the cost of using a monopoly to individual companies. the cost outweighs the benefits. the court said not so. it splits it. [laughter] dnanext case also concerns on the constitution's fourth amendment. their issue is that police can take a dna sample persona rest of for a serious crime. source become a powerful . beh everyone's dna, it can spread around through bodily , this is the most important fourth amendment case for a generation. it. can contest

he began by noting that the touchtone amendment is reasonable. it knowledge the taking of dna from a swap with a search. the benefit includes the dna capacity to identify individuals . it can also exonerate people. that is what happened through the process of dna. swab insideof the the cheek is not that much greater than fingerprinting. and it focused on just serious crimes. it did not allow the police much of discretion. justice scalia, there is a --ally ideology goal line ideological line. he wrote a dissent.

he said the search incident to arrest have to be for weapons or for evidence. it knowledge nothing dementing -- he acknowledged that figure meant he was a right. he points out that they do not even get around to sequencing the dna for a long time after they have identified the defendant. the opinion of the court seems to be the key to a standard. the reasonable standard is the fourth amendment. is not a tremendous intrusion. the benefits are greater. the benefits include the protection of the innocent. it is telling that justice -- h and -- the leah justice scalia -- what can be

done? justice scalia is famous for arguing that the rule of law is a law of rules. in this case i think he is very much confident without strong viewpoint. it is consonant with the language of the constitution. the fourth amendment is quite unusual. rule.a standard and not a both cases suggest the court is more likely to read law as a standard. because of these new technologies are radically different from the past, it may -- in contrast, a standard allows judges to update the law by subconsciously looking at the policy considerations beyond the standard and balancing them. it should be known that you information -- and information

makes standards practical. one of the problems we standard , it-- with new information will make standards more attractive. i will give you a brief example. montana had a standard of driving at a reasonable speed. that is an indication how information technology can make important to deal with new technologies. one other point of general interest emergence.

they are simply threats to privacy. it recognizes that this is not so. it emphasizes the he in a information can exonerate as well as lead to conviction. one might add a cousin of the power to -- of dna to solve crime, there'll be fewer interrogations and fewer lineups with all of the possibilities. fewer searches of intrusion to be authorized by warrants. there might be less intrusion on privacy. betweeng tension privacy and liberty and security on the other, technology might enable us to make a better trade-off improving human well- being.

>> i would like to elaborate a little bit and let back last term justice scalia prevailed in the gps case. was it a fourth amendment search for the police to place a gps device and checked him over the couple of weeks here it he took a concrete view. he said the framers would have regarded this as trespassing. justice sotamayor said we are reaching the point where we have to step back and reevaluate the light of technology. i wonder if you have any reaction. >> i am much more sympathetic to what justice sotomayor has said. he is creating a rule to define certain expectations from framers. i do not disagree that these can be relevant in understanding the tax. it is primary. this is not a series of rules. i think it is very amenable to what she suggests. we have to really look at the cost of privacy. i think this is very much substantial.

one can debate this on a balancing. that will be the debate necessary going forward. rather than creating a lot of roles that will make increasingly less sense.

>> will we talk talk about those cases? >> we will. >> that is an important part of this. we were thinking about the gps case which was involved in an interesting concurring opinion about justice scalia. he found that it was in the suspected drug dealers car she -- so you could track it without a warrant. how do you get get original is out of that? -- originialism out of that? we will get to the dog cases. the cell phones were there are cameras everywhere. they have a case a couple years ago by heat measuring devices will over the guys home and homeat flew over the guy's and measured the heat that confirmed provided sufficient suspicion that there was marijuana growing inside the house is generating

this heat. we have the dog cases which we will talk about. facebook, twitter. the surveillance cases, billions of phone messages tracked or stored. all of this technology that the supreme court is having to deal with in terms of what does it mean in terms of the precedents. where are we going to find that standard? is it going to be something like trespass or reasonable expectation of privacy. whatever the heck that means. >> it raises the question about this. it was not so long ago. i think 96 is when they have their first case related to the internet. it was this case. many and never access the

internet. they had to bring in experts from the library of congress to speak of factual context of the communications. there is a learning curve that we are all climbing when it comes to technology. judges are climbing it too. >> today they're called law clerks. [laughter] >> that is a nice point to segue. we have two cases for you dog lovers out there. they win one and lose one. we cannot leave that off the agenda today. >> when they started talking about assignments i told him i was a junior member of the panel. there are actual dog cases.

there are two cases that involve drug sniffing dogs. there is one year today. -- one here today. hallway.one in the they are trained to attack narcotics or bombs. there are similarities between the two cases. there are enough factual differences that i will recount them for you. the first case the court decided about a german shepherd named aldo. the officer pulled over a truck with an expired license plates. the driver of the truck was clayton harris and he was visibly nervous and had an open can of beer. the officer asked if he could check the trunk of the truck. harris said no. the officer brought aldo over for a free air sniff.

car. it is consistent with the first amendment. he signals that he smells drugs. he sits. that is between behavior. he concludes that he a probable -- i think that is the trained behavior. he concludes that he a probable cause to search the truck. he did not find any drugs there. aldo was wrong. he found a bunch of ingredients that are used to make meth. he was charged for use the sudafed for methamphetamines. then he has a second encounter with aldo. another stop. this time he is pulled over because of a broken tail lights.

aldo again alerts. this time he is wrong. there's nothing of interest in the car. in court he asked to suppress the evidence found in the car. because aldo was wrong twice, his sniffs are unreliable. on the hearing, they talked about this extensive training they had undergone. aldo had been certified. the trial court ruled for the state. training int on the the field. the florida supreme court reversed. when a dog alerts, the fact that he has been trained and certified is not enough to establish probable cause. the state has to produce evidence, training, certification record, and

field performance record. how often has the dog been incorrect? justice kagan delivered a unanimous opinion. she explained that the florida checklist is too inflexible of a way to prove reliability and push too much emphasis on field performance where they can overstate a dog's false positive. perhaps aldo alerted his handler because harris had drug residue on his hands when he opened the door. there's a thing in the truck but perhaps it is not a good indicator that aldo's sniffer was not up to snuff. [laughter] there should be no inflexible sharing to test a drug's reliability. a defendant could challenge the

adequacy the certification and training. the field evidence could be relevant but not responsive. he is off the hook. the second case features frankie, a different dog. he is not so lucky. this is different. it picks up on some of the things you were speaking on. this concerns a home and not a traffic stop. police were given a tip that he was growing marijuana in his home. an officer and frankie were sent to the residence. frankie and the officer approached the front porch. the dog senses one of the smells and begin bracketing, tracking back and forth trying to find the source of the odor. he then sits at the base of the front door to signal he has discovered the source of the odor. on the basis of the alert, the police get a warrant. they searched the house. frankie was right. they find marijuana plants.

the question was whether the drug sniff itself count as a search in the understanding of a fourth amendment. justice scalia writes and says it was. it was unconstitutional. it is very similar to the opinion he offered last term and jones, the gps tracking. he again embraces the property right and this is on the fourth amendment which he says supplements the reasonable expectation of privacy. he says a person's home and the immediate surroundings of the home enjoy special protection under the fourth amendment. it is the very core of the protection. that makes this case easy. the officers gathered information by physically entering and occupying his home. that place is constitutionally protected. the officers intruded upon it.

the only real remaining question is whether the officers had an implied license to stand on the porch with frankie. it permits all types of visitors like a girl scout or trick-or- treaters to approach a home and knock and wait briefly and then leave. scalia says introducing a trained police dog is something else. we do not even need to get into expert opinions. they learned what they did by intruding on the property. justice alito wrote the dissent. he could've lawfully approached the door and waited for the same amount of time if they have not been accompanied by frankie.

he says it makes no sense that it is illegal because they were accompanied by a dog. dogs have been used in connection with law enforcement for centuries. it is not of the ordinary for the public to expect their use. it is different than the new technology. it is different. dogs have been around for years. he would not have labeled this sniff a search. unfortunately for frankie, six justices disagreed. >> the result is the dog can be right and still lose that right and be wrong and still win. >> i wonder if it will cause them to start thinking about what kind of dog they bring. maybe they should name it hun rather than atilla. [laughter] we had a situation where people

were phoning in bomb threats every afternoon of people would have to evacuate the building. one day the dog alerted on a gym bag. we had to stand out there for another couple of hours while the big truck came. it turns out this drug sniffing job was a golden retriever. it contained a bunch of tennis balls. [laughter] it is not perfect.

>> anyone else have any dog sniffing stories to tell? this is spca time. is this a comfort zone case? >> he said he is more comfortable with rules than standards. >> he said it is somehow more clear. >> that is right. >> we have a few minutes left. can you take two or three minutes? i mentioned whether or not the roberts court ought to be thought as pro-business. there were important class action cases on the docket. it was complicated. i wonder if you could give us this. >> there are four class action cases. if you look at the business cases, this is a pro-business court because of various decisions involving businesses. i do not agree necessarily. they are statutory construction cases.

a lot depends on your federalism and things like that. usually these will come up in the context of antitrust cases, class actions, state portions of action. discrimination cases, retaliation cases. three of these came out in favor of the defendant. the last of which was a case involving american express. the principal, the one that cannot in favor of the plaintiff you did not have to prove materiality. this was a 6-3 decision. one decision suggested if you looked at all these cases and

look at the walmart case from two terms ago which the supreme court unanimously was very strict with respect to the requirements, there was a similar decision today. i cannot remember the exact title. the other area that intersects with this came together in this american express case. it was an arbitration clause in the contract between american express and the establishments that it does business with. it included an arbitration provision and an exclusion of class action and the way a

merchant could bring a small case asserting that american express was violating the american express laws. he wrote a very interesting dissent stating that that if your anti-class action everything is a class action. the outcome of these cases is not necessarily predictable. the court is looking very carefully at class actions.

they are looking carefully at the courses and what happens in the civil ross us in our court. process in our court. >> quick comments. >> it's not so much that the court is a pro-business court. it is that it is an anti- litigation court. where the court is appropriate, the employment discrimination cases that came out this last week reinterpreting title vii as too complicated to go into. this was very reminiscent of the ledbetter case. perhaps the same thing might happen this time. >> we do have a couple of minutes left. i want to put one general question on the table. looking back at the comments i made at the outset about the country of the court in the

process the court had, i was struck between justice kennedy and justice scalia in the doma case. justice kennedy speaks of the primary rule in determining the constitutionality of a law. scalia even by his standards had a scathing dissent. he said this is a draw dropping assertion of judicial supremacy. -- jaw dropping assertion of judicial supremacy. it envisions a supreme court standing that he has enthroned at the apex of governments. they are joining an issue on this.

