nsa was going deaf. it was literally being drowned in all this data. they were in violation of the federal acquisition regulations. they decided to buy the solution, not make it. it had already been made. look up eisenhower's farewell speech before kennedy became president in 1961. i get all the way to 2005. this is -- there is a new director of nsa. there is a final report from the department of defense. i was a material witness on that as well. umpteen thousands of evidence pages given to them on all that was going on with thin thread and trailblazer.

i wrote a letter to general alexander, my final whistleblowing at nsa. i lost my job. i ended up in an office that had no responsibility and know many and nobody reporting to me. i ended up at the national defense university and i made a fateful decision. in 2005, it is important to summarize for you what actually took lace in terms of press reporting. it was fundamental to beginning to unravel precisely what the government had been doing in such deep state secrets all those many years since 9/11. james risin, eric lichtblau -- they held onto this for 14 months, blockbuster article revealing for the first time the existence of the so-called the terrorist surveillance program. they launched a criminal leak investigation to find the source of that article.

investigation to find the source of that article. my new when they launched the investigation that i would become a rhyme target because the set -- a prime target because the set of people who knew about the surveillance program was a sword nearly small. and debbie -- and because i had been executive manager on thin thread, although it had been completely shut down -- anybody watch indiana jones? just imagine thin thread, which is really software -- remember that famous picture in the end in the first indiana jones movie where the box going into the government warehouse? that's the last time i saw thin thread. the digital warehouse, indiana jones warehouse. be aknew that i would target of the government in this investigation. it was reported -- i am going to keep emphasizing how absolutely

crucial the press is in ultimately revealing the truths, even the most disturbing of truths about our own government. thisting in 2010 that criminal leak investigation apparently was so crucial to the government to find out who had provided information about the toret surveillance program the new york times at they put five full-time prosecutors on it and 25 full-time agents. i can tell you from my own ordeal that they actually borrowed agents from the mole hunter unit, which is the elite spy hunting unit in the fbi. that is how serious we are about finding sources for the new york times article. no. they thought i was one of them. this happens and it is early 2006. i knew and i had always known

that there was this third rail option. the third rail option that you never touched the nsa. you never say anything if you work for nsa. especially to the public. especially, especially to the reporters and especially if it is not preauthorized. i knew i would commit on administrative i alicia and. -- violation. easily,hat i could be easily placed under investigation for leaking classified. that i knew. i chose to go anonymously to a reporter and share with this reporter from the baltimore sun who had been writing a series of articles on nsa what i knew. . about the intel cover-up, the failure and abuse, and the secret surveillance programs.

i was placed under direct investigation in the spring of 2006. i know that because they were trying everything they could to get into my computers at home. colleagues, former colleagues, as well as the person who had been the nsa oversight manager and staff are on the committee, they were raided in july 2007 by teams of agents. i was unceremoniously rated myself. the nightmare had begun. was theught that i leaker to the new york times. it was no evidence. because there was no evidence, that meant that i had done it. remember, the absence of -- ence so, i am target number one. during my cooperative period

with the fbi, they are now saying that i had gone to the reporter with all this stuff. they were accusing me of having gone to the new york times. they asked me very specific questions of what i shared with orders -- reporters. not about the fraud and abuse, but about the secret surveillance programs stop they were hyper about protecting that program. everything that ensued since. 2008, just imagine yourselves looking across the table from a chief prosecutor and being threatened with the following statement: mr. drake, how would you like to spend the rest of your life in prison? unless you cooperate with our investigation -- i said i will not plea bargain with the truth. i cut off all contact with the

fbi. terms of cooperating with them. i hired a private attorney and spent a lot of money over the next three years. i was charged in secret. , then i was0 publicly indicted in april 2010. i faced 35 years in prison and five counts of under the espionage act. i am on the front page of every leading newspaper in the nation. it was extraordinarily rare. i was the first whistleblower since daniel ellsberg was charged with espionage. attorney would represent me pro bono. ,hose who are willing to do so the firm said that they would have to leave.

we had government officials, senior contracting officials that we represent. conflict of interest. i was declared indigent before the court. i had federal public defenders appointed to provide my defense. now you are wondering what happened because i am here, and obviously i'm speaking to you as a free human being. i am extraordinarily fortunate. i cannot say that for the others charged with espionage under the obama administration. i was exhibit number one. they want to make me the example. because you are charged with espionage, there is no public interest in defending you. your charge like a spy. saidct, the government that i was worse than a spy. not only was i an enemy from the

state, i endangered many american soldiers. i would have their blood on my hands. the level of classification of the documents i had given and retained for the purpose of causesure to a reporter exceptionally grave damage, the highest level of damage, to the united states. it was a really dark corner. i knew i could not prevail in the federal court system. i knew i would have to find a way to influence the court of public opinion and i knew that that would require me to engage the press, not just mainstream media, but alternative press. it was crucial that the truth about my case it out there. think that organizations like the aclu

would have come to my defense in a minute. they did not. organization that actually stuck with me the whole time was the government accountability project. why is that? espionage,harge of and i even had family members say that i must've done something. why would the government charge of espionage? i was reminded of daniel ellsberg, the first american charge of espionage for non-spy activities. i remember that. there is an extraordinary human being sitting next to me on my left. she wrote an amazingly powerful op-ed in the l.a. times. go read it. speaking of the press, i read that and i realized that here was finally, a few short days

after i was so publicly indicted , and the supervising official of the criminal prosecution against me have made very public statements -- i read that article and i knew that she got the case. she recognized crucial distinctions between leaking, which is not the public interest, and whistleblowing, which is. her, and other her extraordinary leadership, she defended me in the court of public opinion when no one else would. press and the full story has not been revealed. we are writing a book, but we cannot find a publisher.

it will detail all of this. there is much year beyond what i shared with you. for the next 14 months, i withstood the best that the department of justice had to throw against me. it was an extraordinary prosecutor doing everything he could to paint me into a dark corner. they, themselves, were strategically leaking certain information to the mainstream press about my case. done, il is said and did plead out on my terms. they dropped the felony counts to a misdemeanor. exceedingor authorized use of a government computer. that was my act of civil disobedience not involving any classified information. that was the truth of my case.

it did not matter. i was free. do you know what it means to be free? .t means an awful lot the press was instrumental in my case. they were providing in the front and the background, critical information. it was about this case and what it represents. got early onhen that this was more than just somebody who apparently violated the espionage act. this was really the obama administration far beyond the bush administration. they were sending the most chilling messages. it was actually a laser bleeding -- you focus using me as the cut onto toy, press, we are

you. we know who your sources are. one thing i did not tell you, and this is not come out fully either, there was a special secret program at nsa after 9/11. it was originally known as first for -- fruits. onwas meant to spy journalists and reporters. find your sources. if we can freeze at your source, guess what? we have the mainstream media reporters in our back pocket. we give them privileged access to hear. get tooso we don't despairing here, tell them what the judge. the caseths later, collapses on the evil public trial. was scheduledhat for june 13, 2011. the 40th anniversary to the date of the publication of the pentagon papers.

himself had already made planes -- plans to fight in baltimore and stand on the steps of the federal district courthouse in downtown baltimore and give civic lessons on why what was going on inside the court was so important to the nation. he had the perspective. he knew that this was really serious stuff. the government prevailed in my that would really set back precedent. i knew that. this was not just about me. about the future of the first amendment and the future of that extraordinary experiment launched over 225 years ago called the constitution. sentencing,ring the -- the chief prosecutor continued to make his case. in spite of the sentencing.

it was agreed upon. he said, this is unconscionable. it does not pass the smell test. you put mr. drake through four years of hell. we had an american revolution. you not take 2.5 years to find a way to indict un-american. an american. >> he was a bush appointee? >> he was a bush appointee. i actually came out of the courthouse and said hey, there is a third branch of government. >> we are going to run at of time for this session. can we get questions? has anybody got a question? over there on the side. we will try to get you involved. >> hello?

