find where they are, how they are going to protect us. i just throw that out there. we're not doing anything about it -- i remember when i was a prosecutor, on the intelligence committee, you would never see i remember when i was a prosecutor, on the intelligence committee, you would never see information of al qaeda giving groups data on what we are trying to do to protect us. what is intelligence all about? what are the millions of dollars we spend? it is about trying to protect us. we have to have the laws. we have more checks and balances than any other country in the world on what we do. believe me, mike and i make sure they follow the law and is constitutional. if something is wrong, we will try to fix it. i better stop there. do not give me a hard time.

>> this has been the most frustrating series of weeks. candidly, the damage is growing by the day. it has nothing to do with privacy issues, nothing. they are providing adversaries valuable information. by the way, we have already see one al qaeda affiliate completely change the way it does business, which means we now have a gap and the ability to try to stop something bad from happening. -- in our ability to try to stop something bad from happening. it has been described by senior intelligence officials as significant and irreversible. we think it is fun to put this in the newspaper, and i think

irresponsibly on some of these issues. we have a gap. what is frustrating to us is our job was to find ways to close the gap in ways we knew existed prior to 9/11. some of these programs fill the gap. those gaps are back. if we think for one minute that people did not perceive that when there is a gap they will not take advantage of it, we're absolutely fooling ourselves. all qaeda is on the rise. matter of fact, it has become the largest single source of financing for the core al qaeda leadership through kidnappings, ransoms. you have al qaeda causing us great concern. destabilization efforts underway. you also have new affiliates that are growing in interest in external operations, meaning u.s. targets or western targets along the pakistani/afghan border.

new safe havens developing as the troops drawdown happens in the northeast. you see al qaeda talking about safe havens in syria. along the iraq/syrian border. we are to put in context about what we are disclosing. secondly, the reports that get leaked are reported as they have found them doing something wrong. we have found this horrible thing that no one knows about and we are printing it. part of what edward snowden stole was slide decks that described what was wrong and what the mitigation process was, which means we knew about it. these are management tools to fix problems we have found in the system. that means the court has found some. the intelligence committee found some.

we used such specific language in describing the events, every time it came out people set that is a privacy violation. it says it is a violation. absolutely wrong. they were not privacy violations. some of them were technical. i use the word violation and that is even wrong. it is just the technology changes. everyone knows about internet protocol. when something changes, there will be a glitch in the system to catch up. those are listed in there. the newspaper says let's describe this as a privacy violation. most of those -- you get my blood pressure up on this.

americans should be mad about this for all the wrong reasons they are mad about it now. most of the violations that were reported was because there was lawful intercept of bad guys overseas. legitimately identified, reasonable suspicion, all of that found. in the modern day you really do not know where that person is with the particular device at any time. you can be a u.s. person for a temporary amount of time being somewhere else by using u.s. networks. that is a confusing thing for a guy trying to catch a bad guy. we also legal implications. we put a lot of pressure to make sure they do it right. we are the only intelligence service in the world that does it the way we do. i guarantee you putin is not having this conversation.

so here is the thing. they get on the phone. the guy goes from pakistan to afghanistan to dubai, catches a flight to new york city. if we know this is a bad guy doing bad things, trying to figure out what is that person up to. the person makes a phone call. we have to turn it off and try to find another system by handing it over to the fbi. that is considered a violation. i do not think we ought to turn it off. that is what the law is. our job is to make sure that law is followed. we are working against ourselves every day. when the newspaper picks it up, they are calling these

violations. doesn't it sound like a horrible thing these people must be doing about violating someone's privacy in the united states? that is what people believe and we are working against ourselves we will have an outcry against the law. the court challenges them frequently. what you saw was the court working on technical corrections. you want that to happen. it shows you that oversight works. instead, it is being portrayed as an agency out of control doing horrible things. it is costing us significantly in the ability to collect against our adversaries, and they know it. there is a reason putin decided to put an op-ed in the "new york times." he knows america is on a feeding

frenzy against itself, and he would love to join in on the game. so when you hear it, i will ask you all to be skeptical. the notion the agency is collecting on u.s. persons and giving it to any foreign intelligence agency in the way it was described is completely wrong. that is not what has happened. i can guarantee you the privacy of americans are protected in the way we operate. part of the problem was we were too aggressive in the oversight, and we documented it and talk about it with leadership in order to fix it. they stole the slide deck and put it out there and said we caught them doing something horribly wrong and should dismantle the national security agency. i am really worried about where we are going in the growing sense of isolationism is concerning. if we do not start getting it right, we're going to be in a lot of trouble when it comes to providing intelligence services the tools that they need to

protect this country. all worked up about that. just getting the facts right. [applause] >> we get criticized for giving the facts. we oversee the intelligence community. we make sure they follow the law, but we also have to put the facts on the table. when you get the allegations like the metadata program, that is not the case, but we have to deal with the perception. some of the things we're doing, we are trying to make sure we can declassify more information so that we get people more information so they know we are always following the law but also trying to protect the american people. the head of al qaeda they will start targeting more in the united states and allies.

believe me, we are more all vulnerable because of the leaks. we will lose lives because of these leaks and where we're going. we have a lot to do. we ask you all to be there with us. we have a lot more to do to communicate with the american public. >> you raised frankly what my next question was. yesterday was the 12th anniversary of the horrific attack on september 11. nypd police commissioner ray kelly gave a series of interviews, one of which was on cnn, where he said he believed the threat to the homeland from al qaeda is as great, if not greater than previous to 9/11. you can imagine from my perspective, that got my attention.

what do you perceive as the greatest threat? >> what is concerning is in the past, they were very eager to have big events and would take a long time to plan the big, impactful events. unfortunately they learned a lot from the boston bombing. now you see a change in attitude. with the changing of the guard and leadership. you can see a change in the kind of things they are doing with targeting. now the definition of what they think might be a successful attack has changed. that is very concerning to us. again, our concern is are we

engaged fully in all the counterterrorism programs that we know was impactful disruption in the leadership. we have had some changes. public debate. they are not pulling back. what you're finding is, you think about what is happening in syria. there are over 10,000 members ascribed to al qaeda operating in the eastern part of syria, coming from all over the world, including the united dates of states of america. you have folks with european

papers, american papers that are trained. they have been further radicalized. whatever it looks like, they are going home. al qaeda knows who they are. they know they are a new avenue. i think when the commissioner is talking about, a dynamic threat change, you do not have to look at the big event of flying a plane into a building, but we have to now worry about the smaller knockoff events. i am equally concerned and i think the threat is greater in that regard. >> i agree with mike. the real concern is al qaeda realized we are very sophisticated in the allies in

being able to find major attacks. so they are attempting more out of yemen than any other area, focusing on the united states and having individuals under the radar. not doing things where we can pick things up. that is why it is so important for the intelligence community to work with state and local, a team approach -- getting as much information as you can. this is what i am concerned about. we had a couple of those attempts. we were lucky they did not occur. now you cannot misjudge how many people are helping al qaeda and funding them. we have some very smart people that are part of the organization. doctors that are trying to research and putting plastic bombs in individuals that they can go through the airport and not be detected. this is very serious. we have been talking about syria. and terrorism, but do not lose

sight of the cyber attacks and how serious this is for our country. it has been alleged or media reported that iran knocked out the largest oil company for saudi arabia, knocked out 30,000 computers. when russia went to attack georgia, they shut down the communication systems. this is very serious and really concerns me. people say you are members of the gang of eight. what keeps you up at night? i say spicy food, and chemical weapons and cyber attacks. we have a long way to go. we work very hard. we got a bill passed. the president was against the bill but still able to get bipartisan support to get the cyber bill passed.

i talk about giving mike credit. we had a bill passed the session before that that did not have as many votes. i said we have to get the white house behind us in deal with perception of change. mike did not like it, but new the endgame was getting the bill passed. a lot of people on my side of the aisle were focused on the issue of privacy. we got the bill passed and over in the senate. still not going anywhere but trying to work on that. let's not lose sight on that issue. it is there. it is not going away and i wouldn't be surprised if something like iran was attempting to attack us right now, whether it is wall street or anything they can do to disrupt. >> i will start taking questions from the audience and from twitter. let's stick with cyber for a

moment. there is this group called the syrian electronic army. there are allegations that they are trained and backed by iran. what is the policy and legal framework in which we can either defeat, deter or offensively go back at them? what will it take to get legislation through the senate so we have legislation in this country? >> the snowden thing was unfortunate because of the perception it created around all of this. it is shocking just how wrong 98% of it is. that hurt our ability -- it slowed it down. it is not done. you cannot look at the threat matrix on cyber in this country.

any member that went through it, one of the reasons so many members joined in was because of the sheer volume and level of sophistication and growing danger of the cyber threats. there are public reports that iran is already attacking our financial institutions. they are probing, looking for weaknesses in our system. they believe that they have the right to attack us in cyber. that threat is growing. the e army israel. we believe that it has more than just iran providing advice and counsel on how that might look. they are not going to be bashful about doing it. i don't think our policies are exactly right yet. our defensive capability is a problem here.

most governments run the internet. in america, it is a private sector as it should be. here is the problem. if we go over with an offensive of strike, they will not necessarily come back with government strikes. they will most likely go for the private sector. there is still huge vulnerability in our private sector system. without some opportunity, we think we have found that way by sharing in real time threat source code information -- and it has to be in real-time -- that we can at least give our private sector the ability to protect themselves from what might be coming. that is our disadvantage and that is why this is no important we get right. it is so frustrating that with the largest single threat we know exist and is happening today, we are doing nothing about it. that is troublesome. we are going to continue talking.

