information with swedish people, british people, all kinds of airline officials, et cetera? now, you're saying yes, he could do that under this second prong, yes or no? >> yes, because there's an executive order -- >> yes. ok. fine. if that if he can do that, then there is no worry. >> your honor -- >> because if this am i right, there is no worry? >> no, your honor. >> because if, in fact, this is going to lead to blowing up airplanes, all he has to do is use that second prong. now, you say i'm not right. why not? >> you're not right, your honor, because that is fundamentally inconsistent with the judgment that congress made that the ssi system should coexist with the classified information and with executive orders. what your honor is saying is that it doesn't matter that the ssi system that congress set up doesn't -- wouldn't work and can't function because the president by executive order could fill in the gaps. but what congress -- >> i'm not saying anything like that. i am worried about a practical matter. i am worried about the decision of the court against you leading

to somebody blowing up an airplane. and i suddenly thought, as a practical matter, that is not a serious worry because the president can always use the second prong to keep people from disclosing the information that you don't want disclosed. and so far, you've said i'm right and now you got into a legal argument. i'm not talking about a legal argument. >> so, your honor, i think such a system could be devised, but i think it would be a very odd construction of the statutes the court has before it to say that we are going to undermine and eviscerate the ssi system that congress by statute -- >> no, no. i am just worried look. let me ask my question. and my question is, if for other reasons i decided you were wrong, would i still have to face the problem of airplanes being blown up? i'm focusing on this because it's very important to me.

and you have answered that question, if for other reasons and you, of course, think you're right, but if for other reasons i thought you were wrong, i wouldn't have to worry about that practical problem because there is prong two. and it's important to me that you answer yes or no and i take your answer to be yes, you are right as a practical matter. >> i think it is possible that the president could entirely duplicate the ssi system that congress set up to help to prevent that practical problem. >> to follow up on that, if the president proceeded along that path, what would be the consequences with respect to the people, the class of people who would be able to have access to this information? would this would be classified information and then only people with certain security clearances would be no? >> so the system could not work, your honor, if it was a classified information system. >> no. i'm talking about justice breyer's alternative. >> so justice breyer's system, the answer is we would be in uncharted territory. i don't know as a fact that the president -- the president would have to essentially duplicate

the ssi system. and it's precisely because it doesn't work under the classified information system that already exists, because this is information that is very sensitive, yet has to be shared among people who are operating our transit system, so that flight attendants need to know -- >> yes. but what's so hard about duplicating the ssi system? he signs an executive order saying duplicate the ssi system and right away the problem we have here of people like mr. maclean revealing information is not a problem anymore because it is then protected by executive order. >> so, your honor, i just i think that that would work, but i have to say i'm not sure of the ins and outs. but i do think it's critical to say -- >> it would have one good effect and that is, it would make sure that the matter is important enough to occupy the president's attention and is not so insignificant that an agency that just doesn't want any

whistleblower, doesn't want any criticism of what it's doing, can pump out these regulations. it would have that that salutary effect, wouldn't it? >> your honor, it might have that effect, but i think that that's the judgment that congress made. what congress did was set up this ssi system, knowing that the president had authority under the executive order, knowing that the classified information system was set. and what congress and knowing, in fact, what these regulations said, the very regulations in basically the same form that we have today. when congress created, moved tsa into the into dhs as part of the homeland security act, these regulations were already there and congress had them before it. and what congress said was that ssi -- >> mr. gershengorn, if i could, before you get away from this, and i understand you have a statutory argument to make, but the way that the president would do this, if he wanted to do it, would be by a new executive order or, in fact, would this old executive order 13556, which deals with controlled unclassified information, is that what the president would

use? >> your honor, i'm not sure of the ins and outs of what the president would have to do. this is information that is shared outside of the government, which is what makes it a little tricky. these are they are shared with flight attendants. they're shared with local -- >> right. but i thought that that class that class of information, controlled unclassified information, as opposed to classified information, could be shared outside the government and executive order 13556 deals with that and the president could simply make clear that that executive order applies to this kind of information. >> so, your honor, i just don't know the answer to that, whether that order would satisfy. my sense is that it would take a lot more than that to duplicate the kinds of ssi system that has been in place for over a decade and a half and that congress signed off on. but it and so the exact form of the executive order, it's not something that, quite frankly, i

