>> on that note, join me in thanking our panelists. [applause] >> the house may vote this week on a resolution to create a select committee to investigate in benghazit attack in 2012. john boehner has chosen trey gowdy to head the committee. so far there have been 13 hearings on benghazi, 25,000 pages of documents. we spoke with a journalist about the role congress and gaddy will lay. >> john boehner were announced ll head theowdy wi

select committee. we're joined by mary troyan. why did the speakers select trey gowdy? a congressman gaddy has been very vocal doubt gowdy has been a vocal critic about how the administration has handled the .ttack but also congressman gowdy is a former prosecutor. he is known as one of the most tenacious interrogators on the hill, and it is that background that was important to the speaker. vieww was his track record ed? >> he was a state prosecutor, and people in the upstate of south carolina are calling him as a successful prosecutor. i talked to some people today. he handled a lot a big cases himself as a state prosecutor, does notcted person

always have to do, and he won all of his cases. 1 on death penalty cases. >> lindsey graham thinking trey gowdy is the right person at the right time. what does the rest of the south carolina delegation think? >> a lot of them came in together including kim scott. they were elected at the same time in 2010. they are a close-knit bunch, i am talking about the upstate congressmen. they're pretty proud. today are proud of their hometown guy hitting this national stage. the democrats aren't less thrilled about this has evolved into a select committee. upstate, greenville and spartanburg, a conservative

area, and so far they are pretty proud. >> what other details the you know about the formation of the committee? it was assumed trey gowdy would be tapped as the chairman. any idea when the resolution will come to the house for and what is the next that? >> everybody seems to think it will be this week next time. i have not heard an exact day on when there will be a vote. i believe at that point the speaker and minority leader will be allowed to make the appointment for the other membership of the committee. we do not know if democrats will participate. in the resolution itself, we will learn a lot about the committee, what their powers are, how long they have issued their report, the structure it will take, how many hearings they will have, that is all to be determined. >> mary troyan tweeting earlier about the news, gowdy to chair benghazi.nel on

she is the washington correspondent with the "greenville news." >> in a few moments, and oral argument in a court case decided today on whether town meetings should open with a prayer. fora new strategy intervention for ukraine. governorships around the country. >> sunday at eight. >> one of the reasons i did was martha, because when she arrived in berlin, she was whichlled with the nazis, struck me as a completely surprising three and given we all know in hindsight and how you could be enthralled with the

nazi revolution. c-span'sarson, "sundays at eight." -- thespring court ruled supreme court ruled that legislative body such as to the counties can begin their meetings with prayers, even if the prayers are overwhelmingly christian. themajority wrote that practice does not violate the establishment clause. the case involving the city council of the town greece, new york, was argued last november. this is an hour. >> we'll hear argument first this morning in case 12-696, the town of greece v. galloway. mr. hungar. >> thank you, mr. chief justice, and may it please the court, the court of appeals correctly held that the legislative prayers at issue in this case were not

offensive in the way identified as problematic in marsh, but the court then committed legal error by engrafting the endorsement test on to marsh as a new barrier to the practice of legislative prayer. >> mr. hungar, i'm wondering what you would think of the following -- suppose that as we began this session of the court, the chief justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators, and the minister had asked everyone to stand to bow their heads in prayer and the minister said the following, he said, we acknowledge the saving sacrifice of jesus christ on the cross. we draw strength from his resurrection. blessed are you who has raised up the lord jesus. you who will raise us in our turn and put us by his side. the members of the court who had stood responded amen, made the sign of the cross, and the chief justice then called your case. would that be permissible?

>> i don't think so, your honor. and obviously, this case doesn't present that question because what we have here is a case of legislative prayer in the marsh doctrine, which recognizes that the history of this country from its very foundations and founding recognize the propriety of legislative prayer of the type that was conducted here. >> the extension just between the legislature and any other official proceeding, is that correct? >> well, clearly, marsh involves legislative prayer, the tradition that we rely on involves legislative prayer, and this case involves legislative prayer. what rule might apply in other contexts would depend on the context. >> suppose i ask the exact same question, same kinds of statements, same sort of context, except it's not in a courtroom. instead, it's in a congressional hearing room. maybe it's a confirmation hearing, maybe it's an investigatory hearing of some kind, and that a person is sitting at a table in front of the members of a committee, ready to testify, ready to give

his testimony in support of his nomination, the minister says the exact same thing. >> i think that's a closer question because of the congressional history, but, of course, at least as far as i'm aware, they have this history as it applies to the legislative body as a whole, not to committees, but it would be a different question. one obviously important distinguishing factor there, in addition to the fact that it's not the legislative body as a whole >> we should -- >> is that people are compelled to attend and testify under oath, which is a different situation from the one here. >> we should assume to make it parallel to what occurred here that the next day before the same committee a muslim would lead the invocation and the day after that an orthodox jew. i mean -- >> yes, your honor. >> it makes a difference whether it's just one denomination that

is being used as chaplain or open to various denominations. >> that's correct, your honor. that's why we believe this case is actually an easier case than marsh because in marsh, there was a paid chaplain from the same denomination for 16 years. >> but the question, mr. hungar , for 11 years the prayers sounded almost exclusively like the ones that i read, and one year on four occasions, there was some attempts to vary it up, to have a baha'i minister or a wiccan, but for the most part, not out of any malice or anything like that, but because this is what the people in this community knew and were familiar with and what most of the ministers were, most of the prayers sounded like this. >> well, no. i mean, it's clearly not correct that most of the prayers sounded like the one you just read.

>> but your position is that wouldn't matter, as i understand, because you have two limitations, proselytizing and disparaging. and -- but i think justice kagan's question just set place limitations. one could read your brief and say, well, it doesn't matter, it could be an executive body, it could be a court, it could be a town meeting, a school board, a zoning board, a utilities board. that's -- is this case about prayer at the beginning of a legislative session, or is it about prayer in all three branches of government? >> this case is about prayer at the beginning of a legislative session. that's exactly what the meetings at issue here are about. that's what the board of the town of greece is. in fact, respondents try to argue that this is somehow what they call coercive because there

are public hearings that are held. but the public hearings are held at least 30 minutes after the prayer and anyone coming for the purpose of the public hearing can easily show up after the prayer if they don't want to be there. >> why was it that you so promptly answered justice kagan's question to the effect that this would be a violation? why would there be a violation in the instance she put? >> i'm sorry. which instance, your honor? >> the first question justice kagan asked you, the hypothetical about the prayer in this court. you seemed readily to agree that that would be a first amendment violation. why? >> well, perhaps i conceded too much, but i think the important distinction is between both the judicial context and the legislative context on the one hand the absence of a of a comparable history that shows that it did not >> well, is it simply history that makes -- there's no rational explanation? it's just a historical aberration? >> no, it's not a question of historical aberration.

>> well, what's the justification for the distinction? >> it's a question of what the establishment clause has understood, both at the time and throughout history, to forbid and not to forbid. the judiciary is different than a legislature. legislatures can be partisan, the judiciary should not be. people are compelled to testify under oath. >> but you had no problem, mr. hungar, with the marshal's announcement at the beginning of this session. god save the united states and this honorable court. there are many people who don't believe in god. >> that's correct, your honor. and clearly -- >> so that's ok? >> yes. >> why is that ok? >> perhaps i misunderstood the hypothetical. if the hypothetical is as you described with a different minister, with an open process, a nondiscriminatory process like the one we have here, i think it would be a much closer case than this one, but it might be constitutional. but whether that case is constitutional or not, this case is far from the constitutional line, further from the constitutional line than the state legislature's practice in marsh. because there, nebraska had one chaplain from one denomination

for 16 years and yet that was constitutionally permissible, and his prayers were not distinguishable in content from the prayers at issue here during the time that was relevant to the case. >> would it make a difference in your analysis if instead of, as i understand the hypothetical, there was a point of saying, all rise or something of that sort? would it make a difference if the hypothetical justice kagan posed were the same except people weren't told to rise or invited to rise or, in fact, were told to stay seated, something like that, so there would be no indication of who was participating in the prayer? is that a ground of distinction that you're willing to accept or not? >> i don't think that is constitutionally significant, unless -- i mean, it might be different if people are compelled to stand, but whether they are or not -- i mean, in the marsh case itself, senator chambers testified that the practice in the nebraska legislature was for people to

stand and he felt coerced to stand because when he was there -- he tried to avoid it -- but when he was there, he felt he needed to stand because everybody else was doing it and he needed to have dealings with these people as a fellow legislator. the court, nonetheless, held that he's an adult and he is expected to be able to disagree with things that he disagrees with and that is not a constitutional violation. >> i wonder how far you can carry the -- your historical argument and whether some of these things are properly regarded as more historical artifacts, right? i mean, our motto is "in god we trust," right? that's the motto. it's been that for a long time, right? >> yes, sir. >> but wouldn't we look at it differently if there were -- suddenly if there were a proposal today for the first time, to say let's adopt a motto "in god we trust"? would we view that the same way simply because it's -- in other words, the history doesn't make it clear that a particular practice is ok going on in the future. it means, well, this is what they have done, so we're not going to go back and revisit it. just like we're not going to go

back and take the cross out of every city seal that's been there since, you know, 1800. but it doesn't mean that it would be ok to adopt a seal today that would have a cross in it, does it? >> not necessarily. but i think history is clearly important to the establishment clause analysis under this court's precedents in two significant respects, both of which apply here, one of which might not apply with respect to your hypothetical. the first being the history shows us that the practice of legislative prayer, just like the motto, has not, in fact, led to an establishment and, therefore, we can be confident it is not in danger of doing so. and secondly, the history of legislative prayer, unlike your hypothetical, goes back to the very framing of the first amendment. the fact that -- then this is what the court said in marsh -- the fact that at the very time the first congress was writing and sending the first amendment out to the states to be ratified, they adopted the practice of having a congressional chaplain. and the congressional chaplain