>> hello. my name is karen. i work at annenberg. i think you have sufficiently scared all of the journalism students who wanted to be investigative reporters. my question to you is twofold. journalist -- how do you assure a source that they will not be elegant if, the are being spied onto their phones, computers, laptops. how do you do that? if reporters cannot do that, if they cannot protect their sources, have abdicated their role? i will take a stab at that. a big step in protecting sources, which hardly any journalists are taking, is using these encryption.

have any people in here using encryption? i see three hands. encryption should be a requirement for journalists, particularly if you are dealing with high-level sources. >> you realize how astounding this is? facts,ical, get the encrypt your material so your own government will not destroy up. an astounding statement. i agree with you, but think about it. these people have all taken a vow. room has voted for obama. right? >> i campaigned for and contributed to obama. this is not an anti-obama -- >> is astounding that that is the advice you would give. journalistt young you to hear. they must learn encryption. >> you have to to protect your sources. >> you are not protecting it

from the stasi, from stalin, you are protecting it from obama. >> that is correct. >> that is the day and age in which we live. >> there other things you can do. in terms of protecting my clients, i joke about using drug dealer tactics, but paying cash, throwaway cell phones, encryption, underground parking garages. >> they have video cameras now. you have to be careful. >> seriously, source protection has become a huge issue. we see whistleblowers being from in jail and prosecuted for espionage. there is no guarantee. you could certainly take her cautions. the other one is the level of whistleblowers that i represent, are you willing to go to jail? are you willing to go to jail

for your source? that is why there are fewer than 10 reporters in this country who i take my whistleblowers to. one reporter is facing jail. he is facing jail for not testifying against a source, another whistleblower who is being prosecuted for espionage named jeff sterling. >> questions? >> we are talking about whistleblowers. i will speak really loud. [inaudible] >> 10 folks just line up again microphones? >> hello. you are all whistleblowers. journalismtouched on and my question is, the logical

progression, first you approach the whistleblower and then you talk about people being prosecuted for refusing to testify. thene logical progression -- what is happening? there's a threat to prosecute journalists for espionage? is that something that is a possibility in this day and age? can you expand on that? >> i can say that i think the effort against julian assange and that jury is still going as far as i know, they say that they do not have a sealed indictment. they may or may not have one. they are going after him as a transition case. some journalists like bill keller of the new york times say

that he is not a journalist in any way i can recognize. they are cutting themselves loose from him. keller drew bill back from that position and said that he should not be prosecuted. he realized that julian assange would simply be a test case. they would go after him. what is the status of that? it has gone up to the supreme court. >> he one in the district court. they recognized reporter s'privilege. a ruled against them in the district court and their petitioning before the supreme court. on julian assange, in the bradley manning court-martial, which the new york times did not discuss until they were chastised by the public editor, there was a pivotal moment where the judge asked the prosecution gone toea manning had

the new york times rather than wikileaks, would you be bringing this case? you could hear a pin drop. you could hear the wheels spinning. the prosecutors did not know how to answer stop they said yes. that means that in your times is just as vulnerable -- the new york times is just as vulnerable. >> that is still a source. that is still chelsea manning. definitely tos move in the direction of going after the press directly. around aord leaked out verizon case. they are saying that testimony is critical. that is why they have to demand to find a source. with theconfident now electronic surveillance that they do. they don't really need to go after anyone so directly.

they feel that they can find the source. it is just circumstantial evidence of who called who and what time. that is how they got a guilty can out of him -- stephen from the state department. he pled guilty that he had given information to a guy named rosen. the key thing there was to get of when heetadata had called rosen. him thatthe screws on they would give him a higher sentence if he did not come up with a guilty plea. beenress has not yet trekked the prosecuted. but these various cases may succeed. there's every reason to think that that will be the next out. >> the director of national intelligence said that people

were aiding and abetting and conspiring. anyone who is helping snowden in any kind of way, that would include the lawyers. they could be subject to criminal penalty. that is an incredibly frightening place to be in. >> i was just wondering, what do you guys think makes a good whistleblower? it out of retaliation. how do you avoid prosecution? >> shallots to know what makes a good whistleblower. >> the most amazing thing is -- and we have discussed this before, it is not that you guys have dealt with this, that should be the norm. the amazing thing is, where are all the other people? on,public is being spied how many people knew what was

going on in the nsa? >> several dozen. >> where the hell are they? where are the several thousand who knew that their neighbors and everyone else were all being spied on? >> they are just following orders. >> rifle. decisions are made by people above them. >> your question, if i understand it, is how do we get more people like you? is that it? >> president obama says that he wants -- there is an easy solution. meaningful whistleblower protection. people like edward snowden have someplace to go. the whistleblower protection laws, including the enhancement thatnd the executive order snowden could have used specifically exempts national security and intelligence whistleblowers.

the people you would most want to hear from. those people are completely unprotected. , to answernowden your question, is someone who i always hoped would come forward. i thought that he would stand on my shoulders. he would come out with a much larger set of documentation. i have some hope, because edward snowden did come forward, that there are others who may come forward as well. >> i am not a whistleblower, but

i think they do not want to cheat their unborn. the courage that it takes to be a whistleblower, they are too humble to say that. can you explain if you see a correlation between cktivists andaxck whistleblowing? that you are all a product of the digital age. that is all edward snowden has known. there is a clear confluence sts who being hacktivi are dedicated to making information for a and those who are in the inside of his government institutions and corporations, coming out and disclosing information. of the advantage that they have is that they are very much masters in their own domain of

technology. it is one of the things that i have laid down in her talent you. we need better encryption. people are not just losing their jobs, they are being incarcerated and ending up in prison. any number of others, these are examples. the government is deliberately going after them. they are targeting individuals to send a much larger message to anyone who dares come forward. what are they really shutting down? they are shutting down the free flow of information that informs the public with what is going on. >> lately, they are over acktivistg in the h

community. the way they are using the espionage act to go over whistleblowers. it can be seen through the war and hacktivistng s. they were also seeking to find a -- once heyears committed suicide, they said they would have settled for three months. over prosecution is completely set. they want to make an example of people like that. they just don't feel to other day, and i cannot get into the details of that, but it is a charges.vy-handed he had been so overcharged.

the'm humbled to be in presence of the three of you. thank you. correct it is important to emind you all -- >> i want to ask a question. you have been presented as the anti-snowden. you were the good guy. you are willing to go to jail. 150 years. you were prepared for that. as it turns out, the judge was offered a bribe by the nixon administration and the head of the fbi, who knows where that case would have acted up? nixon overreached. he fixed the judge. i remember being in the court when that happened. why didn't snowden do that?