justice scalia had voted to strike down the section four voting right act. i want to bring us to closure. looking at the major decisions that we have talked about, what do they tell us about the collective of what the courts job is in democracy. it is interesting when you think about the individual cases. what is the court of two? what is going on to debate points like this? >> this is something i tell my students. no theory has a market on that argument about judicial restraint.

i think it can be used by anyone in dissent when they are upset at the decision to strike down an act of congress. i am not sure i believe it is something we can ascribe to the robert court. it is a rhetorical argument you could say when you're not in the majority. that might be kind of skeptical. >> i think there are fundamental differences. it is not a surprise as something that is not well rooted. he is really someone at least in the area of the bill of rights that believes in an evolving constitution. he is going to do the evolution. the court might be a better institution.

it is important to understand he is in many ways someone who believes the constitution should be moved ahead the abstract principles, sometimes that is that security. -- sometimes that is obscured. he is a left liberal. he is a libertarian. he still believes the court has this ability to see these principles that have evolved in society. this is very connected to his vision of the court. >> not on the docket would be unity opinions and cruel and kennedy be the opinions and cruel and unusual punishment cases. they have been dealing with

things like what sort of punishment you can make for juveniles. it supports a cruel and unusual punishment which most see as an evolving standard. it could go on as a more general debates. do you want to comment? >> i think these have come out throughout history. one shocked when we got into the guant?namo cases and becoming into the guantanamo cases and becoming the superintendent of whether the rule of law would apply at guant?namo. they did not expect that at all. we have to step up and show our hands. it is important to keep rooted in the larger context in which these disputes emerge.

that's always forms how we understand them. >> this debate about standing is about what cases can be decided by judges and what matters should not be in courts. the scalia dissent in the doma case goes back where president washington was asking for an interpretation of the treaty. they wrote very politely back to the president that is not our business. we are not in the business of writing advisory opinions. it is interesting that he goes as far back as that. he's very concerned on very restrictive rules with respect to what matters belong in courts. once you acknowledge that it belongs there, you can decide it. this is going to keep coming

back. whose numbers are being collected at nsa? that case will come back again. we will see some more standing discussion. it will be interesting. it is about the rule of law and the role of courts. >> it you watch oprah winfrey, they are suggesting you go home and find a good book to read. ours is somewhat different. i hope we whetted your appetite to go home and read some cases. lawyers and judges do that all the time. we try to sit up there a lot of cases we could have suggested you write and pick out a few

that must be reading when the time comes. thank you for having us here. thank you to the panelists for engaging in the conversation of the court. [applause] [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] >> next a discussion with the founder of the witness protection program. in weekly addresses by president senator patnsas roberts. after that, a senate hearings on chemical threats and risk management. >> on "newsmakers" the chairman

of the homeland security committee talks about immigration and border security and the need for more transparency between the national security agency surveillance programs and members of congress. "newsmakers" on sunday at 10 a.m. and 6 p.m. eastern on c- span. tomorrow on american history tv on c-span 3 commemorates the 150th anniversary of the battle of gettysburg. the 24th michigan belong to a larger organization that had become famous throughout the army as the iron brigade. they had a reputation for being hard fighters. they brought many men onto the field. many of them will remain here as casualties. over 115 survivors of the 24th michigan who were

wounded or captured here have the dedication of their monument. over theok out assembled veterans, he grew quiet and he said, volumes have been written about the battles of gettysburg, but the whole story has not been told. much of the planning and more of the doing has been omitted. the living may have given their version of what they did and what they witnessed here, but oh, if the dead lips could be unsealed. what testimony might be spread? 150th anniversary of the battle of gettysburg. at 5:30 p.m., we will take your calls and tweets.

at 8:00, the commemorative ceremony. followed by candlelight recession. day at 9:15 p.m. with your calls and tweets. you can use twitter to stay up to date on that to the of the battle of gettysburg. #gettysburg150. >> now a discussion with the founder of the witness protection program. he was a guest this week on "washington journal." this is about 35 minutes. host: we look at your money and how it is spent. what the programs are that they fund and how the programs work. our guest is gerald our guest is gerald shur joining us from philadelphia and a founder of the witness

protection program. thank you for being with us. we read about it and read about it in novels or television shows, but what is it in real life? guest: taking individuals in danger because they're cooperating with the of the -- with the federal government or state government, and will wind up being killed, frankly, if they testified. we needed a mechanism where we could put witnesses on the witness stand and make sure they will survive after the testify. host: how was it created, and what was your role in it? guest: as a young child i used to hear my father talk about organized crime interfering with the business he was in. he worked in the garment business as a labor negotiator. he used to come on to talk about

how nt negotiations. through high school i got interested in organized crime and began to research it and continue through college. i was fortunate after law school i went into private practice and saw a fellow named bobby kennedy being appointed. as attorney general. he had an interest in organized crime. i went home to my wife and said how would you like to explain to washington? she said you think you can get a job? i said i do not know. she said fly out monday and find out. i got hired. i was assigned to work organized crime in new york city. you bring syou -- brings

up to speed. for the older listeners, you might remember the name joe valaci, the first member of the mafia. the first person to tell us who are the members, and the first really cooperating witness in the organized crime. i began to work with him. i began to work with other mobsters in new york. it occurred to me we need a mechanism to protect people if they're going to testify. my colleagues were assigned elsewhere in the country running into the same experience. it occurred to me we need a system where we can take an individual who is willing to cooperate and immediately relocate the person and their family. host: what was done prior to the

founding of the witness protection program? what happened to them and their families? guest: what happened was the local police or local agents, or drug enforcement agents, they would almost chip in and move someone from one place to another. what there was not was a system where they could pick up the telephone, call washington, say i have a witness in office and are willing to testify, what do i do with them? we will say we can have that witness protected as of now. we needed to develop a mechanism where we not only could move the family, but then what do you do with the family after they have moved out of town? what this program did was establish a mechanism where the prosecutor, agents could make a single phone call and have this whole process begin to work.

onemily transferred from city to another. many things have to be attended to. guest: talking about the federal witness protection program with the founder of gerald shur. here are the numbers to call if you'd like to share your comments or ask the question -- our guest co-authored the book "witsec." the cost of the program in 2012 was $9.7 million. here are details. new identities and documentation.

they also get financial assistance for basic living expenses, we will medical assistance and living. and 9800 family members have participated since 1971. how much help do these people get to start their new lives? how much is hands on and at what point are they put on their own? guest: it is hands on from the beginning. the moment you agree to testify we would have a witness security inspector who is in the marshals service come to you and explain to you how the program works. at the same time the federal prosecutor would make the request of my office, office of enforcement operations -- i

should say my old office because i am now retired, but they would make a request of my office to say that we have a witness, here is the pace we want them to testify and here is how important their testimony is and how many other witnesses we have been the case. we could make an evaluation as to whether or not the witness is really important. at the same time the deputy marshal explain the program. at the same time we would have a psychologist to a psychological examination for everyone over the age of 18 to determine whether or not they would be capable, fit in, handle the regulations and commit a crime in the future? are they likely to be violent? all of that would come back in the psychological report. we would have the evaluation of the headquarters of the federal

investigative agency. not only the field office giving a judgment, the office at headquarters, fbi headquarters. whatever agency is involved in the investigation. they would submit information. my point is, as a considerable amount of data is submitted before the judgment is made to totally disrupt a family and move them from one city to another. host: gerald shur, founder of the witness protection program. he mentioned he started his career as an attorney in corpus christi, texas. he served as a trial attorney in the racketeering section of credit -- recruited under robert kennedy. and as he mentioned, he is retired. joining us from philadelphia this morning. our first calller on the

independent line. caller: i was calling in regards to when the witnesses goes into the program for life and it becomes difficult -- i will give an example. i'm a howard stern fan. host: we lost him. we'll take his question though. what are the rules and requirements for staying in the program? what is the code of conduct? guest: this is a voluntary program. the witness can choose to enter or not enter the program. the witness can leave the program any time they choose to. they could say i do not want any more to do with you, i am on my own. there are rules that are set down. the witness can choose if they want to leave. they must look for a job.

we will help them look for a job. they must stay out of trouble. they must not communicate with people back home, which can be very difficult when you tell a teenager who is in love that they cannot communicate with their boyfriend or girlfriend back home. there are certain set of rules they must follow. if they find that too difficult, they can drop out at any point they want. at that time any financial assistance we give them will stop. i mention the financial assistance. that is based on a formula depending on a number of people in the family in this city in which the people are located. so a person living in corpus christi may get less money than a family living in new york city if we relocated them there because of the differences in the cost of living. this is not a reward program and should not be confused with that. only enough money to get by on

until we're able to find employment for the witness. host: anthony, a democratic caller from new york. caller: my question is into -- in two degrees. one would be you seem to be an expert in organized crime in new york. have you not noticed -- just since the kennedy era there seems to be an infiltration of organized crime, or the money and influence in government. i was wondering if you could step outside the box and comment on that. also, with this new wikileaks, mr. snowden, aren't they basically whistleblowers? they seem to be bringing forward violations of the constitution. i think young men are trying to rise to the challenge of pointing out to the american people that we're being led down

the path of -- host: you are going little bit off topic. guest: i can comment. i do not think -- there are about 2.5 million federal employees. i do not think the government's secrets should be dependent on each individual employee deciding on their own whether or not they should provide a secret to the rest of the world. for example, if a person went to decide we will give a new name and address of every relocated witness in print that in the newspaper, that would be highly dangerous and lead to the deaths of witnesses and their family. so i draw the line at individuals on their own

deciding to go public with information that is classified. i do not think we want several employee deciding that. wantdon't think we every employee deciding that. host: a woman in her 30's named jackie taylor shared her story of being a child and put into the witness protection program because her father was in hell's angels and turned witness. as she shares her childhood experience in talks about the challenges she faced, we have questions on twitter. radical dallas writes how young how old was begun this person to be put in protection? guest: we are now dealing with grandchildren in the program.

the program goes back 1970 or a couple of years before that. there was an official act of 1970 that started the organized- crime program officially. we are dealing now with children and grandchildren. those children are affected to the extent that they may have to supply background information for employment or security clearance. they can call upon the federal government on the witness security marshals to give them assistance in any obstacle they may encounter. host: they could go forward with their lives with that documentation? guest: yes, they would have complete documentation. we ran an undercover wedding early on in the program.