-- the historical record is clear -- gave prayers that were almost exclusively sectarian, as respondents define that word. >> i don't really understand your answer. how can it be that if the practice existed in the past, it was constitutional? was it constitutional in the past? >> yes, your honor. >> if it was constitutional in the past, why would it be unconstitutional if the same thing is done today, even without any past parallel practice? that's a nice alliteration. is past parallel practice essential? >> i think this court's precedents have also indicated, at least in some cases, that if a practice is constitutional, as we know it to be the case because of the fact that it has been understood to be constitutional and consistent with our religion clauses from the founding, other practices that have no greater impact, no greater tendency to establish religion, are equally constitutional. and we believe that is an appropriate doctrine.

>> is there any constitutional historical practice with respect to this hybrid body? it's not simply a legislature. it has a number of administrative functions. sometimes it convenes as a town meeting. sometimes it entertains zoning applications. is there a history for that kind of hybrid body, as there is for the kind of legislature we had in nebraska or our congress? >> yes, your honor, in two respects. first of all, the becket fund amicus brief identifies various examples of municipal government prayer over the course of our founding, which is -- over the course of our history, which is not surprising given the legislative practice at the state and federal level as well. and secondly, congress for much

of much of our history entertained private bills, which would be the equivalent in terms of legislative or non-purely legislative functions you're talking about, with what the town of greece does here. >> well, if we had a series of cases, what is a utility rate-making board would come to the supreme court. we say, well, it's enough like a legislative that it's like marsh. but i don't think the public would understand that. >> well, your honor, whatever line might be drawn between non-legislative bodies and legislative bodies, what we are talking about here is a legislative meeting of a legislative body, and it would be incongruous, as this court said in marsh, if congress could have legislative prayers and the states couldn't. it would be equally incongruous -- >> well, the essence of the argument is we've always done it this way, which has some force to it. but it seems to me that your argument begins and ends there. >> no, your honor. i mean, as we said in our brief, the principles that undergird the establishment clause are equally consistent with the position we're advancing here.

as your opinion in the county of allegheny case indicates, the fundamental -- the core of establishment clause concern is coercion or conduct that is so extreme that it leads to the establishment of a religion because it is putting the government squarely behind one faith to the exclusion of others, and that's clearly not what's going on here. >> may i ask you about the individual plaintiffs here. and what do we know about them? they obviously have appeared at proceedings and they object to the proceedings. does the record show that they had matters before the town council during the hearings part of the proceeding? >> no, your honor. there is there's no evidence of that. there's no -- the respondents have no standing to assert the interests of children or police officers or award recipients or permit applicants. they don't even claim to be in any of those categories. >> well, what about the public forum part? they did speak occasionally then, isn't that right? >> yes, your honor. >> do we know what they spoke about? >> well, on at least one

occasion one of them spoke about the prayer -- or on one or two occasions, and then on multiple occasions spoke about a cable access channel issue. >> and what did they -- what was the issue there? >> something about -- she was expressing vehement disagreement with the town's decision to award a cable access channel to one entity as opposed to another. >> do you have any objection to doing one thing that was suggested in the circuit court opinion, which is to publicize rather thoroughly in the area that those who were not christians, and perhaps not even religious, are also welcome to appear and to have either a prayer or the equivalent if they're not religious? do you have an objection to that? >> certainly not. there'd be --

>> well, is there a disagreement on that point, because certainly, that was one of the concerns. it wasn't on anyone's website. greece is a small town very near rochester, and there are, at least in rochester, lots of people of different religions, including quite a few of no religion. so could you work that out, do you think, if that were the only objecting point? >> i don't know what the town's position would be on that, but it -- certainly, there would be no constitutional problem with doing that. i mean, here as a practical matter, since -- >> no, no. i'm not saying it's a constitutional problem i got from the opinion of doing the opposite, of not making an effort to make people who are not christian feel, although they live near in or near the town or are affected thereby participants over time. >> but, your honor, it's a perfectly rational approach when any legislative body is going to have a practice of legislative prayer, to go to the houses of worship in the community. >> i'm not saying it's not. i want to know if you have any objection. >> well, i certainly don't think it is constitutionally required, although i would note that as a practical matter that has happened here in 2007.

>> would you have if all that were left in the case were the question of you're making a good faith effort to try to include others, would you object to doing it? >> i don't know what the town's position is on that. as i said, as a practical matter, that has already happened here. the town deputy supervisor was quoted in the newspaper saying anyone can come in prayer, anyone can -- >> yes. that's different from putting it on a website. that's different from making an organized effort to see that people get the word. >> as i say -- >> mr. hungar, what is the equivalent of prayer for somebody who is not religious? >> i would -- >> what would somebody who is not religious -- >> in the rubin -- >> what is the equivalent of prayer? >> it would be some invocation of guidance and wisdom from -- >> from what? >> i don't know. in the rubin case -- [laughter] >> in the rubin case, a

nonreligious person delivered invocations on multiple occasions. >> perhaps he's asking me that question and i can answer it later. [laughter] >> i'd like to reserve the remainder of my time. >> yes. thank you, counsel. mr. gershengorn. >> mr. chief justice, and may it please the court, the second circuit's decision here requires courts to determine when a legislature has permitted too many sectarian references in its prayers or has invited too many christian prayer-givers. that approach is flawed for two reasons. first, it cannot be squared with our nation's long history of opening legislative sessions not only with a prayer, but a prayer given in the prayer-giver's own religion idiom. and second, it invites exactly the sort of parsing of prayer that marsh sought to avoid and that federal courts are ill-equipped to handle. >> and what was the purpose of marsh saying that proselytizing or damning another religion

would be a constitutional violation? >> so we agree with -- >> so unless you parse the prayers, you can't determine whether there's proselytizing or damnation. that is judge wilkinson's point when he was faced with this question, which is, you have to, to do some parsing. >> so, your honor, you have to look at the prayer to determine proselytizing. but it's a very different series of judgments, we submit, than determining whether something is sectarian. the kinds of debates we're having, i think, are reflected in the differences -- >> now, seriously, counselor. you can't argue that the quote that justice kagan read is not sectarian. it invokes jesus christ as the savior of the world. there are many religions who don't believe that. let's get past that. >> so, your honor -- >> this is sectarian.

>> we agree that these are sectarian. but the kinds of debates that you're seeing among the parties, whether, for example, 15%, 50%, 60% of the congressional prayers are sectarian. those are debates about whether "holy spirit" is sectarian. a district court has held that a district court has held that "allah" is not sectarian. >> so let's talk about the context instead of prayer. if the chief justice got up at the beginning of this session and said "all rise for a prayer," would you sit down? >> your honor, whether i would sit or not, we don't think that that would be constitutional. >> do you think -- how many people in this room do you think would sit, talking truthfully? >> i don't think -- i don't think many would sit, your honor. >> all right. >> but we don't think that -- >> so why do you think that someone who is sitting in a small room where hearings of this nature are being held, when the guy who's about, the

chairman of this legislative body, is about to rule on an application you're bringing to him or her, why do you think any of those people wouldn't feel coerced to stand? >> so, your honor, i'd like to address the coercion point this way with respect to town councils, it's our view that as a general matter that the municipal legislatures can invoke the same tradition of solemnizing and invoking divine guidance as federal and state legislatures. we recognize there are differences, however, and your honor has pointed to one and that's the -- what was called the public forum here. and we think it's very -- because those are the ones where the -- is adjudicated license applications, liquor applications. and we do think it is important on this record that those are separated in time. it's at the court of appeals appendix 929 and 1120. so that the meeting starts at 6:00, which is in the prayer -- when the prayer is, but the board meetings to adjudicate those types of issues are at 6:30 or 6:32. and so the type of concern that your honor has raised is not presented on this record and we think that's significant. we think some of the other factors -- >> mr. gershengorn, do you think that if the legislature -- excuse me -- if the town board

here just, you know, started it off with a prayer and then kept on going, do you think that that would be a significantly different case and you would switch sides? >> i don't know that we would switch sides, your honor. but i do think it mitigates the coercion that the respondents have identified. and we think that that is one of the significant differences between the town legislature and the legislature >> you agree that coercion is the test, however? >> we don't agree that coercion is the test, your honor. >> if it is the test -- >> we think it's the history -- we think the history is the -- the principal guidance of marsh is -- we think there are three pillars in marsh first of all, that the history is what the court looks to first. and here there was a long history of legislative prayer. second, that the court should be very wary of parsing prayer to make sectarian judgments. and third, what marsh said is that adults are less susceptible to religious doctrine -- indoctrination and peer pressure. >> mr. gershengorn, could you respond to this?

here's what our country promises, our constitution promises. it's that however we worship, we're all equal and full citizens. and i think we can all agree on that. and that means that when we approach the government, when we petition the government, we do so not as a christian, not as a jew, not as a muslim, not as a nonbeliever, only as an american. and what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do. and it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as americans, and not as jews and not as christians and not as nonbelievers.

