memory of the cell phone? >> the difference is digital information versus physical items. physical items and pose a safety threat and have distraction possibilities that are not evident with digital -- what's more want to get into the digital world you have the framers concern of general warrants and writs of assistance. >> how does that a flight -- apply to these hardcopy photos in a billfold? they don't present a threat to anybody and i don't see that there is much of the difference between the government argues there's a greater risk of destruction of digital evidence and a cell phone than there is in a photo so i don't quite understand how that applies to that situation. >> let me take this one thing at a time. the theory of robinson that the government itself found is any physical item if it contains a razor blade or a pen needs to be inspected to be sure so you have

a categorical rule because of the ad hoc page of the west. the police don't have to distinguish physical items one from the other. >> let's stick with justice alito's hypothetical. they find a business card or something which shows car services and they turn the card over and read it and they are not looking for a pin or explosive. they are trying to read what's on the card. >> i think nothing else once it's in their hands justice kennedy. >> what if they turn the card over? >> that's fine under the categorical rule. the rule obviates these exact difficult case-by-case determinations. you could make an argument that if i knew to if it were a diary or billfold case he might be up to make an argument that the court wisely decided in the robinson that we need a categorical rule that's easily admissible in the field. when you have digital evidence that categorical rule hasn't the exact -- opposite direction.

it implicates vast amounts of information not just the photos themselves but the gps location of data linked in with it, all kinds of other information that is intrinsically intertwined in smartphones. >> including information that is specifically designed to be made public. what about something like facebook or twitter? any privacy interest in a facebook account is at least diminished because the point is you want these things to the public. >> mr. chief justice. >> my question is are

information in the clouds so to speak is not accessible to officers. we submit that further would compound the difficulty of applying a rule in a circumstance. >> if this case we have to decide whether all the information that may be available in the smartphone can be examined by the police when

the owner of the phone is arrested or can we just focus on particular evidence that was submitted in the clients tryout? >> the way you phrased the question i think that's the first cut if there's looking at the particular pieces of evidence here which are photos and videos, but we don't think you can write an opinion that would distinguish those from anything else or almost anything else on a smartphone. the state's argument here is that those are not quote fundamentally different from other things that people would carry. >> could the police obtain a warrant in this case? >> in all likelihood the s. and would have plenty time to do so. >> than the evidence that is feasible under the warrant is reasonable and justice alito points out the fact that some of this evidence is reasonable. there is a limitation with

reference to the way the police behaved as justice alito points out. it's limited just to this evidence. >> let me say a couple things about the warrant requirement and justice alito's question. this court has said time and again the mere fact that the police could have gotten a warrant and didn't. let me say a couple of things about the warrant requirement. >> it just goes to the fact that this is searchable under the fourth amendment standards. >> with the warren justice kennedy and me talk about why warrant is important. it poses a neutral observer and between the citizen and the police officer. perhaps more importantly it does two very big things. one is taken particularly requirements of the magistrate can say this is what you can look at in remember in this case the prosecution ultimately introduce photos and videos but that is not what the detective testified to in the trial.

he said in. shay: m11 we looked at a whole lot of stuff on the phone and that was what in his words cautious side. >> you recognize and you just told justice kennedy that a warrant could be obtained. a warrant for why? a warrant for why? what would the police have to show? they apply for a warranted but with a warrant have to say? >> we give an example of a warrant in our footnote reply brief in there are many on the web from states that already require warrants. what they do as they say the police officer testifies perhaps somewhat like he testified at the suppression hearing.

i suspect that this fellow was in a gang and i believe gang members keep certain kinds of things on their phone. this was a crime we are investigating and therefore these particular files within the phones are likely to contain evidence and the war and say with particularity here are the things you can look at and here's what you can't. more importantly justice ginsburg. >> you have told us it's hard to figure out what you can avoid it can't but it's easy for magistrate? is a possible for an arresting officer? >> much easier for magistrate and an officer under the stresses in the field. i agree it's not going to be perfect so let's look at what happens under our rule. >> along the same lines as justice cooley at the point you make in your brief argument is that the smartphone has everything. it has a person's whole life. if you are arresting somebody on the grounds of suspicion that

he's a gang member and you have evidence to support that was part of the smartphone is not likely to have pertinent evidence? what application is not? here you have pictures and videos. i guess it's similar to what other issues have been raised. i don't know what the magistrate is supposed to put in the warrant. >> i would say this banking app. >> the banking app is going to say deposited $10,000 into his account. and it's going to coincide with the particular drug deal. >> mr. chief justice those arguments can be made on app by app basis but this is the benefit of our rule is supposed to the governments. with the government does is let the officer looked and then have a backend hearing where you suppress all the stuff he was not supposed to look at once you apply particularly requirements. once the officer has the war and we nccic since they don't have to have these hearings and district courts because once an officer does the proper search according to the warrant you

don't have to have a suppression hearing. there's one other important thing that goes into a warrant which might've been lost -- glossed over too quickly in a breeze. it's how it can be kept and the retention of information raises fourth amendment concerns. my understanding in california is at least for some clients is not just that they are downloading the information in looking at it for the crime of arrests but keeping this information in databases ever-growing databases of every cell phone. >> what if you have a device that doesn't have brought information that a smartphone has? only a limited like if it bit that tells you how many steps you take in the defendant says i have been in my house all afternoon they want to see if he has walked for miles. it's not his whole life was a great part of your objection. is that something they can look at? >> probably not and this is the way the categorical rule if robinson categorical rule of

robinson where it sleeps than the hypotheticals in one direction. obviously i don't have to win that argument today but i think that is how you would approach that question. if it bit and this is true even more so if smartphones tells you the kind of information the court was concerned about. it tells you modern smartphones work the inside of peoples house the appliances and they have cameras. they also monitor the inside of peoples bodies. >> what if the phone in this case for an old-fashioned flip phone so it had the capacity to take pictures of a much more limited memory. would it be a different case? >> i think that will be part of your conversation in the next case perhaps. the easiest way to decide the case right now in 2014 is to simply say digital evidence kept on modern cell phones are

different than physical items. i don't think it's really worth going back in time to the most rudimentary device. >> what if a person had on disbursement compact disc? >> i think that might be the same kind of case you have now. remember the phone in this case had a removable memory card as many still do which by the way we were going to talk about destruction of evidence. that is why answered to destruction of evidence. it was on a removable memory cards that couldn't be erased remotely are password-protected. we have given lots of arguments in a brief that explained why the government's arguments as to why simply don't stand up. >> mr. fisher in earlier question you did not finish the answer. you are describing the difference between downloading by police of databases that they keep forever.

what happens with materials that are returned pursuant to a search warrant? i they precluded from doing that? >> i wasn't sure i understood. >> i take it the ordinary rule is if the police lawfully see evidence in the physical world if it's a physical item that might at some point need to be returned to the owner but if it's something that can be made a photocopy of art remains in police files lawfully obtained information they can use into the future. you have real problems however when you apply that typical rule to digital information. now again what i understand the government itself and the federal government footnote 3 of its reply brief in worry acknowledges it's keeping an ever-growing federal database at least some of the information seized from smartphones. >> i'm sorry i don't know if you answer my question. can they do the same thing once a search warrant is issued?