we have had conversations with the senate. they haven't given up on it. we think that we will make a few changes and hopefully by the end of this year get a bill sent to the president's desk. that is our hope and goal. >> we have to educate the american public. 80% of the network in the united states is controlled by the private sector. the private sector has to be very much involved in the partnership with the intelligence community and government to make sure we get the proper protocols in to protect us. we also have to deal with the issue of privacy. mike and i were both in law enforcement. we know that you must follow the law. we brought the aclu and other groups to the table. we thought in light of changes, we still have some pushback. we have more work to do. it is one of the most serious

threats we deal with. we have a law that says basically, we cannot give classified information to the other side. that is why right now, our intelligence community can't communicate -- all of these attacks coming in unless there is some type of classified program that is there. we are trying to change this and make sure that we can go back and forth. it is all voluntary and we are not violating privacy. please help us. the business community has really stood up and made a lot of concessions to try to get the bill passed because they know how serious it is. --have lost $400 million. billion. we have to not only deal with the cyber issue in the united it, but we have to get china to work with us. it is going to be a global

issue, global standards as we relate to cyber if we want to protect ourselves. >> you're going to be happy for the next one. on twitter, yesterday was also the one-year anniversary of the tragic attack on benghazi. the question, when are the american people going to hear from those people who were at the benghazi conflict? >> hear from the employees? >> the people who were there on the ground. >> we have in our committee, we are doing the intelligence of that investigation. we have had our 10th hearing. we have talked to all but three

on the ground. we are still working through those issues. for those who are looking for some -- we tracked down every lead that we heard. every story that you read in the newspaper about something that, we run all of those to the ground thoroughly with our investigators. now, we have got it narrowed down, that there are some indicating that the time frames that their headquarters is giving might be different than the timeframe that the folks on the ground are giving. we are trying to reconcile that. we need to do this in a classified setting because folks are still employed. most of them are still under cover. they are great patriots. they went through a pretty difficult circumstance and

dusted themselves off and redeployed around the world. our goal here is not to disrupt their ability to continue to protect america and do this investigation in a way that treats those folks who are patriots with the respect they deserve. we are working. these things always take longer than you think they do. i think the state department is where you will get the first set of more public hearings on the investigation from the lower and as it works up through the senior ranks. those are where the decisions were made. those decisions were made -- i saw an article the other day that the agency was supposed to vet the security services. i can tell you that in our investigation, let me just put it this way, the agency wouldn't hire the people that they hired. the agency would not go locate--

co-locate on the facility because they believed it was not supportable. somebody took that information and made some really dangerous decisions. that is where the problem was. >> a question for you from the audience. we are going through a period of sequestration. -- remember the gutting of the cutting, the human intelligence in the 1990's. what do you see as the impact of sequestration on the intelligence community and what is the committee in its oversight role going to do to protect the capability and not prevent loss? >> to begin with, sequestration is a slow burn. it makes us weaker as a country. a lot of what we do in intelligence -- we have satellites, equipment,

resources, but it is about people. what we are trying to do right now, mike and i had an amendment and we are attempting to work with his leadership on the issue of sequestration to say as it related to the intelligence community, that this cut is just disastrous. budgeting is about priority. budgeting is about picking priorities. there are some programs that you might like but you can't afford. would you can do, you do at 100%. what we tried to do was get them to give us a waiver and get that waiver so that we will not be negatively impacted. as it turned out, we couldn't get it passed. it is a serious issue. enough is enough. there is no question that we have to deal with the deficit.

what we have to do is leadership has to get together. i hear they are getting together today. the message is out. we have to deal with the deficit, but let's do it the right way. speaker boehner is trying to resolve it, but at this point he can't get the votes. by the way, the debt ceiling is money that we have authorized. to use that as leverage, can't be done. with all the issues out there, syria, al qaeda, china, all the things we are dealing with as a country, i would think this might help bring us together. mike and i have a very unique relationship. we are the only bipartisan committee on the hill. people know it on both sides of the aisle. we are out there.

we are able to cut a billon dollars. the way we did it, we looked at each program and said, we have to cut like everyone else. but let's negotiate it. we are ok for this year, but the next round, if this continues, we will be in deep trouble. we will be weaker as a nation. let's not forget about education. medical issues and those type of things also. >> last question, this is an audience question to mike rogers. is it feasible to be able to get them under international control? also, can you do that without u.s. boots on the ground? >> the decisions 24 months ago look a lot better.

they looked better 18 months ago. they look pretty awful today. i do think that you are going to -- here is the problem. it depends on how aggressive the russians are in helping. hezbollah is there in fairly significant numbers. they also want to get their hands on these chemical weapons. we do think there is going to be some dispersal of the chemical weapons. i do think that you can get a good percentage of them because the assad regime is also worried that if these things fall into the wrong hands they will be used against his regime. our interests have aligned and trying to secure these stockpiles. i think it can happen. we can get rid of sarin gas.

in the old days, it was much more complicated. with new technology, you can do a lot of destruction in a short period of time. i think it can happen. i don't think we need u.s. boots on the ground. here is one option left on the table. dutch and i travel there frequently. they are frustrated but willing to provide the support that we would need including troops to go in and help secure those weapons systems because they know how dangerous it is if it proliferates. we have lots of really good options to bring in our arab league partners. they do want u.s. leadership at the table. that is important. i hope we take ourselves out of this race and the administration regroups about how we can impact

that with a plan that is meaningful. which increases our arab league partners who are eager to participate. turkey is also interested in participating. i think that is the best way to do it. if you are going to go in for a hostile takeover, yes it takes 70,000 people. i don't know anyone on our committee, republican or democrat that has ever talked about the real feasibility or even the interest in trying to have 70,000 troops. that is nuts. it is a horrible decision. people who are trying to change the narrative are saying this requires so many troops -- there are lots of other options left. including a surgical strike that

could degrade your ability to deliver them. people who are saying that can't be done are not looking at all the facts. there is still, even with the notification -- that is not helpful. if i were assad, i would call those clues. [laughter] we have to get back to just saying we have the ability, we can degrade the system. i do think there is a way forward here. the united states, if we allow this to happen, i worry about where we are going. i know the north koreans are eager to watch us all on our phase. the iranians who about a year ago tried to kill the saudi ambassador by blowing up a

restaurant with u.s. persons and it and didn't care about collateral damage -- if you don't think that sends a message about where their ahead is at, we better wake ourselves appear. -- up here. they are eager to cause us harm. some notion that they are not is fooling ourselves. dod had a report recently about 600 u.s. soldier deaths attributed at least in some way to assistance from iran. some notion that this is an isolated incident, or that we cannot use limited u.s. leadership, i think is a major mistake as we look forward to what the world is looking like in a few years. >> two fabulous public servants. we are happy to have you served this nation. [applause] thank you very much.

>> thank you for attending the opening session of the summit. please attend the breakout sessions. secretary kerry said the threat of force is real if syria does not carry out a plan to hand over its chemical weapons. we also heard about the agreement on the sunday shows this morning.

john mccain and robert menendez both spoke on "meet the press. if the agreement had said that there will be the use of , or thetomatically russians had agreed that they ,ould go under chapter seven that puts an entirely different cast on it. right now it's up to the russians to decide that. they did not even assign blame for this attack. piece said itp-ed was the rebels, the free syrian army. there is not a seriousness on the part of the russians. we will see the russians facilitating the ,eparture of chemical weapons with loads of weapons coming into damascus and devices to kill syrians.

>> this is a diplomatic breakthrough that is full of opportunity and fraught with danger. the opportunity is that we end up in a better place than we envisioned with the use of force, which is eliminating all of us's chemical weapons and production facilities -- assad's chemical weapons and production facilities. assad has still not said whether thisd signed on to agreement, even if he begins to move forward with some of the beginning elements, does not fulfill elements of the agreement as we move along. , in theirns find minds saying some plausible reason why there should be no enforceable action at the u.n. we're back to where we started assad has bought

time on the battlefield. to keeping forward the use of credible force on the table. that's the only reason we have gotten to this point. in the pasty reason that qaddafi and libya and , when hussein and iraq the issues were about them giving up their chemical weapons originally, believe the use of force against them was real. we also want to let you know that later today we will take you live to iowa for our 2016 presidential race coverage. vice president joe biden is a featured guest. we will bring you live coverage starting at 3:00 p.m. eastern. "american history tv" is live from birmingham, alabama.

hear from speakers including condoleezza rice and attorney general eric holder. we will take your calls throughout the day. that is on c-span three's "american history tv," or streaming live. taking yourey are calls with the education and exhibitions director of the alabama civil rights institute. >> the world is changing. we can't control every event. the oneremains indispensable nation and world affairs, and as long as i'm president, i intend to keep it that way. talkingthe president is about, we are the indispensable nation, what he doesn't want us to talk about -- we don't know how to win wars. military in the world. we certainly spend more on our military than the rest of the world put together.

we don't know how to win wars. beseems to me there ought to a serious national conversation as to why that is the case. where does the fault lie? is it that our politicians are too stupid, our generals are inept? the size of our forces is too small? the fact that by its very nature, war is unpredictable? to go to war is to roll the dice. you might win, and you might not. ch more with andrew bacevi tonight at 8:00 on "q&a." and now, more on national security from retired lieutenant general james clapper, director of national intelligence. [applause] >> thank you very much. a very generous introduction.

with john, the first director of national intelligence, and i think the alliance is in great hands. i would also mention they are all veterans. i think it is appropriate that this summit is being held a day after september 11 and the fact that we have speakers here all across the intelligence enterprise, and we this -- we're discussing how we are getting our mission accomplished together. for my part, there is a lot about how far we have come since 9/11 and all that ensued after that.

a position was created. like all of you, i remember where i was that day and the day after that. we were in a tough place. capabilities had been cut in the 90's. when i served as the director in the early 1990's, we had to read the peace dividend. so we essentially reduced the intelligence committee by 22% in the mid-to late 90's. we eliminated analytic offices, lost about one third of our analysts, quarter of our human collectors, almost all of the satellites then on orbit had passed the end of their design life. we did not have much in the way of tracking our inventory and

finding our attackers. we were disconnected as a community. we neglected a lot of the basics. 9/11 happened, and we responded, as we always do. in this case, we face a dangerous adversary. we reinvent ourselves. another revolution that has gone on here in my view beneath the feet of the geezers like me is all the young people we have brought on, somewhere in the neighborhood of 55% of the employees today were hired since 9/11. a rather dramatic turnover.

integration, which is a journey, not ever and and, i do think it is more of a reality today than it was then. this is something you have to keep working at. we have done a lot of things to improve and enhance intelligence. just to name one thing, the fingertips of the commanders, integrating partners more and more up on the enterprise -- enterprise, and we are working with our partners more and more overseas. we developed capabilities to locate our adversaries to enable us to reach into their sanctuaries, collect, and extract their plans and intent. we found ubl, we have worked to dismantle the infrastructures around them. now we are doing activity-based intelligence and view the cross agency campaign sales. it is all paid off. we made a huge investment in the intelligence. a lot more capability and people.

