness that will testify is the president and executive director of muslim advocates. she worked for six years with runts bridget was fine gold. a received her

bachelor's of art from wellesley. we are glad to have her back before the committee. our next witness is a dear friend, someone that i respect very much. cardinal theodore mccarrick. currently serving as a distinguished visiting scholar at the library of congress. he served from 2001 to 2006, seven weeks after his installation as archbishop, elevated to cardinal college in possibly record time. i do not know. as archbishop of washington, he served as the chair of the catholic commission of washington, d.c. from 1986 through 2001 he served

as the fourth archbishop of new york. pope john paul ii appointed him to be the first bishop of [unintelligible] a newly established diocese in new jersey. he earned his degree in yonkers, new york, at st. joseph's seminary. he earned a second degree in social science and sociology. it is indeed an honor to have you with us today. i must say that i am a bit nervous administering an oath to a cardinal. the next witness is alexander acosta. did i pronounce that right? >> yes. >> previously u.s. attorney for the southern district of florida, where amongst other high-profile cases handled the prosecutions of jack abrams off and charles taylor jr..

he served as the assistant attorney general in leading efforts to combat post-9/11 backlash against arab-americans. he worked at all law firm of kirkland and ellis and received his law degree from harvard law school. i would like to ask all three witnesses, if you do not mind, please stand and i will find -- and i will go through the oath. [oath] >> i do. >> let the record reflect that all three witnesses answered in the affirmative. please proceed. >> good morning, mr. chairman. on behalf of muslim advocates, thank you for the opportunity to

testify on behalf of civil rights today. mr. gramm, i would like to especially thank you for your leadership in bringing attention to anti-muslim rising bigotry. it has really become a growing at -- menace to the safety and social fabric of our nation. i was born and raised in painted post, a small town in upstate new york. like school children across america, every day i recited the pledge of allegiance. the last line of the pledge says that we are one nation, under god, indivisible with liberty and justice for all. there is no qualifier. as this subcommittee knows well, our nation has a unique

commitment that as long standing to religious freedom. muslims have been a part of america for centuries. since the first slave ships arrived at its shores. today american muslims birth -- reflect every race and ethnicity. basic rhetoric demonizing islam and muslims, brutal attacks, harassment and discrimination, in some cases threatening to kill americans, including children, is by all. it is not who we are based on being americans. not in the schoolhouse or our community. 10 years after 9/11, hate crimes the targeted muslim arabs and south asian americans remain higher than levels before 9/11. some of them are a bit --

deadly. late last summer a taxi driver was stabbed after a tax -- after a passenger asked him if he was muslim. last year in california two men were struck down. bias complaints comprise 25%, received from 2008 through 2009. opposition to mosque construction is also on the rise and getting uglier. south asian and seek parents are more concerned than ever about their children. in one egregious case a muslim high school student was subjected to a harrowing ordeal in which he was frequently

labeled a terrorist, punched in the groin, and sat upon by fellow teenagers. sometimes his mother would catch him rocking back and forth, asking -- why me? what did i ever do to them? one day he was beaten so severely that his mother took him to a doctor. there was blood in his urine and he suffered from headaches and memory loss. the assailants were later arrested and charged with a hate crime. this is just one vayo example -- vile example of anti-muslim bigotry playing out across america. parents worry about the future. will america be hospitable to minority faith? will it better angels prevail? or will freedom and respect become relics of the past? anti-muslim bigotry has been

simmering in a growing sense september 11. an attack on all americans, muslims included. anti-muslim rhetoric has reached disturbing new levels. prominent political leaders have joined the fray, some of them going so far as to say that islam is a cult, not a religion. one may just want to dismiss these statements as absurd, if not for the fact that this vitriolic has real life and death consequences. the message is clear. you are not welcome. words graffiti last year in tennessee on a sign for a mosque. it gives me hopes knowing that more and more americans are coming together to reject this fere and divisiveness as they recognize it is not american.

as the former secretary of state poignantly said, is there something wrong with being muslim american in this country? the answer is no. i commend the stepped-up enforcement, but challenges remain and more must be done. i would refer the subcommittee to my written testimony for a specific recommendations that should be taken. i would be happy to discuss those recommendations later in the hearing. >> i can tell that as a former staffer you knew you had five minutes. >> cardinal, please proceed. >> thank you, sir. allow me to thank you for the invitation and the opportunity to be with you. >> i am here today representing the conference of catholic bishops.

least of my full testimony be entered into the record. the treatment of american muslims is placed in the broader context of religious liberty. as a community that has been targeted, we understand the need to bring attention to protecting the civil rights of our muslim brothers and sisters. we fear that we are being undermined by polarizing words and tactics. appallingly, religious freedom is destroyed by a tax on people in some countries by the terrible misuse of religion for

inciting hatred. sadly, this fundamental the trail, attacking those with different religious beliefs, can be used to promote suspicion and fear. this kind of generalized religious prejudice is wrong, not just, and a clear violation of religious freedom. for the appropriate pursued, it cannot be allowed to turn into a new form of religious discrimination and intolerance. this is why be stand with our muslim brothers and sisters and expect solidarity as the rights of others are violated the ground world. religious values and commitments are asset for the common good. today we note with particular

sadness that muslim americans, with whom we have had a positive dialogue over the decades, have had their beliefs questioned openly. compelling us to reach out in solidarity to support their dignity and rights. we worry about the rhetoric and actions that target our muslim neighbors and friends. like our own experience, there identity as americans are being threatened. we remain committed to the defense of religious for all, not just the catholics. our commitment is to the dignity of each and every person. we recognize that not every charge of wrongdoing amounts to religious discrimination. religious beliefs are no excuse for threatening others or carrying out acts of violence at this moment in our nation's history we face a real threat to

national security from one kind of terrorism that has its origins in a particular form of an ideology that holds itself out as authentic islam. legitimate concern for the public order must be pursued with respect for religious liberty. we need to avoid generalizing about any religion based only on the extreme views of extremists. efforts to fan the flames of fear are wrong and not justified. especially inappropriate and hurtful by expressed by leaders in the public life. these attacks are a grave injustice against the vast majority of muslims in the united states that are boyer wrote -- loyal members of our society. our own history as a religious minority has atoned history of

discrimination and intolerance. unfortunately these are not things of the past. the ability to exercise religious beliefs, there are well known contemporary examples where the state would force individuals to choose between following their beliefs and practices and following the dictates of the wall. in compelling religious entities to perform acts that contradict these basic moral principles, who ultimately suffers by undermining the rights of religious individuals? not merely the integrity of the principle of religious freedom, but the people that we serve. as pastors within a universal church we hear the cries and share the pain of those around the world that suffer persecution, violence, and discrimination simply because of