>> not necessarily. the beauty of a search search warrant if they can delineate retention rules. it can say here is how long you are allowed to keep information. here is who is allowed to look at it and who is not. >> frankly have to tell you i don't ever remember prosecutor coming to me with that kind of delineation. >> justice sotomayor that is what is happening in the digital world because we have new and different concerns than had arisen. >> mr. fisher would that be at such and see that would allow police to look at cell phones and if so what would those exigencies be? >> absolutely. there would be times at the scene where exigencies would allow it. first of all the two officer safety arguments the other side thinks of our hypothetical bomb or confederate ambushes this court recognized in chadwick exigent circumstances the concern about the experts have described and they make his brief we don't think would have

ever arisen in a situation of legitimate concern but in a very odd world. >> i don't understand your first edges and circumstances. when there is a bomb but you don't know whether there is a bomb and we look in the fun whether there are associates on the way to kill the officer and release their confederate. you don't know until he look into the fun so how can that possibly be an exigent circumstance? >> i think surrounding facts and circumstances, in footnote night were dealing with a locked briefcase surrounding facts and circumstances might indicate. there's a hypothetical i believe on on page one in the amicus brief signed by the investigative agencies. it's a classic example of how the circumstances might apply. >> you would never be able to say surrounding circumstances give me reason to suspect that

there is a bomb in the phone. to suspect that his confederates are on the way. >> i think you are right that that's going to be an extraordinarily rare circumstance. all i'm saying is if you have that extraordinarily rare circumstance you would not need to get a warrant. >> there is not an authority that i could find were the lawyer is arrested and they want his whole briefcase or read his diary and use site on page seven of your brief the learned hand 1916 case. is that the best discussion you can find? judge friendly mentions the diary situation. >> it's important if we are going to formulate some standard which limits the extent of the search and that is one of the problems in this case if say we

rule for the government in this case or maybe it's not quite fair but if we will from the government we worry and it's not an exigent circumstance. is there some standard where we can draw a line which would still result in a judgment in your favor? it's not quite a fair question. you are not arguing the government's case. >> i don't want to tread on both lawyers in that case but certainly in my case we have asked for tory search were not even the state has contended the amount of information look at is equivalent to what someone could have carried around in the old days. >> can i say something? >> i'm going to say something first. [laughter] if the phone rings can the police answer at? >> there are cases on that mr. chief justice. all the cases we found our cases

where the police had to warrant in hand and they have been held back against the police officers can answer the phone. questionably the police officers. >> a warrant for why? for somebody's arrests. how does that extend to your ability to enter the phone? >> i'm sorry justice scalia. an immediate search of the area. now certainly you could look at the caller i.d. coming through because i would be in plain view but if i can return to justice kennedy's question about the diary because there are couple of important aspects to that i would hope to be able to drop out. the reason i think that you don't find diary cases when you look for them is because people hardly ever carry a diary outside of the home. it was kept in a private drawer or in where it might be kept in the highly unusual circumstance where somebody did he might have a hard case. this is the opposite world. the modern reality of smartphones is it's an

indispensable item for everyday life of a modern professional and indeed most anyone. you can't leave the house without it and consider yourself to be responsible and safe. so to take the world where the police might try to say we can get the diary because of the importance of the categorical rule under robinson applied that into a world where everybody has everything with them at all times. >> including the criminals that are more dangerous and sophisticated and more elusive for cell phones. that's the other side of this. >> justice kennedy before the mound has a balance built in. biggie are not saying they can't look at digital information. we are saying when they see that they can freeze the contents and then get a warrant and search what they are allowed to searching keep under the rules of that warrant. >> is it significant that the information is not protected by

a password? >> at the other side were making an argument that this was not a search then i think that might be an argument they would deploy and i don't want to speak for the government but i think they also agreed that password protection does not matter and it certainly doesn't matter as to what information they get. their position is if we seize a corporate executive smartphone at the scene that is locked and protected under password if we can get that information back in our lab we get it all and they don't have to ask for a warrant. >> i know they argue it doesn't matter but i'm just wondering if your position is weakened by the fact that the individual did not seek the greater protection of a password? >> i don't think so. people don't lock their homes and they don't lock their briefcases. simply having it inside the phone protected by the person is enough to trigger the amendment. >> if i could reserve the rest of my time. >> thank you counsel.

mr. dumont. >> thank you mr. chief justice and may it please the court. as mr. fisher has said mr. raley had been carrying physical photographs in his pocket there's no dispute the arresting officers could have looked at those photo asked to see whether they contained evidence of crime and does not become constitutionally unreasonable so mr. rarely carried photographs in digital form on a smartphone. the digital format does not make the photos make the vote is any less. >> in one of our court decisions in the past a series of practically speaking a person can only carry so much on their person.

that is different because carrying the billfold of photographs is a billfold of photographs anywhere from one to five generally. not much more. but now we are talking about potential -- with digital cameras people take endless photos and it spans their entire life. you don't see a difference between the two things, what has now become impractical? the gps to follow people in a way that prior following by police officers in cars to not permit. >> i certainly see a distinction and we see the possibility in some cases potentially but what we don't see is that in this case the facts in this case or anything like it. the theory and if i'm only

carrying five photographs or letters in the case of the chicago chase -- case they are likely to be very personal very private photographs so i'm not sure the expansion. >> mr. dumont in your argument and associate generals argument also a person can be arrested for anything. a person can be arrested for driving without a seatbelt and the police could take that phone and look at every single e-mail that person has written including work e-mails and e-mails to family members very intimate medications. they would look at all the person's bank records and look at all that person's medical data, could look at that person's calendar, could look at that person's gps and find out every place that person had recently. because that person was arrested for driving without a seatbelt.

that strikes me as a very different kind of world than the kind of world that you were describing where somebody has pictures of their family in the billfold. why is it a marginal case. see it applies to to many arrested applies to everything on the cell phone. people carry their entire lives on cell phones. that's not a marginal case. that's a world we live in isn't at? >> the facts of this case are not someone's entire life on a cell phone. this cell phone had a handful of contacts. what we understand is they were 250 some odd contacts and 59 photos and perhaps 40 to -- maybe a minute each. >> the quarters to make a rule

for the cases and what justice kagan pointed out is take an offense driving under the influence. privacy that we have in this case it is your world then that a cell phone is -- no matter what the crime and how relatively unimportant the crime is. that opens the world to misdemeanors. >> it's true that the court typically draws categorical lines and that is what the court said in robinson. it's also true there were court has repeatedly said those lines are drawn based on the generality of cases. they are not drawn based on a marginal case with a hypothetical potential.

in this case it in the heartland. >> mr. dumont is what i'm trying to suggest to you is that you call it marginal but in fact most people now do carry their lives on cell phones and that will only grow every single year as young people take over the world. [laughter] i mean that's not a marginal case. they are computers. they have as much computing capacity as laptops did five years ago and everybody under a certain age, let's say under 40 has everything on them. >> i think you need to look at the generality of cases and first of all you will not be dealing with minor crimes. he will be dealing with serious crimes in second you'll be dealing with police. >> are you saying it's up to the discretion of the officer? if that's so then it leads to the next question. will they be able to get a

warrant? >> we are trying to draw a line that can be applied by an officer in the field and there is not time to get a warrant either because there is need for information now or because. >> let's leave exigent circumstances out of it. you are not arguing for exigent circumstances here. >> what i would say going back to justice cooley is find our argument is the same things that mr. fisher concedes to justify the search of a person in the seizure of a phone which are they exigent circumstances needing to protect officer safety. c. is there any basis for the generality that there's a safety concern in a case where the phone is loaded or used to trigger a device or anything like that?

>> we don't have a specific case. here's a case in california. it's called natoli. there is one where there is a late night of rest and it starts with a. >> ticket -- speeding ticket off the highway at night and it develops and maybe there's more going on in the person is under the influence and taken out of car. the officer looks at the cell phone. the first thing he sees when the turns the phone on is a picture of what appears to be a driver standings with two assault rifles posing with his assault rifles. i would say that changes the situational awareness of the officer in that situation and valuable information that was necessary at the time and could not have been gotten later. >> what does that have to do with my question? >> i'm merely saying it has to be safety. i can't think of a case where they stopped him and that there is phone and saw notes about bomb-making.