>> so, justice kagan, i think we agree with much of what you say. but with the difference here is that this approaching of the government body occurs against the backdrop of 240 years of history, which makes this different. from the very beginning of our legislature, from the first continental congress, and then from the first congress, there have been legislative prayers given in the religious idiom of either the official chaplain or a guest chaplain, that have regularly invoked the deity and the language of the prayer-giver. >> mr. gershengorn, your brief is the one who brought up -- and you were quite candid about it -- the hybrid nature of that body. i think it's on pages 22 to 24 of your brief. and you say it would be proper to have certain checks in that setting. so for one, make sure that the e

entrance and the exit is easy. for another, inform the people in town of the tradition so they won't be confused. but you recognize on the one hand that this isn't like congress or the nebraska legislature, and then you say these would be nice things to do. are you saying just that it would be good and proper or are you saying it would be necessary given the hybrid nature of this body? >> so, your honor, with respect to some of the things we identify which are similar to the ones that justice breyer recommended, i think our view is they're more akin to safe harbors, that there are undoubtedly advancement challenges that could be brought. and to the extent that the town can point to things such as -- such as public criteria and things like that, that is helpful. with respect to the -- the public forum aspect, i don't think we have a position as to whether it is required, but we do think that that makes this case the much easier case,

because of that separation of the one part that is the strongest argument for the other side, that there is an element of coercion, that your application is -- is being ruled on, that the separation the town has adopted makes that much less persuasive. we think the other elements that the respondents have pointed to for coercion are ones that trouble us because they are things that have analogs in our history. so, for example, they point to the presence of children. but, of course, on the senate floor are the senate pages, who are all high school juniors. and as the reply brief points out, there are often children in the galleries at state legislatures being acknowledged. and so some of those elements that the respondents have pointed to for coercion we think are not ones that the court should adopt. >> of course, your test is whether or not -- part of your test -- is whether or not it advances religion. if you ask a chaplain for the state assembly in sacramento, california, who's going to go to

the assembly to deliver a prayer, are you going to advance your religion today, would he say oh, no? >> so, your honor, i think it's a much narrower test. what this court said in marsh was that the limit on legislative prayers is -- does it proselytize, advance, or denigrate any one religion. we think with respect to the content of the prayer, that the second circuit got it just about right, that the question is does it preach conversion, does it threaten damnation to nonbelievers, does it belittle a particular >> so you use the word "advance" only as modified by "proselytize"? >> what marsh said was "proselytize, advance, or denigrate." >> because that's not what your brief says "does not proselytize or advance." >> that's the language from marsh, your honor, is to proselytize or "proselytize, advance, or denigrate." >> but that's that the test you want us to adopt and >> it is, your honor. >> i'm asking whether or not it is, in fact, honest and candid and fair to ask the minister or -- or the priest or the chaplain or the rabbi if by appearing there, he or she seeks to

advance their religion? >> so, your honor, i don't think that's what marsh meant by advance. >> if not, i'm not quite sure why they're there. >> you're not quite sure why "advance" is there, or why the rabbi is there. we don't think that the mere presence of the rabbi -- that's what marsh held, that marsh -- what marsh says is "advance" 21 does not mean having a single -- a single chaplain -- a chaplain of a single denomination or looking at the content of the sectarian prayer in light of that history. thank you, your honor. >> thank you, counsel. mr. laycock. >> mr. chief justice, and may it please the court, petitioner's answer to justice kagan's opening question is entirely formalistic. there is no separation in time between the public hearing and the invocation. people appear before this town board to ask for personal and specific things. our clients put shows on the cable channel. they were concerned the cable

channel was about to be abolished or made much less usable. people appear to ask for a group home, parents of a down syndrome child. there are many personal petitions presented at this -- in the immediate wake of the prayer. >> but that's during the public -- that's during the public forum part. >> that's in the public forum. >> which is not really -- it's not the same thing as the hearing. >> it's not the same thing as the hearing and that's the point, your honor. >> there's another part of the proceeding that is the hearing. >> yes. >> and that's when somebody has a specific proposal. they want to -- something specifically before the board and they want relief. they want a variance. >> the hearing is a particular kind of proposal. >> and that is separated in time. >> that is somewhat separated in time. the forum is not. and people make quite personal proposals there. they ask for board action. they often get board action. >> but that is a legislative body at that point. it's clearly a legislative body, is it not? the only -- the difference is it's a town rather than -- than congress or a state legislature

where you have more formalized procedures. this is this is more direct democracy. or it's like a -- it's a town meeting. >> it is -- it is direct democracy. when a citizen appears and says, solve the traffic problem at my corner, solve this nuisance family that commits a lot of crimes in my block, that's not asking for legislation or policymaking. that's asking for administrative action. this board has legislative, administrative, and executive functions. >> well, if that is your argument, then you are really saying you can never have prayer at a town meeting. >> that's not what we're saying. >> how could you do it? because that's the kind of thing that always comes up at town meetings. >> we're saying you cannot have sectarian prayer. the town should instruct -- should have a policy in the first place, which it doesn't, instruct the chaplains keep your prayer nonsectarian, do not address points of >> all right. give me an example. give me an example of a prayer that would be acceptable to

christians, jews, muslims, buddhists, hindus. give me an example of a prayer. wiccans, baha'i. >> and atheists. >> and atheists. throw in atheists, too. [laughter] >> we take marsh to imply that atheists cannot get full relief in this context, and the mccreary dissenters said that explicitly. so points on which believers are known to disagree is a -- is a set that's in the american context, the american civil religion, the judeo-christian tradition >> give me an example then. i think the point about atheists is a good point. but exclude them for present purposes and give me an example of a prayer that is acceptable to all of the groups that i mentioned. >> about a third of the prayers in this record, your honor, are acceptable.

>> give me an example. >> can i have the joint appendix? the prayers to the almighty, prayers to the creator. >> to "the almighty." >> yes. >> so if a particular religion believes in more than one god, that's acceptable to them? >> well, some religions that believe in more than one god believe that all their many gods are manifestations of the one god. but the true polytheists i think are also excluded from the mccreary dissent. >> what about devil worshippers? [laughter] >> well, if devil worshippers believe the devil is the almighty, they might be ok. but they're probably out >> who is going to make this determination? is it -- is it an ex ante determination? you have to review the proposed prayer? >> i'm just flipping through. there are a number of examples, but if you look at page 74a of the joint appendix, the prayer from august 13, 2003 -- no i'm sorry. that ends "in christ's name."

but there are -- the count was about, about two-thirds, one-third. so there are plenty of them in here. >> 74a, "heavenly father," that's acceptable to all religions? >> "heavenly father" is very broadly acceptable. and you know, the test cannot be unanimity, because that's impossible, right? that's why the atheists are excluded. i'm sorry, justice scalia, would you repeat your question? >> well, i'll repeat mine. it was, who was supposed to make these determinations? is there supposed to be an officer of the town council that will review? do prayers have to be reviewed for his approval in advance? >> no. principally the clergy make this determination. there is a 200-year tradition of this kind of civic prayer. the clergy know how to do it. if the city has a policy, then an occasional violation by one clergy is not the city's responsibility. so -- so this is left

principally to the clergy by simply giving them instructions. they receive no instruction of any kind about the purpose of this prayer or >> so there is an official in the town council that is to instruct clergy about what kind of prayer they can say? >> that's right. state legislative bodies, the house of representatives have these kinds of guidelines. they issue them to the guest clergy before they appear. >> and if i'm that official and i think a prayer was over the top for being proselytizing and particularly sectarian, i would say i rather not -- you not come back next week, i am going to look for somebody else? >> well, you might have a conversation with him first and >> well, so in other words the government is now editing the content of prayers? >> editing the content of government-sponsored prayers. of course these clergy can pray any way they want on their own time with their own audience. but this is an official government event. and it's part of the board's meeting. it's sponsored by the

government. and they delegate the task to these clergy and they can define the scope of that >> your point is that it coerces, it's bad because it coerces? >> it coerces the people who are about to stand up and ask for things from the board and >> if there is -- if coercion is the test of the free exercise clause, why do we need a free exercise clause? if there's coercion -- i'm sorry -- of the establishment clause, why do we need the establishment clause? if there's coercion, i assume it would violate the free exercise clause, wouldn't it? >> well, i think that's right. and that's why >> so it seems to me very unlikely that the test for the establishment clause is identical to the test for the free exercise clause. >> well, it seems to me unlikely as well. coercion is one test for the establishment clause, but there is also broad agreement on the court, and there has been, that sectarian endorsements are prohibited by the establishment clause. >> what exactly since you are adopting the coercion test, what

exactly is coercive in this environment? having to sit and listen to the prayer? >> there are many coercive 19 aspects here of varying degrees of importance. citizens are asked to participate, to join in the prayer. they're often asked to >> they are asked to participate, and -- but not in any tangible way. they say well, i'm not going to participate, and everybody's just sitting there. >> they are often asked to physically participate, to stand or to bow their heads. the testimony is most of the citizens bow -- most of the citizens bow their heads whether they are asked to or not. so people who are not participating are immediately visible. the pastors typically say "please join me in prayer." they offer the prayer on behalf of everyone there. they talk about "our christian faith." >> this is coercion? he says, you know -- he says, "may we pray," and somebody doesn't want to pray, so he stays seated.