you are a lawyer. you are presented as a good guy. you were in your house when the fbi broken. you have five kids and you worked at an apple store, trying to support your family. take your medicine. be prepared to go to jail for damn well, knowing ndam that that is not what we teach people. you are snowden's lawyer. what is your view? >> my view is that it speaks volumes that the only safe way to blow the whistle right now if you are a national security or intelligence and have that level of information, the only safe way is to blow the whistle from another country. that is a sorry state of affairs for this country to be in. whistleblowers, right after snowden revealed himself, they had a press conference to say that they understood why he had to go to

another country to make those disclosures. of penalties -- >> snowden, i believe, he looked at these examples, he looked at chelsea manning, he looked at julian assange, and he realized that he had to be out of the country if he was going to put up this amount of information and be able to tell what he had done and why he had done it and to comment as he has been doing. 40 years ago, i was able to speak. i was out on bail throughout my trial. i was able to speak to demonstrations and lectures and this and that. there is not a chance in the world that snowden would have been allowed to do that. he knew it from looking at chelsea manning. he would be in an isolation cell for the rest of his life. no journalist to this day, 3.5 out, noter this came

journalist has spoken to chelsea manning. no journalist has spoken to chelsea manning. not in four years. we know nothing. they will not. they are not allowed to speed her in prison. snowden had to be out of the country. he learned from that. he learns that you have to put out current documents. one reason and he was saying earlier, what makes a whistleblower? it is pretty hard to do. been saying that there are dozens, hundreds, thousands of people who knew the secrets and knew the truth, but many of those, perhaps most of them, knew that this involved life or death matters on which major lies were being told. the truth could make a big difference. they did not speak out. i think we have to change the

culture, the secrecy, change the benefit of the doubt that if given wrongly to politicians in terms of what the public should know and should not know to allow to even think that for --mple, whistleblowers people in charge should be the last word on what is going on. it represents a culpable ignorance, unless you are 16 years old. if you have lived there any of these things, these people do not deserve the benefit of the doubt at this point. behind the veil of secrecy, it is extremely bad and this asterisk policymaking. without accountability. we learned that from the pentagon papers and from snowden. if we got be a rock papers, which we still do not have, but

there have been a number of leaks. the decision-making is very bad. criminal, stupid, and ignorant to a large extent, it is not subjected to a larger debate, even within the government. not to congress or with the public. the reason that the constitution , it was aeed obsolete good idea then and it is still a good idea, it has to be defended against people, starting with two presidents and their minions, and many people in the we have a after 9/11, new kind of threat here. the common -- the constitution was not suited to this threat. we need a different form of government.

president, if the does it, it is not illegal. we have no choice but to leave it up to him to tell us what to do. what we get with that type of judgment is the judgment that george the third had during the american revolution. iraq, and much, more seriously, the possibility , outrageously, of nuclear winter. there are forces on both sides. they have no excuse whatsoever for existing now, and putting the entire world in jeopardy. you have a great deal of information about the climate than what they have yet told. that is why one man left the government recently. being found and squashed at nine thousands 1988, trying to warn us about what was coming with the climate.

we need more oversight, we need independent branches, and we need whistleblowers. one thing that would change in this culture, for example, -- i was complaining to bob about the title of this talk. it is called patriots were traders? traitors? -- not too many people have the opportunity to defend themselves against being traitors. think, thank you for the chance to explain to my fellow countrymen that i am not a traitor, despite all appearances. a lot of people gave me that opportunity 40 years ago. i was thinking, why am i so sensitive to that title at this point in my life? it made me realize that it took me back 40 years. i identify snowden. completely. i identify with chelsea manning,

even with all the differences in our background and our personalities and whatever. i identify with her very strongly. they go over the same trajectory that i do. they did what i would have done. when it is patriots are traders, tors, i realize i have to explain why i am not a traitor. i've been saying for three years now that chelsea manning and now snowden are no more traders -- traitors and i am. and i am not. to make that very clear. it has taken me back 40 years. i got over fearing that question all the time. i feared it a lot at the beginning. reporters were asking, how does it feel to be regarded as a traitor.

by the way, i was not charged in court. constitutionat the narrows the legal definition of trade are very significantly. third, all thee signers of the declaration of independence were traitors. five of the more hanged out of the 56 as traitors. they all could have been hanged if they had been found. this quality that they were born into, they discovered a different loyalty, a higher loyalty to a country that had not existed. it was a large country with a constitutional basis, a bill of rights, and the notion that you could not criminalize telling the truth about the government. that was the country they decided they were loyal to. to they were traitors others.

i remember the first time someone called me a traitor. it was in 1971. i had just been indicted. i found myself on a program out on bail. somebody at the table, there were three of this -- asked, .aid, well, you are a traitor i was so startled by this and i looked at the moderator. and i said, do you invite traitors onto your program? i took off the microphone and left. i was not going to sit there and discuss whether i was a traitor or not. the camera followed me out of the room. all the way out. said, don't trial do that. that was a mistake. it doesn't look at -- good. they for me that it was very cool and too hot. i disappeared. to answer the question about

being a traitor, there is nothing pleasant about it. is, if you are not willing to be called names, like --millions of people have died in vietnam and in iraq. that is mainly because democrats , my party, were unwilling to be called names. they knew they were false and slanderous. names like week, unmanly, unpatriotic. we got communism and we fund terrorism. communism and weak on terrorism. snowden said that there are things worth dying for. the truth is that most people narrow that. unless they are in the military,

or conceivably in policeman or fireman where it is taken for granted that with a team and acting on authority and doing your function, you should wrister life. then people do it. they are very courageous. you see in combat, the scourge is all around. it is the same people. put a commander in civilian clothes, and others like that, and you put them in a situation where they would risk their career or their clearance or andr job or their marriage children's education. serious risks. aller than take any risk at for strangers, people who are not on the team, you have to conclude that most people are willing to see nearly any amount of harm done to other people to

avoid that risk without lifting a finger. that edwardcognize snowden and chelsea manning are doing essential jobs, one that we need a great deal more with the help of journalists, journalists have to be probing for that and looking for that. they have to be encouraging that. we do not have democracy. it is what our founders risked their lives for. we have something worse and dangerous. it is up to you and your sources. argument -- the fact is that most people in the world live in a nation that has had tragedy as big as 9/11 or greater. r sanders -- our founders actually fixed -- faced for

greater risks. they would be found hanging from some train. they put these very provisions in the constitution that these other people after 9/11 wanted to throw out. they did not guarantee free press because they thought the press would always be on their side. they did not guarantee any of these rights thinking that they would be angry. the message that is interesting, how we teach history, and i have said this before, if anybody reads george washington's farewell address to his country, there is some incredible indictment of what he calls -- pretended patriotism. george washington. you can refer to eisenhower and other great general -- another great general, who warns about the military-industrial complex and the loss of civil restraint. statemento make one

about the whistleblowers. you mentioned the gulf of tonkin. decent man, william fulbright, went to the gulf of tonkin resolution to stop it meant that we were now in this issue. 20 years after the fact, and this was a fact known by many whistleblowers, there had never been a second gulf of tonkin attack. it was a phony. we were not given those documents until 20 years after. they were not present. firedrican ship had been on the high seas. therefore, we had to go to war. our own government, all of these people, when we got these documents, we realized that there had not been an attack. i forget this exchange that we had, but when i got these

documents, i was at the l.a. times. johnson, aom marvelous guy, i have great respect for him. said, youhim, and i were in the white house. did you know this? he was in this white house. we are talking about the doubles out there. i am not saying they knew every detail. but going along to get along, not challenging, not becoming a whistleblower, when there had to -- those two that i mentioned, they really knew. there were plenty of people. when i finally interviewed about it, they said, how did you get that? well, the government released it. it just came out. i was thinking that myself, but they never told us. your basic question is, what is the meaning of this democratic

experiment if you can be lied to with such impunity? there is no restraint. it is not a marginal issue. it is the ballgame. i thank you for this panel. it is really great. after 9/11, we went through a couple changes psychologically. there was this issue of following orders. technologically, with the smartphones, espionage change. the nature of espionage also change bureaucratically. that thee it seems problems that these panel has clearly identified -- i would like to ask, how would that frame of mind, did the fourth and 50 state ketchup? how can they effect change -- effect change?