>> i would assume you need to operate the phone to set off the bomb so once the police have the phone the bomb is not going to go off. >> that is true but it's also true of all the objects in the prior cases in other words in robinson where he secured the cigarette pack there's no question where there was a razor blade or heroin. the evidence would be destroyed. >> can i ask a question about the extent of your theory. we are talking about smartphones which aren't many computers but your theory would apply to ipads, computers, anything for example sitting next to a person in a car at their desk if they are arrested at their desk. anywhere if they carry it because you see a lot of people carrying the ipad or something comparable a tablet of some sort. you're hearing would permit a search of all of those things. >> objects that are on the

person or associated with it. it doesn't necessarily extend. >> what is the rule? you are saying on the person. suppose it's in the car in a folder or suppose it's in the passenger seat. are you saying that you don't want to express an opinion about that or talk about what's in somebody's pocket? >> i would say the court has drawn different rules for that situation. if the person is removed from a car and there's reason to think there might be an arrest on the phone they can search and there's not they can't. but it's a different world. >> suppose i'm carrying my laptop in my backpack -- backpack. >> we need to go back to this volume question because there are two things in the cell phone. there's the volume question and

then there is a connectivity and networking question. as to the final question i concede that in other cases what they seem to be concerned about is the idea that enough information and enough time looking at the could build an error marketable fortunate that some of the justices alluded to in robinson. it would be qualitatively different from what has been dumped before. there are differences in government surveillance and this is a choice that person is made to keep information on a phone and to have it but we think there's a possibility to get to that qualitatively different search but it's miles away from this case and the heartland. >> so there are three possibilities. possibility one smart bomb.

possibility two yes, it's just like a piece of paper. they you find it in his pocket or possibility three sometimes yes and sometimes no. which of those three is yours? >> our position is information like this. >> of my three choices. [laughter] call the first choice never accept without a warrant, only coming on the award or three somewhere in between? which of the three choices are yours? >> it's in between. >> okay. my follow-up question is please tell me what you're in between rule is? >> by and between rural is for information of the same sort that we have been able to seize from person that includes diaries and letters, all other kinds of evidence photographs

and address books. for evidence on that sort of the same rule should apply. i would leave the last explanation i would leave for another case. >> i guess i don't understand that you said if it could be. it could be reduced to a piece of paper. all your bank records you could have them on you. all your medical records you could just happen to have them on you. that would be absolutely everything wouldn't? >> bank records you can get from the banks of the subpoena now with a search warrant. >> the notion that you could get them legally and in some other way is never justified and ill legal search otherwise. >> it goes to the question of how sensitive is the information we are being told. >> cirullo sometimes.

you say if it's the kind of thing that the police could have searched for if it was on the computer than they could search for it on the computer. since they can search for everything in your pockets when it isn't the computer then why isn't yours everything? by the way they don't know whether it is or is not going to turn out to be evidence. if it's in your trash box or wherever you put it. i don't know that. so i guess what you are saying is i thought it was category to the really it's category 3, always. why am i wrong? >> i think you inverted two and three. [laughter] >> that gives you time to think. [laughter] >> if the police are looking or

have an investigative purpose to look for information on the phone to see see if there is evidence it seems to us that they should be able to look at the same kind of information they could have looked at in any previous context. >> that's a significant concession because the smartphones funds carry a lot of information that would not have been the sort of thing police looked at before. gps tracking information. the police could never have gotten that before so you are saying that is protective? >> i'm saying it raises a different set of issues. >> it seems to me in order to try to give some answers to justice kagan's concerns that maybe the distinction ought to be between serious and nonserious offenses. i don't think that exist in our jurisprudence and correct me if i'm wrong. >> that is correct. >> by the way gps information my

wife might put a little note in my pocket. stephen remember to turn right at the third stoplight. go three blocks forward. of course you would have put in the information that showed where you were going as long as it was on paper. now it's in a gps so how does your role help? >> the gps would see if he did in fact turn right and drive somewhere else. [laughter] >> again we can conceive of situations in which the amount of information the kind of search would lead to a qualitatively different. >> you could amend your answer to say not just anything that somebody could have had that a person could have had a diary that records every place the person has ever gone in the last year. if theoretically possible but you could say an analog in the

pre-digital era we have a similar -- similar to the jones case preview of a rule of law that was established in pre-digital area and now you have to apply to the digital era where the technology changes a lot of things. but if there is a close analogue in the digital era to something that would have been allowed in the pre-digital era that may be a different story. >> we certainly think that's right and we think that covers the information in the photographs in the short videos. it certainly covers anderson. >> and you were not willing to limit your position to searches that either/or in order to protect the officer or in order to preserve evidence or number three in order to find evidence

of the crime of arrest, you are not willing to limit it that way? you would say whatever's on the person you can search? >> that is by far the most plausible one. so to say because. >> that gets you into the arrest for not wearing a seatbelt. it seems absurd that you should be able to search that person's iphone. and you can avoid that if you say -- like the vast majority cases this is not going to be a problem unless the officer can reasonably look for evidence of the crime of arrest. that would cover the bad cases but it won't cover like a seatbelt arrest. >> there is precedent in the court obviously for that rule. there's two things who would say about that. there are to be an objective standard new-line with these fourth amendment -- is should be

was there probable cause to arrest and what was the probable cause to arrest for and also it should include the plainview concept. >> the arrested person has photos pre-digital age of course you can look at them. on the form -- phone there are photos. absolutely analogous there are 10,000 indeed his entire life history but in your role can the policeman looked at the photos by analog or not? because there are 10,000. what is the answer? >> in theory yes they can look. >> what we have is by the way i think there are very few things that you cannot find in an analog in the pre-digital age searches and the problem in

almost all instances is quantity and how far a field you are likely to be going. why accept your rule? >> the fundamental rational basis of the robinson ruled i think is the fact that the arrest as justice. >> effect of the arrest necessarily and legitimately largely anything he or she has chosen to carry on the personnel. modern technology makes it possible for people to choose to carry a great deal of information but that doesn't change the fact that the reasonable expectation of a person is subject to arrest as the police will search the person. >> are you saying essentially that nobody has any expectation of privacy or somebody has to dramatically reduced expectation of privacy in anything that the

person actually wants to keep? >> in other words one has to keep on cell phone at home in expectation for privacy? >> what we are saying is the choice is that consequences and the consequence is carrying this on a person if you're arrested the police will be able to examine it to see if there is an arrestable crime. >> thank you counselor. mr. dreeben. >> mr. chief justice and may it please the court. i think it may be helpful to the court before exploring to briefly understand why there is a categorical robinson rule and how cell phones implicate many of those concerns. the categorical robinson rulers wanted to the fact that when a person is carrying something on their person and they are subject to a legitimate proble problem -- probable cause arrest

their expectations of privacy are reduced. not a lemonade if that's considerably reduced in the government on the other hand has several very compelling interest at the moment of arrest that are indicated by conducting a thorough search of the person in the things he has. avoids the distraction of evidence and protects officer safety and it allows the discovery of evidence that's relevant to the crime of arrest to enable prosecution. >> the understanding was here you can seize the phone and you can secure the phone and you could go to a magistrate and within an hour get per marsh -- permission to search but what is the reason your? the instrument itself is not going to be in danger because they have disabled it. so i don't understand why to cut

the wind out of this picture? >> several answers to that question justice ginsburg. you could probably say the same thing about everything seized under robinson and edwards. once it's in the place of hands they could part in the back of the patrol car in the trunk and it would be safe than they could get a warrant that the balance has always been struck at the moment of arrest to allow the officers to fulfill the compelling interest in the matters that i previously described. the second and i think very critical thing about cell phones as they do differ in the amount of information that a person can carry on them and the amount of revelation about a persons life. that is true. they also differ in that they greatly facilitate criminal activity. they contain a great deal of evidence and most critically they are subject to destruction in a way that ordinary physical items are not. even if an officer has a cell phone in his hand he cannot guarantee unless it's disconnected from the network are somehow protected from the

network that there won't be a remote like signal sent to the phone. >> do you have cases where that is cap and? >> have anecdotal reports from the fbi that has happened and they put into the question of to what extent can you protect a phone to the use of things like faraday bands. if you threw a phone into a faraday ban which is supposedly going to block network signals when you open it up it has to be similarly shielded shielded or will pick up a signal from a cell tower and that will wipe the foam. the fbi try to build a faraday room in a building that they later discovered verizon had put a cell tower on it and that cell tower put out a strong enough signal to richard. >> we have a case where this has been so bit they had a rule where they can't in michigan and vermont. any instance out of those states where these scenarios have taken

place? >> i can't speak justice breyer. >> you don't know. so isn't this a problem that might be postponed because we have warring technologies etc. and you are saying now we should allow searches of small cell phones because there might be a technology that hasn't yet in fact been used in many of the states that have this rule. that sounds a little hypothetical and i'm not sure how to handle it. >> i think clearly the technologies available in growing technology to wipe funds remotely but the other critical problem that comes after the point about getting a warrant is encryption technologies increasingly being applied in cell phones. that's something that's clearly on the rise and when a phone is turned off corey locke kicks in and the phone in cripps it can be almost impossible to. >> let me stop you because you are making an argument in three

related questions, okay? why can't you just put the phone or in airplane mode. >> can answer that one first? first of all is not always possible to find airplane mode on 500 or 600 models of phones that are out there. the officer is a lot of things to do when he arrest suspects. say he arrested five suspects in a car and they each have three cell phones. trying to find and put each one of them an airplane load and go a further step. >> you are confusing me because you've been out the search on the scene if you have had enough time at the precinct to put it on airplane mode -- i'm a little confused about what this argument is. how do you do it at the scene or two at the station so you have enough time to get the warrant by putting it on airplane mode.