>> what's coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade. >> let me give you an example of a practice that's a little bit different. maybe you'll say it's a lot different from what the town of greece does. first of all, this town starts out by making -- by proceeding in a more systematic and comprehensive way in recruiting chaplains for the month or whatever it is. so instead of just looking to all the houses of worship within the town, it identifies places of worship that may be outside the town boundaries that people within the town who adhere to a minority religion may attend. and it makes it clear that it's open to chaplains of any religious -- of any religion on a rotating basis. and then they have -- they structure their proceedings so that you have the prayer, and then the legislative part of the

town meeting. and then there's a clear separation in time and access between that part of the proceeding and the hearing where variances and things of that nature are held. now, you would still say that's unconstitutional because you have to add on that a prayer that is acceptable to everybody, is that it? is there any other problem with what i've just outlined? >> well, if the separation in time really works, that's part of the remedy that we've suggested that is possible here. we still believe that prayers should be nonsectarian. >> on the remedy, this case was remanded by the second circuit for the parties together with the court to work out appropriate relief. and if you could tell us what you think that relief would be, because then that is a measure of the constitutional infraction. so what would -- you put yourself before the district

judge and propose the changes that you think would be necessary to bring this practice within the constitutional boundary. >> well, we think the town has to have a policy. >> well, just to be clear, are you talking about what would be satisfactory to the second circuit or satisfactory to you? because you don't accept the second circuit's approach. >> well, we've tried to sort out the totality of the circumstances to make it clearer. >> what my question was -- >> i'm talking about what would be -- >> your theory, and you say existing situation violates the constitution. so what changes do you think would need to be made -- >> we think -- >> that would bring this within the constitutional boundary? >> we think the town needs a

policy. the policy should give guidelines to chaplains that say stay away from points in which believers are known to disagree. and we think the town should do what it can to ameliorate coercion. it should tell the clergy don't ask people to physically participate. that's the most important thing. the government suggests disclaimers might help. we think that's right. the government suggests separating the prayer a bit more in time. some states put their prayer before the call to order. the prayer could even be five minutes before the beginning of the meeting. the coercion can't be entirely eliminated, but the gratuitous coercion, the things that are done that don't have to be done in order to have a prayer could be eliminated. and we think those two pieces are the components of a remedy. >> mr. laycock, it seems to me that you're missing here is -- and this is what distinguishes legislative prayer from other kinds -- the people who are on the town board or the representatives who are in congress, they're citizens.

they are there as citizens. the judges here are not -- we're not here as citizens. and as citizens, they bring, they bring to their job all of the predispositions that citizens have. and these people perhaps invoke the deity at meals. they should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances? there is a serious religious interest on the other side of this thing that people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and not -- not as judges or as experts in the executive branch. and it seems to me that when they do that, so long as all

groups are allowed to be in, there seems to me -- it seems to me an imposition upon them to -- to stifle the manner in which they -- they invoke their deity. >> we haven't said they can't invoke the deity or have a prayer, and they can certainly pray any way they want silently or just before the meeting. we've said they cannot impose sectarian prayer on the citizenry, and that is very different from what congress does, it is very different from what this court does. maybe the closest analogy is legislative committee hearings where the citizens interact. we don't have a tradition of prayer there. what the town board is doing here is very different from anything in the tradition that they appeal to. >> are you -- i would like you to take into account an aspect of this. i mean, in my own opinion, i

don't know of anyone else's, i'm not talking for others. but one -- a major purpose of the religion clauses is to allow people in this country of different religion, including those of no religion, to live harmoniously together. now, given that basic purpose, what do we do about the problem of prayer in these kinds of legislative sessions? one possibility is say, you just can't do it, it's secular. but that is not our tradition. >> that's correct. >> all right. the second possibility is the one that you are advocating. and it has much to recommend it, try to keep non-denominational, try to keep it as inoffensive to the others as possible. that's the upside. the downside is seeing supervised by a judge dozens of groups, and today, there are 60 or 70 groups of different religions coming in and saying, no, that doesn't work for us, this doesn't work for us, and that's the nightmare that they are afraid of. i mean, even in this town or in the area,

there are significant numbers, as well as christians, of jews, of muslims, of baha'is, of hindus, and others. all right. so there's a third approach, and that is say, well, you can't have them if there's any aspect of coercion. but we just saw people walking into this room, "god save the united states" and you want to win your case. i didn't see people sitting down. all right. then the fourth approach, which is the other that has -- makes its appearance here, is to say let's try to be inclusive. now, was enough -- in other words, so you didn't get the right prayer today, but you -- and even with the nonreligious, you know many believe in the better angels of our nature and the spiritual side of humankind, it's not impossible to appeal to them. so you say, you'll have your chance. and that's the thing i would like you to explore. i mean, is there a way of doing that or is that preferable to

the other ways or do we get into trouble? >> we think that rotation does not work. first of all, because -- for several reasons, but most citizens come for a single issue to one or two meetings. they get the prayer they get that night. they don't benefit from the rotation scheme. any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers. religious minorities -- unfamiliar minorities give the prayer. there are often political protests, there are often threats and hate mail. they don't want to give the prayer. and many city councils won't stand up to the political pressure and enable those people to give the prayer. so there are multiple reasons why rotation does not solve the problem here. we think nonsectarianism has a very long tradition. the government is not a competent judge of religious truth, madison said, that was not a controversial proposition in the founding. and even in the first congress, in the prayers they point to, there were no prayers there that violate our principle, invoking details in which believers

disagree. because then, 98.5% percent of the population was protestant, christ was not yet a point that disbelievers disagreed. >> well, that gets exactly to the problem with your argument about nonsectarian prayer. yes, when -- at the beginning of the country, the population was 98 percent-plus protestant. then it became predominantly christian. then it became predominant almost exclusively christian and jewish. and it -- but now, it's not that -- it's gone much further than that. so we have a very religiously diverse country. there are a lot of muslims, there are a lot of hindus, there are buddhists, there are baha'is, there are all sorts of other adherents to all sorts of other religions. and they all should be treated equally, and -- but i don't -- i just don't see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups. >> we -- >> and you haven't given me an example.

>> we -- we cannot treat -- i'm not a pastor -- we cannot treat everybody, literally everybody equally without eliminating prayer altogether. we can treat the great majority of the people equally with the tradition of prayer to the almighty, the governor of the universe, the creator of the world -- >> you want to pick the groups we're going to exclude? >> i think you picked them, your honor. >> the baha'i, who else? these groups are too small to -- >> we've already excluded the atheists, right? >> yeah, the atheists are out already. >> we've excluded the atheists. i don't think the baha'i are excluded, but i'm not certain. >> okay. so who else? i mean, you suggest -- you say just the vast majority is all that we have to cater to. >> well, i think the atheists are inevitably excluded. we can't help -- >> ok. good. got that. number 1, atheists. who else? >> true polytheists who don't understand their gods as manifestations of the one god are probably excluded. i'm not sure many others are.