think we've contemplated here because there is this regime that congress had set up. >> well, about you talked about what congress meant and set up. but the conference report says the language does not refer to agency rules and regulations. so, whatever staffers prepared that, and i'm not suggesting congress did, but whatever staffers prepared that, again, maclean had to know more than they did. >> so, your honor, i don't think that's right. and i think this is a situation -- i'm going to make the initial point and then step back if i could and make a series of points on this. i think this is a situation in which the court has would be right to view that legislative history with some skepticism and here's why. what congress had before it was a bill that said, but from the senate side, that said "prohibited by statute." had congress passed that, we wouldn't be here making our regulatory argument. what congress adopted was a provision that says "specifically prohibited by law," a phrase that -- >> yes. but elsewhere in the same legislation, it refers to "prohibited by law, rule or

regulation." >> it does. >> here, it just said "by law." elsewhere in the same statute it says, "by law, rule, or regulation." what am what am i supposed to conclude from that? >> so i think what you need to conclude from that, your honor, is that the term "by law" has to exclude at least some rules and regulations, and we think that it does. it excludes those that are internal agency regulations and regulations relating to agency organization, practice or procedures. >> how do we know that? >> because that is the presumption that this court set up in chrysler. what chrysler did was interpret the phrase "authorized by law," and what the court said that "authorized by law" meant had a well-established meaning and that well-established meaning was that regulations that met the three-part test in chrysler, that they were substantive regulations of a legislative type, that they were reasonably within the contemplation with congress, and they were properly promulgated, were regulations that counted as by law. the court expressly distinguished internal agency interpretive rules and agency rules of organization, order,

and practice and said those were different. we think that is the distinction that is in the statute. >> if that is true and if that is so obvious, congress would not have to have said "by law, rule, or regulation" in the other provision. it could just have said "by law" and what you said would automatically follow. >> no, your honor. the "law, rule, or regulation" is the formulation that sweeps in agency internal rules and regulations and regulations promulgated pursuant to the housekeeping reg. that is precisely the distinction that the court drew in chrysler and it is precisely the distinction that we draw in the statute. when the statute says "by law, rule, or regulation," it includes all lawfully promulgated regulations, including interpretive rules, including agency's rules of procedure and practice. when the statute says "by law," what the court what is meant and what chrysler said had a well-established meaning that that would require a clear showing to overcome is that it includes statutes and it

includes regulations that meet the chrysler three-part test. so that is the precise distinction that this court that this court drew in chrysler, and it is embodied in the statute. to read it otherwise is to say that -- >> but the place mr. gershengorn, chrysler was it just said "law." "law" was not juxtaposed in the same sentence as another phrase that said "law, rule and regulation." so that would seem, that juxtaposition of the two very different terms, would seem to defeat the chrysler presumption. >> so, your honor, the reason i don't think it does is because it is equally consistent with precisely the distinction that chrysler drew between regulation rules, regulations with the force and effect of law on the one hand and internal rules and regs and rules of agency -- >> boy, that is subtle. that is so subtle, that congress is going to draw that distinction between substantive rules and procedural rules by saying "law" here and "law, rule, or regulation" there.

you can spin out that argument, but the notion that this is what congress had in mind when it enacted this thing or that any member of congress had in mind when he voted for it, i find that hard to believe. >> so, your honor, the reason why i don't think you should find that hard to believe is the following. first of all, by going from "by statute" to "by law," right, congress went from a narrow a -- a narrow structure that would have plainly foreclosed regs and instead moved to a much broader formulation that this court had given meaning in chrysler. second -- >> one there was one view that by going to "law" rather than "statute" what was meant was to include judicial decisions. >> your honor, it does say that in the legislative history, but that's precisely why i think this court should view that with some skepticism. it's hard to believe that the term "by statute" would not have included constructions of statutes that this court made.