>> you don't necessarily have time to do it on the scene. i believe that's true. .. you are asking us for a constitutional principle based on technology that might or might not do something. >> the traditional justifications include the potential for the destruction of evidence. that is very real today. a petitioner is asking for a numeral. . numeral -- a new rule. asking for the application of the robinson role. >> what would you do under the

robinson rule with an attorney's briefcase to get go >> it would present problems because of the attorney-client privilege. at lower courts have looked it, this court has not. if a person is arrested holding can opense, the police a briefcase and look at its contents. they cannot go through the contents for prurient interest. they can look for evidence that is relevant to criminal activity. they can do it in a way that is .inimally invasive of privacy >> the tax return -- some cell phones have tax returns, you have the tax return of the jaywalker, looking for a crime. >> yes, i would acknowledge, justice kennedy, that if the ulert is looking for a r

that limits the ability of police to search cell phones because cell phones are different from paper items in some respects, that the most reasonable rule to apply would be one that says when there is reason to believe that there is evidence of the crime of arrest on the phone, the officers can look for that. when there is not, they cannot. that will -- >> can i ask you a question giventhat, mr. dreeben, the variety of things that cell phones have, it sounds good as a limiting principle but it ends up -- you can imagine in every case that the police could really look at everything. an example, it is like the case, somebody is arrested for a gun crime. now we look at all the various things that might be related to a gun crime. guns,r he has bought whether he has done searches for gun stores. his e-mails might say something

about gun possession. he might have photographs of him with a gun. the whole range of things could relate to that crime, could net? i was ace kagan, knowledge that your reasoning is correct in certain circumstances and for certain crimes. it would not be the case for a jaywalking crime or a bar fight or many other minor crimes -- seatbelt violations -- that are posited on the other side of the oration for the respondent's petitioner's near were -- narrower approach to cell phone searches. a couple things to think about, and a series of fence like a firearm offense or a drug police in wurie, if the got a warning, they would be looking for the same things. the only way to execute the warrant on the phone would be to engage in at least a cursory search. >> the whole idea of a warrant is that a neutral magistrate

tells you you can look at those things and has an opportunity to limit it how they feel appropriate. >> i am not sure i would say the neutral magistrate can mirror the war in any way he sees appropriate. this court's decision in grubbs and dalia say it is not appropriate for the magistrate ofprescribe the manner executing the search. the must for no part, this is why i try to start with robinson, there is a different balance at the moments of the arrest. society's interests are at their locating evidence relating to the crime of arrest and apprehending related suspects, the suspect has a highly rated his privacy interest. >> thank you, counsel. four mr. fisher. >> i heard four or five proposed rule. first, the state talked about a "fundamentally different rule,"

i think the justices have figured out what we say in our brief, that would sweep everything on the phone. to the extent it would not, you have a difficult struggle on a case-by-case basis to answer the very difficult question whether any particular app has fundamentally different information that existed in the nondigital world. i heard a suggestion that if a laptop or smartphone is on somebody's person that is different than if he is sitting next to them. that is not correct if what the government says about its chimel -- about passwords and wiping satisfies chimel. authority to search and seize without a warrant anywhere in the grab area if there is a distraction argument. a person at his desk at reaching area from his computer would be open to a full search under the government's rule.

there was discussion about the exigencies at the scene of interest, needing to prevent a remote wipe or a password. the first thing, those arguments can apply only at the scene. they do not apply in this case, where an officer takes the phone back to the police station and two hours later searches through it at his leisure. all the arguments about at the scene and what the officer needs to be able to do at the scene can be left for another case. i think justice breyer is right, at the very best with the government has shown is that there might be certain, tightly limited circumstances where exigent circumstances of life. on the password question, which we did not talk about that might come up in the next argument, pages 12 to 13 of our brief, we outlined how highly unusual as a factual matter it would be for a smartphone to be sees while it is still unlocked and for an officer not to address concern at the scene that it might look later. and it is also worth noting that in a photo we attach, the

government is arguing in lower courts that even if it does lock, the fifth amendment does not give the person the opportunity to refuse to devils the password in response to a warrant. so the password argument does not have any play if the government wins the argument is making in the lower courts. justice kennedy, you suggested the possibility of distinguishing between serious and nonserious offenses. i think this court's decision in where thatd atwater, issue is squarely presented, preclude that kind of termination for all the reasons the government argued in those cases. and justice scalia, you mentioned the gant principle, evidence you think you might find on the phone. two problems, as the court recognized in kyllo, you need to protect the privacy people had at the fountain. as i said in my opening, the fact that somebody might incidentally have an item on his person, even in the rare case,

diary or address book, our leagues away from the kind of information people have now that were stored in the home and that were sacrosanct at an arrest. that is the thread throughout history, interest cannot be the occasion to do that kind of a search. justice kagan you are right, if you run the gent tests -- if you thethe gant test, government might be able to find a crime it would be difficult to make an argument about. lots of minor crimes, like speeding, dui, lettering, the person can make a fairly convincing argument sometimes that evidence on the phone would be relevant to the crime of arrest. and i think that brings me to where i want to end, understanding what the rule the nds would doropou with ordinary police work. this can start with a traffic stop for an expired license plate. it is everyday police work that traffic stops are the beginning

of criminal investigations and a leverage point into searches. if you adopt a rule, even a gant rule, that says you can make an argument that evidence on the phone would be relevant to the crime of arrest, take the suspended license, you might have an e-mail from the dmv telling you to renew. if that opens every american's entire life to the police department, not just at the scene but later at the station house and forever, you will finally have changed the nation of privacy that americans fought for the founding of the republican that we have enjoyed ever since. >> thank you, counsel, the case is submitted. >> up next on c-span, house intelligence chairman rogers is critical of the obama administration's iraq policy. on this morning's "washington journal," we talk to a supreme court reporter about yesterday's the seasons -- decisions. ron johnson joins us to talk about iraq. "washington journal" is live

each morning at 7:00 am eastern. >> a senate panel will look at ways to reduce the number of assaults onxual college campuses. live from the health education and labor commission at 10:00 and eastern on c-span3. president obama will hold a town hall meeting in minneapolis. we will have live coverage starting at 3:10 eastern, also on c-span3. we believe that all men are created equal. yet many are denied equal treatment. we believe that all men have certain, unalienable rights. yet many do not enjoy those rights. we believe that all men are entitled to the blessings of liberty. yet millions are being denied those blessings.

not because of their own failures, but because of the color of their skin. the reasons are deeply embedded in history and tradition, and the nature of man. we can understand without rancor or hatred how this all happened. but it cannot continue. our constitution, the foundation of our republic, forbids it. the principles of our freedom forbid it. morality forbids it. will sign tonight prevented. >> this weekend, the 50th anniversary of the 19 64 civil rights act with president johnson's address to the nation and the signing ceremony. later, hear from reporters who cover the debate in congress,

roger mudd of cvs, and in the glass. sunday night at 8:00 eastern on american history tv on c-span3. >> now, mike rogers talks about the growing violence and instability in iraq. congressman rogers spoke to reporters at an event hosted by the christian science monitor. >> representative mike rogers, chairman of the house select committee on intelligence. this is his first visit with our group and we appreciate him starting his morning this way. he grew up in michigan, went to college there after serving in the army he became an f.b.i. special agent, specializing in public corruption cases in chicago he returned to michigan in 1994 and was elected to the state senate the next year, rising to become majority floor leader. in 2000 he, won bia hotly contested race for the house

seat being vacated by debbie stabenow he became chair of the house intelligence committee in 2010. this march he, announced he will be leaving congress at the end of the current term to host a radio program for cumulus media. so much for biography, now on to the ever popular process portion of the program. as always, we're on the record here, no live blogging or tweeting, no filing of any kind while the breakfast is under way to give us a chance to listen to our guests, there's no embargo when the session ends. if you want to ask a question, send me a subtle, nonthreatening signal, a subtle eyebrow raise or finger wiggle, be careful there. and i'll call on one and all. now we turn to our guest.