a witness's child wanted to get married. the witness insisted on having a wedding and insisted on inviting friends from the old neighborhood, precisely the people that might want to kill them to the wedding. we went ahead and told them that would be all right as long as it was done under our conditions. he arranged for a hotel and ceremony. all the guests were invited to a hotel. when they got to the hotel they found out they were at the wrong place where we had buses and united states marshals put on buses. we were driven to the wedding where it really occurred and driven back to the hotel. they never knew the new name of the person and never knew where the wedding was going to take place. that way we kept them secure. i should point out early on

before we forget, a good portion of the program involves prisoner witnesses. today over the past several years more people entering the program are prisoners who have agreed to cooperate. there are certain prisons around the country, and they serve their term, could be five years, 10 years, and when they are ready to be released, there is consideration given a good to -- given again as to whether or not they are still in danger and then they would be relocated like any other witness. host: gerald shur was quoted in a story from cnn saying he works with someone about to receive witness protection eligibility. when you ask them their favorite place in the united states and they say hawaii, that is where you do not send them.

you know they have talked about it with people before. were they ever going to exotic destinations they always wanted to visit? guest: most people entering the program are very apprehensive and should be apprehensive. i asked the marshals service who worked with the witness is very early on to tell them this will be an extremely difficult process. just transferring from one city to another, those are difficult processes for people to go through. not being able to see grandma anymore. not being able to attend a funeral of a relative or visit someone in the hospital. those are extremely we lay that and wessful situations

lay that out ahead of time. and what they also know is they will survive. the marshals service has not lost a single witness in the almost 40 years or so that this program has been operating. so they will survive. we tell them after a year or so they will adjust. occasionally there are problems along the way like a child wanted a car and told the parents that if you do not give me the car, i will go out and tell everyone who you really are. we addressed that problem by having a gentle chat between the witness security officer and a child. but there are difficulties just in a normal transfer in a normal life and you compounded with the fact that you have to be looking over your shoulder for several months until do are comfortable

with the fact that no one is going to find me. that is the object, getting the witness to the point where they do not look over their shoulder. host: david is our next calller. -- caller. independent falls church, virginia. caller: good morning. as a government to reach a government attorney, i was involved in the program back in 1970's. one of the problems we encountered is he and his wife and daughter were issued said security cards in sequence with the numbers were in sequence, which created a security problem for them. i was wondering if that issue has been resolved since then. guest: i happen to be familiar with the case. i think we have slightly different facts about it. it was not a mother and father.

they were in-laws being relocated, and we were told by the son-in-law that the in-laws would never be working. it was the very first case we had where we obtained social security cards and we had help of another agency to secure so- so security cards. -- social security cards. since the in-laws were not going to be working, he secured consecutive numbers thinking it would never be a problem with it. ultimately the son put in false names on the business he was running and used their social security numbers and cause them to be disclosed.

host: what happened? guest: that is a non-issue and has never come up again. host: gerald shur co-author of "witsec." our guest is the founder of the witness protection program. we're looking at the federal program and how it is funded and what it does. next caller. caller: good morning. this is my first time hearing about you. i am a retired investigator in louisiana. i was part of the witness protection in louisiana. we did this under the local district attorney's office. i find that they have a lot of flaws with the witness program. they had a lot of troubles with victims and witnesses because

they would promise them certain things to get the case solved. i found they were wasting a lot of money. how do you control the spending as far as getting the witness to court? guest: every witness that enters the program was signed a memorandum of understanding. it is a document that lays out everything the federal government will do and will not do for you. the witness knows ahead of time how much money they will receive for a time of up to six months. they know what kind of assistance they will receive it so long as they are willing to make efforts to find a job and cooperate with the service and ultimately testify. we do not have many programs in the federal system now and have not had for many years.

the first year or two, a lot of things were new. for example, one of the very first witnesses we were taking into the program, i mean the first five witnesses. we were sitting in my office and i said to the deputies, we ought to take into an area where we can show him a house. we should show him a house and show him what it looks like. then when he is transferred elsewhere and someone says where you from, i can say annapolis, maryland. where do you shop? safeway. that is the set up. the marshall says where should we take him?

drive him past my house. i give them my address. we say to the witness and wife, this is where you're going to live. red brick house, colonial. the wife says what, live in a house like that? never. sometimes the witnesses are a little difficult to deal with. i mention that to my wife and she said maybe we should consider moving. the witnesses did move. they lived elsewhere. they did live happily ever after. host: the last caller talked about witnesses entering the program. how are victims dealt with compared to people who enter the program who are themselves criminals? guest: we have very few innocent people entering the program. well over 95 percent are people who have been involved crime.

either have committed a crime or knowingly dealt with criminals, like bribing someone. i would say probably 2-3% of the 8000-9000 people have entered the program are truly innocent people. for them it is even more difficult than it is for the other witnesses who are gaining some benefits and that they have been involved with crime. maybe they have gone to jail and are being released afterwards. maybe they have gone probation and are being rowboat -- and are being relocated. for the innocent person it is extremely difficult. on the other side, what happens if we do not relocate them? they cannot testify. you get to a horrible choice of having to ask someone to

testify, take a murderer or murderers off the street and the sacrifice of having to move to another community. host: roy the next calller from louisiana in morgan city. caller: i have a question. my question is do people get relocated to countries are outside of the and i did states? guest: we tried that on one or two locations. -- one or two locations. i did not like relocating people outside of the united states. for one thing, if they needed assistance, who were they going to call? obviously they will speak out.

so i tended not to relocate people or want people relocated of said the united states. one or two occasions it was done and it was successful. not something we would ordinarily do. host: independent line. go ahead. caller: what a fascinating subject. thank you very much, c-span. aren't you in a great deal of personal danger by disclosing this information? guest: i could -- if i could find an effective design to disguise this weight i am wearing, i would use it. i am not in danger because the number of years that have gone by, i do not know where anybody is hidden. there is no information i can supply to anyone. there was a time when we were in danger, and in fact, my wife, there was a plan to could not my

wife at one time. my wife is a school teacher. a colombian narcotics gang intended to kidnap her or me. so that i would supply information about where a particular week -- a particular witness was relocated. as i indicated, i never knew where witnesses were relocated. that was by design so i could never give up the information. i was in my office and received a telephone call one day. there is a table full of agents from different federal agencies. there was a plot and indicated that was his purpose.

my wife was teaching. i immediately called the school and called the principal's office, got my wife on the phone and said to hurt someone will come out to see you shortly, go along with what they say. talk to you later. that was the conversation, and she understood. a few moments later a deputy u.s. marshal, a young lady she appeared to be, recent college graduate, showed up of the school. went to my wife's classroom and from there they went to the principal and the deputy explain to the principal the situation and said they believed there was no danger whatsoever and the school. the danger was going to and from the school and therefore the deputy with like to state my -- stay with my wife and the school while class is were on.

-- while the classes were on. my wife refused to leave. she said she owed to much to the children. the marshals service agreed to have this young person served as her students assistant and a and in effect. the principle put out the story that the bomb in helping -- that the woman helping was a graduate who decided whether or not she wanted to go into teaching. so only the principal knew the true story. what nobody realized it she always wore a long jacket because she was covering her gun. my wife recalls a phone call that she received on her cellphone in which my wife hears her say to the boss, i cannot

talk to you right now, i am busy grading papers. i will give back to you. we were in a witness protection program ourselves for a time. i continue to work. deputy marshals would follow me part of the way, call me on my cell phone and tell me i was not being followed and then proceed to my home. we temporarily moved to a hotel outside of the place we were living so could not be found there. that went on for two months. there were occasional dangers. my teenage daughter picked up the phone and she was asked the question, have you ever thought about death? we recognized who the person was and i had a chat with him the next day in my office. the chat was very simple. i said you have now become my daughter's insurer and you should feel very comfortable when she gets home safely,

because if she falls down and gets hurt on the way, you are the one i will hold responsible. host: this was someone in the program? guest: this was someone in the program. host: our guest is gerald shur if you would like to ask our guest questions, republicans -- mesa, arizona. gerry, a democrat. go ahead. caller: i have had experiences twice where they went off the witness program, and both of them ended up dead. mainly because they had trouble handling their new locations. at one time i'd think it was trying to be a little too brave.

one had to do with -- both of them were drug smuggling. they actually tried to kidnap my aunt to keep him quiet. he finally came back. within a month he was dead. that was all there was to it. the other one was a name you might be familiar with, i used to fly a whole lot, and here in here in arizona i met a man by the name of various seals. -- barry seals. i will get off the phone and let you answer that one. you should be familiar with it. guest: i do not speak to specific cases, but i can tell you this, all witnesses are offered secularist -- if psychiatric assistance.

if we see something that would suggest they should see a psychiatrist, we arrange that. if they wish to on their own, we arrange that also. witnesses are told when they see a psychiatrist that is the one person they may tell their entire truth of the background because we feel that is necessary for them to receive the kind of help they need. host: a twitter question asking if the clients's debts follow them? guest: all witnesses are expected to pay what debts they owe. we asked them to list out what they owe. we asked them to make payments on those. they are responsible for the debts they have incurred before relocation. in the event that a creditor

wishes to sue the witness, we have our arrangements by statute and by practice in which the creditor can file suit against the hidden witness and actually filed suit against that person and treat them just like any other debtor would be treated. so we can do that safely. it keeps the witness alive and lets the creditor receive whatever legal rights they would have. host: one more call in pennsylvania. caller: on 9/11, we have learned that there has been a lack of communication and cooperation between state and local -- host: is this having to do with the witness protection program?

we're almost out of time. caller: lap of the time? we are out of time. i see. think you. host: the caller touched on coordination. guest: coordination is excellent in the witness protection program. you were dealing with so many federal investigative agencies and the coordination is absolutely excellent. that is why there is the success rate of not a single witness in this program that has been killed that has followed the rules in the 40 years of operation. so the coordination is excellent. information is passed freely from one agency to another when it affects a witness in the program. host: gerald shur founder of the witness protection program. now retired.

guest: i would like to point out one more thing, the benefit of the program, and that is tens of thousands of criminals that are in penitentiaries' now as a result of this program. for the 10,000 or so witnesses and the program. there are tens of thousands of defendants that have been they would otherwise be out on the streets. the program has proved to be beneficial in all types of cases from terrorism to counterfeiting to murders. host: thank you. tomorrow, and roundtable with republican strategist and a democratic strategist on the week in washington including the passing of immigration legislation in the senate. what the house my to do in the supreme court rulings on the

voting rights act of 1965 and gay marriage. supreme court reporter reviews the term it is notable cases. "washington journal" live on c- span. >> this week president obama's weekly address on his new environmental plan and u.s. energy policy. republican response is from senator pat roberts of kansas. he talks on health healthcare changes and affordable care act. >> hi, everyone. a few days ago i unveiled a new plan to confront the growing threat of a changing climate. decades of carefully reviewed science tells us our planet is changing in ways that will have impacts on the world we live -- we leave our children. we know the 12 warmest years have all come in the last 15. the last year was the warmest in american history.