and you have all these lawyerly hypotheticals, but the fact is we've done this kind of prayer in this country for 200 years. there's a long tradition of civic prayer and the clergy know how to do it. when in greece, no one has told them that's what we want you to do. and -- and i would say the one time the country in a major way got involved in government-sponsored, sectarian prayers that people disagreed about was when we imposed protestant religious exercises on catholic children in the 19th century. and that produced mob violence, church burnings, and people dead in the streets. >> we've already separated out, i thought, in our jurisprudence, children and adults. >> well, lee v. weisman twice reserves the question of whether adults might be subject to similar pressures. >> well, you do accept the fact that children may be subject to subtle coercion in a way that adults are not, right? >> in some ways that adults are not. but there's no doubt that before you stand up to ask for relief from a governing body, you don't

want to offend that body. adults are subject to coercion here. and -- and no competent attorney would tell his client, it doesn't matter whether you visibly dissent from the prayer or not. you try to have your client make a good impression. >> well, i just want to make sure what your position -- your position is that town councils like greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing. that's your position? >> i wouldn't use all those adjectives, but yes. and we don't think that's difficult to do. >> mister -- >> congress has a set of guidelines which you've read and are here in the papers and so forth. are those satisfactory to you? >> we'd like to be a little more explicit, but those are vastly better than >> if those are satisfactory to you, then i wonder, are they satisfactory to everyone. and -- and you will find all kinds of different beliefs and thoughts in this country, and

there will be people who say, but i cannot give such a prayer if i am a priest in that particular -- or a minister or whatever in that particular religion. i must refer to the god -- to god as i know that god by name. and what do we do with them? that's what -- i mean, we can recommend it, but can we say that the constitution of the united states requires it? >> you know, there are such people and i respect that and they should not be giving government prayers. they're taking on a government function when they agree to give the invocation for the town board. >> mr. laycock -- >> well, that's -- that's really part of the issue, whether they're undertaking a government function or whether they're acting as citizens in a legislative body, representative of the people who bring -- who bring to that their own personal beliefs. i think the average person who participates in a legislative

prayer does not think that this is a governmental function. it's a personal function. and -- and that's why we separate out the legislative prayer from other kinds of prayers. >> they're -- they're not praying for their congregation. they are -- they are invited by the board, the prayer-giver is selected by the board, the board decides to have the prayer, the board gives this one person and only one person time on the agenda to pray. this is clearly governmental as you held in santa fe -- >> if you had an atheist board, you would not have any prayer. >> precisely. >> i guarantee you, because it is a personal prayer that the members of the legislature desire to make. >> counsel, assuming that we don't -- >> justice sotomayor. >> assuming -- you hear the resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian, and i join some skepticism as to knowing exactly where to join that line.

assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering this rule. the cases that come to it are clearly sectarian or clearly nonsectarian. >> it just seems to me that enforcing that standard and the standard i suggested involves the state very heavily in the censorship and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental >> that may play ultimately in your position if we say that that's why there shouldn't be any prayer at all.

but then you have the problem mentioned by justice scalia that we are misrepresenting who we really are. >> if you really believe government can't draw lines here, then your alternatives are either prohibit the prayer entirely or permit absolutely anything, including the prayer at the end of our brief, where they ask for a show of hands, how many of you believe in prayer? how many of you feel personally in need of prayer? if there are no limits, you can't draw lines. >> that's not a prayer. that's not a prayer. >> "how many of you have been saved?" that's not a prayer. >> it was how he introduced his prayer, and if you can't draw lines i don't know why he can't say that. >> mr. laycock, sort of, all hypotheticals aside, isn't the question mostly here in most communities whether the kind of language that i began with, which refers repeatedly to jesus christ, which is language that is accepted and admired and incredibly important to the majority members of a community, but is not accepted by a minority, whether that language will be allowed in a public town session like this one.

that's really the question, isn't it? >> that's the issue that actually arises in the case. >> that's the issue that actually arises. here's what -- i don't think that this is an easy question. i think it's hard, because of this. i think it's hard because the court lays down these rules and everybody thinks that the court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways. this goes back to what justice breyer suggested. part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. and every time the court gets involved in things like this, it seems to make the problem worse rather than better. what do you think? >> well, i don't think that's true. there are people who distort your decisions. there are people who misunderstand your decisions

honestly and -- and innocently. but keeping government neutral as between religions has not been a controversial proposition in this court. and i don't think the fourth circuit has made it worse. they've got a workable rule and the prayers are no longer exclusively christian prayers in the fourth circuit and they have been able to mostly enforce that and there hasn't been litigation at the margins because all the prayers were clearly >> suppose you did this. you combined your two approaches. the town has to -- it cannot -- it must make a good faith effort to appeal to other religions who are in that area. and then you have these words from the house "the chaplain should keep in mind that the house of representatives, or you would say whatever relative group," is comprised of members of many different faith traditions," period, end of matter. is that sufficient, those two things? >> that would help immensely. we think some of the clergy need more detailed explanation of what that means, but yes, that would help immensely.

>> should we write that in a concurring opinion? >> i mean, i'm serious about this. this involves government very heavily in religion. >> well, government became very heavily involved in religion when we decided there could be prayers to open legislative sessions. marsh is the source of government involvement in religion. and now the question is how to manage the problems that arise from that. >> well, marsh is not the source of government involvement religion in this respect. the first congress is the source. >> fair enough. the tradition to which marsh points. >> the first congress that also adopted the first amendment. >> that's correct, and that had prayers that did not address predestination or having to accept jesus as your savior or any point on which listeners disagree. >> many of them were very explicitly christian, were they not? >> they were very explicitly christian, but that was not a point of disagreement at the time. they stayed away from any issue that protestants disagreed on. >> in a way it sounds quite elitist to say, well, now, we can do this in washington and sacramento and austin, texas,

but you people up there in greece can't do that. >> well, it's not that the people in greece can't do it. it's just that this board is functioning in a fundamentally different way from what congress or the state legislature functions. and also -- >> my understanding is that the first chaplain of the senate was the episcopal bishop of new york, isn't that correct? and he used to read -- he took his prayers from the book of common prayer. that was acceptable to baptists at the time, quakers? >> well, it wouldn't have been their choice. but did he talk about the choice between bishops and presbyters and congregations as a way of governing the church? they have not offered a single example of a prayer in the founding era that addressed points on which protestants were known to disagree. and i don't think there is one. the founding generation kept government out of religious disagreements. and what has changed is not the principle. what has changed is that we have a wider range of religious disagreements today.

if there are no further questions, we ask you to affirm. >> thank you, mr. laycock. mr. hungar, you have three minutes remaining. >> thank you, mr. chief justice. first i would like to correct one factual misimpression, the assertion that only non-christian prayer-givers delivered the prayer after 2008. it's not in the record, but the official web site of the town of greece shows that at least four non-christian prayer-givers delivered prayers thereafter in thereafter in 2009, 2010, 2011 and 2013. on the sectarian points, clearly the line >> counsel. >> i'm sorry? >> one a year. >> i'm sorry, your honor? >> four additional people after the suit was filed. >> yes, your honor. >> one a year. >> approximately. >> how often does the legislature meet? >> once a month. and on the sectarian line, i just like to point the court to the senate brief, the amicus brief filed by senators, pages 8 to 17 which shows the extensive history from the beginning of

the republic until today of prayer in congress. that would be sectarian and unconstitutional under respondent's position. with respect to coercion, it's unquestionably true that there is less basis for claiming coercion here than there was in marsh. in marsh, senator chambers was required to be on the senate floor by rule, he had to be there to do his job and the practice was to stand every single time, which he did because he felt coerced to do it, whereas, here, the record suggests that there were three times when somebody requested people to stand out of 121 occasions. the idea that this is more coercive than marsh is absurd. in marsh the court expressly rejected a coercion argument saying, "we expect adults to be able to deal with this." with respect to the history, as well, i think the debate in the continental congress, when this issue was first raised, shows what the american tradition has been. that is americans are not bigots and we can stand to hear a prayer delivered in a legislative forum by someone whose views we do not agree

with. that is the tradition in this country, and that's why it doesn't violate the establishment clause. and finally, with respect to the fact that this is a municipality rather than a state or local federal government. that can't possibly make a difference as an establishment clause matter. it makes no sense to suggest that a prayer at the local level is more dangerous for establishment clause purposes than what congress is doing. only congress could establish a religion for the entire nation, which is the core preventive purpose of the establishment clause. to suggest that there are greater restrictions on municipalities makes no sense at all. we think that the dangerously overbroad theories advanced by respondents are at odds with our history and traditions, which we reflect this tradition of tolerance for religious views that we don't agree with in the legislative context. respondent's theories also conflict with the religion clauses mandate, that it's not the business of government to be regulating the content of prayer and regulating theological orthodoxy. thank you. >> thank you, counsel. the case is submitted.