>> i appreciate the invite. thank you for low urg your standards and letting a house member in. i thought i'd quickly go around the world, briefly, just to let you know the challenges that i think face the u.s. intelligence services but our defense and what that -- those of us who are often crying about our security matrix, the threat matrix, being so varied and so deep and so wide that makes us, all of us, not sleep at night. look at me, i'm only 25 years old, look what this job has done to me. one of the things, if you look at strategic and immediate threats. on the strategic side, you have a north korea pursuing nuclear weapons, very clearly it's doing that it's working to perfect its missile systems in a way that's very, very concerning. you recall, it was about a year ago when they stood up a missile and were bragging about the thought that they had the capability of hitting the western united states. pretty serious, i think, threat to the united states that got

washed over by all the other threats we face. china has been very, very aggressive, militarization and space. and they are very aggressive about investment in technology, certainly to try to mute the strength of our u.s. naval forces around the world. and then, one those things happen, you watch what their aggressiveness in the south china sea. and that is clearly something that is concerning and i think it's a growing tension. i still believe that between vietnam and japan, there will be some maritime skirmish within the next 24 months and i don't think it will be huge, but i do think there will be a maritime skirmish between either vietnam or japan with china in their pursuit to push out their boundaries in the south china sea. that's significant, about 40% of the world's trade goes through the south china sea. we have been, as the u.s. navy, we have been there since we've been a country. so when china starts telling us

that the u.s. navy can't be in the south china sea, that's a huge, significant strategic threat to the united states and certainly our economic prowess in the world. clearly russia is, you can turn on the tv and see where they're at. they've spent the last 10 years in that rise of oil money, investing in their military, modernizing their military, professionalizing their special forces. that has, as you can see, has proved to be a valuable investment for them when it comes to ukraine. so the fact that they were able to glide through and annex crimea and their activities in eastern ukraine are certainly troubling and it shows you that the payoff of their investment and they know it and they understand it. they continue to invest in their navy modernization, they've dropped some submarines in the water that are very, very sophisticated, very high tech. we haven't seen that since the early 1990's.

so they're making an investment in their ability to project power around the world. when you look at where we are on al qaeda, this is the one that worries me most. s the one, the most immediate threat is this proliferation of al qaeda affiliates with capabilities and intentions to strike outside of their areas of operation. so clearly when you look at what's happening in iraq, and it started in syria, by the way, we need to be clear about that, we watched this development of al qaeda in eastern syria for three years. we watched them pool up in ways that we had never seen before. we watched them recruit in ways we had never seen before. and when i say recruit in ways we have never seen before, i mean, successfully. they were gaining strength. really by the day, by the month. and the longer it went where there was no disruption, the more aggressive they became. and about -- and about a year, year and a half ago, you saw the

tension start between the islamic state in iraq in the levant and the al nusra front and many argued it was because they thought they were so brutal they couldn't be part of al qaeda. it's hard to argue that an organization that has participated in beheadings and stoning of women and flying airplanes into buildings would find anyone more brutal than themselves. it was really about control. zawahiri was trying to assert control over the leadership and having a difficult time doing it. they believe if you're going to be in this fight, you want to hold toward a caliphate. at that point, the disagreement was zawahiri telling them, we want you to focus in iraq, not sir ark and don't do external operations. the concerning part of that conversation was that the reason

isil wanned to do, term operations is because they had such a large number of foreigners with western passports working with them. they saw that as a huge opportunity to conduct, very easily and quickly, operations in europe, in the united states. zawahiri thought it was too soon and he wanted them to focus in iraq. so now what you see is, they apparently decided to focus in iraq. that split where they desert fied al qaeda, i would look at it as two organized crime families in chicago. at the end of the day, their goals and intentions are exactly the same. if they can work together, they're going to work together. if they're going to fight about it, they're going to fight about it. at the end of the day, they are brutal criminal organizations, terrorist organizations, functioning the same way. so al nusra now is reaching out. i think there's been some public reports about them reaching out to aqap in yemen.

yemen is looking for the yes, ma'am these -- the -- the yemenese leadership, not the government, but is looking for ways to have success. they believe that's important. they were the first ones to hold territory in the south of yemen that they believed was the initiation of their ability to create and hold a caliphate. 10 you have all of these new relationship -- so you have all of these new relationships happening in a way that's really concerning. al shabab, we were table establish the relationship between them and aqap, they were trying to get their branch down in northern africa and you see the activity across northern africa. i won't go into all those activities. but you get the picture that the threat getting worse by the day, not better by the kay day. the fact that they hold $1 billion in cash and gold bullion, 9/11 took about

$249,000 -- about $200,000 and about a year of planning, that's a lot of dangerous cash in the kitty. they aren't worried about building schools and roads and taking care of public services. they're worried about killing and trying to dominate individuals across iraq, sir ark they'd love to take lebanon, now they're on the border of jordan, they're on the border of israel. this is as bad a situation as you can possibly imagine. with that, i think we should all have a drink. >> have a stiff orange juice, in the "monitor" paradecision. let me ask you one or two, and then move to my colleagues. you're a member of the house republican leadership team. what lesson or message do you take from the triumph of t hambings d cochran and the loss of tancredo. does it say anything to you about where things are going or is it just poll techs and local and there's no message?

>> listen, despite what you might see portrayed, the republican party is a big tent party. parties are coalitions. if you travel overseas and you see parliaments, those are made up of these wildly different co-ligs of cobbling certain groups and philosophies together to form a government -- coalitions of cobbling certain groups and philosophies together to form a government. here we have two parties but those two parties are tremendous amounts of coalitions. that's the way our parties have operated for a long time. what you're seeing now is a healthy debate and struggle about with which of those coalitions gets more seats in the republican party than other coalitions. i thought it was, at the end of the day, i think americans are ready for governance. this last five years has been so devastating to the middle class, devastating to energy price, devastating to our national

security, it's been devastating to their own health care. they're looking for some leadership and sometimes that means people forming a coalition, that means you're going to get something done. i think the elections showed across the country that people are ready for that. they're ready for a change in the way the country is being governed. i think that's what you saw happen last night and over the last few months. >> let me ask you one other, that's about intelligence. your counterpart in the senate, senator feinstein, has been critical about the level of detail and quality of briefings -- briefing that has been provided by the administration. yesterday on a conference call, an intelligence official said that the american intelligence agencies provide, quote, strategic warning that isis was growing. is it your sense that you've been well served in terms of the isis intelligence you've been getting? >> you know, about two years ago, i was -- i and others were ramping up this notion we had to

do something in eastern sir yasm i did an op-ed on it, i talked on it. i came to those conclusions based on the intelligence afforded to the committee as a consumer of intelligence. we get it all. sometimes it's raw. it doesn't draw the conclusion that, you know, isis on this day is going to do this we get all the raw intelligence. we can come to those conclusions ourselves. it was very clear to me that years ago, isil or isis was pooling up in a dangerous way, building training camping, recruiting, drawing in jihaddists from around the world. we saw all of that happening. then we -- we talked for a long time, nothing happened to disrupt that. then we saw them cross the border and go into fallujah. nothing happened. that was six or eight months ago. so some notion that we wouldn't have seen this coming means that you weren't paying attention to the intelligence that was afforded us.