while we know no single weather event is caused solely by climate change, we know the world is getting warmer than it used to be. all weather events are affected by it. more extreme droughts, floods, wildfires, and hurricanes. those people feeling the effects do not have time to deny it. they are busy dealing with this. the firefighters, the farmers who see crops wilted and washed away the next. western families worried about water. the costs of these events can be measured in lost lives, lost homes and businesses and hundreds of billions of dollars in emergency services and disaster relief. americans are already paying the cost and higher food costs,

insurance premiums, and rebuilding. the question is not whether we need to act, the question is whether we will have the courage to act before it is too late. the national climate plan i unveiled will cut carbon pollution, protect our country and climate change, and -- to reduce solution -- pollution, to set new standards to put in an end to the dumping from our power plants. we use at work clean energy and waste less energy. to prepare americans for the impact of climate change, we cannot stop working with communities to build more resilient infrastructure to protect our homes and businesses. america must lead global efforts by encouraging developing nations to transition to cleaner sources of energy and engaging our partners in this fight. while we compete for business and we share a plan. we must all shoulder the

responsibility for its future together. this is the fight america will lead in the 21st century. it will require all of us as citizens to do our part. it will need the scientists to design new fuels. it will need the internet to devise new technologies and businesses to make and sell them. we will need workers to man a simple lines with high tech zero emission components. a new clean energy age. we will need to get special care to people of separable by this transition -- unsettled by this transition. those of us in positions of responsibility will need to be less concerned with the judgment and special interest and well- connected donors and more concerned about the judgment of our children. if you agree with me, i need you to act.

educate your classmates and colleagues, your family and friends. there is no contradiction between a strong environment and strong economy. the ravages of climate change is a prerequisite for your vote. we will be judged as a people, as a society, and as a country on where we go from here. the plan i put forward to reduce emissions is the path we need to take. if you remember what is at stake, the world we leave to our children, i am convinced this is a challenge we will meet. thank you and have a great weekend. >> this is senator pat roberts. i am honored to represent the people of kansas in the united states senate. let me be the first to wish you and your family a happy independence day as our nation recognizes our hard-won freedoms. as we celebrate the fourth, it will be a mere 89 days until the october 1 deadline when millions of americans are forced to

purchase health insurance in a special marketplace or exchange overseen by the federal government. healthcare will change. do you know how much your new plan will cost? do you know what it will cover? will you be able to see your family doctor? will your personal health information remain private, private and safe? will you lose the plan you like? will it force your employer to make you a part-time employee or change your plan or stop your coverage altogether? will you and your family have the health insurance you need to ensure your well-being? right now, you cannot answer these questions. and neither can the obama administration. the government accounting office found problems with exchanges and cannot ensure that would be up and running by the october deadline. time is running out.

as one of the democrat authors said, "american families are facing a train wreck." how to answer these questions? how would this massive takeover of healthcare work? even president obama said there may be some "bumps and glitches." in california, they are all too real for the 50,000 patients who will lose their coverage at aetna, a major insurer who will no longer offer individual plans there. those people are expected to turn to the exchange. how many more issuers will follow suit? too little is known about the exchanges. the fear is only the sick will pay to join the exchange without the young, healthy people to foot the bill. a look cause will further skyrocket -- costs will further skyrocket. the administration is drafting

the nba and nfl to pitch obamacare. good grief. already we know premiums will rise. some estimates have found it will double, triple, or quadruple. it was not supposed to be this way. before it was forced through congress, we had a rare opportunity to create real change. we should have expanded access to care to those in need while protecting the all-important relationship between you and your doctor. partisan politics got in the way. president obama signed the bill. without one republican vote. a year ago this week, the supreme court affirmed what we said all along. this law is a new tax on american citizens. the irs is responsible for overseeing it. the same one that intimidate americans for their beliefs and

then lied about it to the congress. and the american people do not trust the irs. not with their taxes and not with their healthcare. you remember the president's promise, if you like your health care plan, you keep it. not true. for millions of americans. kansas understands all of this. they are fearful. many are in the middle of cancer treatment or facing heart surgery or chronic health challenges like diabetes or arthritis. all of those folks have doctors and treatment plans. they face uncertainty about what the new laws will bring. i introduced a new bill to ensure the exchanges ceased to exist if the administration is not ready october 1. we need to make the right kind of change to the system. change that does not include

higher taxes on higher premiums, and decision-making by government bureaucrats rather than our own doctors. we must put an end to the fear and uncertainty. those bumps and glitches the president talks about is a train wreck. we have to get america out of the way. >> this sunday, american history tv commemorates the wonder 50 it anniversary of the battle of gettysburg. this past wednesday am a angus king from maine spoke of the senate floor about the battle. >> we all know a week from tomorrow is our nation's most important anniversary, july 4, 1776. the birthday of the country. but tuesday, july 2 is also one of our most important anniversaries. because july 1, 2nd, and 3rd for the day that the battle of gettysburg occurred. probably the defining event in

the history of this country. it is especially important this year because it is the 150th anniversary of the battle of gettysburg, and what i would like to do is share just a few moments about one particular aspect of that battle, that it does indeed involve maine and alabama, and it involves a man from maine named joshua chamberlain, who in 1862, was a professor of modern languages at bowdoin college. was not a soldier, did not have history in the military, but decided he had a vision of america and wanted to serve his country. he joined a volunteer regiment organized in may of 1886 called the 20th maineregiment. they came down the east coast to washington and were immediately deployed to antietam in september 1862, the bloodiest day in american history.

fortunately for the 25th maine, they were held in reserve that day. they saw action over the course of the fall and early winter in the battle of fredericksburg, and then along with two great armies, headed north into the state of pennsylvania. mr. president, you are going to have to bear with my skills here, but it is helpful if we can see what happened. it is easy to draw virginia because it is a big triangle. here is virginia. here is the maryland- pennsylvania border. in the summer of 1863, two armies snaked north out of virginia. lee's army of northern virginia came up the west side of the appalachians into pennsylvania, shadowed by meade's army of the potomac.

lee was leading the way into pennsylvania without a particular destination but a desire to engage the federal army and one climactic battle which he thought, correctly, could have ended the civil war. nobody knows exactly why on july 1, 1863 those two armies collided in the little town of gettysburg. there is a rumor and there was a shoe factory there and that the southern army was going to requisition those shoes, but for whatever reason, the two armies met in this little town of gettysburg, pennsylvania. one of the interesting things about the battle was, lee's army had already gotten to harrisburg. the union army was coming up the road from washington and from the south, and they came in in this direction. at the battle of gettysburg, the southern army came in from the south, and the northern army came from the north.

it was a standoff. they met almost by accident in this town. there was fierce fighting in the streets of gettysburg and in the south of town. it was essentially a drop. at the end of the day on july 1 and the word came back to both armies that this was it. this was the confrontation. reinforcements came in from both lines to meet at this little town. what happened on the second day was, on the morning and the second day, the union troops -- and this is the town up here -- ended up on a hill called copps hill, and then in a long line to the south, an area that was an old area that they buried people. of course, that is seminary ridge. on the other side, the confederates, interestingly,

through history, red and markers representing the confederates, blue, a federal. the confederates were about a mile apart. over here was where they train people to be preachers. that, of course, is cemetery ridge. so generations of six raiders have been seminary ridge, cemetery ridge, generations of sixth graders have been confused by this. about the middle of the second day of battle, a union general noticed there was a small hill at the bottom of the entire line of the union troops, and occupied by either side. he also immediately realized this could be the most important piece of property in the entire battlefield because it had an elevation that looked up the entire federal line and anchored the federal line.

the union general grab the nearest officer next to him and said we have to occupy that hill immediately. the fellow's name was vincent from new york. he grabbed two other regiments from new york and the 20th name regiment, and went to the top of the hill. joshua chamberlain had only been the colonel for a month. he was in charge of 358 men and vincent took him to the extreme left flank of the union army of this little hill which is called little round top. we had pennsylvania, new york, and maine. vincent took joshua chamberlain to this point, and here were his orders. this is the extreme left flank of the entire union army.

you are to hold this ground at all hazards, at all hazards. that means to the death. almost immediately upon getting to the top of the hill, up came the 15th alabama, one of the crack regiments in lee's army. up the hill to try to dislodge the 20th maine. if you have not been to gettysburg, if god was going to build a fortress, it would look like little round top. steep, rocky, lots of places to be behind, and indeed, chamberlain took maximum advantage of that. as the charge came, they were able to repel it. half an hour or so, the alabama and scheme again. there were pushed back. they came again and were pushed back. each time they got closer and closer to the top of the hill, because of the nature of guns in

the civil war, a good shooter in the civil war could get off four shots a minute. so i want you to think of yourself, mr. president, the top of the hill with the 15th alabama coming up, and you take aim with your rifle and shoot. bang. you are now prepared to shoot a second time. that is 15 seconds. that is how long it would take to get another shot. that is why, in this situation, the charge came closer and closer. by the third and fourth charge, it became hand-to-hand combat. i should say, joshua lawrence chamberlain was not a soldier by trade, he was a professor at a little college.

he spoke 10 languages but he had a deep vision for the meaning of america, and a deep concern about the issue of slavery. when he was a student at bowdoin college in the early 1850's the young professor's wife was writing a book, and he sat in the living room of mr. presser and listen to her read excerpts from this book. the book turned out to probably be the most influential book ever published in america. it was called "uncle tom's cabin." and described for people in america the evils of slavery. it had lit the fuse that led to the pressure that ultimately led to the abolition of slavery. in any case, four, five charges, each time the 15th alabama was repulsed.