>> with the fight for a ruling by the u.s. supreme court, we are joined by robert barnes story andlowing this his work is available online. thank you for being with us. to be here. >> what is the significance of the ruling? >> each member of the core set it is ok for legislative body to open with a prayer. after that, they split quite drastically. five of them said this case in which this town near rochester, new york had almost exclusively christian prayers offered before the meeting. it was ok. they said it was not coercive and did not to denigrate other religions and people can be expected to hear prayers that are not of their own religion sometimes and not be offended up by that. before the dissenters said the

town had not done enough to encourage people of other religions to speak and to them, having a such of steady diet of christian prayers before this was impermissible. it looked as if the town was a christian town as sort had -- and source have adopted christianity. one of a long list of cases the supreme court has taken up. meetingy, legislative gets underway with prayer. what is the difference? >> they said they guess to chaplains are fine. traditionhey rely on and a noted that the founding fathers gave money to have chaplains in both houses. just after they propose the first amendment which is says there can be no establishment of religion. they took a view that some of

-- the one and they do not to give an official stamp of approval on one data thoseer another are allowed. >> the other obvious question is earlier court decisions with regard to prayer in public schools, that often change to a moment of silence. not get intodoes that. the court was kind of careful to steer a way from that. i think that is something that is certainly out there, but it was not implicated in this case. did i know what to write a test case would be. >> you mentioned kennedy and the role he played with these five-four decisions. what is the back story? >> he is often the decider on these type of cases and in the

oft he has been skeptical whether these kind of prayers ofd to an establishment religion. he is much more concerned about if it is co--- coercive or whether or not there is official command that people be involved in a religion or that it affects them and some very specific way. in this case, he said there was no evidence and he wants business and before the town council was affected by the idea that they either stood when there was a prayer or bout of your head or participated. -- bowed their head or participated. opinion, what did justice kagan state? >> that the city had not done enough to accommodate other views and she wrote very

narrowly which is that she said, the town council could have taken care of this problem by amongng prayer givers other religions. and she wrote very expansively, too was dubbed she said when the citizens of this country approach, they do only as americans, not as members of one faith or another. concerne a very broad about religious minorities being subjected to the will of the majority. >> oral arguments have ended for this term. the court will hand down key decisions. what are you looking at? >> a couple of cases about abortion, protesting at abortion clinics. buffer of what is the that may be around those clinics. cases that were heard last week

about cell phone privacy and whether the police have a right to search through all of the information on your cell phone if you have been arrested for even a minor crime. and then probably the biggest one that is left is the contraceptive mandate and obamacare. that is a question about whether private business owners who have religious objections to some ss of contraception, whether they are still required to provide those and help their employees. >> robert barnes who covers the supreme court for "the washington journal." thank you for being with us. >> you are very welcome. center few moments, thus for international studies look at russian intervention in ukraine. and we will look at the key races for the senate around the

country. and then, the oral arguments and the supreme court case decided today that allows government meanings to open with a prayer. >> on the next washington journal, former senate staff housings discuss the reform bill making its way through the senate. politico reporter. plus, your phone calls and tweets. "washington journal" is live at 7:00 a.m. on c-span. of set of our own prison and a trap. would you know we are contributing to it. we you get addicted to drugs, the whole world get to build around your need for drugs.

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russian intervention in ukraine. the center for strategic and international studies hosted this 1.5 hour event. >> thank you for joining us. i'm sam brannen, a senior fellow at the ces iso program and i'm privileged to be joined by three of my favorite foreign policy and security experts, the people whose opinions i want to hear on this issue. we are going to turn to them today to discuss the ukraine crisis and its implications for u.s. security.

before i turn it over, i want to provide a little framing and i will take it from there and we will open it to questions from you at the end of the session. events over the past several days in eastern ukraine have underscored the growing danger of a prolonged civil and sectarian conflict. as high as the stakes are within ukraine, they are potentially greater for the united states, not just in europe and eurasia, but globally. fundamental questions about u.s. security strategies are being asked not just in washington and op-ed pages but in capitals from the world. considering this framing of the crisis by un-american two days after the crimea referendum vote. he said like a mirror, the situation in ukraine reflects what is going on and what has been happening in the world over the past several decades. after the dissolution of bipolarity on the planet, we no longer have stability. i doubt many in this room would agree with mr. putin's analysis, but we would agree that the

events in ukraine are forcing reflection on what the next decade has in store for the u.s. and its allies and partners globally. at the risk of oversimplifying a complex set of issues, let me offer for key areas we can go can touchy areas we on today. ukraine has opened questions about u.s.-russia policies dating back to the end of the cold war, specifically questions about whether the clinton administration, bush 43, and obama administration fundamentally mishandled russia. they failed to properly acknowledge it interests and humiliated in ways that haunt us today or today try to hard to accommodate a russia that ask

ways -- acts in ways contrary to international stability? how does this change the way we think about the salience of nuclear weapons? second, russia's successful use of diplomacy, operational operations -- informational operations has raised security about other states in russia's periphery, including nato allies belarus, poland, and others. today, the united states has responded with small-scale rotations of its forces in its -- and its nato allies have done likewise. diplomatic messaging has occurred in sanctions have been taking, but they have had very little impact on russia's decision-making. moreover, it has raised questions about nato's long-term ability to stand up to the challenge. secretary of defense chuck hagel suggested the next nato ministerial must include ministers of finance, noting that today, america's gdp is smaller than the combined gdp's of our 27 allies. but america's defense spending is three times our allies defense spending. third, just eight months after the russia-brokered syria chemical weapons deal, there are tough questions about the u.s. being willing to use force when push comes to shove.

from allies and partners, i've heard sharp voices about a united states that has vacillated from drawing red lines it would not enforce to a united taste that refuses to set red lights at all. her words, not mine. on this point, potentially most damaging to this presidency, president obama weighed in last week during his trip to asia. "my job as commander-in-chief is to look at what it is that is going to advance our security interests over the long term, to keep our military and reserve for when we absolutely needed. there are going to be times when there are disasters our difficulties and challenges all around the world and not all of those will be immediately solvable by us. where we can make a difference using all of the tools, we should do so. there are occasions where clear actions can be taken, if it

makes a difference, we should take them. we don't do them because somebody sitting in an office in washington or new york thinks it would look strong. finally, those watching wonder how might deflect attention, particularly in a time of overall significant fiscal pressure on the department of defense. they have asked how u.s. response may be viewed by that region's fast rising power, china. with that, let me say how grateful i am to be joined by three tremendous foreign and security policy experts who will share their views on issues today. i will introduce them in the order they will speak. to my immediate left, joined by andy hutchins, a senior fellow and director of the cs iso russia and eurasia program. he has written and commented extensively on russia, particularly over the past six months as demand has skyrocketed to understand russia's role in syria, and edward snowden affair, the sochi olympics, and

now ukraine. he has just returned from research travel in central asia, where he was able to gauge key officials views of events. though he probably supported the need to reset relationships with russia, he has not minced words regarding the administration's handling of ukraine. in a march 30 commentary, he wrote "barack obama is making jimmy carter look like attila the hun with a series of empty threats and too little, too late. i will let him add some context around those remarks. next is clark murdoch, a senior advisor and director for the defense and national security group and the project on nuclear issues. he's an expert on defense planning, the nuclear mission, and strategy with decades of executive branch, congressional, academic and think tank experience. his recent work has concentrated on the military force construction under continued sequestration cuts.

he also spends time thinking about how to use hard power smartly. in a late 2013 analysis of lessons learned from the serious crisis, he wrote that there are three primary factors that should guide u.s. policymakers on use of force in maintaining credibility -- first, mean what you say and say what you mean. second, prepare to carry out your threats and deal with the consequences. and third, since actions always speak louder than words, use force from time to time to demonstrate your is all. last, but certainly not least, i'm glad to be joined by vikram singh, who recently joined the center for american progress for american policy. prior to departing the obama administration after five years of service, he was most recently this -- the assistant deputy secretary of defense when he was on the front lines of the

asia-pacific rebalance. before that, he was the deputy director for relationships on u.s. and pakistan. he cautioned that failing to impose a meaningful cost for russia's forceful annexation of foreign territories would further embolden russia to take similar steps and other neighboring states. it would also affect the strategic calculus of other nations and territorial disputes, increasing the willingness of states to use coercion, subterfuge, and military force with less fear and significant or national backlash. let me turn it over to andy to get things started. >> thank you so much. i think we can go right to the questions and answers. you address the key questions and it sounds like we all agree from what you quoted from us. the only good news i have to report over what has happened in the last couple of months is vladimir putin's quest to become

dictator life, it is great job security for me. and the likes of us. before i addressed these questions, let me say what i think is actually motivating vladimir putin in ukraine right now. to me, it is fundamentally about domestic politics in russia. it's about a new political strategy he has for himself will stop for most of the time in which he has been the de facto leader of russia, there has been an economic social compact. russians have lived more prosperously and has grown while putin has been president, with the exception of the time during the global financial crisis and shortly after he became president again. what has happened since he became president in 2012 hummel when the russian economy was still growing at the rate of about 3%, underperforming, but

performing reasonably decently, the growth before the situation in ukraine started. it had already come to about zero. he faced a fundamental decision -- was he going to take the measures to restructure the russian economy so it would be more efficient? to do that, he would have to build more transparency, better governance, address corruption, improve the investment environment, etc. he could not count upon a multiple increase in oil price that occurred during his first two terms in power. he could not count on a 50% increase in production as happened during his first term. he could not count on a virtual global money party as in the second term of his president that made the international community ready to lend to russia a lot. the problem was, and to me it is a reminder of the soviet union around the early 1980's, let's say 1981, the year i graduated college.

despite the fact the oil price was at a high, and oil production in russia had grown tremendously, soviet economic growth was at about zero. did the soviet ownership under mr. brezhnev or on drop off or chernenko and the rapid succession want to deal with that and structurally reform the system? no. it was too politically risky and that's the decision mr. putin has made. where is he going to get the basis for his political support in the future? the new strategies accommodation of a return to what nicholas the first's policy of official nationality in the second quarter of the 19th century -- orthodoxy, russian nationality, and combined to that, this greater russia project he has in mind. russia has to be, despite the fact it is x times larger than any country in the world, it still needs to be larger.