we could not have done it without our two oversight committees, without their support. you saw an example of that this morning with the chairman from the house intelligence committee. their support -- could not do all this without them. they are serving as our advocates and champions today with our current challenges, which i will speak to in a moment. now, we are facing, in my view, the most challenging and diverse amount of threats that i have seen in my 50 years in the intelligence business. i can take off the laundry list

of benghazi attacks, boston marathon bombing, sequestration, middle east unrest, syrian atrocities. all to say we responded to 9/11. with all the challenges we have today, we are and will respond to them, as well. we will keep pressing on what i believe is an important attribute of the intelligence community, which is immigration. -- integration. i do think we are in a much better position to understand and react to upcoming threats. even with all of our distractions, to keep that focus on the mission. we will certainly never forget those who lost in 9/11. -- we lost on 9/11.

it is always the right thing to do to pay tribute to our heroes on that day. firefighters, police officers, and first responders. it is inevitable that with time, the memories of that day will fade somewhat and eventually become like december 7, 1941 -- also a day we do not forget but do not dwell on quite the way we used to. in the meantime, it is incumbent on all of us to do all we can to prevent tragedies like either of those days. all to say, it is most appropriate we gather together on this on the 12th. as we look to the future of the intelligence community, i have learned about the dangers of making predictions about the way ahead, but i do not think we can go wrong if we be -- continue the focus on our mission.

i would like to touch briefly on three current subjects. sequestration, snowden, and syria. in a sense, each lends itself to representing a piece of the long-term picture. a couple words on sequestration. we are probably in for it for another year. i found it interesting a lot of people somehow think intelligence was given a pass on sequestration or that we got exempted. we have not been or will we be. -- nor will we be. the problem i have run into in explaining all of this and explaining impacts, it is not quite like longer lines at the airports or shorter hours at public parks, or air traffic control delays.

people can see, feel, and touch and experience that. intelligence, a capability we might produce today, the impacts impactse today, the of that may not be known for some time. it is kind of insidious. we will know about it when we had a failure. it is very hard to explain to people of the impacts are if you cut so many analysts, because it may not have real impact tomorrow. i, like many of you who are very concerned about the magnitude of these cuts and sustaining them over a long time. whatever you think about intelligence, you will have a lot less of it to complain about at this rate. in the meantime, something we

have been working very hard at, looking across a community to make smart choices. we have to cut, and what is the best place to do that. what is it we should protect and even what is it we should invest in. we have not applied, nor are we now, the everybody gets the same rate at the office approach. we are trying to make conscious judgments about what to protect and what not to. above all, the most important programming tenet that i tried to stick to, since i have been in this job, is protection and investing and our most important resource, our people. so let me move on to snowden.

just to make the, noa whistleblower. to give any credit for what has happened here, which is egregious, some of the conversations this has generated, some of the debate, is actually -- it probably needed to happen. it is unfortunate it did not --ppen any time ago heard if ago, but if there is a good side to this am a that is it. unfortunately, there is more of this to come. i in my position am very concerned about the impact not just on nsa, because this is an issue for the whole intelligence community. the impact directly on our national security and the damage

it has potentially caused by this continuous stream of revelations. some of these were a longer-term doing to attend to this. now, there has been a lot of on insider threat protection. which we were into, but probably not with the emphasis of energy that we are now. another aspect of this, another windmill floating at for six or seven years, clearance form,-- flailing at for six or seven years, clearance reform, they are near and dear to those of you in the contractor world. we will have to step up the pace on that. given the number of folks, let me back up. a deadline was established for initial clearances, which we

achieved within the five-year schedule we were given. unfortunately, it was silent, essentially, on what happens after that, on the periodic investigations, a system we use today, every five years. we have way more people out of the scope than we should have. we have got to change the system, fix it, take advantage of technology so we are enabled to evaluate people continuously and not just periodically. we are moving ahead that. -- with that. longer-term, i think something we started, called "eyesight", which we had fully installed and operational today, might have detected snowden a lot earlier than we did. what this is about is something

we have talked about for years in the intelligence community, which is to have a single enterprise, as opposed to what we charitably call federation, particularly among the disciplines and the agencies manifested in those disciplines. originally, it was savings driven. when i asked the cfo to go through the congressional justification books, now very familiar to you, how much of it is i.t.? the old saw about -- rob banks, because that is where the money is, what we are spending on i.t. in the intelligence community is amazing. and so, with the technology, cloud technology that is available to us, i think we decided for the sake of savings,

efficiency, promoting integration and security, the bumper sticker mantra, in a way that you can label the data and assure yourselves they are the people with whom you will share. that promotes both security and sharing. that is the path we are on. a lot of concern about it. we are well past the euphoria of what a great idea this is and now we are in the passive resistance phase you are all familiar with. we are very committed to this. the snowden issue kind of emphasized the importance of doing it. when we speak a moment about

transparency. i think what all of this has shown is we have to be more transparent about how we do our business, what it takes to do it, and also, transparent about the output of what we do. we are releasing opinions, a couple days ago, 1800 pages of opinions. the upside is this does refute the allegations someone made that the fisa court is a rubber stamp. it is certainly not. this is something we have to do in this country. we must restore the trust and confidence of the people and their elected representatives. this is one way to do it. transparency is a double-edged sword. it is great for us and our citizens. but the adversaries go to school

on that transparency, too. i am convinced we have to err on the side of more transparency because most important, we will not have any of this if we do not have the trust and confidence of citizens and elected representatives. let me just say publicly, for the record, that the national security agency, which i grew up in, and spent the first 15 or 20 years of my intelligence career in business, the nsa is an honorable institution. it is led by honorable leaders. there is a phenomenal workforce who were appalled at what has happened. they are dedicated to conducting the critical mission lawfully. they deserve to be commended and appreciated and commended for their crucial and important work, made now, for them, all the more difficult.

let me finish up with syria, commentary on that. it has been all syria, all the time. a lot of time on the hill and intense interest on the hill about all of this. commentary i would make is, i was around in the intelligence community. i was part of the intelligence community when the infamous weapons of mass destruction in iraq was published in october 2002. i can attest, i think, to the huge improvements we made to integrity, red teaming, and things like that that we have done since that milestone publication. as a result, and this gets back to the transparency theme, not

only how we do our business, but also the results of that is missed. you may have seen the page on classified case that we put out on what our best assessment of what happened on the 21st of august in syria. it was pretty forthcoming. more classified assessments. it is the sort of thing we in the intelligence community need to do. people have some appreciation for all the investment and what do we get out of it? it was a great example of integration. if i sound like a broken record, i am sorry. it is a very compelling case of melding all the collection disciplines.

melding that, by the way, with heavy use of open source. for me, it was a great example of integration. so, let me just conclude by saying whatever part of the enterprise -- my thanks to you on this september 12. i should add i spent six years as a contractor. a contractor world that has taken some hits. i would simply say, for my part, as the leader of the intelligence community. contractors continue to serve as a crucial part of the community. we could not do our mission without you and we need you, for those of you who are contractors

now, to stick with us and help get us through this difficult time. my thanks to you, as well, for helping the united states intelligence community in our quest not to just to check -- not to just look back, but to look forward. let me stop there. a couple questions. [applause] >> thank you. [indiscernible] time for a few questions. >> i have time to listen but i do not know if i can answer them. >> you mentioned snowden in your presentation. the recent disclosure coming out, what is the balance between you spoke of transparency, but also the need for security and the outstanding work done by

colleagues to protect the nation, the homeland. are we not educating sufficiently or communicating efficiently? why is there an element of criticism and skepticism in the public about what is going on with revelations coming out of snowden. >> personal history. i have had a lot time to think about this. i mentioned all the cuts we took after the fall of the wall and the soviet union. and the cold war. in some ways, i wish we had the simple world back. we had two mutually exclusive telecommunications systems. there is and the west. what has happened because of technology is there essentially one global predications system. everything is -- communication

system. everything is in there. billions of variance and things. -- various innocent things. in the midst of that is people doing threading things. what all of this is about, you can talk about the patriot act, the fisa act, which are very complex and complicated, but what it all boils down to is the efforts we attempt to make in good faith to separate away from the needles -- the innocent hay from the deaf areas needles, that is what this all boils down to. it is understandable when you read the articles, which go to the deepest and darkest place they can, and make the most conspiratorial case for what the intelligence community is doing

in general, and in this case, the nsa pacific league. i have had the occasion to meet with overseers, leaders, before the state, leading publications who will remain nameless. i have found there is a big elf when you speak with them about their definition of what affects national security and my definition of what affects national security is. there is a big gap there. i have come to appreciate the huge competition that exists in the media, given the 24-hour news cycle and the pressure on the media to publish something. all these factors weigh against us.

i am finding a real challenge to make the alternative case. one of the things we are doing is to try to open up and be more transparent and explain to people what we are doing. it is very clear that to the extent we keep the tools at all it will be legislatively amended. we can do with more oversight that would give people more confidence in what we are doing. >> thank you. let me ask another question. you yesterday mentioned the 12th anniversary of 9/11, the tragic event. are we safer today? >> well, i like to think we are. safety is a relative term. as i think back on where the intelligence community was, at least my part of it, and watching the last decade or so and the improvement that a been made, the support the congress has given us, yes.

i do think we are a lot safer. one of the things that has happened in the intelligence community that you can ask soon now -- assume now is the development of the foreign and domestic, the participation. i will single out one specific case. there are others. i want to mention the fbi and its dramatic transformation under the magnificent stewardship for 12 years. he stuck to transforming the fbi into an intelligence driven

national security organization. that is one major aspect of changes that have taken place that lead me to say we are safer. >> you have mentioned safer today, but what keeps you up at night? what are the threats? we heard this morning from chairman rogers and the congressman that there are threats and maybe more threats to the homeland than in the past. >> that is a frequently asked question. my standard answer is always, what i do not know. that is what i worry about the most. the things you know about, even if you do not have complete information, a potential threat, a plot, you can work on it and get more information. it is the things you do not know about, which is the situation we were in prior to 9/11. that is what i worry about the most.

>> created to integrate and bring communities together, the 17 agencies together. we commend you for doing that work on integration. how do you feel on it? all the agencies, together. are we sharing the information necessary? >> as i said, it integration is a journey. we have made a lot of progress. in all honesty, it might have happened anyway. having an institution committed to it, whose theme and focus is integration makes a big difference. i will also tell you that for 10 years, every year, we got more money and more resources. that is not that i hard. now we are in a much different mode.

i do think there is merit in having someone who can look over the entirety of the community and be fair and objective about what to cut and what to invest in. that, in a necessary way, prove the efficacy of having -- >> can you mentioned the threats when you look at the threats, what are the major threats of the homeland? what are the things focused on? >> we do not take our eye off the counterterrorism ball. that is still the largest single investment we make every year. i think what is going on in syria right now is a very graphic example of proliferation. a lot of that is important. clearly, cyber is a growing threat. everyone is very concerned about the potential for it. we worry about that. apart from the standard concerns, the classical adversaries, iran and north korea, all the turmoil in the middle east, which is serving as a magnet for extremist, i think everyone here understands the variety of these threats. sometimes, you kind of miss the soviet union.