then they were gathering at the bottom of the hill for the final assault. late in the day, hot afternoon, july 2, 1863. the problem was, for chamberlain, his men were out of ammunition. they had it been issued 60 cartridges at the beginning of the battle, and they had all been fired. he then had a choice to make as a leader. he had three options. one was to retreat, a perfectly honorable thing to do in a military situation, but his orders were to hold the ground at all hazards. because if he had not, if the confederates had gotten around little round top, the entire rear of the union army was exposed. his other option was to stand and fight until overwhelmed. that would not have worked well. because it would have only delayed them for a few minutes. instead, he chose an extraordinary option that was

unusual, even at the time, and he uttered one word, and the word was bayonets. there is a dispute in history whether he also said charge and what his order was, but everyone agrees he uttered the word bayonets, and his soldiers knew what that meant, and down the hill into the face of the final confederate charge came 200 crazy guys from maine. the 15th alabama for the first and only time in the civil war was so shocked by the technique that they turned around. the 200 boys from maine -- i say 200 because at the beginning there were over 300. they had lost 100 to casualties and death. captured 400 to 500 confederates with no bullets in their guns. chamberlain tried to call on their men back. they said, hell no, general, we

are on our way to richmond. i tell the story because it is a great story of bravery. chamberlain received the medal of honor for his bravery and creativity that afternoon. i tell the story because it is a story of our country, a story of how a single person's actions and bravery can have enormous impact. historians argue about whether this was really the key turning point, was there something else, another regiment somewhere else? the argument could be made at this college professor from maine saved the united states. the defining moment for our country was that hot afternoon in pennsylvania, july 2, 1863. i believe it is one of the great stories in american history, and in fact, the story of chamberlain and little round top is being taught in army manuals

today as a story of leadership, creativity, courage, perseverance, and of devotion to god and country. mr. president, i hope all americans will think about these moments and thousands more like them as we celebrate not only the birth of our country next week, but also the rebirth of our country in the three days prior to july 4. thank you, mr. president. >> the 150th anniversary of the battle of gettysburg. historians throughout the day. later at 5:30, we will take your calls and tweets. the commemorative ceremony with keynote speaker doris goodwin, followed by a candlelight procession to the national

cemetery. we will end the day with peter carmichael taking your calls and tweets. >> a senate hearing on chemical threats. a panel reviews the two pleaded term of the supreme court. a conversation with chief justice john roberts. >> on newsmakers, take us .ongressman michael mccaul he talks about immigration and border security. the need for more transparency between national security agency programs and members of congress. sunday at 10:00 a.m. on c-span. >> on thursday, the sick

environmental works committee held a hearing on managing chemical threats. a hearing examined the plant explosions in texas and louisiana. witnesses included the safety board and the epa deputy assistant. this is an hour and 45 minutes. >> good morning, everyone. tragediese because of that have occurred in our nation. what we can do. so we i start my time will start now, i have a couple of items of business. white audience is timothy . where are you? would you stand benchmark

timothy white is the brother in law a firefighter who was killed in west, texas. he is here representing their family. he is a chemist who wrote a out full letter is a thoughtful letter. i will quote a little bit of it. if i could have the last page of the letter. thank you. mestarts off by saying, let begin by thanking you for the opportune to address the committee. therother-in-law was one of first responders that was killed in the explosion. profound impact of the tragedy continues to affect our family and while the changes will not bring kevin back to us, that will help ensure that other families do not experience this type of tragedy again. i am going to place without objection the full letter into the record and talk about the importance of finding an

alternative to these highly explosive materials that are used in fertilizer and in the meantime storing these. we thank you for being here. it means a lot to us. we will start my time. we have votes. we'll have to finish this entire discussion by a quarter to 12. what brings us here today is a tragic loss of life and injuries caused by a chemical explosion in west, texas. another tragedy occurred louisiana. we must look at why beast tragedies and others occur. what we can do to prevent such disasters and the future. let's walk through what happened in west. a massive explosion and fire destroyed a fertilizer distribution plant and caused widespread destruction. at least 14 people died and

hundreds of people were injured. homes, businesses, and schools were damaged or destroyed. an owner of a local business there said "it was like a war zone last night. like a nightmare. something he was the in a movie." just two weeks ago, another deadly tragedy in louisiana where 100 people were injured and two workers lost our lives. flammable petroleum gases thanded releasing more 62,000 pounds of toxic chemicals and causing a serious fire. august 2012 in california, a refinery release flammable gases and formed a vapor cloud. six workers were injured, thousands of people went to local hospitals for treatment. i want to express my deepest condolences to the first responders and workers and others who lost their lives or

who were injured in these communities and others across the nation. must use allials of their available tools including and most importantly, updated risk management plans which are required under the law. they must also use the best training methods and new technologies. lives are this stake. action must be taken now. not tomorrow, down the road, we do not need new legislation -- we can do it now. wereederal risk management written after two tragic disasters in the mid-1980's. facility that released a chemical they killed over 2000 people. , dangerousng year gases that sent hundreds to the hospital. the986, congress passed rights to know act to enhance

and address chemical disasters. in the 1990 amendment to the clean care at -- clean air act, which required risk management planning to help save peoples lives at facilities facilities that handle dangerous chemicals. those risk management plans have thend i want to thank chemical safety board further clarity on this, risk management plans have to address the risks. if they leave out an obvious regulation orhe storage of ammonia nitrate am a they not addressing the risk. in the days following the west, texas disaster, i wrote to the board in the epa requiring information about the explosion. the risk management program and safeguards under the law. chemicalart of the

safety board letter to me. it considers the explosion to be among the most serious incidents affecting the public in many decades. that is what they said. it should be a wake-up call for all of us. we must take steps to ensure that all such disasters never happen again. here is the good news. and facilities that handle chemicals under current law happy a power and authority and responsibility to do it. this esb has identified problems that may have contributed to the disaster in west. including large amounts of combustible materials store in the same area as wooden materials that could explode when heated. facility was not required to install sprinklers or other fire suppression systems. the risk management plan program does not require the special

handling for reactive materials like ammonium nitrate. i look forward to the final report on west and their final report on louisiana and california. and to the adoption of any recommendation that they make to prevent other tragedies and loss of life. this is an entity that does not get much credit. i want to say thank you. havef your recommendations been adopted. that is a good thing. it does mean that 28% of those recommendations have not been adopted. i hope the epa and other federal agencies and industry itself will act quickly to adopt safety measures that will save lives. recommended that they strengthen the program by adding more chemicals. -- called.very

it did not happen. the epa is not acting on the recommendation. to a.alling on epa today this critical safeguard and to report back to me within the next two weeks. acting on adjusted that safety measure alone is critically important. thousands of facilities across the that handle ammonium nitrate. know, if this dangerous chemical is not handled safely, disaster and loss of life could follow. , wee review what happened must make safety the highest priority to protect, not only the first responders, the workers there, and the people in the communities. localt, i told to some people about the facility. when it started, there was hardly anybody around. over the years, the population moved.

look at a risk management plan not just once but over the years. local authorities can play a key role. here froml is california to testify at the health department. i look forward to hearing from him as well as other witnesses thesedustry to eliminate chemical disasters. we need action. issue, wethis narrow do not need legislation. i want to thank tim white for his heartfelt letter and his dedication to call for enhanced safety measures so other families do not have to suffer the same loss his family did. with that i, the senator. thisank you for convening

important hearing today. i would like to begin by saying our thoughts and prayers are with all of the people of louisiana and west, texas who were affected by these recent horrible accidents. our deepest sympathies to the families of rocky from louisiana and zachary of hammond, all up on lost their lives in a two louisiana explosions and the families of the 15 people who were killed in west, texas. ofm pleased to welcome all our witnesses today and in particular i wanted to a aowledge wreck -- rick, director. but also a registered professional engineer in louisiana and texas.

with horrible accidents like this occur, it is imperative that they are thoroughly and expeditions -- expeditiously investigated to ensure that future incidents are prevented. i was pleased to talk to the chairman after the horrible accident. i am encouraged the csb could be on the ground of louisiana could start investigating so quickly. as in some other places is experiencing a bullet in chemical plants -- boom in new chemical plants. louisiana economic development council more than $30 billion in investments in louisiana starting in 2011. that does not include a number of upgrades. what we certainly welcome that

investment in our state and on the jobs, we must ensure that all of these facilities are absolutely as safe as possible for the workers and the local communities. despite these horrible accidents we are discussing today, the good news is chemical industry has a strong safety record overall. an injury rate of 45% lower than overall manufacturing in the u.s. bureau of labor statistics. the 2012 industry invested billions of dollars in health and safety and security programs. that is the good news. obviously, we can always do better. that's what we are going to learn learn about today. as we do that, we need to have all of the facts and officials directly investigating including

include the time to their investigation before we reach any specific conclusions about these incidents. it is vital we take that time to properly understand what caused these accidents and work hard to make sure something like this never happens again. thank you for holding this important hearing. >> thank you very much. andeart goes out to you your state. senator fisher? >> thank you, madam chairman and ranking member vitter. i would like to thank our witnesses and there will does this to share their time -- and their willingness to share their time. in nebraska where agriculture is our number one industry tom a we are mindful of the key role in a chemical roles play.

billione 870 undernourished people in the world today. provide food and other necessities for a world population that is expected to 2050, we0 billion by know we will become reliant upon chemical solutions. innovation has helped to grow our economy and improve lives across the globe. thatcal users understand our utilization of these powerful products is not without risk. recent events in texas and louisiana are devastating reminders of our responsibility to remain vigilant in our efforts to prevent, mitigate, and address chemical threats. i am pleased we are meeting today to conduct oversight of our federal risk management and emergency planning programs that we rely upon for safety, environmental protection, and

homeland security. industry led initiatives are also an important part of our chemical efforts. producers,aged that manufacturers, transporters, and retailers have established an industry working group to develop a cold -- a code of -- ofce for improved handling of fertilizer and other chemicals. among the guiding principles is coordinated communication with employees, communities thomas and emergency responders. as well as third-party and inspection processes for the facilities. these approaches are essential to improving chemical safety in a way that is workable for both regulatory authority and the regulated community. thank you again for holding this hearing. i look forward to the testimony

and questions. >> thank you so much. we'll turn to our honored speakers. our first panel, chairman of the chemical safety board. please proceed. i will hold you to five minutes because we have those votes in an hour or so. go ahead. >> [indiscernible] i am -- distinguished members. thank you for inviting me today. am the csb chairman. today isre discussing fertilizer. they are tragedies that should be prevented. west byruction i saw in

ammonium nitrate was almost the young -- was almost beyond imagination. -- and has determined haswere -- a patchwork that many large holes. levelholes include the use of, or stumble -- combustible wooden storage. sprinklers that are not required. there is no federal or local rules restricting the storage of near amounts of nitrate homes, schools, and hospitals. fire codes have some useful

provisions for nitrate. texas has no fire code. at west, this fire code provision was strictly voluntary. had not volunteered. learned thattors combustible seats were located near the ammonium. --e similar provisions [indiscernible] osha has not inspected at west since 1985. have gone much further than the united states. noncombustibleds

storage and beans. -- beams. they order sprinklers as well. the fertilizer industry tells us that ammonium nitrate is still stored in wooden storage is. this situation must be addressed. eliminates an explosion in west. by removing one of the conditions. , safetylities like west standards which were developed in the 1990's. ammonium nitrate will likely have been included if the pay -- if the epa had followed

recommendations under its risk management program. already -- [indiscernible] we still have serious accidents. over 100 workers. on june 13, there was a catastrophic failure which broke loose. the explosion led to be deaths of two employees. we mourn in their loss. obfuscationon and to show by the fed -- it is too soon and our investigation to show why the failure occurred. regulations needed to be modernized with more inspection and prevention is needed as well.

we are trying to encourage alternatives. year, ag the fire last recommendation, california is poised to triple the inspectors. it is shores they have -- it is shores that they have lower estes that we do -- it ensur they have lower accident rates than we do. many experts believe this the best regime for complex technological industries rather than the u.s. system that has an outdated world book. thank you for the opportunity to testify today. >> thank you. .eputy assistant administrator

>> thank you, senator boxer. for the opportunity to testify today on epa's risk management program an emergency planning and the right to know issues. thank you to mr. white for being here. the west texas fire and explosion highlighted the importance of properly managing the risks told by chemical facilities and the need for effective right to know program. the clean air act provides the for the risk management program. those regulations apply to the owner or operator producing processing, storing more than a threshold quantity of a substance. it includes flammable gases and liquids and 77 toxic chemicals. many of the substances are included on the emergency planning and community right to add to know.