their religious identity. last year we saw dramatic examples of the persecution of catholics and other communities around the globe. the pakistani minister of minority affairs was attacked at the hands of moslem extremists. he was a catholic who had advocated tolerance and religious freedom for all minorities in pakistan. for his courageous this, he was brutally murdered. we appreciate the sincere expression of sympathy that have come from our religious partners by and the muslim community. especially the islamic society and circle of north america. they have stood with us as trusted allies in speaking out against -- speaking out against violence. solidarity in the face of attacks on the people of any religion, concludes that the

religious community commits us to defend and promote the rights of religious freedom for all as a human responsibility. this common commitment is at the heart of american life and an example in the world where people dealt that people of different religions can live together in peace and respect. as other countries wrestle with how to treat religious minorities, let them look to our nation as we look to make sure that our brothers and sisters are treated with dignity and respect. let them hear and see the people with hard one religious freedom live out their commitments to the rights of all while demonstrating respect for the integrity of freedom of all religions. >> thank you so much, cardinal. when i make a closing statement,

i will include statements from a wide variety of religious faiths that joined in your sentiment. at this point, please proceed with your testimony and written statement. >> thank you, mr. chairman. senator, good morning. i want to take a minute to thank you for holding the support -- important hearing. and general perez graciously made an important point about the protection of religious liberties being a bipartisan issue. we should take comfort in knowing that the effort to protect religious liberties has been ongoing since 9/11 and has transcended parts of the divide -- transcended the partisan divide. i thought it would be

appropriate to discuss individuals, including a student at the law school where i am now the dean. he is a candidate for student body president. i asked him to send a message about himself. i am going to beat it in full as i thought that it made a powerful point. open quotes i am a muslim born and raised in the united states. by most standards my childhood was normal. i spent too much time watching television. my laziness changed when i went to high school. i was introduced to the army junior reserve training corps. i love the the program. it taught me what it meant to be a leader and taking responsibility for my actions. i excelled in the program. i was the first to that in my class to be made an officer.

it is not my success that i remember most about high school. what i remember most is the confusion and fear that overcame us on september 11. when the teacher turned on the television just in time to watch the second airplane crash. i knew that my country had been attacked, so i knew what i did was -- i did what i knew was right. five months later i listed in the military. i transferred to regular duty on july, 2007. last summer the student was selected as one of 25 first-year law students in the nation to in turn for the army advocate general.

his goal was to become an officer. the second individual level like to talk about is a young woman by the name of [unintelligible] she testified before the committee in 2004. she was 11 at the time. her story begins in oklahoma. at times she told her sixth grade teacher that she was muslim and wore a head scarf. her teacher did not object at the time. she attended school for the next month. on september 11, 2003, she was asked to remove her headscarf. because it frightened other sixth grade students. she declined and was sent to the principal's office. the principal insisted. when she declined to do so, she was suspended. i authorized the justice

department to intervene and, eventually, after court action, she was permitted to return to school. i think that this highlights important principles, critical principles that make our nation great. the first principle is that, for most, we are all americans. listen to the words. open quotes -- open quotes -- open quotes -- open quotes -- this situation was an opportunity for the public school to teach freedom. school officials could have taken the opportunity to talk about early american settlers and freedom to express faith. school officials could have taken this opportunity to teach basic civics. they could have taken this

opportunity to show that respect and tolerance was a bright and that these are the founding principles of our nation. instead these officials said the fear that they should be afraid of a head scarf, and by extension her faith should be suppressed. her case, unfortunately, offers insight into our nation. strong because we've responded to the attack, and history has shown the need for leadership tempered with wisdom. president george w. bush understood this when he visited the islamic center of washington to remind the than resolute nation that those that feel that they can intimidate our fellow citizens with anger should be ashamed of that kind of behavior. president obama has understood this and spoken out as well. 10 years later, as we approach

the anniversary of 9/11, i feel obligated to state the obvious. yet we have not forgotten the events of 10 years ago. emotions remain charged, the desire to lay blame remains high. this is a critical time to temper our resolve with wisdom and remain true to our american ideals and freedoms to make sure that all of the people of this land are free to practice their faith without fear of retaliation or reprisal. i thank you for this hearing, your time, and i look forward to your questions. >> i cannot recall such an impressive panel. thank you all. this will make an excellent record of what we're trying to talk about today. i want to address an issue raised by the cardinal and put it in terms of the topic before

us. the cardinal said -- where is the compelling respect for religious entities to contradict their both -- their moral principles? let's move this principle fought to the question of sharia law. the question that i asked earlier about where the line should be drawn, certainly be no the excesses -- certainly we know the excesses. they are publicized every day. controversy, a man opposed to blasphemy laws. he gave his life in speaking out for tolerance. the same thing suggested stoning of women for certain transgressions in muslim countries. for many people, those are the images of sharia law.

but what the cardinal said in the context of sharia law and what we know to be excesses and in some contexts and part of muslim religious practices in peaceful ways in other contexts. >> thank you for that question. as you pointed out earlier, for every day american muslims what it really means is those guidelines that guide everyday life. whether it is prayer, fasting, issues of marriage in the way that religious law guides those everyday activities for christians,, and other communities in the united states, the excesses that have been outlined, i cannot imagine the circumstances under which there would be tolerated here in america.

as a legal matter the constitution as bilal of the land. no religious laws, no for laws. that is absolutely important and something i am personally very faith -- thankful for. this question of efforts to introduce bills to ban sharia law are woefully misguided. but the implications, if they are actually allowed to be enacted, taking for example the one in oklahoma, there could be significant consequences but it does concern us. >> the case we are talking about here from oklahoma, the american muslim was objecting, saying that it was sure real law that had guided him in the execution of his will.

can you give me other illustrations, as i said, the stereotype of sharia law is extreme. can you give me other illustrations of sharia law in the life of an american muslim that you believe should be understood by most? >> you gave a good one, the way that some people would decide to ride it will. it may also entailed decisions to get married under religious law. in terms of how they go about their lives. things like prayer or when they pray, fasting, which is also a cornerstone of the faith. those are some examples. >> donations? >> charitable giving, yes. is an obligation for american muslims as it is for many people of faith in this country.