class it would be glad to speak to that. in terms of what the fourth estate can do to stop -- it is a multipart question. what whistleblowers can do to try to stop the current state of affairs. for me, i feel that much of the decade following 9/11 at least in the mainstream media, a lot of journalists were behaving as government lapdogs, rather than government lapdogs -- watchdogs. i get very frustrated when a journalist says, i cannot hit the government to heart in public he could i will lose my source. that is a very real issue. story, oneiretapping reporter had his press credentials pulled. journalist, a true i think you need to be able to

value your civilian sources as much as your government sources. you would not just be a stenographer who copies down government talking points. >> i have a thought on that. let me try it on you too. basically, theis problems that have arisen in terms of these infringements on personal liberty in the name of espionage and intelligence-gathering relate to changes in tech knowledge he with 9/11. the psychological changes that you identify. it is great to the problem, but what you am asking you see as potential solutions to these problems. >> at the strategic level, you the to find -- finds government out of the chains of the constitution. they have advanced

in technology, that does not mean they get a free pass. that is not true at all. the constitution is more than flexible enough to accommodate all aspects of society. it is about individual rights. real intelligence has largely disappeared because it is so easy to collect everything and sort it out later. that puts the paradigm. when you are faced with decisions being made in secret, it does not matter. the technology is a means to an end. you have to protect. it is the same. it is one of your effects. you have it as an individual. if they choose to say it is not protected, the technology does not make it easier. it is simply enabling a choice. that is the choice that violates as an american you as a person. it violates your rights.

where did they get off getting away is that? so. choose to do it is a catch-22. who will stop us? i absolutely resist that mindset. i read is the notion that somehow they are the ultimate protector. it does not matter what your sovereign rights are. doesn't trump everything? i was going to say this, but i will say it now. mettraders of your country in secret in philadelphia to hammer out the constitution of the united states. they made a pact that nothing would come out except madison took notes. in 1843, they were published. we have documented evidence of what the base took place -- debates took place. benjamin franklin exited the building.

history has recorded that a woman reporter came up to him and said, what did you do in there? he reportedly responded saying there is a public if you can keep it. they knew there were no guarantees. an executive with do their darndest to centralize power and themselves what they thought they could take. they bound down the executive as hard as they could and may congress the central portion of our three part government. what happened after 9/11? -- we haveogy here horses and carriages that in the 18th century. that is not matter. it is a living constitution in that regard. it is an idea of how to govern

ourselves. is underitution suspicion. the same question i asked the lawyers at nsa. the same question i asked congress when i go to them of my disclosure. they are saying it does not work. there is a constitutional means to change a law. you know what they told me? they said, they will say no. if we go to congress, they will say no. they will say no. you said a republic -- have we kept it? the answer is no. no, we have not kept it. effect001, we have in unelected monarchy. it means that it is a country in president doesn't and

it is legal. that is the attitude. that was the attitude of and advisor to george w. bush. essentially, there are no limits on presidential power except those that he chooses to put on himself. following bush, decriminalize torture. and is as you legal criminal as anything can be under international law. there are a number of laws that we are sworn to investigate and follow up with if there's any credible charge. obama has not chosen to investigate or indict any higher up for that process of torture. take right now. the 6000 page -- >> the torture report.

>> 6000 pages and their are doing now, in a way it is worthwhile to see this argument go on. we will see where obama comes out on it. they assented to him for declassification. obviously, that report should not have been leaked. -- should have been leaked. it should be leaked right now. we need not to understand what it is reputed to have revealed. there was no necessity for this torture. there was no effect. far from being essential, it did not contribute in any case to preventing terror attacks. why does that matter? it is illegal. it is unconstitutional. the whole issue was put before the public. the constitution is obsolete.

it was overtaken. we have a state of emergency now. it has been formally declared. obama has reinstated it several times in office. how many people actually knew that in this office that obama has formally stated that we are in a state of emergency? how many people knew that? let me see your hands. don't be shy. i see 45. how many did not know? presss the state of the if it has not made you aware that we are living in a state of emergency. what does that imply? what regulations does that mean? member of the committee over homeland security at precisely that question.

annexes. classified can we see those? the answer was no. they are classified. we have the chairman of the house committee on homeland security to extract the for those. no, they were not able to get them. this is not a constitutional republic. , as it does, says and it is 6000 pages, that this was not necessary. in other words, it is criminal, it is not justified by necessity. it cannot be necessary for did not work at all. therefore, it is criminal. absolutely criminal. as some people want to decriminalize marijuana, obama has effectively decriminalize torture. how can the next president ring

prosecutions for torture? >> it does remind me that anybody -- does anybody listen to jackson browne? one of my favorite songs. there is a lot of pretenders. on the chair, there are no pretenders. we are extraordinarily fortunate. we never ended up in prison. there are whistleblowers in prison right now. there are whistleblowers these in prison right now. ivists already in prison and facing prison. that is the reality in this country. here is another truth. scandals of the bush administration was secret surveillance and torture.

the only two people investigated and prosecuted and indicted and convicted of torture and surveillance are myself and one other person. he is currently serving 30 months in a federal penitentiary in pennsylvania. why? because he actually blew the whistle is a former cia agent. it was about state-sponsored torture. the name of a torque for. he's in prison. those who authorized the program, those who approve the program, those who implement the theram, those who manage world torture program have immunity. secret surveillance. i am the only one prosecuting and indicted.

i had nothing to do with surveillance. i resisted with everything i had. they had all of those who authorize surveillance and approve surveillance -- they all have immunity. in fact, if i had committed surveillance -- if i had engaged in surveillance, i would not have been prosecuted. if the other man had tortured, he would not be in prison today. what does that tell you? the press has been complicit in the war crimes any wrongdoing and the suspension of the constitution since 9/11. it is high time. you are faced with the stark reality that you are going to be in this. you need to question this. question authority. you need to question everything. especially question authority. how else do we know what is going on without being informed? this is a fundamental and some

suggest, the fatal flaw, of any democracy, no matter what form it takes. it is ultimately about keeping the public informed. the public has the responsibility to inform themselves. what is the primary means by which we do that? he pressed. the ultimate question that we have to face and that must be asked is what is the future, given that there is no guarantee, what future do we want to keep? end, but i do not have the courage not to call my wife. [laughter] her, as shell started the book festival and she did an important book with the mother of pat tillman. when you talk about that? >> how much time do you have? >> i watched you for two years reading that. >> i read 3000 pages of investigative documents. they were so full of holes.

government documents that were so full of holes, you can drive a humvee through it. we came away with no satisfaction at all about how pat tillman was killed and what the circumstances were. to this day, i still talk to her every week. i see what else we can do. it has been very frustrating. i have two quick things. one is that first of all, you have inspired so many young people. you have inspired me and i was a lifelong journalist. you have inspired a lot of young people. before we go, i hope that you can tell the 99% of the people how to do encryption. my real question, how to do encryption -- my real question is, how can you actually put the genie back in the bottle? dennis kucinich was in congress and it was before edward

he was part of a group of congress members trying to get this abolished. it was seen as being duplicate cia, fbi, mind do you need this renegade agency? is it possible to republish that now with all of the relegation? - all of the revelations? i still believe it's possible to rein in the national security that we are state becoming. if i do not believe that, i would not be out on the lecture circuit every weekend talking to students like you. i would have given up. i guess i still believe that we can recover our democracy from the police stated becoming. terms of encryption, i'm not a technologist that even i heard ahow to use pgp, good privacy. it's easy. you can install it as a nap on

your phone and put it on your computer. it is just one of many encryption mechanisms. adm, otr, tor, tails. others get more sophisticated gp is pretty basic encryption that's not too difficult to looearn. partieshave some crypto -- really, they do this and other countries. i believe every journalist should learn how to use basic encryption. of theon the board freedom of the press foundation with edward snowden. if you look at press freedom foundation's website, we have made available and encryption methods for journalist like those for wikileaks i can be .icked up for he and used