12,800 facilities are covered under epa's risk management program. facilities must develop and submit a risk management plan that includes facility hazard assessment including worst-case release and alternative release.

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understanding would have been first supreme court decision that interpreted the voting eration of the rights act the court's congress a s to cut wide swath in interpreting whether the legislation it appropriate. >> could we say in the 1860's if didn't trust the court in shelby county it is the trust his do not congress. >> that is obvious. one judge insults the fact that authorizatiauthorization act o majority by such a they couldn't have voted against it because the voting rights act label, a title, that nobody could dare be against. so, you are sort of damned if you do and damned if you don't.

pass it narrowly it doesn't have much importance and if you pass it overwhelmingly it don't take it seriously. verywas going to say three unusual things about this the case itself. umber one, it is an unusual piece of legislation in the sense that it is telling certain you must submit your governmental decisions to the for approval ment in a sense before you can make ecisions with respect to polling places or districting, how you are going to allocate people will be elected particular districts. it may happen in other circumstances. some of you may know better than i. but it is very unusual for the federal government to require to submit nments governmental decisions for approval in advance by the

or to the ernment courts. secondly, the court talked about this concept of equal sovereignty sovereignty, that each state, strong reason against it with respect to their governmental functions, have the rights and same privileges and same responsibilities. o, this legislation is unusual in the sense that it selected certain states plus certain to differential treatment in terms of governmental decisions. was an interesting theme and hasn't happened very often in the history of the supreme court. the third thing about it, which i think was an underlying theme that the differentiation between the states involved a stigma. it is a decision by the original congress that passed the voting certain states -- and they have ample evidence to support it -- certain states

suppressing the ability to vote by minorities. yet, that is a stigma, saying to world and especially the american people these states places.out -- are bad places. they discriminate and should be so to the penalty box speak. nd the court was concerned is that going on forever because the political process allows voting o vote for the rights act and it is hard to vote against an extension of the act.ng rights it is logical impossible to pick the process and certain other states for this treatment. perpetuity o on in and how long will that unequal stigma of you are discriminatory, you ared about you are bad d -- people and i'm not making a

and attempting not to express one but those three interesting and mark a different kind of legislation -- kind of decision. >> i was going to point out that is certainly unique legislation and perhaps not formula in 2006 was an odd decision. but the nature of the violation here according to the court is a federalism one. as odd that uck me there is no mention of the change in the federal elationship with respect to voting with respect to discriminatory voting that the altered that nature of the relationship. majority opinion really oesn't tkpwgrapple with that ai found that surprising to say the least. >> one last quick comment. there is a bailout provision the court ute which

made more robust fin years ago, -- they made it more robust and dozens of jurisdictions have bailed out including a number of them in virginia showing the he t 10 years they meet t statutory criterion showing they not had any voting rights violations. a good start.to we need to move on to the next major area having talked about rights act. i want to take us now to the of rmative action area fisher versus university of texas. we have been watching that. we are about to draw the curtain back on this. the highly s anticipated affirmative action decision of this term when the granted cert most people predicting this case was going

vehicle for a change in the constitutional treatment of in higher action education. don't think it was the game changer that people predicted. however, i think that the the decisionort of is yet to be seen. there might be more than meets the eye. the case concerned the und undergraduate admissions policy university of texas in austin. abigail fisher is a write was denied admission in 2008. minority acial applicants with less impressive credentials were admitted ahead her and she was denied admission on basis of race. what the sketch of admission policy looked like at u.t. and prior to 90's 2003, u.t. didn't explicitly onsider race in their admissions process. they used grades and

standardsized test scores and personal called a achievement index which was a measure of things like leadership, community service, with u come from a family an under privileged socioeconomic background. there is another twist. pursuant to a state law the grants automatic admission o in-state residents who graduate in the top 10% of their class. passed with the goal of increasing diversity. had some success but the numbers were not staggering. class was freshman 4.5% army and 16% hispanic. 2003, the supreme court ecides two cases, both concerning admission policies from the university of michigan nd as you know those two cases together upheld the use of race as a plus factor in admissions.

was gruder as long as it is localistic review and in the a quota. .t. responded to the opinions in 2004 with a change in its admission policy. its cided that undergraduate class lacked a critical mass of racial minority students particularly in certain classes and majors and schools .ithin the university it thus implemented a new policy spots to e remaining fill after the top 10% plan. theuniversity added race to list of factors that it would consider in that personal achievement index. was still a factor among factors is what the university said. it supplemented grades, course, were you a cheerleader and those. a numericalassigned value. there was not even a numerical for. they were searching

as i mentioned, abbey fisher didn't graduate in the top 10% her high school class but had she was e grades and competing for a very small pool. 90% of texassidents esidents who are in the u.t. freshman class are in the top 10%. the as competing for remaining spots and was denied admission. university, the trial court in the fifth circuit university citing gruder, it goes to the supreme week and on monday of this the majority in a 7-1 opinion fifth circuit. justice kennedy wrote the majority opinion. ginsberg justice kagan was nd justice recused. thomas and scalia had concurring

but joined the opinion in full. t was only 13 pages, almost unanimous and straight to the point. ustice kennedy reaffirmed that gruder and grats were the bache being edents third. then the court held the fifth gruder and 't apply gratz correctly so they were applying a form of strict scrutiny as standard of too feeble and one that confident too much to the university. he reminds us that there are two steps in strict scrutiny. the court has to be convinced educational benefits from racial diversity that are compelling. we defer toedy said the university's judgment but means has it prove the

chosen to meet that goal are narrowly tailored to the objective. that second step justice kennedy explained the university doesn't get deference. that is where the fifth circuit e erred. narrow crutiny on the tailoring prong amounts to more good robing into serious faith of race neutral alternatives which is the language from the fifth circuit. and this is what was called the money quote from the strict instead, scrutiny imposes on the university the ultimate burden demonstrating before turning to racial classifications that neutral workable race alternatives do not exist. that is where the court stopped. answer whether u.t. met the burden or whether the made u.t. hine diverse enough. it remanded it to the fifth instructions for the fifth circuit to take a econd look at the strict

scrutiny analysis. justice ginsberg said there is a race neutral way to enhance racial diversity. an ostrich could regard the supposedly neutral alternatives as race unconscious. she agreed with an older opinion that we are better off when try to hide don't the ball with their admission goals. for does fisher mean affirmative action tomorrow in now?er education i scanned the headlines this weekend and noticed something. an ink d like it was blot test so whatever you took is what you wanted to see. but i think there are they potential headlines and there is a little something for everybody excited.et the first one is fisher re-atpeurplre ae reaffirmed gruder. gruder remains good lieu. gruder toer asked for

be overruled and the invitation was out there and certainly a people thought that is how this case was going to come down. emember that justice kennedy was a dissenter in gruder. this ct that he authors and there are five votes as good law is big news. so affirmative action in higher education lives on. the second headline, i think, is fisher changed gruder. always, the devil is in the details. was faithful to grudener but the way he defined the university's burden under scrutiny is rather anding and some say it may redefine gruder. i read the fifth circuit opinion nd it is not like the fifth circuit forgot about graduator. it is not like they didn't cite right precedent. the opinion discusses graduator t length and indeed in

discussing the standard of review it quotes graduator. justice faith language contend honest in on comes straight from the graduator majority. explanation for the reversal in fisher is that the tpeufifth it wrong and was ov verdeferential to schools beyond whether gruder allowed. but another possibility is that grudener less deferential on strict scrutiny. strict scrutiny stricter than the strict embraced.hat gruder i think fisher significantly uts in the deference that gruder provided universities. that brings me to the last headline. litigation spawn over grudener. i think that is just true. it is going ce is to stimulate affirmative action itigation in the lower courts and lucky for you out there,

to dealthe mess you get with, you judges. you get to look forward to this. decided at the summary judgment stage and at the end of the majority opinion kennedy implies that summary judgment may not be university or other universities to satisfy ts burdens of showing that its policy is narrowly tailored to the compelling interest. a nk like a trial lawyer for second. what contained of proof, if you are the university's lawyer, hat kind of proof would you offer to satisfy fisher? what contained of proof do you your officialsat have -- you have to show they race neutral the alternatives. how many alternatives are there? do you have to show this is not a good idea, it is not workable you tried it how and it is not working? i think those questions remain fisher. i think it is going to make affirmative action litigation

expensive on universities. so, even though people say this -- i think i flop saw that -- i'm not sure i agree. think long term the implications from fisher may be more significant for universities than first meets the eye. >> comments. who wants to jump in on this? john. >> i very much agree with what said.en two small points. think, is moving the affirmative action to what his position was in gruder. his complaint in grudener he was scalia or stice thomas saying this affirmative action is wrong but saying with justice kenne kennedy's enthusiasm for robust we are going to review this very searchingly. it think he does move without saying he is changing it, he is moving it to his

in gruder. the second question is, is this to make so much difference. as legal realist i'm skeptical in my position as a professor i think that diversity the most important academic, bureacratic objective and i think it is going to be very ard without clear rule to strike down plans. when you haveeven rules in state law whether that changing cally matters. i think it only would change a clear f there is rule. what surprises me a little, scaliay, is both justice and justice thomas, although he has a long concurrence, really not, i think, mount a very strong originalist argument affirmative action. i think there is evidence for

that but i think until this happens, until there is a very argument rooting the prohibition of affirmative action in the constitution if be done i don't think it is going to make a huge difference on the ground. did.in >> just to make a point, i think what we saw in fisher was the of a very big and probably not very pretty iceberg. case was argued in early october and more than four .onths in the laboring it was a 13-page opinion, which a certain lack of stabili stability. it was an aggressive grant. there was no conflict in the came up at the time it because grudener was the and the g standard fifth circuit thought it was adhering to gruder. so the court reached out to take the case as a vehicle for doing in gruder and