>> and the touch? >> thank you. [laughter] the pilgrimage is something that is required for american muslims as well. >> i did not even know the pillars of islam and i was trying to recall. >> can you address that as your role as a former attorney general? >> first, i would have concerns over equal protection issues while at legislature and state can determine what was a state court will look at, there are concerns when a particular type of law or religion is singled

out as against others. in much the same way that you would not ban a head scarf. as a general will, courts do not apply for laws or of religious laws. the context where that might come up is in the context of a situation where will or document of adhesion references another jurisdiction. in that case, the individuals that are signatories are asking the court to look beyond local jurisdiction and applied the other mall. these are fairly unusual circumstances. >> i do not want to misstate your decision, but you were originally set neutrality? >> absolutely. >> you would put that belief in the context of american law? >> absolutely. >> that is the way that i see it

as well. i have a point of view about wanted to see if you could point to a difference that i could not see, but we seem to be in agreement. cardinal, i have to rescue about a great controversial issue related to part 51, the proposed islamic center in lower manhattan. i understand that you were involved in an interfaith effort to stand in solidarity with american muslims that were experiencing religious discrimination. tell me how you got involved in that and please describe your involvement to the committee. >> i was only involved tangentially. years ago we learned not to get involved in other people's problems. you have enough problems on your own.

it became such a national issue that people became very confused about it. the archbishop spoke to as his evidence. i think that it was because i had been very much involved with muslim leadership's here in this part of the country, especially in the islamic society of north america. we had been trying to work together to look for peace in the holy land. we had a very close relationship with the leadership. all of us were looking for the two-stage solution. we had become friends over that, over the years. it was that friendship that wanted us to speak out more carefully.

an issue where you could understand both positions. we felt that she could not say that this was on american. something that would destroy the unity of our religious friendship and religious working together. basically, we wanted to keep it above the level of saying that this was something that you have to attack. the to have to speak against. -- that you have to speak against. you have to make sure the people of good will are looking at it on the level where they understood that whenever you decided, you could not be condemned. there were good arguments on both sides. that is often the best position to take we run into a world where everything is black and white.

let's thank you, cardinal. senator? let's first of all, as a former assistant attorney general, can we ask you a couple of questions? seems like it is one thing to say that it should not be banned, but another to say that it could supplant u.s. civil or criminal law. would that be a correct way to look at it? >> i do not see how any law like that should or could supplant u.s. law. >> is it merely a guide by which people should live their lives, as described here? that it could not and should not allow things like polygamy, underage marriage, things of that sort? >> the clause makes it clear. u.s. law is bilal of the land. >> thank you. the teachings of your church

allow all americans to practice and the faith of their choosing , or no faith, is that correct? >> absolutely. >> it would also allow people to convert to a different faith, would it not? >> i am not happy about that, but that has always been a part of our position. >> for those that would condemn others with hate language for doing backup, that speech, while permitted, it would not be a speech that, well, that speech would be permitted, but would you condemn people who use hateful or insightful speech against those who had converted to another faith? >> generally, you should love your neighbor.

even if you do not love their actions. you have to have respect for your neighbor. you might say that you are sorry for doing this, but to attack them for being anything other than your neighbor would not be a christian point of view. >> you belong to an organization that has been very clear on its positions on the web site. i wonder if you have made any public pronouncements condemning those religious leaders who have employed a violent or hateful rhetoric or promoted hateful views of other religious groups. have you or your web site done that? >> let me -- >> as a former staffer, you know the time is limited. [laughter]

>> my organization's work is focused on protecting end up holding constitutional values. >> you have condemned the hateful speech of those that criticize others by and the way that i mentioned? >> i would love to know which case you are talking about, specifically. >> would you condemn threats of death or physical harm against writers or commentators who have condemned the islamic extremism? >> we have a very cherished fidelity to the first amendment. >> i am questioning whether you would agree that that speech is helpful or harmful. would you condemn it or be neutral about it? >> those that would threaten to kill someone because of their political views, religious

views, that is inappropriate. >> i am specifically talking about the web site, i guess i should identify your site, which i will in a moment. >> muslimadvocates.org. >> correct. let me ask you about something from your web site. last year u.s. intelligence agents uncovered and prosecuted the number of attempted terrorist attacks planned by radical muslim extremists. produced by the investigator project on terrorism based on recent justice department reports. 2007 a man was charged with attempting to explode a car bomb

in portland, oregon. the man was attempting to assist others who he believed were members of al qaeda. on the 19th and was sentenced to prison for attempting to scale a skyscraper in texas. a clerk in manhattan was found guilty of attempting to detonate explosives near a synagogue in the bronx. convicted of conspiracy to attack john f. kennedy airport. on the 21st pled guilty to attempting to detonate a car bomb in times square. attacks that were planned in mumbai, india, killing 164 people. every one of these incidents could have resulted in deaths,

and some of them did. all of these terrorists were obviously in different today killed. i think that we owe a debt of gratitude to the agents that identified and stop those spots before they could be identified and carried out. under the community alerts section of your web site, directed at american muslims -- the fbi is contacting american muslims to solicit advice on addressing american extremist -- discussing the islamic extremism. we strongly urge not speaking to the fbi without a lawyer. but was surprised that that would be found on your web site, as this is one of the best ways that law-enforcement can uncover terrorist plot like the ones i described. it seems to me that all

americans should assist in preventing these heinous crimes. i would think that muslim americans would feel a special obligation to help intelligence agencies route this out. is it wrong to investigate and prosecute the individuals mentioned? do you stand by the alert constructing muslim americans not to cooperate with law enforcement, or at least not without having a lawyer present? what senator, i fully understand the threats we are facing. on september 11 i was working right here in the capital. i ran with my colleagues as we thought that their planes were approaching by fully understand the threat. those that engage in camelback must be brought to justice. every american has a civic duty.

i might add that the attorney general has actually said that the cooperation of the american muslim community is central to thwarting terrorist plot. at the same time, every american has the right to seek legal device. a right that is guaranteed to every american. i know that we are both lawyers and we both know that our legal system is quite complex. encouraging members to seek legal advice as they interact with law enforcement is something every american has the right to do. >> you stand by that statement on your web site? >> i stand by all of the statements on the web site. >> a few weeks after 9/11, recalling fleeing from the capital, as you did, as i went out to get a taxi cab there was a man wearing a turban.

i got in the cab and sat in the back seat. i remember saying to him -- how have things been for you since 9/11? he said that he is seek and he wears that turban every day. he says he wishes he could show them something. he reached over and pulled down at picture of a young man in a american u.s. army military uniform. he said that this is his son. that someone out, overseas, in the middle east, he cannot even tell me, he is fighting and the listed. i thought to myself, if these people knew, this man is putting his most prized possessions in service to the united states. i cannot quarrel with anyone

that we have a threat of terrorism that we have to deal with honestly, but i hope that this hearing has suggested that the overwhelming majority are of muslim americans are patriotic and law-abiding people. we all have to work to keep it safe. the purpose of this hearing was to make it clear that there were basic and fundamental principles that should guide us. in your testimony today i want to say that this has been extraordinary. i would like to close by thanking you again. some groups have submitted statements in support of this hearing. the alliance for justice, the interfaith alliance, the leadership conference on civil and human rights, military and

religious freedom foundation, the south asian american coalition, and without objection, statements are on the record. standing with american muslims, upholding values, this coalition includes american baptist churches, the disciples of christ, the islamic society, the center for reformed judaism, and here is part of what they said in their statement. we remain profoundly distressed and saddened that the incidents of violence in communities across america, we stand by the principle that to attack any religion in the united states is to do violence to the religious freedom of all americans and we encourage everyone to honor

freedoms guaranteed by the constitution. that is an appropriate note to close on. if there are no further comments, i am going to thank the witnesses again and tell you that the hearing records will be open for two weeks and additional materials may be sent your way. thank you for being part of this hearing. let's thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