>> yes. you said a lot of times -- you mentioned the threats. we are looking at sequestration, the impact it will have on the intelligence community, because that has got to be on the forefront. we rebalance east asia, you see sequestration cutting into the ability? >> of course it well. when you do not take those kinds of cuts at that magnitude without giving up capabilities. do the math. what this is really all about is identifying, excepting, and managing a risk. we will take higher risk in some

areas. we in the intelligence community should not sugarcoat that. it is a fact. that is why secret station -- sequestration concerns me. we made a lot of decisions the first year thinking it would only be one year now we are in the mode of, we cannot do that. we have to make more strategic decisions that will be more lasting. a case in point is cutting from acquisition programs. maybe you can get by one year doing that, but you sure cannot sustain it. that is very risky. those are the kinds of judgments we have to make now. >> you have been very candid with us. your leadership is outstanding. we thank you for your service to the country.

>> thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> we will show you some more from the summit in a moment. we want to let you know that last night president obama declared a major disaster in colorado because of the flooding there. it can include grass for temporary housing or home repair. john hickenlooper talked about recovery efforts and first responders in his state. here is a look. there are 500 that are missing an accountant for.

since they do not have cell their artie gotten out or it stayed with friends, we do not know about it. there are many homes that have been destroyed. we have not been in them yet. we are still dealing with that. how do we save lives first. .> it is still a rescue thing have you gotten everything you need from the federal government at this point? >> president obama declared a national disaster last night. they have been incredibly responsive. fema has been terrific third we set up a command with the army down in el paso county. our national guard has been spectacular. we were watching them in action. this is the individual who has done a remarkable job. everyone stood up. this is a heck of a storm.

, wethis has been snow would've had close to 15 feet of snow. it is a lot of precipitation. >> >> in about three hours we to senatorou live tom harkin and 36 annual state fry. is the featured speaker. you can watch this here. ,> on our companion network american history tv is live from birmingham alabama to watch the six stray baptist church bombing. we been -- began the coverage this morning. we will show you his store programming related to the event. life until 6:30 p.m. eastern. >> now more on national security would general michael flynn.

this is about 15 -- 50 minutes. >> close the doors. it is late in the day. i'm going to drone on a bit. i want to make sure nobody believes. you will have to withstand the pain as i am standing up here withstanding the pain. when i was in joint staff, we were doing a career problem like you do frequently and joe was leading the intelligence community effort, the issue at that particular time, it was extraordinary leadership and another reflection of how far our intelligence community has come in bringing together a community to really solve some of the tough problems we have and not worrying about if this agency has something or if another agency has something.

you want to keep the introductions short because they become obituaries after a while. the gracious invitation, thank you for allowing me to speak here today. i also want to congratulate the extraordinary team for consistently bringing together these important events and leading our most important conversations. i know i am closing out the day. a full day of discussion with the involving insider threat and cyber with local and state-level governments all the way to updating be challenging security clearance process. you heard about the hill perspective on the state of our national defense and the role of the intelligence community.

and you had the opportunity to ask about advances we have made in immigration and shared information technology. it has been an eventful and interesting day. i will do my best to keep it as engaging as possible and as the ambassador said, i will take some questions. there has been one major security issue for the last few weeks. syria. the united states and the national security enterprise are facing a difficult crossroads when it comes to the crisis in syria. just as we are winding down,

from afghanistan to iraq, libya, we are in a situation where we must contemplate intervention in a complicated crisis that has been festering for two years now. a loose but fairly trained federation of 1200 rebel groups have been continuously fighting to take down the assad regime since 2011. a majority are moderate, several radical islamist factions have surfaced like an al qaeda aligned front. they tend to be better lead, armed, and trained than the other groups. these are the separatists that would encourage renewed regional instability. the assad regime has, in many cases, savagely responded to rebel action as they first began

as demonstrations and protests. by recent confirmed accounts, the regime has used chemical weapons on more than one occasion to gas thousands of his people for his desire to retain power at any cost. both the united states and the international community have stated that the use of these chemical weapons cannot go unpunished. with confirmed sarin gas attacks, we are at a crossroads. between striking the regime in retribution for their widely condemned use of chemical weapons and upholding our stated commitment to human rights on one hand and keeping our interests and financial resources disentangled from another extremely complicated middle eastern crisis. if we do, dammed if we don't. deciding between intervention and attachment is an extremely difficult choice made even harder as details continue to

pour in and russia enters the conversation with an encouraging but questionable alternative. i do not envy the policymakers. there predicament reminds me of an old quote. if you come to a fork in the road, take it. if only it were that easy this time. as a national security leader, what is fascinating about this crossroads and other issues just like it that force us to consider our role and responsibility in the international arena is that they are simply not that rare anymore. these major challenges would pop up once or twice during a presidential administration.

today, the u.s. seems to confront a new issue on a frequent and seemingly endless basis. is crisis the new normal? whether it is determining our support in libya, debating our relationship with egypt after continuing shift in power, or deciding our role in afghanistan, we are constantly facing a wide and broad range of major security decisions. the dynamics of which are constantly shifting and the effects of which will be felt for years. i am not the first or the last to point out the unprecedented range of threats facing the united states. but the overlooked lessons is just how quickly an issue can become a front page u.s. national security priority today, moving quickly from the back pages of world events. this crisis perfectly demonstrate how rapidly a

challenge can bubble to the surface and completely change our nation's course. with the staggering rate of change loudly and clearly says to me is that intelligence is a major if not the most critical enabler and guarantor of national security. intelligence is the only weapon in our arsenal that has the responsibility and the capability of anticipating and understanding the precursors of instability. it is the single most powerful capability to influence the best course of action, or the least damaging way forward. we are an extremely valuable asset to the national security enterprise. available resources for the foreseeable future will only be further constrained.

i want to underscore the word value very specifically here. fiscal strains and sequestration. it should be a major priority for the united states government. i speak for my colleagues and we are committed to being vigilant and responsible stewards of the taxpayers dollars. we are strongly concentrating on maintaining the irreplaceable asset of intelligence and making sure we are managing sequestration so we can maintain the strength and success of the community, and invest for our future. investing with an eye firmly fixed on the future is key. if we think the environment is difficult now, it will not get any easier in the decades ahead.

i know earlier today, there was a breakout session. projected demographic, migratory, and economic changes over the next 50 years will undoubtedly tax our national security enterprise. an aging first world population. widening gender gaps and a growing pocket of underemployed males in the third world and economically struggling regions

will change the military face of many of our allies and enemies. regional disputes that are quickly dwindling in supply. water, energy, rare earth minerals and elements will threaten political and social balances. immediately, the delicate balance comes to mind. also, the rapid advancement for disruptive purposes that will challenge us to not only keep up with the pace of change but stay one step ahead rely on technology from -- that issue is responding to the tactical use of cyber attacks for strategic purposes. we are all aware of the cyber threat. we spent time talking about various forms from insider threats to state-sponsored actors. and at pearl harbor, secretary hagel said that the devastatingly destructive potential has become the national security challenge of our age. we are fully aware of our vulnerabilities.

we understand the nation infrastructure remains largely unprotected. private companies do not have the resources or the imperative to guard against increasingly sophisticated cyber encroachment. we understand almost everything in our society has a cyber element in it. from cell phones to pacemakers and computers we use every day. all the way to the targeting software our military uses to guide our missiles to their targets. we are all aware of the danger as an permission technology marches on. information technology is one of our most important enablers.

it provides precision and military forces the ability to act across the operational spectrum. while we grow ever worried, we are focused on the threats that can degrade military capabilities. we need to understand doctrine and intent of our foes to manage the risk they will pose against us. we have been the all source leader on doctrine and discipline for research and offense of capabilities for more than 50 years. we are working hard to understand the security challenges we face. what do these many challenges mean? what do these trends mean for our defense? in light of the shifting dangerous environment where syria can become a top priority and the danger of a cyber attack in the background, getting our fiscal house in order and the

trends that will complicate matters, the absolutely critical role for national security, we must do the following. adjust our operating model to focus on our mission and unique strengths. emphasize burden sharing, partnerships, and we must instill flexibility and agility to respond to a crisis. this has to be woven into the fabric and culture of who we are and everything we do. at dia, we have laid the groundwork for that future. it networks and integrates talent from across the agency

whether it resides in an analyst collection manager, it brings them together as one team to solve the critical problems that we face. a critical personal lesson i learned in the past decade of war. a tight fusion between analysis and collection, which we know based on experiences in iraq and afghanistan is the most successful model. second is flexibility. as team members no longer have to contend with an organizational boundary. and last, integration. as well as a very tight relationship, this is an important issue. it is one of those things where that is not the model we had coming into the last decade of war. i think he may have talked a

little bit about them, but i would be happy to answer any questions on that. in close court nation with joint staff, and the white house, we are handling assessments of the serious crisis. i have the utmost faith that they have the right talent, tools, and resources to get the job done. we have pushed intelligence professionals into the field, ensuring that they have an appreciation and a working understanding of developments across the globe. my constant drumbeat is to make the edge the center. the unique perspective of these officers have often made the

crucial difference during threats in yemen, and growing unrest in syria. feedback from one of our intelligence officers went directly to the secretary of defense in advance of his talks. it is providing the right knowledge at the right time to influence and support decision- making. as the u.s. finds itself with new crossroads to navigate, they are focused on being at the right place at the right time. we are also leveraging technology. i know we have already talked a bit about eyesight, so i will try not to be repetitive. but i want to underscore how groundbreaking this is for the intelligence community. if you are not a technician, get to be that way.