something. it was unable to do that something whatever there something was. justices mentioned with evident dismay that the shall gruder be reconsidered was not actually presented. thrpl amici presented it but it fought for. abigail fisher and shelby cou y plaintiffs in the case we finished discussing, the same recruited by o outfit called the project only funded by a tation conservative foundation, this is movement litigation. there is not fisher waking up saying i'm going it sue the university of texas. is not shelby county waking up saying let's go after the voting rights act. is carefully managed litigation and not going to stop. much, nk you very

panelists. i think we are agreed fisher makes work for universities, and courts to do. , we turn now to two more of the marquee cases during term of court and they are the same-sex marriage cases, the a case and proposition 8 case. ted olson to tell us about those cases. passing re than a interest so i will turn to you, ted. >> it is a daunting thing to with these two cases which involve so many important to e so ur society and to our culture and to our political life in a short period of time but i will what i can do. first, the good news is from my standpoint as i think most of i represented the two couples who brought the

case ition eight hollingsworth versus perry. proposition eight, california's constitutional by the people ed as2008 that defined marriage -- it said only marriage between a woman will be recognized and valid in california. couples that i represented afternoon. yesterday the ninth circuit limited the been in effect since the district court decision struck proposition unconstitutional at 3:00 pacific time yesterday and people immediately began to get married. he two female individuals that we represented were married personally by the attorney the al of california and two males who lived in southern

ka were married by the mayor of los angeles and thousands of others i understand process will remain open throughout the entire weekend so you will see pictures in the very, very happy peop people. been sort of something that has certainly impacted me case, out this individuals whose sexual orient tion puts them in a position where they are not going to be happy or comfortable married to omebody of the opposite section, desire to have a relationship with the person the love and happens to be same sex. to whether degree does the to what degree oes our society owe them a status of equality when it comes to something as important as marriage. was something ht that came three months after, after, the california supreme court in may that 8 concluded

individuals of the same sex much to be married under the california constitution, the qual protection clause and due process clause of the california constituti constitution. he subject of course is very controversi controversial. he opponents of that decision put on the ballot for a vote in ovember of that year proposition eight and it passed like to 48, something that. something like $100 million was pent by the opposite sides, either side, to enact the proposition. shortly thereafter the supreme court held in a challenge that it didn't iolate the california constitution, the manner in which it was put on the ballot. issue there about process. shortly after that this case was brought in the federal district of san francisco. not long after that we had a

trial. judge took evidence for 12 days. testimony from throughout the world, expert theitutions with respect to history of marriage, the impact discrimination, the stigma that might be affiliated with something in the constitution treats certain people's relationships different than others others. we had a witness that described how important marriage was in society. marriage was so important that hen the emancipation proclamation was pronounced flocked to get married because marriage was a symbol of freedom and and independence. the supreme court of the united times, has recognized marriage as something it describes as the most that exists inht our society, a matter of

liberty, privacy, association and spirituality. made in ents that were this case were based upon the processotection and due clause. the arguments were that this is may damental right and it not be denied to individuals who of the marry somebody same sex because it is taking away a fundamental right from person that th the they wish to have as a result of privacy, erty, their their associational rights. t the same time, it is discriminating against a class of individuals based upon their sexual their orientation, and the gender of the person they wish it marry. sexual discrimination on the basis of gender because the state was telling them you could marry someone of this sex, versus ed that to logan virginia of 1967 in which the

held it was a violation of the constitution to deny somebody the right to marry somebody of a different race. 30 or 40 poeupint some states that prohibited pheurpblg between interracial couples at the loving case 14 or 15, 16 states still that kind marriage nd the supreme court unanimously struck this down. those were the issues the district judge decided that the proposition eight violated the constitution. on ainth circuit upheld it very narrow ground. the ground being that the right ad been recognized in california and then taken away from a class of persons and then supreme court. procedurally the wrinkle that ultimately involved the decision case is that the attorney governor of california declined to defend the constitutionality of

proposition eight. present during the trial because they were ontinuing to enforce the prohibitions of proposition eight, but they were not constitutionality. the proponents of the measure intervened and provided a at the trial court level. when it came time to appeal, the governor eneral and declined to appeal and the rgument was made at that point that there is no standing in the proponents. they haven't suffered an actual oncrete particularized injury as a result of proposition eight. they were just like any other believed that this is a matter that should be part of california's law. ninth circuit rejected that decided upreme court the case on that grounds. when cert was granted the the ioners had not raised standing question because they won in the ninth circuit on the

issue of standing. court supreme specifically asked the parties to address the standing question united came to the states supreme court. the united states supreme court by the4 decision written chief justice held that the roponents of a ballot proposition do not have standing under article 3 of the the appeal to take and therefore there was no valid appeal from the district court decision. he defense of marriage kiss arises out of a statute that was overwhelmingly by congress. that tells you about how things have changed. when the issue of same sex marriage began to appear on as a result of some activity in hawaii and other overwhelmingly passed the defense of marriage doma.e will call it it had two basic precisions. each n two of doma gave

state the right not to recognize a same-sex marriage that was validated in another state. so, if utah didn't want to and provide benefits to a couple that had been married legally in massachusetts, for example, they didn't have to -- utah didn't union. recognize that section 3 of doma redefined what marriage meant and spouse meant under federal statutes so that woman would be recognized as married for ederal benefits and federal obligations or something like federal law ons in that provide benefits or rights to couples based upon your marital status. doma.as oma was challenged by edie windsor, who had married her canada ong companion in but had returned to new york where they were both residents.

the canadian marriage was recognized as valid in new york new se of legislation in york. hen edie windsor's spouse passed away an estate tax was imposed imposed, several hundred this couple ars on because there was not a recognition that they were arried under the defense of marriage act. so, edie windsor challenged the of doma and lity that came to the supreme court. decision thisther last wednesday. there is standing issue with too, because the attorney general and president of the united states declined to the constitutionality of they were herefore, continuing to enforce the provision and insisting that the government not redundant

tax edie und the indsor was entitled to because she thought she was married but the united states government idn't defend doma in the federal court. at that point a committee of the house of representatives ppointed a lawyer to come in and defend the statute. so the standing question in doma not, because the united states was no longer was there windsor, really adversity. the united states government, appealed -- or petitioned the supreme court to ake the case once it had lost in the second circuit with respect to the constitutionality am, was there adversity under the article 3 so there was controversy or not. that issue was all over the opinions. supreme court e he eld the standing of t

said there was suffer adversity because the united money and l owed the represents of the house of representatives were adequate epresentatives to make sure there was sufficient adversity with respect to the heal issues. two very important kisses and the supreme court earlier standing case involving the surveillance program and i guess we will get in a little bit, in which the supreme court struck an effort by journalists and others to challenge the surveillance program on the not prove y could that they had actually been victims or subjects of the program.nce so, the standing issue is very important in these two cases and in the court's jurisprudence this year. case, the defense of marriage case, the decision kennedy againtice a 5-4 decision, very, very

dissevennt by justice scalia. dissenting hey votes. i will make this brief. kennedy basically spent a certain amount of his opinion a cribing how this was federalism issue and states were traditionally the ones where marriage was defined and here is the united states government coming along and imposing a efinition of marriage essentially on the states. segued into the issue of the discrimination imposed by act and se of marriage he rendered a very passionate objecting to the of the nce discrimination imposed by the defense of marriage act in words that are very passionate. this places same-sex couples in

position of being in a second tier marriage. differentiation demeans the couple whose moral and sexual hoices the constitution protects and whose relationship the state has sought to dignify a same-sex marriage an humiliates tens of thousands children being raised by same-sex couples. it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their daily lives. it sends a signal to them and to the people in the community that their marriage is less worthy than the marriage of others. justice all of this kennedy long throughout this opinion about how this was imposed dignity and sing demeaning status on performance who had no choice about their

orientation and their relationships were therefore diminished. scalia takes very, very trong objection and there are two other dissenting opinions won't discuss those any further. you need to read this opinion passionate he language of justice kennedy with espect to the impact on same-sex couples and the response by justice scalia saying this is not something demeans individuals, it is the definition of marriage. is as powerful as i have ever seen a dissent by justice cancel why. now, we could talk about -- i could talk longer about you i rater saying nd let's hear from the others. >> the quote from kennedy's for doma a titute state statute. yes.

justice kennedy dis-avowed deciding anything with respect the comity of state measures nd there are 37 states left that prohibit marriage between persons of the same sex. -- he basically said we are not deciding the onstitutionality under the due process or equal protection clause of those provisions in tate laws that continue to limit marriage between a man and a woman. he had done something very in the lawrence versus texas case when the supreme of t upheld the right individuals to engage in private sexual conduct without being punishment. he had gone on to say if this is a constitutional right of not deciding are whether or not states must recognize relationships between people. justice scalia wrote again a saying if yousent are saying they have a constitutional right to engage

you say onduct how can that you are not also deciding the right to their relationships to be recognized by the staete. that jority dis-avows referring to the kennedy opinion and he says don't you believe it. that in thiseat of case where justice kennedy is aying we are not deciding the constitutionality of those state statutes this limit the relationship or marriage between -- to a man and woman. ustice cancelia then takes passages from justice kennedy's opinion -- i have never seep like this -- does inter-lin addition and puts in law anguage of the state and shows the very same language about the demeaning of the individuals of10 sexual orientation and same section orientation. those not distinguish statutes from what was just struck down in doma. opinion ery passionate and very interesting and raises uestions about whether or not

the kennedy opinion was written whether the s and perry case was a standing case or was a standing decision. there are all kinds of caninating speculation that come out of these two opinions. >> i think that everything you said is correct. to idea that the chief justice rights separately no, justice listen to scalia. this is about federalism. that you could read the opinion not the way justice say what ead it and was go -- scalia read it and law undermine l being the dignity confident by the states as opposed to just the dignity. i think it is to be seen which interpretation proves correct. did.in why the proposition eight case the takeaway is your married.re now getting

but the standing part of this is itself independently important the context in which it aro arose. so, two questions. do you think -- as you said, the added the standing question to the cert grant. court's aim always to get to the standing question, proponents osition can then take over the state rocesses if the state chooses not to defend? and, secondly, what do you think import of the standing holding in your case? the standing was always an issue in the case. petition was ert filed by the proponents of proposition eight, of course standing t raise the question. the supreme court added that. that action when we saw was that there were four votes

it take the case. that is what it takes to grant a case for cert. did they add the standing question because the issue was ninth circuit.e the california supreme court part d unanimously it was of the california constitution although not written that when and the ney general governor refused to defend a p ly enacted constitutional amendment there wouldn't be any the se unless somebody had right to defend that statute and urisprudence and issues of appropriate use of judicial power required somebody to be it and the california constitution gave them the right to do this. hearkened back to a case where a similar issue came up other cases. but i thought at that point the california supreme court had of resolved it by saying it is part of our constitution that there is