>> tomorrow, a look at the latest developments in congress journal,"hington gail russel chaddock, jennifer griffen, greg myre, john della volne. that is live at 7:00 a.m. eastern here on c-span. the house gavels in and at noon eastern with legislative business scheduled to begin at 2:00 p.m.. on the agenda, a bill relating

to the regulation of the internet and broadband practices and temporary 2011 federal spending. current funding expires on friday. without action, we could see a government shutdown. you can follow the house live here on c-span. the senate returns on monday at 2:00 p.m. for morning business. at 4:30 they will be in executive session to consider nomination of a judge on the federal circuit. at roll-call vote will be taken at 5:30. members return on c-span 2. now, supreme court's oral arguments on wal-mart vs. dukes. the general discrimination suit, if it is allowed to proceed it will be the largest class action in history and could potentially

cost wal-mart billions of dollars. >> the mandatory nationwide class was improperly certified. first, failing to satisfy was the confusion requirement of around the physicality and adequate nature. second, monetary relief failed requirements32b2's for a non-mandatory up out class. because the plaintiffs' claims in this case hinged on the delegation discretion, they cannot meet the cohesion requirements. the delegation of discretion is in some ways the opposite of committees of claims, and to

everyone in the class. the common policies are either neutral, not argued to be discriminatory, or they are affirmatively non- discriminatory. the company has a strong policy against discrimination for diversity. >> i suppose the corporate headquarters could have learned that the objective decision making in the field was resulting in several discriminatory practices. in other words, this decentralized process could be leading to discrimination as attributed to the policy adopted by headquarters. >> i think that in this situation, if there was a pattern that a particular store -- >> they have thousands of stores. whenever there is a report from a store saying that there is an allegation of gender

discrimination, at some point cannot conclude that it is their policy of the centralized decision making that is leading to this pattern? >> i think that everyone is saying that companies do look at the situation to seek to root out discrimination, but it would take more than a summary report. hear the plaintive claim it is simply not typical. the claims before the court are supposed to represent 500,000, perhaps 1 million or more, people standing in judgment. people standing to represent. the claim is that the individual decision makers in those other cases of>> the justices questios

me under 1983. the city is not liable for a constitutional violation and less than has a policy. >> do you think we could use that as an analog to determine whether or non there is a common question here? >> if data policy of general discrimination, in the words of the court in phoenix, saw patterns throughout the company and because of facts and gender allowed to the patterns to exist -- the >> is suppose, following the analog, there is a sharing of deliberate indifference to the violation. would that be a policy? >> it your honor, the deliberate indifference raises a different question. the test would be, was the company allowing the

discrimination to occur because of gender, because they wanted their to be discrimination? there is no evidence of that here. >> is there any responsibility? the numbers have been left out. the company gets reports month after month showing that women are disproportionately passed over for promotion, and that there is a pay gap between men and women doing the same job. it happens not once but twice. is not there some responsibility on the company to say, is gender discrimination at work? if it is, is not there an obligation to stop that? >> your honor, yes. there is an obligation to ensure that there are not wage gaps or

discrimination. for example, if we look at the aggregated statistics, it points to a completely different issue. it does not sure that there are gender gaps at the stores along come terrible people. that is the fundamental flaw in their case. their argument is that individual decision makers throughout the country were making stereotyped the decisions. they have just added everything together. the have not shown a pattern. the have added all the data together which points to a disparity, some of that mirrors. >> i thought there expert did not aggregate them together but did them regionally, not store by store. number two, he performed, as accepted by the district court and affirmed by the circuit court, any number of controlled variable comparisons including job history, job ratings, and

other things, and found that the disparity could not be explained on any of the normal variables that one would expect that the disparity in was significantly much higher than the 10 competitors of walmart and would they were paying their labor force. so, what is speculative about that, number one, and, two, why is that kind of statistical analysis inadequate to show that a policy of some sort exists? >> justice sotomayor or, first from 11 plaintiffs' experts did simply estimated the regional results. he did not do a regional regression. we think we have strong arguments on the merits responding to the statistical arguments. >> that begs the legal question. you are right.

ultimately, you may win and prove to a fact finder that this analysis is fatally flawed, but with the district court concluded was that on the basis of your experts, whom he discounted because your experts was basing analysis on promises that the court found not acceptable that there was enough year after rigorous analysis. what is the standard that the court should use aniline upsetting that factual conclusion? >> the district judge did not discount to. the standard that we think would govern would be the second circuit adopted in the i.p.o. case which says there need to be a choice. when you talk about discretionary decisions, there has to be some demonstration that there is a common effect. our expert reports that 90% of

the court said there was no pay disparity. even putting that aside, the plaintiffs need to come forward with something that shows that there was this for immaculate occurrence and every decision in every store simply does not sure that. the other problem on the cohesion analysis, the to fatality inquiry, they each had a very different story. one was promoted to managerial precision and one was terminated. one was promoted and then had a disciplinary problem and was demoted. in each case, they would have to show that they were treated differently than people who were situated just like them, the same supervisor, the same department, the same situation. >> would you think is the difference between the standard they were required to apply and the certification stage on the

question whether or not there was a companywide policy? what would the standard be applied on the merits? >> just as a leader, they did not have to apply that there's a actual policy of discrimination. the at least needed to point to a policy in that was common and that a land of these different individuals, locations, and people together. their argument is that the common policy is given to tens of thousands of individuals discretion to do whatever they want. that is not commonality. >> i do not think that is quite fair. they say this is complete subjectively. they were using factors that allow gender discrimination to come in to the employment decisions. we suggested that it was a policy, using subjective factors

only when making an employment decision is exactly the policy alleged year. >> justice kagan, they did not allege that. that would be a different issue. they argued that it was a general overarching standards. i think it says on page 13 that say it was indicted. three pages later they say it was guided by a non- discriminatory policy. it does not opposed the kind of situation. >> i find this confusing on my excesses objective of the about a policy that can be alleged in a title 7 the suit were impact suit. >> the judge -- the court did say that it could be argued.

justice o'connor went on to argue that there needed to beat separate in that policy. title 7 does not govern policy. it governs practices. subjectivity is not a practice. wal-mart has a combination of objective and subjective standards. within that, it points to the great personality. they will be the ones we will push up and they are trying to tie that in. >> there was a case in the 1970's and it was a class action against at&t for, i think, promotion into middle management. what was the issue there was a part objective, but in the end of the final step was the so- called person test.