and so to justify the move from "by statute" to "by law" to say we sweep in the court's interpretation of statutes, i think, is a little hard to swallow. if i could reserve the balance of my time. >> thank you, counsel. mr. katyal. >> thank you, mr. chief justice, and may it please the court, congress enacted the whistleblower act to restrain, not to empower, agencies. now, my friend's answer at the start of his oral argument was the specter of 60,000 people who are going to leak this information. we're not in a chevron situation in which the agency is getting any sort of deference here. and as justice breyer's line of questioning, i think, points out, that is a red herring, because congress in (b)(8) of the whistleblower act dealt with precisely that. they gave a mechanism for the president -- >> mr. katyal, if the statute read, "disclosure of information detrimental to transportation safety is prohibited and the tsa shall promulgate regulations to

that effect," would that be pursuant to law under the statute? >> i don't think so. i'll explain why in a moment. >> and that's what i want to know. how specific does are we going to get to a point where congress has to look at every category of information every agency deals with and make a law prohibiting the disclosure of that individually? >> not at all, your honor. so with respect to the backup argument of the government, 114(r), we have two different views two different arguments. one is that 114(r) doesn't prohibit. the other is that it's not specific. and your hypothetical deals with the first and not the second. so you've already the congress is doing the prohibiting, unlike 114(r), which, as justice kennedy pointed out, doesn't actually do anything. you need the regulation. with respect to specificity, i think congress has two different options in (b)(8). one is to pass a specific law. the opposite of "specific" is "general," and i think the words "detrimental to transportation security" aren't specific enough. and if you need any illustration of that, just look to my friend's argument in the reply

brief that the chief justice pointed out, where he said that that information that you could release information about how important flights weren't covered. the ssi regulations flatly call that ssi material this is 49 c.f.r. 1520.5(b)(1) and (2), quote, "information concerning the deployments and operations of federal air marshals are covered." that is ssi material. and so he can't even give you -- >> do you have any doubt that the that make the argument that the disclosure of this information didn't potentially harm transportation safety? >> certainly. that's mr. maclean's whole position, which is that he saved national security. this was a situation unfolding in real time in a four-day period and he did everything he could from going to the inspector general and to a supervisor in a quick thing in order to save something that otherwise would have been detrimental to national security. now, my other point about the specificity -- >> and he was successful. >> and he was, and the tsa admitted there was a mistake.

>> they called off the cancellations. >> exactly. the other point about -- >> i'm sorry. go ahead. >> the other point about specificity is congress has a whole other way of dealing with it, as justice breyer pointed out, which is the critical information, infrastructure regulations and the like. congress can enact a notwithstanding clause -- >> so are you saying that this statute is not specific enough for a foia request? if someone under foia had come in and asked for this information, they could have gotten it? >> your honor, 114(r)'s first words are "notwithstanding foia," ok. and it only is notwithstanding foia. congress is free to do precisely that with respect to the whistleblower act, either notwithstanding all laws or notwithstanding the whistleblower protection act, and pass the most general statute imaginable. it doesn't have to be specific. >> so you want us to decouple foia from this. it would be ok under foia for the agent to withhold this information? >> that's exactly what congress has said. >> because you think it's that you think it's that particular types of matter to be withheld. you agree with the government

that that includes this kind of material. >> it very well may satisfy foia, particularly because of the first clause, which is "notwithstanding foia." so you don't have to deal with this. but here, the statute doesn't say anything like that and so for that reason it's not specific. >> no. but the statute -- the statue other than the foia exemption 3 language doesn't talk about when a matter is kept secret by statute, as opposed to by regulation. so given that it's all tied in together, it's very tempting to say, i'll tell you when it's a statute rather than a regulation. and then you go and read the exemption 3 and you say it's a statute when, 1, it leaves no discretion on the issue, or 2, it establishes particular criteria for withholding, or three, it refers to particular types of matter.