>> they will walk you through it. they have secure drops so people can blow the whistle through news outlets in a secure way. can actually really help in this endeavor. >> you should get the wording of the fourth amendment carried in your pocket and pass it out weple to remind them that have other means of protecting our privacy. instrumental and i want to thank the government accountability project. .ots of people really helping the school is really great in having this conference. do you have some closing remarks? >> i wanted to ask one question and echo what you just said. we thank you all for coming. it's been a remarkable evening. go on at the tudor center at 11:30 a.m.

room 227.'s i wanted to ask one question. by noted a piece libertarian david cole. use more critical of the songs -- assange and manning. , some specific warlords and cables may have revealed conduct without the disproportion the safety, manning's dump of several hundred documents was not nearly tailored. he said the state department leak in particular out in individuals who put themselves a considerable risk. , do youant to ask you

think there are distinctions to be made? are there times when leaks should not be made? >> i don't think all secrets should be out there. sources and methods should be kept secret. nuclear designs, troop movement, things like that. the problem at the argument made is that a lot of whistleblowers are accused of either overexposing or under exposing. bradley birkenfeld did not give enough about swiss bank secrecy. chelsea manning gave away too much information. legally, the law does not turn how much youm of disclose. it turns on whether or not the disclose or had a reasonable belief that what he or she saw as evidence, fraud, waste, abuse, illegality, so i think to point is missed my trying make the analysis turn on that.

i think we can all agree that it isthe collateral alone definitely whistle blowing and a lot of the other stuff in terms of all of the phantom arm that the government talked about as one of the few people who did actually go to parts of his court-martial -- her the governmentn tried, damage, harm. when it came time for the government to produce a damage themsment, the judge gave numerous opportunities and they could not produce a single damage assessment. >> it's funny when you mentioned having made this the ancient earlier but leakers and whistleblowers, my wife hated that i was called a leaker. she thought it made me sound incontinent. had to get used to it. .t's better than traitor

there legitimate secrets and should not be told? you mentioned giving valerie's was not just unnecessary, not whistleblowing. it was wrong. it should not have been leaked. i could not imagine -- i don't think i would have known anyone who would have given the name of a covert agent who was doing something worthwhile, not true , butl cia covert agents running anti-proliferation efforts endangered by putting out that name. that's an example. >> i want to object to this in a way. we get into this great argument about what whistleblowing should and should not do. no one ever raises the argument about the 99.99% of information

that is select overly leaked by people in power whether it is the deputy sheriff, the defense department, what have you. have looked at my own profile and it was really nasty stuff made up that could have certainly lost jobs. when you look at what they try to do to martin luther king, for god's sake, that whole record of oneroying people, and no ever throws the argument back. manning, whoadley told us that we were killing civilians in our name and we made a game of it, let's question him. or her. let's challenge that. the thing that i've been trying to call attention to this evening, that the normal way news is covered about national security and foreign-policy is by the government telling you

their side of the story and calling it classified until they leak it to you. it is those on attributable sources and they shape the unate. -- it is those attributable sources. just thepointed out other day. you look at what is routinely sad right now. look at zero dark 30 on the question of torture. they finally admitted that the study shows that torture did not make us safer in any way. there was no defense of torture. movie was made with selective leaks from the government. if you look at the story of how that movie was made -- klick zero dark 30. >> they were at a meeting where they honored cia people with secret meetings to talk about the mission to get bin laden and movie producers were thought to

be making a movie that was going to make the cia look good were given this information and passed on the light. this is the routine that's been going on. but we have to get over his we are so different than those other countries. we have this whole thing about china, right. they do all this cyber stuff, all this bad stuff, china, right? putin is the most evil guy ever. >> such propaganda. but they all use the same dreary argument. they all say they are making their people safer. they all say the people on the other side are traitors, bad people, so on. the basic idea from those founders, i know they are flawed it all the ways my wife will tell me on the way home, but they were an incredible group of people. they knew some basic truths.

you could not have an empire and a republican the same moment. the whole idea of limited government is if you are going to conquer the world and have power, you are going to live. you are going to engage in messing around with peoples lives and you will become a responsible and you are going to have to torture. of way is to have the notion limited government, restraint, right of the individual. that is why you find of the opposition is not liberal or conservative, democrat or republican. what i see in snowden and the people are unique individuals in that they care about individual freedom and the integrity of the individual above paying allegiance to some notion of state power. that is the core of the u.s. constitution and it's something we should honor. let me close this evening by thinking you people for being here.

[applause] [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] >> the vermont senate passed a bill that would make it the about genetically modified food.

this is from the veil symposium at 8:00 p.m. eastern on c-span. here's part of the discussion. all the independent scientists that i interviewed around the world in about 40 countries, they all agree that whether they're against gmo's or doesn't matter, they all agree it was released long before the science was ready. economic and political interests. and the process itself, i don't agree, is irrelevant. because the process of genetic engineering causes massive collateral damage, hundreds or thousands of mutations up and d.n.a., far more than conventional breeding, and they don't evaluate it. scientistselieve looked at monsanto's corn after it was on the market and found a normally silent is switched on and that gene produces an allergen. may have an allergic reaction, someone you know may that'sm eating corn genetically engineered,

unlabeled as containing an allergen. process of genetic engineering created a switch on dorm mant gene. >> as for gmo's, here are the world health, national academy of sciences, authority, nofety problem with gmo's. are all of these part of the that a person with no scientific training has suddenly uncovered? us all about? if that isn't enough for you of other are a bunt organizations, and these are not with some scientific sounding name. real medical and protective organizations. is anti-gmo,ich australia, all over the world, e.p.a., which we pay attention to when i comes to global warming or something like that. they say would not pose unreasonable risk to human environment.e and i could come up with dozens

of these. australian and new zealand food safety group, we've identified no safety concerns of the g.m. foods that we have assessed. is this reasonable? justsomething that is a fear mongering, this is nonsense and all these organizations are it? ignoring >> you can watch the entire debate on genetically modified veil symposium tonight at 8:00 eastern on c-span. month, c-span is pleased to present our winning this year's student cam documentary competition. it's the annual competition that and highs middle school students to think critically about issues. gave studentse was, what's the most important issue congress should consider in 2014? in a second prize winning video, at pfeiffer, a sophomore ballard high school in seattle,

washington, believes congress' be gun issue should control. >> so, i turned towards the reception desk and our reception woman was sliding down the hallway with her back against the wall and her hands looked aats and i her and her eyes were just as big as saucers and she whispered me, cheryl, there's a man here with a gun. he started shooting. carol, who was the person closest to a phone who acrossting in a cubicle the hallway, then he turned and he was right by me, he shot me, i didn't realize it at the time, i thought he punched me with the gun, that's what it felt like. layla, so i thought he's occupied, i can get out, so running and started out, trying to run on tip toes so he wasn't hear me. to the firstdown landing and my coworker pam was

laying there dead, and she was face up. she had a great big, looked to me like a big bloody hole right in the middle of her chest, her eyes were open, and i turned the other direction and theres with a swat team. down thech of officers corner, some of them crouched, of them pointing a gun at run.d saying run, and that's the last thing i remember. >> we urgently need congress to address the rising epidemic of in this nation. >> the ability -- availability of guns out there is so high, and the more available guns are the more that one will be used accidentally or in anger. make any progress we're going to continue shooting, killing and maiming each other, whether on purpose by accident, and my fear is that it's only going to get