women disproportionately flaunt at that total person. the idea was not that at all complicated. it was that most people prefer themselves. it is is in maker, all other things being equal, would prefer someone that look like him. -- the decision maker, all things being equal, would prefer someone that looked like him. the total person concept was found to be in violation of title 7. this sounds quite similar. you have an expert, and i have questions about that expert, but the expert is saying that gender bias can creep into a system like that simply because of a natural phenomenon and that people tend to feel comfortable with people like themselves. >> your honor, this is not like

the total person test, but i think that is a very good example of something that could be a practice inside the overarching policy. if you had a case where a particular decision making unit applied to the total practice test and you had disparate results in that particular unit, that particular group of people could have a much stronger case for class-action. as your honor points out, the sociologist here, the glue that is supposed to of this class together, said he could not tell if stereotyping was happens 0.5% or 95% or at all. this is a class-action. we can assume that every decision maker active in the same manner that had come in these courts words, the same injury and the same injury which is the way the court put it in am cam -- amchecm.

that assumption is not supported by the record. >> that is just that the plaintiffs would have to demonstrate discrimination in every single case. that has never been the law. especially at this stage in the proceedings, there is a practice, a policy of subjectivity that on the whole results in discrimination against women, not that each one of these women in the class were themselves discriminated against. >> that is correct, your honor. at the phase one, we are not arguing that it planned to put have to come forward and sure that every class member was discriminated against. and to the teamsters analysis, there must be proof of a standard operating procedure of discrimination. it is undisputed that wal-mart's policy, not only written but it was implemented and enforced

rigorously that was anti- discrimination. you are correct, your honor. each person does not have to come forward in phase one. the other big problem is that the district judge said in phase two under teamsters, walmart would not be entitled to put on individual defenses. women who thought they had a claim would not be but come forward in this process if the paper records suggested they did not have a claim to have their day in court and argue that they should be compensated. the plaintiffs are trying to cut off half of the teamsters framework, which is fundamental both to the process and title vii because section 706g states very clearly that on the victims of discrimination may recover. >> what happens to the damages claim of an individual woman who is a part of this class is that class prevails? >> of the class prevails, then

decline would be resolved in this manner -- and it is very unclear with the district court had in mind. >> which should be eligible for only back pay or compensatory damages as well? >> yes, sir. she would only be eligible for back pay. the plaintiffs to retain their compensatory damages themselves. they waved those for the class members in order to get class certified. >> all right. would the woman with a claim for compensatory damages be able to sue after the class prevails? >> our view is that she would not be because that would have been part of the core nucleus of facts in the case. >> even though she could not have received notice and had an opportunity to opt out? >> that goes to the problem with theb-2 certification. it needs to be looked at under rule 23b3.

it needs to look at under the growing edge of the law. the language of a liberal 23b2 speaks of injunctive and declaratory relief. >> i that your position was that this cannot be certified under rule 23b3? >> our view is that the plaintiffs will not be able to satisfy those provisions, but that is why they brought it under rule 23b2. >> with that bar the class? meaning that if their claim is, as they stated, that they are not seeking injunctive and declaratory relief against the discriminatory impact or a case or practice case, would that not have value? standing alone without the damages component, would that value not be that the plaintiffs to come in later have a

presumption that discrimination affected them in the burden shifts to walmart to prove that there was a nondiscriminatory reason? >> there certainly could be a benefit from an injunction if the plaintiffs met all the standards. the problem here is that the individualized damage claims, the back pay claims, and golf and overwhelm the injunctive relief. >> even if they did, why cannot separate the b2 from the b3 claim about whether monetary damages have enough common facts and law towards a certification under b3? >> some courts have looked at the objective relief claims under the b2 and monetary relief under b3. that can raise other complications especially here as the plaintiffs are seeking punitive damages as well. it would certainly be better

than this shoehorned these monetary relief claims that her so individualized. >> would you address them separately for me and tell me why a b2 class could not read -- could not exist on the on a director of relief? if it can, if you are conceding that it can, if you're attacked is merely that the monetary component of this, the back pay, and i know the dispute on whether that is equitable or compensatory or not, and why that cannot just be separated out and put into the b3 cl aim? >> our view is that the injunctive claim still has issues with the cohesion, adequacy, it's a fatality, commonality. on the adequacy point, this case includes at least 544 store managers who are alleged to be discriminators. if that is not a conflict under amchem and the adequacy tests in

hansberry v. lee, i do not know it is. they cannot have doubt. they are kurds employees, former employees, and -- they are current employees, former employees, and they cut across every position in the country. i think there's still be those commonality come to the county, cohesion problems because of the nature of the plaintiffs' case here. >> correct me if i am wrong, and that i thought that the district judge said that the absent class members would give notice and have an opportunity to opt out. so, a plaintiff, a member of the class who wants to go for compensation instead of just a back pay could opt out. >> the district george -- court, justice ginsburg, limited the ruling to the punitive damage

claim and the ninth circuit made clear it was doing it that way. it said under its ruling, which sent punitive damages back, that would simplify things because then there would not have to be notice and an opportunity to opt out under back pay. back pay is monetary relief for individuals. divide people based on a balancing test on your b22 judgment to which they were not a party, taylor be stirred joe, this court talk about the fundamental rule -- taylor obverses -- taylor v. surgell talks about the rule that an individual is not bound by a judgment. >> you assume that monetary relief includes equitable relief. >> yes, your honor. >> the fifth circuit has described a test where it does not use the predominant

question. it uses the incidental test. >> that test is much better. the plaintiffs walked away from the two tests that were applied in the lower court. they never contended they could meet the incidental damages test. the alice in a case in the fifth circuit only automatically back pain that goes to the group as a whole would qualify. this is individualized relief. >> that is where i am going. would you accept the incidental test as appropriate to the question of when monetary damages predominate or not? >> your honor, the text role of 23 b2 is very clear. the only ambiguity created is from the advisory committee notes. as the court said three weeks ago in the milner case, we do not look to a legislative history to try to create ambiguities. the drafters were concerned

about the historical antecedents where it was an in depth of-only case to desegregate and the like. the drafters overrule 23b2 would have been shocked if they learned that this case involves millions of claims for individualized monetary relief. that being said, your honor, the accidental damage test is, i think far superior, because it is at least clearer and would be closer to a bright line rule. i would like to go back briefly to the point i made earlier about individual relief in taking away the rights of both walmart and the absent class members. the procedures that would be used here, the night circuits -- 9th circuit proposed a statistical sampling method. the plaintiffs do not defend that. dave did not mention the hilao case.