so we look at the statute to see if it does that. that's what i thought i was supposed to do, to decide whether it's the statute that's doing it or the regulation. and the one that gives me the most trouble on those three is the last one, because it does seem to refer to a particular type of matter, though in very general terms. but so what do you think of what i've just said? >> your honor, we think the best way of understanding specific is to think about its opposite, which is general. and "detrimental to the security of transportation" is general. yes, if it refers to a particular you know, it does refer to a particular matter. well, any statute is going to refer to some sort of particular matter, but we think congress had something deeper in mind. and, of course, the freedom of information act -- >> i see that. i see that. you'd have to say critical infrastructure facilities are on one side of the line. this is on the other. now, what about the analysis i just went through? what do you think of that?

is that the correct legal analysis, in your opinion? >> well, i think i think not. i think you can pick any definition of specificity. my worry about adopting the foia one is, as justice scalia was pointing out to my friend, this statute affirmatively distinguishes in (b)(8) between "law, rule and regulation" in the first clause and "law" in the second. and i think congress is saying, unlike foia, that rules and regulations don't themselves do the prohibiting. it is only law. that is why the phrase is "specifically prohibited by law." there isn't anything like that in foia. and, indeed, foia has two purposes, as this court in robertson said, one of which is to empower agencies. it has nine different exemptions all about empowering agencies -- >> but the gravamen of your position is that after congress enacted these statutes, anything that came within the wpa definition could be disclosed until congress passed another

statute? that's what you want us to hold? >> no, no, not at all, your honor. i think that as long as it has a notwithstanding clause, as many things even before the whistleblower protection act did have, or it has a specific prohibition about specific matters to be disclosed, unlike the general prohibition here, "detrimental to the security of transportation," that's enough. but there's also a more fundamental point -- >> where could i look to find examples of where, before the regulation, there would be information pertaining to airline flights that could not be disclosed? >> well, i'm not sure about airline flights, but, for example, 10 u.s.c. 2640(h) says, quote, "the secretary of defense may, not withstanding any other provision of law, withhold from public disclosure safety-related information." and so that is a notwithstanding any other provision of law. >> but that doesn't apply to this respondent. >> well, i'm saying in general, your honor, congress has available to it tools -- >> you're saying that this respondent, until there was a

second statute, was not prohibited from disclosing anything within the broad reach of the wpa of "uncovered a violation of matters relating to specific danger to public health or safety." >> that is correct, your honor. we are saying that -- >> so congress passed a statute saying, and we'll pass another statute sometime before this has any effect? >> your honor, congress in 114(r) was not dealing with the whistleblower protection act. the language at the start is "notwithstanding foia." we certainly think congress could deal with it if they wanted to, but i think, as the members of congress brief points out, they likely won't. why? because people like mr. maclean promote the national security. they don't harm it. >> can i ask you about that? you say in your brief mr. maclean contacted a reporter with a history of responsible reporting about tsa who maintains close connections with congress. now, suppose that he instead contacted a reporter working for a foreign state-controlled news agency and the information was not quickly released to the

public, so that the information was out there and could have been obtained, perhaps, by terrorists before congress was aware of this and before the agency was aware of it and before it was able to take corrective action. would there be any reason why that would not fall under the statute, as you understand it? >> justice alito, i don't believe the whistleblower protection act deals with that. of course, congress could, by circumscribing the act in various ways. but here's what i think congress did in (b)(8). they said not just can congress pass a specific exemption or a nonspecific one with a "notwithstanding" clause. they said the president, by executive order, can deal with precisely this problem and it doesn't require classification and it doesn't require somehow two systems that are going to -- >> in your view you don't even need the president. in your view, the president wouldn't get involved because you have to have a very specific statute. that's your view. >> no, your honor. justice breyer, there are two different ways in (b)(8) for congress to deal with the problem. >> i know that. i'm just saying but you don't even get into it because it was in a regulation and not in a statute. and if it's not in a statute,