now, you know, could they have come up and said, hey, this is -- we're going to give you the fallujah update? maybe, maybe not. nothing happened when they crossed the border, nothing happened when they took fallujah, nothing happened when they took mosul, nothing happened when they took tikrit. then they said, oh, we've got a problem. that's an unfair assessment of what we knew and how we watched it develop. we knew what their intentions were. they clearly were arming and training. we saw that. so you know, maybe they didn't say they were crossing on this day but you would be hard pressed if you paid attention to the intelligence, that something bad is going to happen here. >> so your complaint isn't about the intelligence, it's how the administration responded. >> not responding is a decision. not making a decision is a decision. i have been pretty vocal in the last two years about trying to bring this problem to the

attention of the public on why we need to do something in syria. because of the potential. now did we know they were going into iraq? i'm not sure. but they clearly want lebanon. they want jordan. they want israel. they want all of syria. and they do want iraq. and so, it was very clear they were going to try to expand their interests from eastern syria. there's a safe haven for 2 1/2 -- they were a safe haven for 2 and a half years. -- 2 1/2 years. >> a couple of senators said yesterday after the classified briefing that the threat to the homeland is more urgent than it seemed last week and one senator said if you -- anyone who walked out of the briefing could not quibble with the fact that there's an urgent, dire threat to the homeland here. do you agree and how urgent is that threat? >> i do. now, remember how we come to this conclusion. we knew, remember, the fight a year and a half ago was do we do

external operations against the united states in europe or not? zawahiri said focus on iraq. the very fact that they're having the discussion sends a chill down my spine. that means somebody is in an operational status trying to put together something that would look like something that could get the green light. including access to people who had western passports. that's the most dangerous thing. you fly to germany and you're a german citizen, you're flying to the united states you don't need a visa. that's a problem. that's a big pob for us. or fill in any country in the e.u. or vice versa. so what we've seen now, they're a little drunk on their own success. they understand, as a matter of fact, an interesting -- i read an interest regular port recently that they were talking about the fact that zawahiri, if he were going to come to syria or iraq, would have to pay deference to him, to baghdaddi because he's the only one

establishing a land-based caliphate. that's a scary mentality. they both want the same thing. they both want to attack the united states. they're going to go about it in different ways. with access to these western passports and their stated intention to commit acts of terror beyond their areas of operation, that is why i wasn't in the senate briefing, but i imagine that's what the senators walked out thinking, this is pretty bad. and they have complete safe haven. there's nothing to disrupt their activity. they can plan it, finance it, train for it. the training camps have been ain betted for years. they've let it go. that's how you get to this place where you wonder, you know, we're in some trouble. and of course the most recent court ruling that says you can't have a no fly list, perfect.

that's a great recipe for disaster. there was a federal ruling, i think, yesterday, on that. >> in oregon. >> orge? >> it was the federal district court for the district of oregon. we might as well get you to say a little more about it. the procedures for putting someone on the no fly list were inadequate, violated the right to due process, called on the homeland security department to provide more information to people about why they're on the list and ways for getting off the list. so you would disagree with that? >> so we have, according to public reports, an organization trying to build bombs that circumvent security. they're working with another organization, according to reports, that -- in syria that expressed an interest in showing their chops by having an international terrorist attack, and now you just had a judge rule that you can't put someone on a no-fly list you tell me why i can't sleep at night. that makes no sense whatsoever.

and by the way, the international community has no fly lists that just means you'll be able to fly domestically. congratulations. that's the worst of all worlds. that makes no sense to me at all. if they want to refine them, maybe they can do it and they ought to look at refining them fairly quickly. i hope the decision is appealed and it's stayed to make sure we have an opportunity, if you have an idea that somebody has an ill intention on an aircraft that you can keep them off an aircraft. >> we're going next to maureen. >> the republican party and the debate going on about that, when you're doing your radio show is one of the things you're trying to accomplish in that show, trying to push the party in a particular particular direction and get one group to be more successful than the other, and if so, which one? >> my goal is a productive

conservative, which means you actually accomplish something. when coalitions are tearing themselves apart, it's hard to form a governing majority. i look back at some of the fights that have happened within the republican conference and how much money we let get spent because we couldn't agree on the exact amount. so rather than get half of what you wanted, buzz of the way the conference was fighting amongst itself, we got zero. so we couldn't agree that there were 42 job training programs needed to be 26. people said 26 is too many. so you know, how many -- so you know how many we ended up with? 42. that's not productive governing conservatism in my mind. i think there's a way to focus our efforts to get the government to look a lot more the way i think most conservatives want it to look, which is lean and mean, you know. not mean in that term.

but lean in the sense that it's functioning, not wasting money, that it takes care of people who need it but doesn't do things the federal government shouldn't be doing. and, you know, if we're together as a force, i think there's a lot of that we could have accomplished in the last two years that we just left on the table. and that, to me, is unfortunate. we fight about some of the things in my mind that are small potatoes if we could come to an agreement on bigger, broader limited government issues that we couldn't quite get consensus on. for this notion that we're going to have a perfect score. you have to have a perfect score. i don't know anywhere in life that that works, including the u.s. government. >> i think you just alluded to this, but can you say more about the intelligence that suggests that bomb making expertise from yemen has my grated to syria and they're working on bombs that can get past security. that seems to be driving the threat that jeff was asking

about. how much of a threat is that, have they perfected a bomb that's better than the underwear bomb? and are aqap people in syria right now? >> if you look at this -- i can't confirm any specific report bus here's what we can look at that's in the public domain and i think it's fair to draw a conclusion from what's in the public domain. you have aqap, who has desthinde ink cartridge bombs, remember those, that they were going to detonate, i forget how many now, eight or 11 or whatever it was, nine, in different airplanes over the oceans. that was their goal. these cartridges were designed to circumvent security. some good intelligence work, we were able to shut that particular operation down. but we know they never stop trying to do -- to design explosives that circumvent security system of the underwear bomber was a great example. that was another iteration on december 25 that they thought they could get through security

and set off on an airplane. and candidly, but far quarter of an inch of a syringe pull, that plane would have blown up and we would have killed thousands of people in their homes. it flies over a very populated area of detroit into its landing zone. you'd have had all that equipment falling thru houses while people were sleeping in their beds. this was not just the airplane itself, which would have been horrific, but the ground damage would have been significant. that was their second iteration. we know they haven't given up on the notion that they're going to develop something that circumvents security and gets on an airplane. that's just the fact of the matter. so now you see those things and you see this relationship that started very early in 2013 and some of it, by the way, was to mediate. in the beginning, before this decision came down to desert fi isil as an al qaeda afill yalt,

they tried to mend their fences. all the al qaeda leadership was say, you need to fix this. they didn't want to lose aggressive fighters who shoot people in the head. it's a value to them. scares us but it's a badge of honor for them. they wanted to keep those folks in the fold. couldn't work out. now you have al nusra who has also expressed an interest in creating, that's the other gupe in eastern syria, that is an al qaeda affiliate that express and interest in external operations and you know there's a relationship between aqap and al nusra, including what we think intermediaries and the like. that in and of itself i think would allow any logical person to come to the conclusion that we have a problem. we have a definite problem and we know that al qaeda in the past shares technical expertise on i.e.d.'s, thousand circumvent security, surveillance, and all the things that come with those

conversations, how not to be a target of the u.s. or our allies. you can draw your own conclusion with that bit of information. i'll tell you, this is worrying me a lot. >> why does the public have to draw their own conclusion? i understand -- just if it's a fact, state it's a fact. >> we want -- there are the ways information is obtained, we want to protect ways to find out information that would stop an event, it would be important to protect those ways so if there is a threat information, and by the way if you remember the leak that happened with the bomber that, remember the aqap bombing thing, there was a pretty significant leak about the bomb? we saw real changes in realtime about that leak that really did disrupt u.s. and our allies' ability to collect information on aqap.

it cost us a long time, as a matter of fact, we may never get back. and so those things are, it was just the procedure about who, what what, when, and how got leaked. and it changed the way they operated. to the point where we lost our ability to see some things. that's dangerous. i just think we ought to try to protect it so we have the ability to get somebody that, if they're going to get on a plane or not, hopefully you catch them earlier. if we have to catch them getting on a plane, there's a fill your -- failure in the system. >> just a second, go ahead but normally people ask to be called on. >> sure. so there's no clear line yet between isis and aqap? we can speculate they may work together? >> we know that they have -- they all relationships. they had intermediary exchanges. we know that. remember, once they were desert

fied, they became, they decide they were going their own direction. again, their goals and intentions are exactly the same. there isn't a fraction of a difference. the tactics of how they get there may have been different. zawahiri's position with them was if i can't control you, i'm not going to have you as part of our group, and he did that primarily because being part of a.q. gets you financing, gets you status, gets you recruits. what i think he underestimated is, that these folks were winning on the battlefield and when you're winning on the battlefield that in and of itself attracts other jihaddists, they want to be part of the winning team if you will. so they're the same, exactly the same, they still have this kind of funny respect for each other, i look at it as, if they disagree, they'll fight, but they want the same thing.