the district court precluded fundamental teamsters hearings which would allow, once a resumption, if one was to a rise, of discrimination occurred in the pattern of practice would allow the defendant to then show that it did not discriminate on an individual basis and would allow the individuals to come in and have their day in court. it violates title vii and we think it really shows some of the core flaws in this case. >> what is the class does not prevail and it loses? does that bar an individual woman at a particular wal-mart from bringing these same claims? >> yes, your honor. there is a presumption in the world of class-action. one is that class actions are always good and the bigger the class-action the better. none of those presumptions can be counted on. but the plaintiffs lose and their compensatory damages

claims, i think, would be gone because the named plaintiffs are asserting that. if they try to bring a case as pattern or practice or pay or promotions, there were be significant questions of rezs judicata and collateral estoppel. >> but you're not suggesting that there would be precluded an individual discrimination claims? clucks no, your honor. >> but what if it was the same theory that the reason this person was able to discriminate was because he had a total subjective discretion in his hiring? >> then there would be republican of collateral estoppel. >> i would like to reserve my remaining time for rebuttal. >> of the please the court, this case follows from the teamsters and what some models of a series

of discrimination. as a consequence, there is no requirement to have a formal policy of discrimination here. >> what would the injunction look like in this case darks >> a series of remedial measures that would direct walmart to provide detailed criteria with which to make pay and promotion decisions that are job-related in the way that has not been true up until now. it would provide to all managers accountable for the decisions that they make. and would insure effective oversight of these pay and promotion decisions in a way that the company had -- the company did have, by the way, information regularly submitted about a decision dated took no action. it did not effectively monitor and allowed these problems to fester. >> is it your position that on

this scale from a subjective decision making process these are necessarily illegal? >> not a dog, mr. chief justice. >> how many stores are we talking about? 1000 stores? >> several thousand stores. >> how many examples of abuse of this subject of discrimination delegation need to be shown before you can say that flows from the policy rather than from bad doctors? i assume with however many thousands of stores that you were going to have some bad apples? >> mr. chief justice, we have examples in the record. >> how many do you need to have? >> i -- >> surely it will not be a somebody sends in one letter that it is not enough to support your theory. >> that is correct. there is no minimum number that this court has ever set. teamsters, as an example, the court had before it about 40

examples, but significantly they were not required. in order to establish a pattern or practice of liability, and we have more than that, of course, but in order to establish a pattern and practice of liability or at least a prima facie case, teamsters holes that you need to show that there were disparities sufficient is a statute to create an inference of discrimination with respect to a discreet practice. >> is it true that the walmart pay disparity across the company is less than the national average? >> mr. chief justice, i do not know that is a fair comparison. the position that wal-mart has advanced makes is with the general population, not with people in retail. wal-mart's obligation under titlevii is to insure its managers do not make pay decisions because of sex. the comparison that is relevant

as between men and women at wal- mart and now the general population that includes people in retail but railroad workers and all kinds of other people. that is not an appropriate comparison. >> it is not clear to me. what is the unlawful policy that wal-mart has adopted, under your theory of the case? >> justice kennedy, our theory is that walmart provided to its managers unchecked discretion in the way that this court's watson decision addressed that was used to pay women less than men who were doing the same work in the same disabilities at the same time even though those women had more seniority and her performance, and provided fewer opportunities for promotion than women because of sex. >> it is hard for me to see that your complaint faces in two directions. number one, you said this is a

culture where arkansas knows, the headquarters, everything that is going on. she it seems to me there is an inconsistency here. i am not sure with the unlawful policy is. >> justice kennedy, there is no inconsistency any more than it is inconsistent with in wal- mart's own personnel procedures. the company provides to its managers this discretion, which, by the way, is very discreet. it is not the broad kind of -- we are not attacking every facet of pay and promotion decisions. the district court found specific features of the pay and promotion process that are totally discretionary. there is no guidance whatsoever. with respect to the discretion, every store, the district court found, managers are provided with the same level of discretion. the company also has a very strong corporate culture that insures that managers, not just with respect to the practices we

are challenging, but in all respects, what they call "the walmart way," and the purpose is to assure that in these various stores and, contrary to what walmart argues, that these are wholly dependent facilities and the decisions of the managers will be informed by the daughters of the company. >> is that disparate treatment? >> it is because they're making these decisions because of sex. we have evidence shows that we think it through stereotyping and statistical results. >> i am getting whipsawed here. only one hand, you say they were utterly subjective. on the other hand, you say there is a strong corporate culture that guards all this. well, which is it? it is eager the individual supervisors that are left on their own or else there is a strong corporate culture that tells them what to do. >> justice scalia, there is this

broad discretion given the managers. >> right. >> they do not make these decisions in a vacuum. the make them with that a company. >> so there is no discretion? is that what you are saying? >> there are given this discretion and they are informed by the company about how to exercise that discretion. >> if someone tells you how to exercise discretion, you do not have discretion. >> all right. that is another -- the bottom line is that they did not and the results sure would. there were consistent disparities in every one of the regions, all 41. >> what do you know about the unchallenged fact that the central company had a policy, announced policy, against sex discrimination, said that it was not totally subjective his at the managerial level? you make these hiring decisions, but you make them not on the basis of sex.

was that at the center policy of the company? >> that was a written policy. that was not a policy that is effectively communicated to the managers. >> how was that established? >> asness said before, for instance at the sam walton institute where every manager has to be traded before they become a manager, they provide as a response to a standard question -- what are women so underrepresented or few women in the management? the response given was that because men at seek advancement or are more aggressive in seeking advancement. that is a typical stereotypical state member writing that every person going through the management training program that they go that off and use that to inform the decisions when they have the discretion to make promotions. >> that causes them intentionally to discriminate on the basis of sex? how could that possibly caused them to intentionally discriminate on the basis of sex?

>> they have an intent to take sex into account in making their decisions. they apply a stereotype that women are less aggressive when it comes to assessing their suitability for promotions. >> that is just an assessment of why the percentage is different. they differ not only on walmart but drop the industry. -- and throughout the industry. to say that that is the explanation is not to tell your people, "do not promote women." if you have an aggressive woman, promote her. >> i understand that, and there have been women promoted. justice scalia, first of all, we'd that -- we think the question you are raising our ones that wal-mart can raise at trial. the question at this juncture is

whether there are questions, to the class. we have identified what has been recognized as a common policy that there is no dispute that this policy applies throughout the company. the fact that we come at this juncture to mount have shown, as we think we have to in order to satisfy commonality, that there are disparities and burst to women. we have the means to show through testimony and other evidence and we can connect these two. >> have you sufficiently shown, despite the fact of an explicit written a central policy of no discrimination against women, do you think that adequately shown that the policy of is a fraud, and that what is really going on is that there is a center policy that promotes the discrimination against women? >> with the testimony in the record from the vice president of the company that the policy was lips service from the company.

we have testimony from the experts in this case -- >> is this not something that would be -- i mean, we are not talking about getting your foot in the door. we are talking about certifying a class. you may well lose on every one of these points, but the 23a standards, they are not supposed to be very difficult to overcome. it is just a common question of the fact. it dominates at that state. >> i am sorry. >> what seems to me is a very serious problem in this case is how do you work out the back pay? say we get through the 23a threshold. we get class certified under 23b2. the judges as there is no way i could possibly try each of these individuals. we are going to do this how?