worse, not better. licensed go to a firearms dealer, you have to go through a background check andre you can get a gun that takes a certain amount of time. but the gun show enables people sales between individuals with no checking whatsoever. >> from november 2011 to november 2012 an estimated 6.6 million gun transactions occurred without a background check. >> we want the u.s. congress to pass a national standard uniform background checks on all gun sales nationwide so that we have as safer and safe and consistent law across state lines. checks don'td really work, as criminals don't through background checks. >> background checks work, they stop nearly 2 million prohibited purchasers between 1994 and 2009. we already have a national system in check

place. therefore extending the back brown check to all foreign purchases can easily be implemented, and it should be. >> closing the gun show loophole and requiring private sellers to require a back ground check day transfer a gun is, i think ofus, i can't something that would make our country safer than doing just that. toit's time for congress require a universal background check for anyone trying to buy a gun. background check bill regarding exactly these things and nothing more was senate.to vote by the >> the yeas are 54, the nays are is not agreedent to. >> i'm going to speak plainly and honestly about what's happened here. because the american people are trying to figure out how can something have 90% support and yet not happen. allies lobby and its willfully lied about the bill. >> this so-called universal background check is aimed at one

thing. at registering your guns. tot registry will be used confiscate your guns. >> they claim that it would create some sort of big brother registry. even though the bill did the opposite. legislation in fact outlawed any registry. usedct, even the n. r.a. to support expanded background checks. the current leader of the n. thesesed to support background checks. >> we think it's reasonable to provide mandatory instant background checks for every sale at every gun show, no anywhere for anyone. indo you still as you did 1999 support mandatory background checks at gun shows? a dealer that's already the law. >> that's not my question. playe, i'm not trying to games here. >> if you could say something to regarding gun control,

what would you say? >> i would ask them to step to my shoes and experience what i experienced. responsibly, raising money for the community and looking up one day from my desk a gunpointed at my face. >> can you have all the theoretical discussion us want over what the second amendment means and you can live in a fantasy world you want to, which suggests that the more people that have guns the safer we are. but out here in the real world, guns are dangerous, and we need to be more serious about them. >> put yourselves in my shoes, victims, of other other survivors, other nonsurvivors, the families of people. and they represent all of us. that the change doesn't ultimately start with any one law, it's that the has to make this a priority, and has to hold accountable.ials

>> if enough people are affected by something they demand that change in the culture. and that is what is starting to happen now. when people get to the point, tipping point where they've had enough, that's when the culture changes. >> the laws then become a of the changing culture, and in which we say unacceptable. >> a sleeping scrape as been awakened. there are people who are demanding action and aren't any more #ck down they are passionate and they're organized. >> we can still bring about meaningful changes that reduce gun violence so long as the don't give up on it. >> i have more hope now than i ever have. that congress , there are more ways

that they act on this and that only growing. >> to watch all of the winning videos and to learn more about competition, go to c-span.org and click on student cam. the us what you think about issue this ston wants congress to consider. comment on student cam's facebook page or tweet us. next, reaction from lawyers after tuesday's argument. in a separate case the court michigan voter initiative that banned racial theerence and admissions to state's public universities.

loss of jobs, by savinged

or creating millions of jobs and put the united states back long-termtainable growth path.

>> i personal consider consider the smart phones that we carry us to be a trademark example of the internet of we are becoming human sensors because we're all carrying around a powerful in our pocket, but it also takes the form of different in the world,xit radio frequency identification underneath we pass when we access easy pass on the new jersey turnpike. form of weather surveillanceainly cameras that collect data and send that somewhere else. this is all part of the internet things, it's basically thele bedding of computers interest our real world. editor of the futurist magazine, patrick tucker, on a world that anticipates your every move,

saturday night at 10:00 eastern and sunday night at 9:00. and online or book club selection is big west, the wrong war. read the book and join in the tv.org.on at book sunday may 4, our next guest, a former gang member turned author and award includes the book on gang life, always back.g, and it calls you book tv every weekend on c-span 2. in 2012 the company aereo launched a service that allows to remotely record and watch local broadcast tv on their computers. court will decide if aereo is violating copyright law and must pay licensing fees to broadcasters. we'll here from paul clement, an attorney for abc and other networks and david frederick who is representing aereo.

>> we thought the decision was profoundly wrong and a real theat to the name of broadcasting industry as we know it. so we are very happy to be in today. we are pleased with the way the court considered the arguments they understood. theynk the technology understood. the stakes in this case very well. focused onhey were the interpretation of statute and we conveyed to them a relatively straight forward position which is that a service tv over thede live internet to thousands strangers in a publicging performance. it really is as simple as that statute protects the

public performance rights at aereo's service public vile last those performance rights. i don't think we perceive a weakness there. i think we presented this case statutory interpretation for the court. that's the way i think the court will process this case. obviously concerned about the consequencees both for the broadcast industry and for technologies, but i think they also understand that there differencetal between a service that provides content in the first instance provideshing that simply essentially a storm service. as we told the court in some the analogy, the difference between a car dealer and a valet parking says. provides cars for the public, the other simples provides your car back to you and provides a parking service, the a provision of cars to

the public. i think can you make potentially thisar distinctions in case. but ultimately we urge the court of aereo and case leave those other questions for another day, which of course is the unitedcision of states government. snch inaudible question (. >> i don't really think i would differently, which argument say that any couldn't be improved. principle point the argument is to answer the judge's questions. the groundg lays work for the case and we felt like the justices had very good we were happy to point them in the right direction in terms of our view of the case. (inaudible question). questions in this case i suppose does implicate how the copyright laws are going to apply in the digital age.

we certainly think that there's nothing about the digital age that makes the copyright laws obsolete. but some of the arguments being of thisthe other side case that suggest that as long as the contend is provided by button, then the provider of the contend isn't doing anything, i think that could revolutionize the technology in the digital age. i think our view is that clearly addressed this issue back in 1976. technologyd it in neutral terms. i don't know that it could have clearer than that it did not want to allow public performances by transmissionings process, and or congress went further and said any device or process means any now or latercess developed. so i think congress has spoken clearly.ery (inaudible question). >> i think copyright cases in my are not left-right

cases in any respect. interprete courts these as questions of statutory interpretation. start withes maybe more concerns about the content providers than others, but i don't think that has any relevance. i think what's at stake in this case is really the nature of we knowt television as it. because if a company like aereo somehow provide content to lots of paying strangers without a public performance, i think the networks, at least some of them, will have to way that they provide content. because the traditional certainlying has been since 1976 that when somebody company retransmits broadcast over the airways, from the airways to their cable consumers, they're certainly engaged in public performance. if that changes, particularly if thatanges in a way suggests that over the air

broadcasts are uniquely kind ofle to this maneuvering, i think that companies will have to take that interest account in determining provide their content and what formats they why. (inaudible question). >> obviously i've been to more one argument, where more than one person who heard the argument had a different impression about how the argument went. but i think the justices were asking the right questions and we certainly think that we provided the court with straight forward interpretation of the right.ance thank you.