>> a couple of mechanical things. we're about halfway through, we're going next to john. anyone who came in late and wants a question, wave your hand at me. >> thank you, dave. mr. chairman, picking up on your analogy of the organized crime family, it's been said that some of america's friends in the mideast that we depend on, saudi arabia and qatar, are akin to merchants in the city paying protection money to don corleone when it comes to isil or other terrorist groups. do you have any solid theaveed qatar, saudi arabia, are indeed also paying isil or other

terrorist groups and what can be done about it? when they talk about a winning coalition, you're calling -- your colleagues on capitol hill talk about those countries, not iran. >> well, i think we, and again, this is a product of indecision in a very difficult neighborhood. so when you see a problem in the mideast, you have to deal with it. end of story. deciding we're not going to deal with it as some notion of a foreign policy framework, this is what you get. so let me talk you through that. early on in syria, our ashe league partners came to us and said, we want the united states not -- this is not about boots on the ground, it's not about big military but we need your help. we need your help with some command and control. we want you helping guide any support, think of this, any support that the ashe league is producing, so that we do this in a way that's vetted properly and doesn't come back to bite us.

wow. very reasonable offer. and the united states' response was, nope, that's too hard, we're not going to do it. so what happened was, other parts of that ashe league started to fracture. which is why you needed the united states showing the leadership role at the table. that would have been a very, very important role for taos play. and so we know, for a fact, that some of the supplies that some of those ashe league countries were supplying were getting in the hands of extremists. and it also caused, because of the way that was ramped up, even our ashe league partners started fighting amongst themselveses or disagreeing amongst themselves because they realized one country was more aggressive than the other country and some of those materials were ending up in a place that was bad for even their own national security interests. in a place that was bad for even their own national security interests. and so that's how this problem got started.

and the united states never quite weighed in. i have had significant appeals from our ashe league partners to me personally i feel know other members have as well about their frustration with the lack of the united states -- with the welcome of united states engagement on these issues. buzz of it, we watched a lot of that money and weapons did migrate its way to the most violent extremists operating in eastern syria. that empowered the very problem we have today. as frustrating as that is, i think there's an opportunity to reengage and candidly, having the secretary of state just show up for a chat isn't going to do it. they need to see something. and as one ashe league leader told me about two years ago, -- and as one arab league leader told me about two years ago, if you're not going to sit at the table with us, you don't get to lecture us what the table looks

like. that's what you saw happening. >> we'll leave this as the house is gaveling back in for a series -- caused us to develop and allow the countries don't mind if this goes that way, not having the u.s. at the table was a huge problem. we have known about this for three years. the discussions happen in the first course of those months, every month over end, our opportunity to impact this got worse and worse. these weren't the options at 24 months or 18 months, it completely deteriorated before our eyes, and we watched all

this happen, which was highly unfortunate. which is why engagement is important in the world. the fat the -- the fight we have alteration -- this is important. there as theee trust of the united states for the last couple weeks, there have been about 70,000 unaccompanied kids coming across the border, is there something else there? >> the first trip that i took as chairman of the committee, that is why. we have a real opportunity for failed northern provinces in mexico, failed governing states. that is a huge national security risk for the united states. elements areed ml organizing huge swaths of land.

the fighting that you saw was because it was a lack of police authority and the bad guys are winning and they were policing themselves. -- that isngs telling you it is way underway -- even though this is 7000 kids, they are not getting up on a nice country drive to get to central america through mexico and into the united states. these are controlled by criminal elements. what outrages me is that there is no compassion in allowing these commercial elements, i guarantee that there are slave trade issues going on, exposure to drugs and you have heard reports about, they're trying to figure out which ones can be recruited into gangs before they get appear. i do worry about those failed northern states, we have done good things with mexico and in some ways it is getting a little better.

they have been leery about having to wreck u.s. support, and we know the other success stories around central and south america, colombia being a great example, now in a position they may be able to help mexico train couldforces, i think this be impactful but this has been a long, slow road, and in the meantime, you get on the south side of the mexican border, it is as lawless as it gets. it truly devolves into failed states -- and we will have a sniff again security threat from the southern border. >> thank you for being here. it is certainly interesting that we are having this public isil is.ion about what

what have you seen of this surge from the group and the alignment with sunni groups from wreck who are not aligned with creating an islamist caliphate, they may actually be partners in the push for inclusion in government in baghdad. what is the nexus between these groups and how reliant on moderate sunnis have they become? number two, what, specifically should we be doing? you are in a unique position as a senior member of the oversight and we hear the ic people say that the administration did this wrong -- but what it would be doing differently in sending 300 troops and what should we do right now?

>> we have a good history on, why are the tribes joining them in their march towards baghdad? look at what happened in the establishment of the taliban in afghanistan, because of the outer regions and the heads of -- the differences with the leadership in kabul, there was horrible corruption, horrible injustice is being done to tribes that were not in power, and the taliban came in, omar got his start because there were allegations of the rape of a 14-year-old girl, and no justice gaveone, he came in and justice on the spot, drag someone out in this -- street and hung them. what the other government was doing was not so good and what they found when the taliban took over is that this is pretty awful.

it looked good at the time but it turns out it is awful. it made it of women, illegal to teach little girls how to read. can't leave your house what a male escort if you are woman, even if that male escort is six years old. it is kind of crazy stuff. that is when the problems started in afghanistan. the same thing in libya to a lesser degree. people join together because they were against qaddafi. against the more radical sharia law implementation and that is what you see brewing in libya. the sunni tribal leaders are pushing back against what they view as an unjust and unfair and government, and they will not put up with it. whenthey are finding out they take over a city like most --is it takes

away the sunni leadership and that is not in charge, assuming that was tap into in 2006 for the awakening that separated the sunni tribes from sir cowing in a rock. you will see this come together in the frame will begin. we are already seeing some of that. allowe that you cannot them to continue to have success the way that they -- the way that it is. there has to be a disruptive activity. camps,ans maybe training you have to target command and control and leadership in a way that is disruptive. one thing about airstrikes or not airstrikes, this is a tactic. the president should not be debating over a tactic. we should be talking about a strategy.

they may be a part of that, they may not be a part of that. we have a strategy that should go after their leadership and logistics training, which starts in syria. you can be effective if you don't take away their safe havens in eastern syria. the reason they control the border is because they know that is the way they will continue to resupply their efforts, if they ever decide to turn around and go to lebanon, they will need that supply line. the united states has unique capabilities and i'm not talking about troops on the ground. the 101st airborne, and infantry division, holding ground. we are talking about a strategic disruption -- that will give breathing room for political reconciliation happen in

baghdad. i don't believe you'll ever get that until you get some breathing room. we don't have leverage the way we are operating currently. thought that we were going to have a conversation about the solution -- you can imagine all of the calls that we get from the arab league partners about what awful idea that that is. some of these things they need to stop talking at that level and apply a strategic solution so that we can show some disruption and stop their momentum, and hurt their command and control. the them have to reconsider aggressive offensive operations that they take. name, iblanking on the apologize. >> now, known as the gentleman with the green type. >> senior moments are terrible, let me tell you. >> you have a few things on the

plate. i didn't know what you were looking at. >> we want to finish up the fifa legislation to make sure we can get our the nasa and others focused on all of the threats versus looking over their shoulder. at what is a title wave of misinformation about what they do. that's going to be important to get that so that americans can reengage in the confidence that their intelligence there to keep us safe. that's important. we just got the 2014 bill done yesterday. why that's important the authorization bill, because there's a lot of reforms in there. some of the reforms are based on making sure our security clearance operations are changed a little bit so we're more

accurate catching somebody who maybe going bad and stealing whole bunch of stuff and running to places like, i don't know, moscow. the 2015 makes an important investments which we have to get done and continue our dominance in space. we're at the back-end of that arrangement. we better pick up our pace or we will be in trouble. making sure making the right investment in our ability to protect ourselves what is a growing list of countries and nonnation states cyber capabilities which is concerning. we're on the back-end of that one. we got to pick up our pace and continue our investment in human collection throughout the year.