that, combined with foreign-policy successes of the nature we might have regarded, putin's performance on syria in the summer. that is a fundamental starting point for how we got to where we are around late february to today. unfortunately, i think it is a very, very dangerous and risky strategy on his part, not only dangerous for him, it's probably going to result in ultimate failure. but there will be tremendous collateral damage all across the board. one of the first things that hit my mind on february 28, when crimea was seized by the polite green men, was that gorbachev and the ussr went out with a whimper. something in my bones tells me vladimir putin is not going out with a whimper. it could get very, very ugly and we are still only in the early, early parts of this all stop the march 18 speech he gave to the

federal assembly in moscow right after the annexation, which was really a mind bender, probably the most significant speech you before that was in munich and to -- in 2007. i could agree with a lot of what mr. putin had to say at the famous munich speech -- economic balance of power, changing in the world, typically followed by a change in political power. the united states needs to adjust, etc. even his "new york times" editorial that got a lot of criticism, i could find a lot to agree with. at this march 18 speech marked a new putin. and a very scary putin. the congressional testimony, i concluded future historians may regard this up at -- may regard this as the point at which russia tipped into becoming a fascist state. look up fascism and i think

you'll see a picture of mr. putin on the map. i don't mean to be flip, but that is kind of what it is. extreme nationalism, a very corporate type of political, economic linkage in the political system, quite repressive to any dissidents, and a focus on territorial acquisition and an aggressive foreign-policy. that is it. if he is talking about orders, it's not just the post cold war borders, not just the post world war ii borders, it is virtually any border mr. putin think is a legitimate is illegitimate. who is he ready to defend? is it ethnic russians? is it russian speakers? even compatriots, a very broad category which can be very flexible. i find that and extremely frightening speech and a quantum

leap in the evolution of mr. putin. so i see there will be increasing pressure on all neighbors. there is essentially an attempt to unwind 1991 and perhaps even earlier. and this will not stop as long as mr. putin is in power. if i'm correct and the starting point is this is part of the strategy for maintaining support, he's got a huge binge in popular support so far. you have to keep on feeding the beast, if you will, and that is not a happy scenario. let me turn quickly to sam's question. his first question had to do with what is your view of u.s. policy since the outset of the crisis in ukraine, has a weak, it been

provocative or about right? i think weak and provocative are not mutually exclusive categories. for me outset, i think it has been weak and thus provocative. for me, it started with the initial response on february 28. already, the airport had been seized by military forces, it had to be at the behest of russia. the parliament had been seized, the speaker of the parliament had been seized, and was -- and when mr. obama came on at 3:00 eastern standard time, i remember that well because i was at the university of indiana, where my son who is a freshman

there for the father-son weekend was watching the press conference and one would have thought none of that had already happened. president obama talked about the would be costs for russia and i'm thinking, dude, i'm here in indiana and x has already happened. i was very disheartened to read a story in the "wall street journal" about 10 days later about the disagreement within the intelligence community as to what had actually happened. i'm afraid a lot of our intelligence assets, certainly human assets, are not available in that region. we had nobody on the ground in crimea if the story is true. it was very clear that if there was any weak spot in ukraine, it would be crimea. looking at february 21, 22. secondly, did we not have eyes on what was happening there on the ground? some kind of intelligence failure happened and i think that's something we will need to look into. with that, it kind of began the series of too little, too late responses. i think there has been too much emphasis on a search for a diplomatic solution.

of course we need to do that, but there was never a shred of evidence that would support putin was interested in a diplomatic offramp during this crisis. second, and this is kind of controversial, but the united states needed to take a firmer role in leading the alliance. given europe's deep economic investment with russia, it was not realistic to expect them to take a leading role, given the differences in europe in general. i think we need to be more forward-leaning. for example, when president obama was getting ready to leave on his europe trip in the latter part of march and the second round of sanctions was announced, what was striking to me is while these were significant sanctions, none of them were going to have a negative impact on the u.s. economy. we were not going to go to europe and say we think this is a significant problem and we are ready to take a hit on our

economy. if we are not going to take a hit on our economy, how are we going to make the case to europea who are more deeply vested? thirdly, there's been too much emphasis on punishing ukraine -- excuse me, punishing russia rather than trying to help ukraine. unfortunately, the ukrainian government has been in ways criminally irresponsible at least since the war and revolution, probably longer, leaving themselves in an extremely vulnerable condition as far as russian pressure, but this is the core of the problem. if ukraine can succeed, that is how mr. putin loses. i will get back to this on the economics sanction a little later. i was extremely disappointed with the speech the president gave in brussels in late march. a lot of platitudes, mom and

apple pie and beautiful values, but virtually nothing concrete about what we were doing to support the sovereignty of ukraine. politically, economically, militarily or otherwise. my conclusion was in moscow they are laughing and in kiev, they are crying. second question -- i will go to these faster -- >> leave a question or two. >> ok. i would like to leave the military option off the table question for you. >> i feel real sorry to follow because we both occupy a little of that space. >> i was just trying to follow instructions. the asia rebalance -- of course this is going to affect the asia rebalance. how could it not? we thought the security was virtually solved but the pie is not growing.

i will leave it to my distinguished colleagues for details. but let me say something about china -- i think it is pretty clear national sovereignty is a sacred pillar of chinese policy a sale -- a slow sale. its value is reduced. i think there is an ambiguity in china about this. at some level, i think xinping has to admire vladimir hooton for what he did in crimea are -- in crimea. china's going to benefit economically and politically from russia possible strange but with the west, but i think it will be very cautious about signing up for vladimir's new cold war. we can watch carefully to see what happens with mr. putin when he goes to china at the end of

may. certainly, russia's position has weakened and he will get a lower price on the gas deal. let me conclude with something on the sanctions. can economic sanctions substitute for use of force? clearly, no. that is obvious. but it's really a problem if your adversary feels himself somewhat impervious to taking a significant economic hit the top -- economic hit. here's the problem -- he knows the economy is in trouble, sanctions come on board, that simply gives them the argument that well come a it is the west, the outsiders trying to weaken us and punish us. this is the source of our economic troubles. it's going to play pretty well into his political narrative.

the second point i would make is that tools are designed for the war on terror in rogue states. it is impossible to isolate russia. this is the sixth or eighth or 10th largest economy in the world depending on your denominator. there are too many states in the world, including many european allies which are not ready to enthusiastically sign on to this. the last thing i would say about that is these sectoral sanctions could be interpreted by mr. putin as an act of war. i think we better be aware of all of our own vulnerabilities because we could be dam sure he will becoming back at us very, very, very hard. i think we will be in a very long haul and difficult time with mr. putin as long as he is leading russia. >> not only did you follow instructions, but that was a great opening.

i'm not worried that vikram can hold his own. he was specially selected to follow you. >> is it on? ok. i'm happy you did not use the word redline, because i want to talk about redline. sort of talk about the way obama and the united states and others have acted in terms of how you use force to get somebody to and do or not to do something you want them to do. from a broader perspective, strategically, people are saying obama's weakness and the "washington post" has been tough on him blathering and dithering and so on, but that is responsible for putin's grabbing crimea. i don't think so.

i think putin's plan a failed. when his guys fled moscow as with the rose revolution and other flower revolutions led to a change of power, he had to change his game plan because he has a lot at stake in ukraine for many of the reasons danny was talking about. from a broad strategic sense, it was not obama's weakness that led to to do what he did, it was that putin's first option failed, so he went to the backup option. i would also argue, however, obama's failurs at the tactical level in far -- in so far as how you use redline's lead putin to underestimate him in terms of obama possibility to play the game. i go back again to the group of eight meeting in mexico where you see the two of these leaders in the same room together. i have not gone on the blogs,

but apparently there is a film that shows the language of these guys next to each other for about five minutes and disdain putin had for obama was almost palpable during that time. you could cut it with a knife and you could catch it in pictures, much less the video. i don't think putin had much respect for obama as a competitor, whether chess, checkers or dodgeball. i think that same issue in the tactical level is something that has really bothered our allies. i have a few quotes on that because there's no question -- as doug paul said, all of the big players out there watched what the united states did in syria and were appalled and worried about with the united states do the same thing if things went south for them on a particular issue? when you are dealing with china

who makes no bones about its territorial ambitions, that is something they think about during that time. i go back to obama's use of red lines in syria, where he was a very specific about the redline issued in august of 2012, where he says we have been very clear to the assad regime and other players on the ground that a redline for us, we start seeing a whole bunch of chemical weapons moving or been utilized, that has crossed it. he said that his a game changer, that changes the calculus. then we go through the same time he is talking about a game changer, we think he has been using chemical weapons on small scales. it took the united states three months to confirm he has been using them on a small scale, and a third-tier white house official announces in june we are going to take some action.