this is part of our future. this concept connecting everyone under a common umbrella is breaking down cultural -- that is the most important -- and technological agencies. a truly revolutionary concept, one that we have needed for our uncertain future. i believe eyesight is the single most important project underway. it will be a key pillar that supports the continued success and relevance to decision makers in the future. together, i am proud to say that we led a milestone that recently achieve that milestone, giving

access to thousands of analysts. we are already into the first month of it and it is really groundbreaking stuff. the users deciding what the systems are going to be. we need them to be able to engineer our way to the right message. but they are the ones that are really in the design piece of this thing. i would offer up to anybody questions that you may ask. in conclusion, to come to a close, all of these efforts, our main focus has been to ruthlessly prioritize inefficiency while emphasizing sound business practices at all levels. it has been my message to business partners out there because it is important that we

work this together. george washington had contractors. we figure out how to work together. the overarching purpose is through better intelligence and we will make operational forces more effective. we can make the people having to accomplish their mission far more effective. we are conducting the first ever full audit. i have launched a special task force focused on the reliance on contracting to make sure we are spending our collective money as wisely as possible. i cut waste very seriously and i want to make sure we are putting money in the right places where our attention will have to be focused. and ultimately, those strategic

turns we will have to take in the future. i want to make sure we are prepared for the next syria. i hope i have provided a little bit of value today. >> that was an outstanding presentation, thank you very much. let me open it up. you cited a number of issues, which are daunting, to say the least. you spoke about the question of bringing analysis together. and also the establishment of a defense collective service. how well are you doing on these issues? >> a little bit of historical context for people that have been in the community for a while.

i am doing a personal study right now between the time frame of 2011-2016. i am looking at my experiences in war theater, but also watching where the community is going in the future. in large organizations, anybody that is at a senior level in a large organization, the difficult thing is breaking through the cultural barrier. the first thing to do is understand what you do, your special sauce.

i am studying this historic example to make sure that i gauge where this organization is at today and where it will need to be 10 years down the road. we were at roughly 6000 people in the early 90s. jim broke it into three centers. analysis, collection, and support. we are about four times that size and it is what it is. we are about two thirds more countries in the world today. certainly, stability and doing the intelligent thing. we have to come to grips with that growth and the operational environment. and if you look back in that era of the 90s, the results of

desert shield, this is coming out of a decade more that we are still in. we are a nation made more secure at becoming a fully integrated intelligence community. the key word is integrated. it is not a natural act. people want to own stock and control things. we have enormous potential of using technology and that is why

i am such a fan of eyesight. we have to use our technology to provide global leadership and virtually collaborate because we can't have ownership of everything. that is the evolution of where we are today. i think as we talk about integration, this is a journey. future directors are going to look at it. i have every intent to do this and i will be hated with effigies out there. i don't even like this word, but

i want to instantiate this idea of integration so it is hard to reverse it. that is where i am at. this is about the national security of our country. i have a responsibility to make sure this organization fits that model. >> how is it going? [laughter] >> it is going fine. everyone tells me it is going fine. [laughter] you get asked this question when you're a young person. what is more important, the mission or the people? the answer is the mission. that doesn't mean you don't take care of your people. if they love their mission, they

will love what they do. >> you mentioned syria a minute ago. the recent russian proposal and the possibility of a diplomatic settlement with respect to chemical weapons, if those weapons are given up, what is your role in this process? >> our role has been intense. it has been continuous. it has been from the beginning. the experience that dia employees and intelligence officers have, we have over 6000 civilians that have served in a

combat environment in the last decade. those that served in iraq and focused on the al qaeda crowd, certainly focused on the middle east military and the kind of capability that they have their, they are worth their weight in gold right now. we are deeply involved, but as a member of the community. we are supporting central command, european command, africa command. and we are also supporting military planning that is going on at every level including the joint staff. in terms of the policy side, we

are deeply involved. we have provided what i would call the nation's expert on chemical warfare to the state department. today, they are helping the secretary negotiate that issue. are you kidding me? he jumped right into it. it is internet. -- intimate. it is an intimate relationship with the customers that we have. they want to believe in what you provide. >> a follow-up on that question. how confident are you that we will be successful getting those weapons out in e -- out?

>> i don't have a level of confidence to get through this first iteration. as i stated in my remarks, it is an interesting foray that we are finding our way through. i would say that i am encouraged as a military person, that we did not have to apply military force. i asked a few of our folks. those that have been out to the dead great proving ground, i have been out there.

it took us about seven years. it will take a while. i hope there is clear and coolheaded longview thinking and decision-making done. i am not confident it is going to happen overnight. >> how does the administration's pivot to the far east affect intelligence priorities? >> everybody asks that question because you feel the sucking sound in the central region of the world.

and yet, we want to have this pivot toward the pacific. it will challenge us and i will tell you, without getting into classified information, if you were to look at what the president has directed the intelligence community to do, and he does that fairly routinely, where are the majority of those resources prioritized? i think you would gain a better understanding of what the usic

has done to achieve the stated objective of the white house. i think we are actually in pretty good shape. it will be some other decisions that will be made about allocation and resources. i am confident we have the right set of resources right now. it is in our national security strategy and military strategy. documents worth reading talking about partnership. i spent a month or so with 29 nations in indonesia. they were all my counterparts, directors of military intelligence for 29 nations around the world. mostly in the asia-pacific theater to focus on that theater. countries from south america

showed up for the first time. partly why is the economic reason. secretary carter talks about the pivot not about the military. an economic and diplomatic adjustment. 90% of the worlds resources are projected to be passing through the pacific around the timeframe of 2030. whether or not that is exactly precise, i don't know. >> another question from our colleagues. could you speak to the level of integration between eyesight and the joint information environment? >> i think my chief technology

officer and chief innovation officer, if you know him, just incredibly talented individuals. talk about giving them the long rope to get out there and move this thing along. orion is not a tool or a database. it is the defense intelligence agencies and termination strategy -- information strategy to implement eyesight. when you hear the term or the acronym orion, it is an implementation strategy. for those that don't know, we have, on a scale of a platform, 230,000 users around the world. there weren't that many five years ago. it is very secure, a good system.

and why we are doing the milestone test right now, it will be the platform. it will be the desktop that we use. the integration piece, we are sort of beyond this good idea discussion. we are deep into breaking down cultural barriers, technological barriers, and certainly agency barriers. i think we will be moving in the right direction. by the end of this calendar year, we will have some very positive results. i am very positive about it. if it were to re-create itself today, we would not create ourselves in the image that we

are today. we would not create things like cwe, jnet, fbinet. if you try to do a control on some of these names, forget about it. you can't find them. we would have created one system where we can all communicate. and this is the challenge for guys in our category, the advent of technology. facebook did not get on the scene until february of 2005. linkedin was a prison cell. the information environment is

changing how we do everything. we have to do things really precisely. it is important to understand where we were last century. i talked to terry, and i spoke to 100 cio's yesterday to talk about what we are doing. big things, we would drop lots of bombs and kill lots of people. we tried for information, but it

was not as important. this plan right now, it is precision and understanding. it is a huge difference. it doesn't mean there is not kinetic behavior. the burden and the opportunity for the intelligence community. it is unbelievable. the consumers that we have, particularly the military commanders. they came off of a battlefield where, for the most part, it was pretty good. their expectations --

>> relating to your outstanding answer, what is the plan to consolidate? is there a time crime -- timeframe? you can't just move this box out and move this box and. the discussions that you had here today, everything can connect. we are moving toward a standards-based approach. in order to enter the stadium, you have to purchase the ticket. the ticket comes at a price and a cost. sharing.

it means you have to invest equally or certainly equally based on the size and scale of the operation. you have to be able to use the kinds of capabilities that i have sort of directed. i have made a decision a number of months ago to not move away from going to the club. -- the cloud. those are important issues. i have a master's in telecommunications, but i am not a technician. but we have been diving in today to technology.

are those interns out here somewhere? their generation -- i face time with my grandson who is for. he is manipulating an iphone. he knows how to turn it on, switch it around to show me his sister. he is for. i am passionate about that to a degree, but this is about being realistic for those in our system that will continue to fight. i don't do e-mail. i told that officer that it was irrelevant. that went over ok. [laughter]

>> you will not get that answer a bit. the secretary of defense. >> personally and as an agency. personally, it is unbelievable. i know the leadership that we have in these positions.

i see why people get burned out. you have to put enormous energy resources into it. as an agency, i made the conscious decision -- i am being a bit facetious, but to fix our alphabet soup. my middle east and africa regional center is the focal point for the mission for what is going on in syria. johnnie sawyer, who some of you may know, an extraordinary officer with a great team. we see ourselves inside of the agency.

johnny is our support for the organization. everybody piles on at the regional center. in his case, they are a supporting organization. when they need something from the defense agency, they can turn to one single point and say, this is what i need. and that organization is supported by the remainder of the dia. and not going out to find, based on whatever personal relationship that i might have.

that is essentially taking a military application of doctrine and applying it to an 80% civilian agency. 6000 of these civilians have gone to war. they feel it. what they feel is relevant, and energized to respond. that is what i am trying to tap into. name a place around the world and i can tell you a little bit about it. the arab spring. summer, winter, fall, we are about to go to another winter.

the central region of the world, the africa region of the world, not to mention areas you are very familiar with. quiet but delicate. these borderline ready to flare up issues. i will add this to your question because it is our new normal. when you look at an enemy, what is their intention and their intention where you judge your enemy? is this shift in the operational environment and what it has done is that has kept the capabilities and the early

intentions changed overnight. they have changed so radically. i mentioned pakistan and india and of the places around their typically the diplomatic leadership landscape, the intentions change and you have to be engaged with it is that you think that they have the intention to do. i was jointyou, staff and russia attacked georgia. easy day. on, afghanistan. noti cannot -- there is for thesehe pentagon

little crises. we have a couple. we are trying to inform the chairman. i do not know about you, that is the way i see them. business, youthis probably feel the same way. >> i think we all feel this way feeling the comments this afternoon. the security necessary to protect the homeland. >> great. today, abc, syria nbc news reports, chemical weapons said to be released tomorrow. mccain and robert

, removing chemical weapons. >> the point is the agreement , the russians had agreed to go under chapter 7. an entirely different cast. the russians to decide that. and, by the way, they didn't even assign blame for this attack. in vladimir putin in his stirring piece said that it was the rebels. usness on the part of the russians, and, agn, here we are going to see if it works we're going to see the russians facilitating the departure of chemical weapons while planeload after planeload of russian aircraft coming into damascus full of weapons and mistake. well, hs not getting punished. not at the moment.