how're they going to calculate the back pay? shh >> the approach that the district court endorsed, an approach that we recommended, and which has been endorsed by seven circuits over a period of 40 years is that in circumstances like here which are, admittedly, the exception to the rule where the company had no standards by which to make promotion and pay decisions, they had kept no records of the reasons for people being promoted and the reasons why they pay people certain amounts, that as a consequence of that, the albermarle and teamster decisions made clear that the obligation of the district court upon finding liability is an attempt to reconstruct the decisions that would have been made in the absence of discrimination. the district court found here, and is not clearly erroneous,

that the more reliable method for doing so as to use a formula relying on walmart's rust database in which it captures -- robust a database in which it captures performance, seniority, and a host of other job-related variables that bear on pay and promotion decisions. it permits a comparison in a way that having individual hearings relate on his memories and rationalizations does not. >> what if you had a situation where a company had a very clear policy in favor of equal treatment of men and women? the answer to your question was that women did not have as many positions because managers discriminate against them in hiring and in promotion, yet you still have the same subject of delegation system. could you have a class of women who were harmed by this is subjective policy, even though it was clear that the policy of

the corporation favored equal aplomb and opportunity? >> welcome down as clear as your hypothetical suggests, that the company had a policy of that sort, it would be appropriate for it to seek a summary judgment. >> no, no, no. you are saying that it is not enough to be a subjective decision. and the 1000 stores, you will find a goodly number who are not following the company's policy who are exercising their subjective judgment in a way that violates the right to equal treatment. could you not bring a class of people subjected to discrimination as a result of that subjective policy? >> you could bring a class case, if i understand your hypothetical, on behalf of women -- i am sorry? who were subject to discrimination as a consequence of that unchecked discretion. i went to be clear that we should not lose sight of the fact we have evidence year

results from this that are really extraordinary. ->> is the common question of law or fact whether, given the training which central management knew, given the facts about what people say and how they behave, many of which a central management knew, and given the results, which central management knew or should have known, should central management, under the law, have withdrawn some of the subject of discretion in order to stop these results? >> that is a fair way to put it. >> if that is fair, is that a question that every one of the women in this class shares in common? >> i believe so, just as brier. they have all been the subject in every one of these -- i believe so, justice breyer. >> the district judge did not

think so. the district judge said that in the awarding back pay that sum would get a windfall and others to be on compensated? >> justice ginsburg, actually at the district judge did not find that. the formula that we intended to use as a regression analysis that would permit comparison between each woman and the amount she was paid in citrulline -- and similarly situated men taking into account performance and seniority. the formula will show they should get a back pay. >> i thought his point was not simply that some women were not underpaid, but women, if you had an individual case, the employer might share this person could have been fired, disciplined, and was not owed any back pay, not that she compares favorably

to a male peer, but that she would not have gotten any pay at all. >> welcome the justice ginsberg, the kind of factors that are entered into this economic model, performance in particular, should capture whether someone should have been fired. that is a very important part of the model here that permits people -- and the evidence shows that women were, in fact, having her performance than man and were nonetheless underpaid. >> can i just say something here? does not your class include both of those who were underpaid and those women who were not underpaid? does your class include both? is that commonality? >> as every class does, justice scalia. every class as some portion of its members who were not harmed by the discrimination.

as the teamsters case recognized, what is common about them is that they were all subject to the same highly discretionary decision making. but that's still presents a question, to the class. >> correct me if i am wrong, i thought the teamsters case was an action by the government and not a class-action case. >> that is correct. it is the paradigm we use for determining what you need to establish a pattern or practice of discrimination. >> patter practice, that is correct. help me, if you can, with this. let us suppose that expert testimony, sociologists and so forth, established that in the industry and retail industry generally women are still discriminated against by mathematical factor of x. you have a company with a very specific policy against discrimination and you get the way that there employees are treated and you find disparity by the same mathematical factor.

does that give you cause for action? >> i am sorry if the -- >> if it is the same in the company as they are in society but the company does have a policy against discrimination. responsibilitys is to ensure that they do not make pay and promotion decisions because of sex. if the comparison between the pay that women receive, for instance, who are similarly situated to men within the company are such that they are underpaid compared is similarly situated men in the company, then the company would have legal responsibility under a titlevii regardless of what happens in the rest of the industry and the rest of the world. >> would that be sure if you could not show delivered in different stocks -- deliberate

indifference? >> i do not know that the standard is a deliberate indifference. >> can you still proceed? >> i submit that you still can proceed. if the policy announces do not discriminate were to be effective in immunizing companies against liability in a class-action, imagine every company in the country would publish a policy and every license to discriminate. >> i understand your answer to be that this typical company would be in violation of title vii. >> that is correct. >> and that is what the academic literature on which your theory is based. in cash >> justice alito, it is not just academic literature but precedence from this court. that is the president's behind teamsters. in his a would, what makes very clear is that you do not look to

populations outside the company in the making comparisons. >> have a company that is absolutely typical of the inter american workforce and let's say that every single company had examined the same profile. every single company is in violation of title vii. >> that very well could be the case. it hold companies responsible for the actions they take with respect to their employees. there certainly are industries, and there were many more 30 or 40 years ago when teamsters was decided, when the entire industry may have had evidence of discrimination. there is not negligence standard that immunizes companies because they follow the same standards as others. >> would your answer assumes is that if there is a disparity between the advancement of women and the advancement of men that it can only be attributed to sex discrimination. >> no. >> otherwise, how could you say that all of the companies are

presumptive the engaging in sex discrimination? >> justice scalia, in this instance, is not just any old analysis that we are using. we have statistical regression analysis that isolates him and takes into account factors such as performance and seniority. >> i was not talking about this case but your answer to justice alito. you said that it may well be that every industry in the united states is guilty of sexual discrimination. unless, you know, there is equality a promotion for men and women. >> i do not take that position, justice scalia. what i was trying to make clear is that that there are other companies in the same industry or the same problems may arise, which, by the way, was not true here. walmart was behind the other large retailers. it is that many companies in let -- any less liable for the discrimination practiced in its workplace. i cannot speak for the rest of

society. i do not have any reason to think that the entire society is engaging in employment discrimination. >> committee to back to the remedial question here. when it do you think it is that individualized hearings are required? you have described the formula that you would use. she went to the formula approach right and when is the individual hearing approach right? >> it is a call that, of course, we should leave to the district court in the first instance. factors that could weigh in the balance would include whether or not have available the kind of an affirmation that we do hear from the database with which to be able to more reliably constructed the kinds of decisions that would have been made in the absence of discrimination. likewise, there may be companies where they have kept better records, or any captor records, or more substantial standards that would permit the reconstruction of those decisions to individual hearings. i did not think -- i am not

contending that you could always formulate an approach in connection with these cases. this is an extraordinary case with evidence that they have to bring a standard for new records. >> did not the district judge say that because of the numbers that we could not possibly have at the hearing in each case on whether the particular woman was owed back pay? they did say something about this. >> i am sorry. the district court did make the comment that the sheer number of class members would make the administration of individual hearings difficult, but the district court went on. >> i thought he said "impossible." >> he may have. the district court and went ahead and raise specific findings about the extent to which the particular record shows that the use of a formula would be more reliable and