>> my name is david frederick and i'm outside counsel for aereo. the supreme court today heard abc versus aereo. from our perspective the issue whether consumers who always had a right to have an antenna to dvr in that are home and make copies of over the air broadcast television, that right be infringe simply by moving the antenna and the dvr to the cloud. willourt's decision today have significant consequences for cloud computing. we're cautiously optimistic based on the way the hearing went today that the court that when a person watching over the air broadcast television in his or her home is engaging in a private performance and not a public

performance, it would implicate act.opyright thank you very much. much.nk you so >> the supreme court heard the case that will decide the fate of aereo, a company that streams television tot customers computers, phones and tablet for $8 a month. the court is looking at whether those video streams rile late copyright law. that oral argument friday at 8:00 p.m. eastern on c-span. the supreme court on tuesday upheld a michigan voter initiative that banned racial

preferences and admission to the state's public universities. kennedy wrote the opinion for the 6-2 majority. herself,agan recused she had worked on the case as united states solicitor general. froms the oral argument october. >> we will hear argument next today in case 12-682, schuette v. the coalition to defend affirmative action. mr. bursch. >> thank you, mr. chief justice, and may it please the court, the issue in this case is whether a michigan constitutional provision requiring equal treatment violates equal protection. and for two reasons, the answer is no. first, unlike the laws at issue in hunter and seattle, section 26 does not repeal an antidiscrimination law. instead, it repeals preferences and thus, it's an impediment to preferential treatment, not equal treatment. >> holt had nothing to do with an antidiscrimination law. it had to do with a remedy, defective segregation. why isn't this identical to seattle? >> justice sotomayor, it's not

identical because of the remedy issue. in seattle, they were trying to create, in the court's words, equal educational opportunity by imposing a remedy that would result in equality in the schools. >> you don't think that the proponents of affirmative action are attempting to do the same thing? one of the bill sponsors here said that this constitutional amendment will bring back desegregation in michigan, and it appears to have done just that. >> well, there's two points to that question and i'll address them both. first on the merits, under grutter, the point of preferences in university admissions cannot be solely the benefit of the minority, because under grutter, it's supposed to benefit the campus as a whole through diversity, and which we think is a laudable goal. it's a forward-looking action, not a backward-looking action, to remedy past discrimination. and we know that because under grutter, you can use preferences whether or not there's de facto or de jure segregation, simply

to get the benefit. but with respect to your -- your point about the university of michigan and what has or has not happened here, two thoughts on that. first, we have the statistics that we discuss in our reply brief where it's not clear that -- that the diversity on michigan's campus has gone down. but our main point on that is -is not those numbers, but the fact that there are other things that the university of michigan could be doing to achieve diversity in race-neutral ways. for example, we know that >> i thought that in grutter, all of the social scientists had pointed out to the fact that all of those efforts had failed. that's one of the reasons why the -- i think it was a law school claim in michigan was upheld. >> well, there's social science evidence that goes both ways. but i want to focus on the university of michigan because there's two things that they could be doing right now that would get them closer to the race-neutral goal. the first thing is that they could eliminate alumnae preferences. other schools have done that. they have not. that's certainly one way that

tilts the playing field away from underrepresented minorities. >> it's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away for that preference for them. it seems that the game posts keeps changing every few years for minorities. >> given the makeup of michigan's alumnae right now, certainly that playing field would be tilted the other way. the other thing that we practice is socioeconomic diversity. and at the university of michigan, there was a stat in "the wall street journal" just two days ago that if you measure that by pell grants, the number of students who are eligible for those, at the university, the number of students who have pell grants is half what it is at more progressive institutions like berkeley and the university of texas at austin. so the university of michigan could be trying harder. but our point isn't to get into a debate about whether preferences are a good or bad

thing, because that's not what this case is about. the question is whether the people of michigan have the choice through the democratic process to accept this court's invitation in grutter to try race-neutral means. >> mr. bursch, could you go back >> well, while you're on seattle, can you -- i have difficulty distinguishing seattle. here there's a board of trustees. is that a distinguishing factor in the case in which a principal distinction could be made? >> i think it's a distinguishing factor. you know, kind of sticking with how hard is it under the new political process. and i think the chart that we have on page 17 of our reply brief explains that it's really easier to change race-based admissions policies now than it was before section 26. and that's one basis. but i think the more fundamental basis is to say, you know, what seattle is about. and -- and if you indulge me,

i'm going to suggest that seattle could mean one of three things. one of those i think you should clearly reject, and then the other two i think are -are possible interpretations that you could adopt. when seattle talks about racial classifications, it focuses on laws that have a racial focus. at a minimum, that part of seattle has to go because if you had a race-neutral law, like michigan's equal protection clause, which forbids discrimination on the basis of race or sex -- you know, it mirrors the concept of the federal clause -- that itself would be subject to strict scrutiny because it has a racial focus. so we know that can't be right and that's respondent's position. so that leaves you two other choices. and one would be an incremental change to this political restructuring doctrine, the other would be a more aggressive change. the incremental change would be to interpret racial classification in seattle as

meaning a law that, one, repeals an antidiscrimination provision, as it did in hunter and seattle, and two, removes that issue to a higher level of the decision-making process. that would be a way that you could keep seattle and hunter as a viable doctrine, and still rule in our favor on this case. >> i don't see the distinction. bussing could be viewed, and was viewed, to benefit only one group. it was a preference for blacks to get into better schools. that's the way the case was pitched, that was its justification, and to integrate the society. affirmative action has the same gain. >> right. but there's a difference between favoring diversity as an abstract concept on campus, which grutter clearly allows, and remedying past discrimination, which was the point of the bussing in seattle. and that's why we're really in a post-seattle world now, because under >> but there -- there was no proof that there was any de jure segregation in seattle. >> that's correct because, at the time of seattle's decision, we didn't yet have parents involved, and so there wasn't a strict scrutiny test that was

being applied to that bussing program. and so you didn't have to go as far as you would today if you wanted to uphold that same bussing program. there are three things. one, the first you reject. >> yes. >> the law was a racial focus. >> it can't be because of racial focus. >> ok. and the second was an incremental improvement in the -- in the democratic process -- or democratic responsibility? >> that, plus >> responsiveness, i guess. >> right. that, plus repealing an antidiscrimination law. i think that's a narrow way >> and was there a third, did you say? >> well, the third way is really to look at racial focus and say that's wrong, and maybe this whole doctrine needs to be reexamined. and the way that you could do that is to look at what seattle and hunter are really doing, which is falling right into the washington v. davis line of cases. both of those cases could have been resolved by saying, one, there's a disparate impact, and two, given the facts and circumstances in 1969, akron, ohio and 1982, seattle,

washington, that there was discriminatory animus based on race. and if you did that, you could reconcile those cases with washington v. davis and the entire line of equal protection jurisprudence this court has used since that time. >> but there is such a claim in this case, it just wasn't decided -- wasn't there a racial animus, that the reason for proposition 2 was to reduce the minority population? the court of appeals didn't get to that, but there was such a claim. >> there was a claim but there was also a decision. the district was clear in this. this was a summary judgment posture and the district court concluded there was not even a question of material disputed fact with respect to intend. 317-37 -- 319. the primary motivation included so many nondiscriminatory reasons including the belief of michigan that

preferences are themselves race discrimination. a race neutral alternative is the better way to achieve diversity. some people believe the preferences result in a mismatch. >> that seems a good distinction for hunter. but not necessarily distinction in seattle. settled you could argue there were other methods that were less racially divisive. cracks that fits into the framework. if you have any question about place totle meant, the look is the decision in cuyahoga falls. the court mentions the evil of discriminatory intent present in seattle. the197 and it talks about statements as evidence of discriminatory intent in the hunter case. i think if you look at cuyahoga

falls that has done some of the work for you. >> water this -- one of the sponsor said it was intended to segregate against the voters in not filledthey were with animus. some care about their children not having outsiders come in. there is always voters who have good intent. >> that is true and there is always some bad apples. we do not dispute that point. here you have a district court holding that is not a question of fact with respect to animus because there are so many reasons that could be advanced. legitimate reasons about mismatch and the benefits. >> and seattle is well. of animus.issue what i would consider the more conservative way to do with