>> well, david, look, this is a diplomatic breakthrough th is full of opportunity and fraught with danger. the opportunity is that we actually end up in a better place than we envisioned with the use of force which is the elimination of all of assad's chemical weapons and his production facilities, in esence closing down these factories of death. the fraught part is that, in fact, assad who has still not said whether he has signed on to this agreement ultimately even if he begins to move forward with some of the beginning elements of the agreement doesn't fulfill elements of the agreement as we move along, the russians find as they often do saying some -- in their mind some plausible reason why there should be no enforceable action at the united nations and we're back to where we started except that assad has bought time on the battlefield and continued to ravage innocent civilians. that's the challenge here and so

i'm forward to keeping the use of credible force on the table because that's the only reason we've gotten to this point even to this possibility and it the only reason, for example, in the past that gadhafi and libya and saddam hussein in iraq when the issue was giving >> we will be taking you to iowa for the annual tom harkin steak fry. on c-n watch that here span at 3:00 p.m. eastern. 15 years ago, both tv made its review -- a view. -- book tv made its debut on c-

span 2. >> we are all keene students of love and are fascinated by every aspect of the matter in theory and practice. >> since then we brought to the top nonfiction books and authors every weekend. more than 9000 have appeared on both tv, including presidents. >> i wanted to give the reader the chance by which to understand the environment that i made decisions under. attempt to an rewrite history. it is an attempt to be part of the historical narrative. >> every single justice on the love has a passion and a for the constitution and our

country. it is equal to mind. that is when you know that you except that as an operating truth. you understand that you can disagree. >> nobel prize winners. >> what is interesting for me are the negotiations that go on. and the work that she respect, all of it is reduced and simplified, the philosophers have spent their lifetime trying to imagine what it looked like, what morality with it -- is. >> we visited book fairs and festivals. >> on the campus of ucla. there is signature

programming that is in death each month. >> their schools all over the country, more than 600. cashou had better cash -- the check. that phrase is so magical. >> already in the diplomatic service in belgrade. my mother wanted me to be born in prague. then wern there and went back to belgrade. we were in czechoslovakia when the nazis marched in. >> since 1998, both the has shown over 40 hours of programming and is the only national television that are dedicated exclusively to nonfiction books.

throughout the fall we're marking 15 years a book tv on c- span 2. >> right now on c-span 3, american history tv is live from birmingham, alabama. according to the associated press hundreds of people have visited the church that was bombed by the complex plan today. we will take your phone calls and show historic programming related to the anniversary, live on c-span 3's american history tv or streaming online at. -- at c-span.org. now, the solicitor general previews the case in the upcoming 2013-2014 supreme court term. so far the court has cases on campaign finance, affirmative action, reproductive health facilities, and the president's

authority to make recess appointments. the term begins on monday, october 7. >> good afternoon. i almost said good morning. it is afternoon now. many of you spent the morning at the supreme court. a wonderful opportunity. you got to meet megan jones, a programs manager. and the counselor to the chief justice of the united states. this afternoon, a wonderful panel. i have given you a handout with their bios so we can save a little bit of time. they want to get right to it. i am sure you want to get right to listening to it. before i turn this over to them, can i please ask you to turn off your cell phones if you have them on? you might notice some of the names have changed on the bios. there are schedules attorneys

are not always in charge of. still an excellent panel here. just as a follow-up for a lot of you who are supreme court aficionados, we have a justice coming here in january. you might want to look for that in our its catalog. i will turn this over to tom. he will take it from there and enjoyed the session. thank you all for coming. >> thank you. also, on behalf of all of the panelists, we really want to thank the smithsonian associates, an amazing organization, for putting on this program for those of you who got to see the building and

meet people there. i will do a super brief introduction and then we will turn to the summit. when we do, we will potentially split it into two parts. the first part is getting water. [laughter] we will look backwards and forwards. we do think the best part of this program might be telling you what the supreme court will be thinking about, rather than what has already been done. you have already read about last term the decisions. some are so momentous, the voting rights act, for to back -- affirmative action, that they really do bear spending a few minutes on. we will talk about that first and then the upcoming term, that will take us about an hour

and a half. at 3:15, we will stop and take your questions. if you hold those until then, we will be grateful. we have the great good fortune to have c-span today and we want to make sure everybody out there as well here's your questions. my name is tom goldstein. a lawyer. i run a website about the supreme court. to my right, jeff, who covers the supreme court and has done so for many years for the wall street journal, and unbelievable reporter. you should go yet his book. a fan -- get his book. a fantastic description about how detainees have been handled in the war on terror. the nests -- next suggestion, an organization you should donate to after you donate to the smithsonian associates. a huge amount of public interest work. a huge amount of work outside the supreme court, as well. next to allison is don, a general of the united states.

it is our incredible pleasure and good fortune he is able to be with us today. he is responsible for principally representing the united states in the supreme court but has other responsibilities, as well. and unbelievable public servant. the only thing worth mentioning is that, while he knows more about the supreme court and what is going on than anyone, he also has the greatest restraint than any of us. we can joke and make things up. the constitution requires that he acts responsibly. [laughter] especially on c-span. his expansiveness is because of his very special role. we will start by looking backward and start with same-sex marriage and we will talk about that. >> thank you for the gracious introduction. it is great to be back. i had a terrific time on this program last year. i look forward to our discussion and your questions at the end. as tom suggested, we thought, given the momentous character

of the end of terms decisions last june that would -- it would be worth a backward look at those. i will talk about the gay marriage cases. windsor, you remember the basics. the supreme court held that a provision of the defense of marriage act, a statute congress enacted in 1996, was unconstitutional. that barred the federal government from recognizing for any federal law purpose the validity of marriage between persons of the same gender,

even if the persons were lawfully married under state law. one significant numbers of states have started recognizing same-sex marriages, the federal law started to pose very serious consequences on lawfully married couples. edith herself, a plaintiff in the case who brought constitutional challenge in the law was unable to be treated for federal income tax purposes. she had to pay a tax that she would not have had to pay if the federal government had recognized her marriage. a lot of other serious things follow from the law. a whole range of benefits and privileges. one unusual feature of the case was that the united states was not defending the law. we were arguing it was not constitutional. that is because in 2011, the president and the attorney general made a judgment that

gays and lesbians ought to be subject to heightened scrutiny and the defense of marriage act provision, section three, could not meet the standard. let me stop for a minute and talk about what it means to say something is subject to heightened scrutiny. under the 14th amendment law, it provides that no person shall be denied equal protection under the law. laws treat people unequally all the time for reasons that are legitimate. the law needs a device to decide which kinds of discriminations between people and groups are legitimate, like treating optometrists different than ophthalmologists, and what kinds of things in the law are potentially illegitimate. what the president decided is

that differences of treatment in the law that are based on sexual orientation ought to be treated as presumptively illegitimate under the status of equal protection doctrine because of the characteristic of being a gay or lesbian is an inherent personal characteristic and the discrimination based on that, generally, do not bear any relationship to legitimate governmental objectives. and that you could rely on the political process to ensure no discrimination occurs amongst gays and lesbians. based on that analysis, they decided section three was unconstitutional and ought not be defended by the federal government. so we did not defend it. as a result, the house of representatives stepped in and its leadership decided that they would hire a lawyer to defend the law. you could go to the supreme court in a somewhat unusual posture. the court in a 5-4 decision concluded the treatment did violate the fundamental constitutional guarantees. justice kennedy's opinion for the majority did not express and adopt the heightened scrutiny argument that we in the united states advocated

for. it did focus on the characteristic of the defense of marriage act that the court found particularly troublesome. he viewed it as an expression of animus against gays and lesbians. it was not motivated by legitimate public policy concern. a desire of discriminating for discriminations sake. he struck the law down principally on that basis. there was a fair amount of discussion and oral argument in the case about whether really the problem with the law was not the discrimination problem so much as a federalism problem. justice kennedy asked quite a few questions saying, gee, is it not usual for the federal government to decide what is a valid marriage and what is not? that is usually the states. not the federal government. at the end of the day, the opinion for the court did not rely on the federalism ground. it was an equal protection and

fundamental rights kind of analysis. he did use the federalism rationale that federalism notion as a red flag. the opinion that, precisely because the federal government is not very often in the business of deciding what is a lawful and valid marriage and what is not, the fact that the prior -- federal government in this statute got involved in trying to answer that question and answered it not for any one particular federal program but for every single federal program across the board, from taxation to military service to social security benefits, that was a red flag that raised suspicion about whether there was any legitimate motivation for supporting the law. the other big case in this area

was perry. that was a case about california's proposition eight, which was a constitutional amendment passed in california that band marriage between persons of the same gender, subjected to a constitutional challenge under equal protection grounds and fed -- in a federal district court in california and it struck it down. something important procedurally happened during those proceedings is that the state government of california decided that he believed the law was unconstitutional, the amendment was a violation of federal constitution and they stopped defending it. because they would not defended anymore, the group that was a strong proponent of the initiative stepped in, hired a lawyer to defend the law. so the district court found it unconstitutional then the lawyers who intervened then took an appeal to the ninth circuit court of appeals where they

lost, then they took the case to the supreme court and asked for review. what the supreme court ended up doing was deciding that in that situation the party that -- because the state of california had dropped out and this other group had come in, that there wasn't standing to pursue the appeal. now, standing is a technical legal doctrine and in order to bring a case in federal court under article 3 of the constitution limits it. it has to be a genuine case or controversy in order for the thetitution to allow federal court to hear a case. of one element of that idea a case or controversy is that you have to have real opposing parties who actually have a

personal concrete stake in what is being fought over in court. and that the supreme court held that applies not only when you're at the initial trial but when you're on appeals ll. if you want to take an appeal from a lower court to a higher court and then take an appeal to the supreme court, that you have got to have that kind of personal stake. and a majority of the court ended up concluding thatopition8 didn't have that kind of personal stake in the law that allowed them to qualify as somebody who could have standing to take an appeal and pursue the case, that they really weren't any different from any other citizen in the state of california, essentially, that any citizen might have an interest in seeing a law or constitutional provision of the state enforced but that kind of undifferentiated interest is one that isn't enough to get you standing to come in and pursue a case in court. one interesting thing of the consequence of the court deciding there was no standing is that

it wouldn't itself reach the question of whether there is a constitutional right to gay marriage and whether prop 8 is constutional. they said we can't hear that case and the court of appeals couldn't hear that case either because the appeal was brought by the prop 8 proponents who didn't have standing. but you had a district court judgment in place that declared prop 8 unconstitutional. so what do you do in that circumstance? and the upshot is that the prop 8 proponents then went to california state court and tried to get the district court judgment undone on the theory that this isn't right because the you have a district court judgment and it couldn't be appealed and yet it's going to have the effect if left undisturbed of wiping out prop 8 and making same sex marriage available and