we will increase our assistance. we are going to meaningfully engage on this. but does not say anything about punishing syria for its use of chemical weapons. then on august 21, much larger chemical attack that kills 1400 people. that starts a swivel, where obama is about to use force and launch a retaliatory attack, and then he says it is up to congress. when it is clear congress will hand his head to him coming he reaches out to his former good buddy vladimir putin who comes up with this issue of removing chemical weapons as a way of taking a place of the automated ultimatum the united states

had sent down with its red on the use of -- one of the things that i find disturbing is what this has been all about. people notice when obama at his press conference, a very defensive attitude, prickly attitude, 969 words in this particular response, and obama says "those who would criticize our syrian foreign policy say we do not mean sending in troops. what do you mean? you should mean assisting the opposition. what else do you mean? perhaps you should take a strike at syria. what else are you talking about? at this point the criticism trails off. that is ridiculous because that previous weekend samantha powers

is asked on tv, the person who wrote the problem from hell about rwanda, what about these reports they are using chlorine gas? she says we will get to the bottom of that and see what is going on. within a day it is confirmed, they are using chlorine gas. a u.s. official said -- i want to make sure i have the right quotation -- we really do not want to draw much attention because we do not have much to do about it, because we cannot ask them to get rid of all the chlorine. yeah, you can, but they agreed not to use chemical weapons as part of embracing the chemical weapons treaty.

and they used them. when you are trying to deter the use of chemical weapons, what you are about is deterring they use of chemical weapons, not using force to impose an elimination of all chemical weapons, particularly when you are doing in a context that in libya, when gaddafi gave up his chemical weapons, we thought it was only eight months ago that they announced the last chemical weapons were gone. he hid a bunch of chemical weapons in that time, and to think that assad will give them all up, not the way it works. it strikes me when you start looking at the track record of how this administration used force at the tactical level to try as an element of coercive diplomacy, it has failed at that. our adversaries do not fear us.

they do not think we will hold them accountable. our allies are worried about what we will do under similar circumstances when we make those kind of commitments. what sam was talking about -- and i apologize for getting personal -- but when it comes to using force it is personal, because it was not just those three lines of thinking to consequences, being prepared to do it. a person has to have the right stuff when it comes to using force, the right stuff. and this president has asked about red lines on this most recent trip, we do not like red lines anymore. he was asked, what about japan's territorial interests? that is not my red line -- i did not create that red line. the u.s.-japan treaty, before he went over for this trip, he

sends a written message saying we support japan's right to administer these territories and asked and he says -- not my red line. what do you think if you are an ally concerned about your territorial integrity? you have had it. a defense minister from latvia points out we used some real red lines, ones that matter because we are in nato, or you have secretary kerry saying nato's territorial integrity is inviolable. we will defend every piece of it. how credible do you think that is? how credible do you think that is? it is personal.

and a consequence of not understanding when the united states draws a line in the sand it is the president's job to make sure that the line has consequences. we can call it a line in the sand. red lines have metaphors, pink lines, lines written in pencil, creeping red lines, but when it comes to saying do not do this or we will do that, when you make empty threats, how do you have an architecturally of security guarantees? over to you, michael. >> ok. on that optimistic note, the floor is yours. >> thank you for having this event. this is an issue we will be talking about for a long time because it is not a small

tactical action. it is a major choice by a large power, and it is a choice to do something that perhaps we in the west thought was a thing of the past, the annexation of territory come so close to europe, and a lot of commentators are trying to say that there might be easy ways to deal with them there are not easy ways to deal with this from russia or any other problem. it is a tough problem. it is not something new, and america sees russian leaders take actions that we vigorously object to but do not have a path solution or an easy way to quickly address. president eisenhower had to see the soviets go into hungary. lbj had to see the soviets go

into czechoslovakia. president carter saw soviets go into afghanistan. president bush jr. saw georgia invaded by russia, and others in the neighborhood had faced russian aggression in recent years. in none of those cases was there an american response that would somehow magically roll back what had happened. in none of those cases was there something that would not be subject to a law that advocated about what we could or could not do. it is important to say what are america's interests here, what are the things that we need to be willing to do in response to this kind of action, and to find a way to build consensus because one of the things that serves us best as a country in issues like

this is when we are able to find consensus over what we could do, should do, even if there is debate about tactics. for all the critics we're hearing now about what policy choices have been made, they are primarily about tactics. there are not a lot of able advocating for military action to roll back a russian annexation of a piece of ukraine. that said, this is a pretty egregious violation, not only of international law, but of the agreement that russia inked with the united states, united kingdom, and ukraine, budapest agreement that said we will not use force to violate ukraine's territorial integrity or sovereignty. russia has both violated the u.n. charter and the agreement they inked with us.

not to mention that, the fragmenting of a sovereign nation by force is something that merits a response. the world of that response comes in the kinds of costs we are willing to impose them not just today, but over time. i think that best critiques right now is it has not been clear enough what this costs are going to be in the near term and clear enough how long and enduring the cost position of the united states will be. my concern about whether the immediate response reflects on u.s.'s stature in the world comes from the fact that it has looked confused, and we have had that problem in several cases. it looks fairly confused because

these things are hard to do with. how far do you go? do you unilaterally move forward on sanctions? do you get together with allies and come up with response? these are difficult things to do in my view, fairly clear steps to target at least one section of the russian economy that would cost us something as well as cost them something, and a demonstration that we are willing to keep that up for a long time would have served us better in incremental steps on sections that looked like they are reactive. the bottom line here is that the annexation of crimea, that in itself requires a fairly clear response from the united states, and that is probably a response that will have to stay in place for some time, so we need to figure out what kind of steps we are willing to take to say we do not accept this action and we are going to imposing costs on you, that we are going to keep in place for 1, 5, 10 years?

in my view that should be probably targeted at the banking sector where a longtime european and western willingness to look the other way in terms of money laundering and other financial crimes could very easily be ended and to allow us to enforce actions and target sanctions to constrain russia's financial sector. those are things we need to do. but i think the idea that somehow the recent development cast into doubt the framework of american alliances is overstated. the fact is that we have treaty commitments to our allies, to our allies. they are not the rest of the universe, the rest of those world. those are with those countries with whom we have entered those agreements.

the president has been clear on the nato front and on japan was extraordinarily clear despite the point that clark was pointing out, that the article five treaty applies to the islands. the value of ambiguity and the value of strategic implications has been muddied by both sides, on the red lines and what would you do talking about in a given circumstance. being declared and clear about what you are going to do when your interests are challenged is not the rest way to practice international policy, when you face challenges unique to be need to be willing to

be willing to make responses. when you are willing to take a concrete action, you need to sustain your action when you take it, but you need to leave room for a variety of actions and lead uncertainty in the minds of potential opponents. there is a lot of discussion right now about how we could be handling these situations in a fundamentally different way. i do not think that is true. i think the quibbling should be limited to what technically should we be doing and what we should be doing -- where we could take stronger action, where we could potentially have a better approach. even john mccain's proposed legislation does not actually a -- get you out of the realm of this administration's response to this challenge. at the end of the day, vladimir putin has chosen to take on a

czarist mantel. if you look back at -- he did not analyze the soviet union just in terms of a bolshevik ideology and a socialist system. he put it in the scope of russian history and talked about russian leadership going back centuries, and he said that russian leaders have learned to seek security not only in patience but a deadly struggle for total destruction of rival powers, ever in compacts and compromises with it. i think that might be one of the most informative places for us to go, not a global ideological struggle, but a russian leader behaving in a way that russian leaders have long behaved, a way that has never gets managed quickly easily by a turn of a phrase or a particular action, but a way of behaving that

requires a clear response. the united states needs to lead the international community in rejecting the annexation of crimea and in resisting further dismemberment of the ukrainian body politic. i do not believe that any kind of sanctions i had hoped for early were the kind of sanctions implemented. i do not think those will change the calculus of vladimir putin, and we get into very fuzzy territory when we talk about changing the strategic calculus of another country, if you add pakistan or a russia. what you do is manage this situation you find yourself in, protect your interests as best you can, and be clear about what costs you are willing to impose when behavior by states violate the norms by which you stand. that means focusing on a steady

set of things you can do, to impose costs on russia, but critically to support ukraine and other states in the periphery of russia and potentially into putin's sights. the most disappointing thing in our response so far is that congress authorized a fairly small package of assistance for ukraine. i think that if we look at two spots today is actually objectively better than the response that we made in 2008 when russia invaded georgia. but given the scale of the activity in ukraine and the direction it seems that russia is going, i think we actually need to find the resolve in ourselves and with our european partners and with other countries around the world to have a much more robust response. so there are things out there that we did in the wake of a cold war that we have left staid in prominence and importance,

like the partnership for peace, that helps a dozen nations and helps bring them up to military standards in education and support. those are the programs we need to look at ways to reinvested. i fear that domestic gridlock and the atmosphere of fiscal constraint is getting to the point that it is making us actually really overly narrow what in we can do as a country when you ask about, can we do asia policy and handle ukraine? of course, we can. we are still the largest economy on earth. we are still spending over $600 billion a year on defense. we have plenty of resources. we have to have the willingness to apply those resources where they need to be applied. we seem to be in a political