and official recognition of the proponents under those circumstances. supreme court said ultimately no, no, no, this is a question. state supreme courts or state constitutions can't resolve it. cert petition was granted i thought that the onservatives on the court were interested in protecting themselves against a decision on of constitutionality roposition eight and knthey foresaw the possibility of five votes to strike down proposition equal protection or due process ground and thought the standing issue might protect because they could get five votes and possibly convince ustice kennedy who is the linchpin in these to go along with a standing decision as pposed to a decision on the merits. it turned out that it -- that on. have been what was going this is speculation and will go on trevor. ut justice kennedy was

dissented from the standing decision. so we'll never know and will you professors will probably be answering these questions for years. we thought this is good news conservatives are relevance worried about a decision on the merits and they re protecting themselves putting the standing question back in. > i would like to bring us back to the merits and segue remarks. it seems very troubling -- i speak as someone who is not to doma and same sex arriage the opinion seems troubling as matter craft. it is great criticism to begin a discussion of federalism and say that is not relevant to he decision and have two justices in dissent make plausible architects that isn't ism is crucial crucial. it seems like a basic rule of law f the is to articulate a rule of decision. hen when you go it the other

basis of the articulation, this the ry far from constitutional text this i think legitima power.ates the court's the two authorities one is due rocess, the court has never defined as how substance you can get out of due process. had it has it has tried to narrow that and say we that find a right or left is deeply rooted with a certain amount of specificness and right while not amarriage deeply rooted right in the traditions of america. equal protection, even there at the beginning equal protection includes against the federal government. that has been read in by the court. even if we agree that that should be done what is the basis to understand this kwlt principle this complements of course with the reconstruction ruling out the kinds of moral considerations

debate.e central to the i don't think the court shows that that's the principle of equality. those, i think, are the rootations of the court to its decision in the text of the constitution quite apart from and i'm y disagreement sorry to say i think this opinion was as singular a seen in the have history of the supreme court. >> wow! you heard it here today. the ll not take vote on panel on that particular proposition. john, you get to pick up the lead. there is an interesting pair of cases that don't fall in the pigeon holes but both involve d.n.a. and raise questions about law and which i know you have a particular interest. would you tell us about those two kisses and what we should them?about >> sure. they are two very different with respect to doctrine. of focus on the substance

the production code and are fundamental. one is about patents and other search and seizure. i will talk about that and end whatfew observations about they my tell us about the way the court deals with technology. a matter of huge importance because technology the relentless increase in power of computers accelerating across a wide range from biotechnology to nergy and will generate all of these kinds of decisionless. the first case is the monthly look r similar pathology versus genetics. confronted two patent claims by myriad. first was for a portion of the codes for two mutations to put women at very breast cancer. the court unanimously rejected that claim. long held inventions don't nclude matters that actually

occur in nature because they fear that those kinds of patents tie up tools for inknow vision. the court rejected myriad's that the chemical process that it used to isolate d.n.a.ne transformed the into something that was patentable. myriad's said that claim wasn't about the chemistry the information that was coded in the gene. the court however unanimously that so-called d.n.a. was ry patentable. what is cdna? a genee information from that actually creates the protein. it is stripped of what is called junk d.n.a. a e court labeled cdn anesthetsynthetic ecause it doesn't occur in nature and can be patent the. but there is a thin line between the two holdings.

a natural process involving r.n.a. naturally creates gene and is responsible for the sequence of information this d.n.a. lled synthetic encodes. both patents on the full gene complementary d.n.a. are valuable precisely because of their information. so the court really differentiates between these two atents by using an implicit balancing test or standard. attempting to weigh on the one and the amount work and money needed to bring the matter to usable form and the cost of a bottleneck and monopoly to an individual company. cost outweighed the benefit for d.n.a. but the court said for complementary d.n.a. ne mate call this a decision

th solomonic decision except it split the baby. fourth phaefplt in maryland versus king whether police can take a d.n.a. sample arrested for a serious crime. d.n.a. has become enormously for solving criminal cases. often eryone's d.n.a. is spread around either through bodily fluids like blood or hair and it is for this reason that one justice said this is the important fourth amendment case for a generation. a very sharply contested 5-4 decision kennedy held that d.n.a. from somebody arrested for a serious crime was constitutional. the gan by noting that touch tone of the fourth amendment is reasonableness. d.n.a. wledged taking from a swath to the cheek is a benefit t said the substantially out-wisconsin the cost including the capacity to

identify individuals and law enforcement's legitimate interest of solving people.d ex-hoonerating the cost privacy in a swab on the inside of the cheek was not greater than that involved in fingerprinting and ecause it only focused on serious crime it didn't allow the police very much discretion. justice scalia again this is the on the ideological line. dissent and said that the search incident to either for o be weapons or evidence and this is neither for this. e acknowledged that fingerprinting was all right but that was only true for dentification and there was really no interest in identification as cancelia scalia pointsy -- out they don't get around to sequence being the d.n.a. for a

after they defended the defender. key is it embraces the reasonableness standard the that amendment to decide it is reasonable. you can si it is not a intrusion and benefits are greater and more over the benefits include the rotection perhaps of the innocent. it is telling that justice scalia doesn't really talk about a standard. he applies a rule that he finds in precedent. in searches one incident to an arrest. unless it comes within one of fixed exceptions he rejects anything. is famous foralia arguing that the rule of law is a law of rules. it is very i think much consonant with that viewpoint. it is think, however, necessarily consonant with the look of the constitution because the fourth amendment is quite unusually in the constitution a

not a rule. as both cases suggest the court to read law as a standard if possible in dealing with new kinds of technology. these new ecause technologies can be radically different from the past they may easily encompassed in a past rule. n contrast a standard allows judges it update the law by ubconsciously looking at the policy considerations beyond the standard and balancing them as king. in maryland versus it should be noted new information technology also more standards transactable. one problem with standard it is the ruleigure out what is but with new information and i think it is going to change and make standard more attractive. i will give a brief example to that.rate ack in the 1960's montana had standard called drive at reasonable speed and it was

it didn't because give anyone any notice of how to drive. into the but looking future of course we can think nap in their ave car -- have a map in the car and telling them what to drive. indication of how information technology can make standards relatively more standard may be very important to deal with new technology. one point of general interest versus from maryland king. often it is thought in the kinds of ess that new technology particularly connected to search and simply threats to privacy and liberty. but the maryland versus king importantly k, rocks that this is not so. that d.n.a. information can exonerate as well as lead to conviction. one might add because of the power of d.n.a. to solve crimes

fewer ill be interrogations and fewer lineups with their possibilities of and fewer searchs and intrusions to be authorized by warrant. there may be less net intrusion on privacy. thus, in the enduring tension between liberty and privacy on on the hand and security other, at least sometimes makeology may enable us to a better tradeoff improving human welfare. >> linda. > i would ask you to elaborate a little and look back last term prevailed ce scalia in the g.p.s. case where the was it a fourth amendment several for the police to place a g.p.s. device on a track ar and use it to movements over a couple weeks and justice scalia said it is a

the framers would have regarded it as trespass and the first amendment amaze. justice sotomayor wrote concurring opinion saying we are reaching the point where we have to step back and reevaluate our ourth amendment jurisprudence in light of technology. i wondered whether you had any reaction to this. right. is i think i'm much more sotomayorc to justice because again with justice case similar n it it maryland versus king creating finds certain expectations from the framers. disagree that expectations can be relevant in understanding the text. primary and the text of the fourth amendment is a standard, not a series of rules. it is very amenable to what justice sotomayor look at is we have to the cost to privacy. i think the cost to privacy in

very much more substantial then the cost of hat is called a swab in the che cheek. one can debate that but on a balancing test. be the debate ll necessarily going forward in the fourth amendment rather than a lot of rules that are going to mick increasingly less new kinds of t technology. >> i was going to just add i we going to talk about two dog sniffing cases if >> we will. that's an important part of this, too. we were thinking about the g.p.s. case, he hich was involving an interesting concurring opinion alito and justice g.p.s. device in the suspected drug dealers car so you could track him without a like a trespass. and justice alito said how do

out of original inch that. he envisioned a small constable in a large coach, you now in 1789 or something like that. this whole thing -- we will get of the cell ses -- phones where there are phones everywhere, speed cameras, toll booths, drones, heat measuring. hey had a case about a heat measuring device that flew over the guy's home and measured the confirmed, i guess or provided sufficient suspicion there was marijuana growing the e house generating heat. and we have the dog kisses, acebook, twitter, surveillance cases, what you can do with the omputer, billions of telephone phone messages tracked or stored could it can be tracked later on. that the s technology supreme court is having to deal with in terms of what does it

and in terms of precedence where are we going it find the standard? be in something like trespass which ultimately i guess it content be or of onable expectation privacy whatever the heck that means in today's incredible world. >> that raises questions about institutional confidence of the to get their -- i think it was 1996 when the court to its first case related the internet, it was the first amendment case reno against the aclu and at that time many of the justices had never accessed know hownet and didn't to use computer and they had to bring in experts from the it ary of congress -- doesn't take that much of an expert -- from the library of it inform the justices he the factual context of t communication. so there is a learning curve we are all climbing when it comes

and judges are chiming it today. >> today those experts are called law clerks. that's a nice way to segue from hese particularly the d.n.a. ca case, swab case. lovers two cases for dog and they basically win one and lose one so it is a split decision. off the 't leave that agenda today. > when this group started talking about assignments i told dick i'm the junior member so i take the dog cases. i didn't know this the dog isses -- they are actual doc cases. drug sniffing dogs. one is hear today, i passed him hallway trained to detect narcotics and bombs and alert the police. two florida cases. but are similarities

enough factual differences that i will briefly recount them for you. tpeufirst case the court decidd shepherd namedan aldo in a routine traffic stop. e was on patrol when the officer pulled over a truck with an expired license plate. clayton harris and he was visibly nervous and can of beer. the officer asked if he could said the trunk and harris no. so, the officer brought aldo freefor something called a air sniff. that is -- i'm not making this up. that is a practice of allowing a sniff sniff the -- dog to ae ex-tearior of a carbu during normal stop. aldo g this free air sniff signals that he smells drugs by

sits.g or i think he i think that is the trained behavior. the he did not find any drugs there. aldo was wrong. he found a bunch of ingredients that are used to make meth. he was charged for use the sudafed for methamphetamines. then he has a second encounter with aldo. another stop. this time he is pulled over because of a broken tail lights. aldo again alerts. this time he is wrong. there's nothing of interest in the car. in court he asked to suppress the information found in the chapter. -- the truck. because aldo was wrong twice, his sniffs are unreliable. on the