lawful in california. the supreme court declined to intervene. as a consequence, even though the court didn't reach the merits of the issue, it is the case now that prop 8 is inoperatives in california and the opportunity for same sex couples to marry in california is now available even though the supreme court didn't reach the merits of the case. so that's a summary of the gay rights decision, part of what made last term quite a consequential term. >> i think it may be difficult for you to opine on what comes next because the united states will have to take a position on the next generation of same sex marriage and gay rights cases. but i am interested in you or don to the extent that you're able to think about what it is that windsor, the domea case, tells us about what the supreme court will do when it does confront the perry question. that is, the foundational

question of whether there's a constitutional right to same sex marriage. so i wonder, because it seems to me that case is coming on a rocket ship. wei wonder what lessons might derive from what the supreme court says. >> i haven't thought about -- i have thoughts about that but why don't you chime in. >> i agree that is of course the next question, because the reasoning of the windsor case leads one down as well, is it is unfair to discriminate between lawfully married couples, same sex couples and opposite sex couples, why is it lawful under the u.s. constitution for some states to deny same sex couples the right to get married anyway? but i had before that just a precursor question. which is this, and this is a puzzling element of the way those two cases were decided. essentially, both the state and federal government did the same thing. the attorney general of california and the governor of california did the same thing that the obama administration

did when it came to defending this law. they like the obama administration concluded that the state law under attack was not constitutional, they kept enforcing it but they didn't defend it in court. which is exactly what you did here in washington. maybe you could explain. how can the supreme court find that they can reach the merits when the federal government stops defending a statute it considers unconstitutional but they can't reach the merits when the state of california stops defending a statue or in their case, for the exact same reason? >> well, the supreme court explained that in its opinion and it's a really good question. but there are a couple of differences that allowed one

case to go forward with the other not going forward. in california, in the prop 8 case, the state stopped defending the statute but also stopped participating in the case. they just, the layiers weren't there. they were just gone. in this case, in windsor where the united states was a party to the case, we stopped defending the statute but we didn't stop participating in the case. onetayed in the case and reason we did that is because part of the decision that the president and the attorney general made when they decide that had they wouldn't defend the statute any longer is they would continue to enforce it until there had been a defensive ruling from the courts that it was unconstitutional. and the reason they did that was because, as they expressed in their explanation, was because of a belief that in our system that the judicial branch get the last word on the constitutionality of the law,

that not ought to be up to the executive branch on its own and the way to maximize the prospect of the judicial branch getting the last word is to enforce the law while the law is still effect and there is the prospect of a true case or controversy that can be decided. then we were in a different position than the state of california was in prop 8 in that there actually were concrete consequences that would flow to the federal government if the statute were declared unconstitutional. and one of them most obviously with edie windsor was the federal government was fighting with her over $300,000 in tax payments. and if the statute was upheld as constitutional, that would stay in the federal treasury and if it was struck down there would be a check to go to edie windsor. so even though the united states government believed that the statute was unconstitutional, we would suffer an adverse consequence from the statute being struck down. decidedty of the court that was enough of a concrete dispute to justify the case continuing forward consistent with andarticle 3 requirements, that -- and that concrete dispute of similar kind just wasn't there in the california case.

so that's i think the best translation i can give of the supreme court's decision. >> not to throw any doubt on the infallible reasoning of the supreme court. but of course, for the state of california, they would have the exact same stake. because if there can be same sex married couples, tax laws and >> not to throw any doubt on the infallible reasoning of the supreme court. but of course, for the state of california, they would have the exact same stake. because if there can be same sex married couples, tax laws and many other laws make similar differences. so the state of california would also have a big financial and policy stake in whether or not same sex couples can get married. >> understanding that the half of you that are -- are now satiated, let me go to the few of you who are interested. so do you have any thoughts on what follows? >> i certainly agree with you that case is coming. i think that it will be more controversial to say that states

have to recognize same sex marriage than to say that the government doesn't have to honor states' choices. i have a hard time seeing how they can write an opinion completely consistent with windsor that doesn't lead to that result that states have to. i am more often than not wrong about how the supreme court will rule. but it seems to me that that has to be the result. and it's possible that if they can come up with some distinction for the next case it won't happen in the next case. but it will happen. >> just one word on that from the perspective of the united states. as i described earlier, we took this position as a matter of legal doctrine that heightened scrutiny ought to apply to laws that discriminate on the basis of sexual orientation.

and the court in windsor, as i said, didn't adopt that rationale as the reason to strike down section 3 of doma. they adopted a somewhat different rationale but at the same time they didn't reject that rationale. the united states also participated in the perry case and argued that same principle of heightened scrutiny ought to apply to state laws that discriminate on the basis of sexual orientation with respect to marriage itself because they reached that standing ruling we've been discussing they didn't grapple with that issue one way or another. so i think the most i can say is that it remains open to the supreme court to go that heightened scrutiny route and find that state laws that discriminate, that deny the ability for same sex couples to marry are a violation of the equal protection. it's open to the supreme court to craft a different rationale and decide that such laws violate equal protection.

but it's also i think after windsor clearly opened to the supreme court to decide that this is principally a situation in which you would defer to the states. because, as i said, there was that strain of reasoning in the windsor opinion of justice kennedy that gave a lot of deference to states' judgments about who should be entitled to get married under state law. so i think the case is coming so i think the case is coming fast. i think tom is right about that. but you look at the legal options available after the windsor and perry decisions and i think they're all available to the court in the future. and i wouldn't predict what would happen. >> i think that's sort of looking for a fifth vote on that. that may be justice kennedy. he seemed uncomfortable that he had the case before him. he wasn't quite ready i think to

go as far as petitioner windsor wanted him to go. and that's why i say it might not come in the next case but it will come. it's a matter of when he is ready to get there. but the federalism angle, the deference to the states, is one way that he might decide that -- at least for now -- that the states can do what they want. >> let's turn to keep moving forward to the vote rights act. >> one thing, in which the court held that a provision of the voting rights act was unconstitutional. i will go through a quick primer of the voting rights act to make sure we're all on the same page. it was enacted in 1965 to combat measures used to restrict minority access to the polls. it was the reaction to a range of discriminatory measures, things like literacy tests and

moralities, affidavits, and to the murders of voting right activists in mississippi and an attack by state troopers, voting practices or procedures that have a discriminatory effect on voting. it's enforcible in federal court by private litigants and the government and showing of intent to discriminate is not required. section 5 imposes a preclearance requirement on any changes that certain jurisdictions want to make to the voting practices or procedures. the jurisdictions covered are primarily in the south and with some additional counties and states elsewhere, such as alaska. so those jurisdictions can --fect any change that affects

can't affect any change that affects voting without the clearance of the united states attorney general or the federal district court in d.c., which is three-judge court in d.c. the covered jurisdiction based on a formula that's set forth in section 4 of the act. the formula has been changed a bit since the 1960's to add some requirements that might have been taken away. and every so often, although parts of the act continue on like section 2. every so often section 5 has to be reauthorized or reenacted by congress. and it has done so several times most recently in 2006 when congress extended it to 2031 for 25 years. and kept the existing formula for determining which

jurisdictions are covered and therefore require preclearance of voting changes. at that time both the house and the senate held extensive hearings and undertook what the chair of the house judiciary committee described as one of the most extensive conversations of any piece of legislation that the united states congress has dealt with in the 27-1/2 years that he had served in the house. the goal was passed almost unanimously in both houses. so four years ago, the -- maybe five now -- the court accepted a case that challenged section 5 preclearance requirement. the petitioner argued that it was unconstitutional. the court decided that had case on a different grounds. it didn't have to reach the constitutional question but the decision of the court noted that things had changed since the 60's and that congress needed to

justify preclearance based on current needs. that brings us to shelby county, the case that was decided last june. shelby county, alabama is or was until last june, a jurisdiction covered by section 5 so that any changes to voting practices or procedures had to be precleared by the u.s. attorney or u.s. attorney general or the district court in d.c. shelby county sued the attorney general seeking declaratory judgment, seeking a statement of pronouncement that the formula under section 4 and the pre- clearance requirement under section 5 were unconstitutional. and they sought to permanently enjoin their enforcement. the district court and the court of appeals both rejected that challenge and held in favor of the government -- of the voting rights act. and then the case went to the supreme court where by a 5-4

decision the court held otherwise. the court did not hold the pre- clearance requirement was unconstitutional. instead, it held that the section 4 formula for determining what is pre-cleared is unconstitutional. the court held that continuing the prior formula for determining pre-clearance wasn't based on current conditions. the court said it was based on 40-year-old facts having no logical relationship to the present day. and that congress, if it is to divide the states, must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. it was a 5-4 decision. the dissenters discussed the massive legislative record on which the renewal in 2006 was based and justice ginsburg explained that first generation barriers to access like literacy

test were dealt with now but they had been replaced by second generation barriers like racial jerrymandering, large voting in places like with sizeable black minority populations and things like that. she said that the voting rights act had been effective in thwarting such efforts in the past and that the majority's decision was going to or did thwart the country's commitment to justice. in a separate opinion, justice thomas, who joined the majority called for the court to strike down section 5, the pre- clearance requirement, itself, saying the majority opinion had left that result -- had made that result inevitable, that really was all its unstated conclusion. the supreme court has repeatedly upheld the pre-clearance requirement in earlier cases. but -- so the outcome of that,

although the procedure for preclearance has survived, the jurisdictions are no longer covered. it's an empty set. they're no longer covered. no coverage of jurisdiction to apply the pre-clearance requirement to. states such as texas and south carolina formerly covered by section 5 have already reacted by enacting or putting into effect laws that they could under preclearance almost certainly not have gone forward with. and although the bill authorizing the 2006 renewal of the voting rights act passed overwhelmingly, it's generally thought that the current congress will not pass new legislation or do so any time soon. you may have noticed the current congress has trouble legislating.