individualized hearings. >> counsel, i am a little confused, all right? >> ok. >> you are saying in individualized hearing is impossible, but that is exactly what you are saying you're going to do on the tour statistics. you're going to say, "for my statistical model, i will be able to identify those women in the class who are deserving of pay raises." what that does not answer ash is when in this process is the defendant going to be given an opportunity to defend against that finding? >> ride. >> are you suggesting that the district court would appropriately bar a defendant where there is no proof of intention now with respect to not keeping records, that it was intended to stop these women from collecting money etc.? when will they get a chance? if they're going to get a chance, is that not an

individualized hearing darks >> yes. effectively, wal-mart will have ample opportunity through the arguments over which variables to use. there was a very robust debate below already about which rebels to use that will have a significant impact on whether women are shown to be underpaid, under promoted compared to men. wal-mart will have that opportunity. >> no, no, no. you say their only opportunity will be on the model and they will be precluded from showing any individual evidence that a particular decision was not made? cash >> justice sotomayor, if walmart comes forward, and they have not done so so far, and is able to persuade the district court, consistent with some kind of reliable determination of who should have been paid what and promoted in the absence of discrimination -- >> you are not answering me. thathat you're saying is

we're groin to preclude them from doing anything but offering a mathematical model because otherwise it will be too hard to have individual hearings. >> let me answer you directly. i am not saying that. wal-mart has an opportunity to make the case with what ever showing it wishes to make that it can reconstruct these decisions more reliably and in an entirely subjective the environment. if it does, it can offer evidence in certain circumstances, but it has not done so. i do not submit they will be able to do so. >> this takes evidence to establish that it is more reliable to have a hearing with evidence on the particular promotion or dismissal of the individual, that is more reliable than using -- i do not care how admirable a statistical guess you make. is that really a question? >> i think it is, justice

scalia. >> we must have a pretty bad judicial system and then. >> it is not the judicial system. it is the record keeping of the company and the standards of the pay and promotion process these that basically means 10 years later, managers are going to be coming forward to speculate about what they did 10 years earlier with no records to cross-examine him on. that is the the model for a reliable adjudication. she >> we should use that in jury trials, too, for really of cases. we should just put a statistical model before the jury and say, "you know, this stuff is too old. we will do this on the basis." is this really due process? >> justice scalia, i submit it is. the circuits have been considering this for 40 years and have held so. where there are standard liz, record list decisions at issue. >> well if it is standard lists and record bus -- standardless

and recordless, where is the commonality? >> that sure is a flaw in your case on commonality. >> justice kennedy, the standardless and recordless aspect is with respect to try to reconstruct these decisions years later. as i said before, we have a common policy here and it presents a common question. we have shown evidence that would probably create a private fashion case under the product or practice of -- prima facie case under teamsters. >> one thing you have not touched on is, first of all, whether b2 is limited to an injunction. if damages predominate, then you cannot use b2 and you have to make your case under b3.

one factor is that about half of the class is gone so they are interested in injunctive relief, but everybody is interested in money. white is not the money -- why do you say that the interactive relief is the thing and the damages are lesser -- and just give relief is the thing and the damages are lesser rather than the other way around? >> is more than half of the class that is gone, is it not? >> nobody knows. they continue to have more employees added to the company cash, so i would not presume -- >> but nobody is leaving. >> people are leaving. the point is that the advisory committee note with respect to rule 23b2 makes clear that whether or not an action or inaction is taken with respect

to the cost, which is the predicate to b2 certification, it does not depend on the number people adversely affected by that action. as a consequence where the former employee is, if they would be included under b2, because the question is not on a day-to-day basis to should have been in a position to seek injunctive relief, who is employed come into is not. >> thank you counsel. mr. boutrous, you have four minutes remaining. >> let me begin on the question of back pay. mr. sellers has made clear that under their vision wal-mart would never have an opportunity to prove that it did not discriminate against a woman who was seeking back pay. the district court did not suggest that it might be difficult, as justice ginsberg suggested, that he found would be impossible not just because the number of people but because of the nature of the claims

that discretionary decisions were being implemented in a way that effected different people differently. the problem here is that the records are not available. then he says we're going to have a proceeding where the district judge relies only on the records, that he says are inadequate, to an hour every construction of the decision. that is that a process known to our jurisprudence. it does not comport with due process. it takes away walmart's rights under title vii. it injures the rights of the individual women. >> he did not seriously contend that if a plaintiff, if the policy or practice of discrimination were found that a woman could not come in and say they cut -- put x in hedge when i had a longer history at wal- mart, i had a far superior job rating, i had no criticisms, and

i was not promoted. with that not be enough to show that the policy influenced her lack of selection box >> i agree with you, just as sotomayor -- selection? >> i agree, justic. >> we agree women should be able to come in and say that the records did not show what really happened. i had more experience, i was a better employee than the guy working next to me. under the plaintiff's theory, in order to get a class here, that woman would not be able to testify. wal-mart would not be able to say that this person was a turbulent week, a great employee. on the record, it is not impossible to recreate this decisions. the record is filled with decorations for managers to remember very well the ms. dukes violated company policy and that ms. arana was fired for

infractions regarding how she captor hours. >> if you spend one second, remember my question. we have got a coming issue. why is that enough to at least support a b2 and drove to the issue? his point, remember, is that this is just cert. assuming they can support the evidence, why can they not have b2 at least under the injunctive relief? >> because, your honor, the common policy affects everyone differently by definition. the plaintiffs are not typical and they are not arguing that everyone was affected by the same common policy. many women thrived. maybe some men stereotype of the other direction. 544 of the plaintiffs are emails for managers. it is impossible to make these sweeping generalizations, which of course is what stereotyping is supposed to prevent. and there's absolutely no way that there can be after process here. on the policy question, should

the plaintiffs pointed to the general policies and central control, but the one policy they do not want to confront is the policy against discrimination. it was not just a written policy on paper. in fact, there is a declaration on a page1576 that lays out a very aggressive efforts the company -- >> what about the vice president who said it was just window dressing? >> i am glad you asked about that, justice scalia. here is what he said. he testified about the diversity goals of the company and the efforts to get more women into management. he said in his view until the company linked diversity goals to compensation managers that it would be lip service. he was not saying the entire program was the service. he was an advocate for diversity in the company. he said his goals were 20% and other peoples were 10%. it is completely misleading to suggest he was denigrating the entire policy. >> i thinking of making their

point which is that they started paying women the same as men that they might get more diversity. >> they do save this same as man, your honor. >> well that is the issue of the dispute. >> thank you, counsel. the issue is submitted. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] the whitean's road to house, mitt romney's comments in las vegas. kentucky senator ran the ball. later today on c-span's "road to the white house." -- kentucky senator rand paul. >> votes and general speeches will be at 6:30 p.m. a bill relating to the fcc regulation of internet and broadband practices and temporary 2011 federal spending. current funding expires friday. without action, we could see a government shutdown. you can follow the house live on you can follow the house live on c-