lastly, this week, we had a great round of negotiations in the last few weeks with the senate on an information sharing bill. saxby chambliss and diane feinstein will photo out -- vote out this week. this is going to be critically important if we are going to stay in front. this won't solve all our

problems. if we're going to stay in front what is on growing threat matrix, we have got to have this bill in place so that the privacy sector with protect itself. right now, any offensive action we would take indicting five chinese intelligence officials we know who are stealing our stuff, it exposing inner -- networks that won't have the ability of attacks. those are my immediate priorities. then to continue the internal policy debates we have on things like covert actions on other things we need to get right with the community. i hope to do that before i leave in january. >> catherine? >> thank you. how would you characterize this relationship between isil, the skills they're sharing? isn't this relationship that's driving public states from others on the hill that's a direct threat to the u.s. homeland? where do the specific multiple strategic warnings from the ic and isil and if so, who fail to act on them? >> i'll start with the last part first. i argue this is a result of an indecision. which is a policy failure. this is not an intelligence failure, it's a policy failure.

it's pretty easy to blame the guys who are out standing in the dust to collect the pieces of information. again, i think it's important. we watched them pool up, we watched the debate between el nusra inisil. we watched the concern between the al qaeda leadership about trying to get them back in the fold. we watched them get weapons. we watched them get finances. we watched western past port holders show up. we watched it all. we heard their stated intentions. reason they're called the islamic state in iraq, they want the levant. which is lebanon, syria and jordan. they want it all. they decided they became strong

enough to actually implement it. the reason they're a small number of folks is having big success in iraq, the other policy failure we're just packing up and going home. we don't care if all the troops are ready or not. we're coming home. i think that was a major disaster. if you had a u.s. presence, i'm not talking about engaging in combat operations, if you had a u.s. presence there, it would allow the security services to be more sustainable. it would have influenced the political fracturing we saw happen after we left. so you get better reconciliation. and you could have seen up close and personal the trouble this was being developed in syria. what we didn't understand, was that isil was going to take advantage of it. those are all policy failures in my mind that has led to this.

you can't blame the intelligence community, you can't blame congress. this is a foreign policy failure of a magnitude that will risk the security of the united states of america. they need to shake themselves out of that and start coming one a strategy to win this fight. >> where does the buck stop on that. does it stop with the president? who failed to act here? >> ultimately it's the president of the united states. this is his policy of -- i forget what he call it. don't do stupid, something. it's almost laughable that is even the mindset of a national security team that threats -- they see the same threats we see. it's not like they didn't get the same stuff that we got. some notion that we just don't

anything hard, that everything will be just fine is absolutely, i think a bit naive. it's a bit politically self-serving that you're more concerned what ratings you have at home and what threats happens overseas. that's a dangerous mindset. at some point, they keep doubling down. now it's hard and let's stay out of it. i get that but the problem is, they are threatening the united states of america. that's the problem. >> do it make you want to stay? you regret your decision? >> you know, i've been in public service and the fbi and army and legislature for 28 years. this is an opportunity to talk to people hopefully i don't get a chance to talk to them now. i love it. intelligence space, i think it's important work. i think most americans don't get to hear the other side of this

conversation. why if we had engaged early, we may have avoided this problem. i don't ever hear that conversation certainly in talk radio, i don't hear that conversation. i think this is an opportunity for me to talk to a lot more people about what it's important. why american exceptionalism does matter. to have a dialogue in a different way that hopefully influence the debate, so by 2016 we have a bunch of americans interested in national security, international engagement, economic prosperity for the next generation. >> as a journalist, the idea of having access to all that information, sort of like a kid in a candy store. are you starting to feel a period of withdrawal in terms of knowing so much? >> the problem was, things seem to get worse. in that regard, without the campaign moving over my head, i spend a lot more time down there trying to go through all of this. i've had my conversations by the way with the white house and expressed my concerns. we've had our disagreements and we had our agreements. there comes a time. i think you know it. if i can influence by talking to a lot more people about the importance of these issues in way they might not hear today, i

think maybe i can do something more positive in that regard. >> i had a follow up. it got lost in that answer we had. how would you him describe the relationship to the extent that their sharing best practices. is it this relationship that is driving the public state from -- statements from the colleagues on the hill? >> two things. him him>> two things. that is i believe a direct an ongoing relationship that has command and control and advice in counsel roles. isil is now a exactly the same mindset but has a competitive nature to al qaeda in general. their goal is to establish the

caliphate now. they decided they wanted it now. i think they are a little bit drunk on their success and really do believe that this is him really do believe that this is their time to outshine them. same exact wants, desires, techniques, tactics and they also are willing to conduct operations outside of their operations area. i'm not sure you're here for that, this whole debate that they were brutal and that's why he cut him free is nonsense. it was all about isil wanting to do external operations based on a large number of holders. he wanted them to focus on iraq.

go back and fight iraq, have him fight in syria. that's what started the split. there's a little bit of -- i'll show them kind of attitude. >> did the relationship worsen? [indiscernible] >> same goals, same intentions. they have this mutual respect going back and forth. remember they were an al qaeda affiliate. this is just a disagreement on the tactics how they want to succeed. >> did you not say earlier that there was a relationship between aqap and isil? >> they had intermediatories established trying to work out the differences before they were

separated from a.q. leadership. >> you think about leaving -- do you worry at all about your home state of michigan about the powers and congress? >> you know, obviously if you don't want us all to go at the same time but term limits, this is going to happen to other state. this is bound to happen. fred upton is going to be there. he's certainly a powerful chairman and a great advocate for our state. i think that will help the newer folks who get elected come in as folks who get elected come in and get established and allowed to have an impact for the state of michigan. obviously, timing isn't great. again, it's all based on this

time frame of how long can you be a chairman. it's just an odd coincidence. as i told my people back home, good while it lasted. the other ones will come up. i'm a huge believer that people shouldn't be here for 50 years. i think it's better when you get a little bit of a term. you get new ideas. should be a representational body. i think this is a good thing people come in and out. >> last question. >> yesterday on the governing issue. yesterday the bipartisan policy center released a whole set of recommendations on how congress and the election system and so on, could become more governable. one of the things they said, power back to the committees marrying up the house

schedule and the senate schedule, working five days a week. that kind of thing. that's your thought about appetite that within the congress? >> first of all, dispose of this and issue that members of congress don't work five days a week. i'm leaving so i can say anything i want. if they work less than six days a week, i don't know that member of congress. that is a complete misnomer. the problem we've gotten ourselves into, in congress, is that we get yanked around by these sometimes populace trends at home that don't transfer into the information we know is the congress. the lack of willingness to have that discussion back home. that's a huge problem. a leadership that is geared

toward the smallest minority in any coalition is dangerous. you have this notion that it's better to be at home sometimes than working on these issues through a committee process. i believe in a committee process in congress. i think it's the best way to get a bill that will have best opportunity and to bring people together. you have to sit down and work through hard differences. it doesn't mean you sacrifice who you are or your principles. it means you get to place that people can support something moving forward. i like to think our committee has been able to do that, the intelligence committee. every budget since i been chairman, that's unusual. but an important thing to have happen in a committee like yours. it can happen.

it should happen. the questions at home shouldn't be, what are you doing to fill in the blanks on this other major issue. it should be, on your committee, what are you doing on this particular problem. how are you going to make that problem better. if every member is a generalist, we will be in trouble. i spent my last four years not being a general. i think members who serve on a.g. and energy and commerce and serve on those committees, what we should demand of them is more time in committee working through these issues and if in means staying in d.c. five days a week, okay, so be it. i think you can do it in less buff to force people to -- but you have to force people to show up and do the work. that's a hard thing to do. that has caused huge problems in the ability to build coalitions. tune in six months, i'll lay out the whole thing. >> thanks for doing this sir. appreciate it. >> thanks everybody. i >> c-span brings you to --

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host: good morning. the president travels to follow a mom -- and he will also give a speech. john boehner said that republicans will file suit against president obama for his executive order. we will get your calls, republicans --