so while we weigh the federal government is using other tools, other sections of the voting rights act to try to protect minority access to the ballot. section 2, which is the after the fact, which allows an individual or government to after the fact, after a change has been implemented to challenge the fact, that was not challenged in the case. so the government has sued texas under section 2 to challenge a voter id law that would otherwise have gone through pre- clearance. it has also filed a suit seeking an order from a federal court that would bring texas within the pre-clearance requirement based on evidence of intentional voting discrimination because although there are no covered jurisdictions under the section for formula, there is a

procedure in the act where a federal court to determine that a jurisdiction should be subject to pre-clearance because of evidence of intentional discrimination. so the government is trying both those tactics in specific cases. and while the ability to challenge specific new laws remains, the decision is still extremely significant because section 5 as the court explained in one of its earlier cases is in some ways more effective than case by case litigation. the court has said in 1966 that case by case litigation was inadequate to combat widespread and persistent discrimination in voting because the inordinate amount of time and energy to overcome the obstructionist tactics encountered in these lawsuits. and although the tactics have certainly changed it is certainly more time consuming

and less efficient for the government to be looking at each change after the fact rather than clearing it in advance before a discrimination has occurred. so i think i've tried to describe this fairly objectively but i'll confess that i agree with the dissent, that it was a decision that is egregious in the way that it overrides congress' decision based on a really massive legislative record and puts an egregious barrier in front of the government's ability to prevent discriminatory practices. i think that's what makes shelby county one of the most significant cases of last term. >> so maybe i can draw a couple parallels to the voting acts case and the gay marriages cases and then try to draw back to the case i'm going to talk about,

the affirmative action case. two things to note. one is in the same sex marriage windsor case the supreme court strikes down section 3 of the defense of marriage act. that passed by an overwhelming majority. and in the same week it struck down section 4 of the voting rights act. and the dissenters in both cases claim bitterly that it is outrageous for the majority to override the considered judgment of why -- wide majorities of the congress. and the two majorities are almost exactly the opposite. justice kennedy is the person shared in the majorities. and it is really interesting how, if you believe that it's a constitutional violation, then you think it's obviously important to strike down the law. if you don't think it's a violation you think it's an outrageous overreaching by the court. and there's no real way of saying who is right or wrong in that. the second parallel i would draw is that you don't really know as

we were discussing how to read the windsor decision. do you read it that it is a step forward toward same sex marriage because it is essentially recognition that statutes banning it are a form of discrimination? or do you read it as a green light to states to make a judgment about how it is that they want to have marriage in their states? so too in the voting rights act case you can look at it in one of two ways. what the supreme court was saying, congress, you go back and come up with a more updated list that's more tailored and circumscribed to discrimination going on today or read it as essentially a decision that you can't impose on the states. again, the kind of federalism theme. you can't impose on the states the burden of pre-clearance and they're just going to wink and nod and do an opinion because they know congress will never come up with a new list. so we have to wait for the next generation of cases to figure it out. so the parallel i would draw is between two cases related to the voting right acts.

there was a case about four years ago where everybody thought the supreme court was going to strike down section 5 and they didn't. they came back to it. they sort of had a shot across the bow, congress came and did it this term. something similar may be happening with respect to affirmative action. so this term the supreme court tackled whether the university of texas program has a preference on the basis of race is constitutional. the back off of that were a pair of opinions decided when justice o'connor was the center seat. she has been replaced by justice alito who is more conservative. justice o'connor center right conservative but you never really knew exactly where she was going to come down. she would look at each case on its fact. and the court had upheld the university of michigan law school and struck down the undergraduate program.

but the bottom line was that you could have some form of racial preference. and the university of texas took from that a green light to add a preference to its own admissions program. and there were essentially two parts to how the university of texas was admitting students. part number one when it comes to diversity. part number one is this. they took the top 10% of all the graduating students in the state and admitted them to the ut system. and that produced a fair amount of diversity because a lot of high schools in texas are in areas of the state that through segregated housing patterns inevitably have huge minority populations. so it was the case that the top 10% of the class might be overwhelmingly hispanic for example. and then they added a preference system that was challenged by an african who did not get into the university of texas and said that she believed that she at

the very least was not given an equal opportunity to compete for a seat because she wasn't white. -- was white. and that case went to the supreme court and everybody i think pretty much thought that u.t.'s program was in big trouble because we have one really important -- we have a recurring phenomenon in the supreme court that has happened and that is there are a variety of areas in which she was in the majority but justice kennedy was in dissent. now that the court has taken steps materially to the right on these points of law, justice kennedy's dissenting view have tended either as a matter of actual law or as a matter of practice to become the prevailing view as he has taken on the senter seat. in the cases from the university of michigan, the predecessor one, where the law school program was upheld, justice kennedy was strongly of the view that the programs deserved much more rigorous constitutional scrutiny.

and while justice kennedy, unlike his more conservative colleagues, has refused to say that the constitution is color blind and outlaws all racial preferences, he has said that they deserve significant constitutional scrutiny. so this case came up to the supreme court and people believed that this was going to be the court's opportunity to step back from that michigan law school case and put significant limits on affirmative action. but like in that first voting rights case where we also expected section 5 of the voting rights act to be struck down, instead the court did something much more modest and it's a little bit of a puzzle exactly what they were doing, what it was meant to do and why they did it. they issued a decision that said to the court of appeals which has upheld the program, we would like you to try again. that was a very interesting instruction. but it isn't backed up by much in the way of explanation. so what the court did actually do is it said two significant things. number one, it said we're going to continue to assume that

diversity in higher education is a compelling governmental interest. remember don's explanation of how the 14th amendment works. you subject these laws to heightened scrutiny. you have to have a good reason for doing it and the law has to be tailored to achieve that reason. the most conservative justices on the supreme court don't believe that kind of diversity is sufficiently compelling interest to justify an affirmative action program. but justice kennedy got them to join saying we'll assume it is. and the left of the court was willing because it wasn't in a decisions that was striking down an affirmative action. the second part said, we want the court of appeals don't defer universities when they tell you they need these programs. you have to develop an actual record in court to establish that these programs are really necessary. again, it's a parallel to what happened in the voting rights act. the supreme court majority looked at the record that

congress had compiled like the universities were compiling, looked at the record congress compiled and said that's not good enough. so we have in these follow-on cases courts determining whether or not a state has a history of discrimination so that a harsh remedy by pre-clearance is required. and so too in affirmative action the supreme court has said you need to scrutinize these programs. and as a result, the opinion for the courts ends up having eight members in it. both the left and right. in what was a great surprise, because it was really expected to be a 5-4 decision coming back on affirmative action substantially. so the question i think for a lot of people is, is this term's fisher decision -- which didn't seem to do much, sending it back, is that a prelude to something much stronger just like that first voting rights act case which had a justice majority was a prelude to this

term's decision striking down section 4 of the voting rights act? so the last point, perhaps the most jaundiced view of why the court did what it did. that is, really if five members of the court had signaled their grave concern with affirmative action, why didn't those five members of the court actually take the step of doing something? because they haven't hesitated to be aggressive on these important principles of constitutional law. i think one thing that may have been happening is they were going to have to hand down the voting rights act decision at the same time they were handing down the affirmative action decision. the combination of invalidating such a critical part of the 1965 voting rights act and affirmative action or cutting it back optically would have looked very, very tough for that majority of the supreme court. and so it may have decided, in addition i'm sure they thought it was the right answer, but they may have thought that kind of the pacing of their -- i'm pretty sure.

they may have thought that the pacing of the decision was better to kind of leave it for another day because they also were undertaking for next term a very significant fair housing act case that has significant racial undertones as well. before we turn to the kind of follow-on, any further thoughts? >> well, i want to say that it's certainly right to focus on justice kennedy and the fact that he really alone among the conservatives on the court has agreed that diversity in the classroom, diversity on campus, is a compelling governmental interest. the government has a tremendous interest in promoting it. it's the other half of the 14th amendment analysis where he departs from the liberals who agree on the compelling interest. that is to add more supreme court jargon what is called, is the program narrowly tailored to achieve that end? that is where justice kennedy has departed from the liberal members of the court when it

comes to these racial diversity cases. he accepts the idea that diversity is a compelling interest but he is much less willing to give governmental entities lee way to decide on their own what they can do and what level of classification is acceptable to achieve it. so what that decision in the texas case does, it requires essentially a trial to put the university of texas on trial to defend that the way that it gets the diversity -- the supreme court says is worth while objective, does so in a way that causes the least harm to people who are not beneficiaries of the program. so that is where he sort of splits the baby on the court. >> this is also an affirmative action case but it comes at it from the other end of the spectrum because it involves an attack on a state measure that banned affirmative action. some people were present at

various historical events. i was present at the origin of the modern anti-affirmative action movement. because in 1995 when i was in law school, i was the student member on the board of regents for the university of california or i would be appointed shortly thereafter and when uc under the leadership of connelly, eliminated consideration of race and ethnicity in their admissions procedures and the following year he followed up with a statewide initiative in california, proposition 209 which abolished racial preferences across the board for state programs, including college admissions and he then went on to replicate that measure in many other states or several other states at least. one of them was michigan. and that is where this case called, as don informed us

schuty, the attorney general in michigan, comes to us from the sixth circuit court of appeals which includes michigan. michigan we heard of before in the affirmative action context because in 2003 there was a pair of cases where justice o'connor essentially said that you can't have a strict numerical advantage for minority students, you can't automatically give them 50 points on the score to get in to school. but you can, as a part of a holistic, not very clearly defined but a sort of holistic measure of an applicant's worth take their race into account, perhaps for the next 25 years. that was the time limit she suggested might be appropriate to keep explicitly taking race into consideration but that was not a binding part of the decision yet it was always cited as the court's benchmark.

after those decisions came down in 2003, michigan voters acting with the help of ward connerly who sent proposition 209 clone to the state decided they didn't want to wait 25 years and they passed something called proposal 2 which abolished the consideration of race in any state programs including higher education admissions. and the number of groups including one called the coalition to defend affirmative action by any means necessary filed suit to challenge proposal 2 in michigan. the same group or a related group had also challenged proposition 209 in california arguing that essentially by preventing any state agency from adopting an affirmative action program, minorities were being

disadvantaged that they alone or they among a few groups were being singled out to be disempowered, being unable to seek a kind of program that they wanted while other groups that might be given preferences and one often cited are children of alumni or athletes or other types of students who may get preferences in some instances, they aren't barred by the state constitution from getting a preference. they can go and try to persuade the university or the university can on its own give them a preference. the ninth circuit court of appeals in california rejected that argument and upheld proposition 209. but that argument did prevail, --rely, at the circumstanceth sixth circuit court of appeals which by a single vote, i think it was a 7- 6 opinion, found that this proposal 2 in michigan violated the united states constitution's equal protections clause as

interpreted by the court and looked to a pair of decisions principally for the authority for its ruling from one from 1969 and one from 1982 in which the supreme court had struck down local or state ordinances that made it especially hard to pass anti-discrimination laws. there had been certain measures that city council can pass any kind of law it wants. they went out of their way to deprive minority groups that might benefit from an ordinance the ability to get them enacted. the 60 circuit court used that same reason and said this is the same thing, any other type of person, an alumni child or athlete has in m ways to try and get a presemption from the university of michigan or michigan state or other state