seattle and hunter, one that would preserve those as a doctrine is to think how wrightman would come out. you had antidiscrimination laws which would repeal by a state constitutional amendment. reliede court did is it on the california supreme court's finding there was discriminatory animus in striking down those antidiscrimination laws. seattleiew hunter and similarly where if you repeal an that isrimination law the narrow way to cabin those cases and ones that -- a way that would allow those cases to survive, yet to distinguish section 26. one point that we haven't discussed much is the democratic process, and it's important that i emphasize that, obviously, the

use of race-based and sex-based preferences in college education is certainly one of the most hotly contested issues of our time. and some believe that those preferences are necessary for campus diversity. others think that they are not necessary, and in fact that we would have a much better world if we moved past the discussion about race and instead based it on race-neutral criteria. >> mr. bursch, can i ask you to go back to the very first thing you said, because i didn't get your -- your point. the question -- what impact has the termination of affirmative action had on michigan, on the enrollment of minorities in the university of michigan? do we have any clear picture of that, what effect the repeal of affirmative action has had? >> yes, justice ginsburg, we have a muddy picture. as we explain in our reply brief, the first thing that we have is the actual statistics for the first full year after section 26 went into effect. this is 2008. and what we find is that the number of underrepresented minorities as part of the entering freshman class at michigan as a percentage changed very little.

it went from about 10.75% to about 10.25%. then it gets very difficult to track, because, following the u.s. census's lead, in 2010 the university of michigan stopped requiring students to check only a single box to demonstrate what their race or ethnicity was and moved to a multiple checkbox system. and justice sotomayor, when you see in the amici briefs that there has been a dramatic drop, for example, in african american students on campus at the university of michigan, those numbers don't take into account that people who before were forced to check a single box now could be checking multiple boxes. and if you fold in the multiple checkbox students, the number of underrepresented minorities on campus actually comes out higher. now, we don't know what those numbers are, because you could have a student who might be white and asian and they would not be considered an underrepresented minority, and

they could be in there, but we know that the numbers are a lot closer than when you just look at single checkbox students in isolation. >> so what do we do with the statistics from california? an amici from california, their attorney general, has shown, another state with a similar proposition, has shown the dramatic drop. >> well, the statistics in california across the 17 campuses in the university of california system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses. it's not at berkeley, they haven't gotten there yet, but it's better on the rest. and by going to race-neutral criteria, what they discovered was that underrepresented minority students have higher gpas, that they take more technology, engineering and math classes, and they have a graduation rate that is 20 to 25 percent higher than it was before california's proposition 209. you can see similar effects in texas in their top 10 percent program before it was modified. and not only did it have those positive impacts, but it actually increased minority performance at social-economically disadvantaged high schools,

where the students said -- hey, if i can only get into the top percent of my class, i can be in the university of texas at austin. and again, we can all agree that diversity on campus is a goal that should be pursued. what the california and texas experiences have demonstrated is that there are good, positive reasons why the voters might want to try a race-neutral alternative. >> so why is it ok to have taken away -- not ok to have taken away the decision to have bussing from the local school boards, the people on the ground, but it's ok to take that power away from the people on the ground here, the board of regents, who are also elected like the school board was in seattle? >> because as >> the general population has feelings about many things, but the only decision that they're -- educational decision that they are taking away from the board of regents is this one -- affirmative action.

everything else they leave within the elected board of regents. >> you've put your finger on the fulcrum of respondents' best argument, that only race as a factor alone has been removed. and there their argument is exactly backwards, because it's not michigan or section 26 that single out race. it's the equal protection clause itself, because, justice sotomayor, if a student wants to lobby for an alumni preference or a cello preference and put it in the state constitution, strict scrutiny is never applied to that effort. but when you try to get a preference based on race or not based on race in the federal -- or the state constitution, strict scrutiny is always applied. and so it's the equal protection clause which is making a differentiation between race and everything else. and that's why this court in crawford, again decided the same day as seattle, at page 538, recognized, quote, "a distinction between state action that discriminates on the basis of race and state action that addresses in neutral fashion race-related matters."

and section 26 falls into that latter category. >> you have been asked several questions that refer to the ending or termination of affirmative action. that's not what is at issue here, is it? >> no, and i'm glad that you brought that up, chief justice roberts, because affirmative action means a lot more than simply the use of race or sex-based preferences in university admissions. article i, section 26, only focuses on this one aspect of university admissions. now, another important point to understand is that section 26 is not all about university admissions. this is actually a much broader law that applies not just to race and ethnicity, but also to sex and other factors, and that affects not just universities but also public contracting and public employment. this was a broad-based law that was primarily motivated by the people of michigan's decision to move past the day when we are always focused on race, exactly as grutter invited the states to do.

and you can -- you can see how that discussion gets mired when you look at some of these statistics that we have been talking about. is someone who has multiple racial boxes checked more or less diverse than someone who only has one box checked? is someone who comes from outside the country -- say from mexico >> you've done something much more. you are basically saying, because fisher and grutter -- we've always applied strict scrutiny >> correct. >> all right. so it's essentially a last resort, within some reason. but what you are saying, if all those other measures fail, you're by constitution saying you can't go to the remedy that might work. >> no, that's not what we are saying. >> well, but you're -- but this amendment is stopping the political process. it's saying the board of regents can do everything else in the

field of education except this one. >> well, again, it actually runs the other way, because equal protection is what singles out race-focused measures for strict scrutiny. but what we're saying is under grutter, race preferences are barely permissible. it cannot be unconstitutional for the people to choose not to use them anymore, to accept this court's invitation in grutter, to move past the discussion about race and into a race-neutral future. >> what would you do with a constitutional amendment that said pro-affirmative action laws, and only those, require a three-quarters vote of the state legislature? >> well, under what we're going to call the narrow "save hunter and seattle," something like that would be unconstitutional because it removes an antidiscrimination provision and moves it to a higher level of government.

now, one of the problems with keeping that doctrine is it could also work the opposite way. you know, pretend that the political climate in michigan was turned on its head and that universities had agreed that they were no longer going to use race or sex in admissions and that it was the state electorate, either in the legislature or in the constitution, which imposed a grutter plan on everyone. well, under hunter and seattle, that would have to go because that law removes an antidiscrimination provision and moves it to the higher level. and so that would be one reason why you might want to take the washington v. davis approach and consider whether there's discriminatory animus based on race. but, you know, in either of those cases, i think you can either, you know, pare down the doctrine or get rid of it entirely and distinguish our case from it. but the one point that i want to leave you with today is that the -- the core of respondent's arguments that somehow a racial classification can be any law that has a racial focus, cannot be the right test. no matter what, that portion of seattle and hunter has to go,

because equal protection is about protecting individuals, not about protecting laws, and even nondiscriminatory race-neutral laws that have a racial focus would fall under their racial focus test. you know, the hypothetical we give in our briefs on that, besides a state equal protection clause, would be the federal fair housing act because it references race, it has a racial focus, in the words of seattle and hunter, and it has the ability of preventing anyone from lobbying for preferences based on their race or sex at lower levels of the government, either state or local. so under their theory, the federal fair housing act would have to be applied under strict scrutiny. and their only response to that in the brief is that -- well, the supremacy clause takes care of that problem. and we all know supremacy doesn't kick in until you first determine that the federal law itself is constitutional, and it wouldn't be under their theory. so -- so what we're asking you to do is eliminate that portion of hunter and seattle that suggests that a law's racial focus is the sina