then you don't even get into that. >> right. i'm dealing with the circumstance that justice alito's posited, in which you have 60,000 people who might leak to foreign media or something like that. and if the government believes that, they can solve that problem literally today by walking out of this courtroom, having an executive order that says ssi material, like the material here, air marshal information, is exempt from the whisteblower protection act. congress passed that clearly in (b)(8). and as justice scalia says, that's the way to promote accountability. they didn't want unelected agencies -- the fox to guard the hen house. >> that may be. but i doubt if congress had thought about the situation that i posited, they would be content with the possibility of a disclosure that wasn't really a disclosure to the full public. >> well, i think, justice alito, congress has dealt with this question about how to whistleblow, do you need an exhaustion requirement, and so on, and other things. and every single time -- they've amended the act four times.

and every single time, they've said the problem is not too many whistleblowers, it's too few. congress recognizes it's really hard for someone like mr. maclean, other whistleblowers, to go to the media because they put their job at risk, they get fired. and then they have to spend years litigating, as this litigant has, just to get his job back. and they do that only in the name of public interest. there's no private gain or anything like that. so, justice kennedy, of course congress can prohibit the disclosure of this information in general. they have in 114(r). the question before the court here is have they done so with respect to the whistleblower protection act? have they done something specific enough to deal with the whistleblower protection act? and the answer to that, we think, is no because -- >> i'm a little concerned about your acceptance of the hypothetical that the whistleblower doesn't blow the whistle to anybody except the soviet union. do you really think that that's

what the statute means when it says to take or fail to take or threaten to take personnel action with respect to any employee because of any disclosure of information which the employee or applicant reasonably believes evidences a violation of law, rule or regulation -- don't you think it's implicit in that he's disclosing it to somebody who could remedy the problem as opposed to an enemy? >> it may very well be precisely right. our simple point here is that, whatever that standard is, that's a constant in this case. and if to the extent the court is worried about it at all, i think congress in (b)(8) provided mechanisms to deal with that, either a specific or nonspecific order or an executive order that doesn't require classification. it doesn't require mucking up at all the classification system. >> i'm troubled because the facts are very much in your favor here, because he disclosed it publicly, but under your scenario or under your position,

if he published every day until the executive order came out the schedule of which flights air marshals will be on and he would come out and just say, i think we need more air marshals, that would be -- that would not be a violation. they couldn't fire him. >> justice sotomayor, congress has dealt with that, i think, at various points in the whistleblower act, asking the question, is this too loose a standard and so on. every single time they concluded not. why? because it is so hard for whistleblowers to come forward. the former government official'' brief at page 34 gives you data on this. there have been 203 cases that have gone to the federal circuit, whistleblower cases, and they've won -- whistleblowers have won a whopping three of them. there have been 56 cases that have gone to the mspb. again, whistleblowers have won three of them. >> which way does that cut? it seems to me that cuts very much against you. in other words, whistleblowers are blowing the whistle all the time without any justification.

that's i thought the government's point, that this requires, puts all the eggs in the basket of whatever the whistleblower happens to think is a good disclosure. >> i think not, mr. chief justice. i think congress each time has looked at this situation and has said every single time, we need more whistleblowers to come forward, because that's the human failsafe against a machine bureaucracy. >> congress i mean, i know people don't want to bring this up. but actually the staffs of congress do consider these problems. they write them down. they say what the answer is and the members are informed. now, in this particular case, if you happen to read the conference reports, you get the answer. it says, what does it mean not specifically prohibited by law? and then in both the house report and the senate report, it tells you, go back to what we passed two years ago, namely, the foia exemption, and that's what it means.

and so that's why i got the thought that maybe that is what it means. and once you have that thought, you then see the country isn't going to fall apart because they wrote in the presidential exemption as well. so reading what the staffs actually wrote, perhaps i'm biased in that respect, believing that the members of congress do think about these problems through staff, we have the answer to this case leaving only open whether it is specific enough or not, and you make an argument that it's too general. now, why shouldn't i follow that approach? >> so i think generally, you should you should, justice breyer. that is, i think the conference report, and this is quoted in our brief at page 24, this is unlike almost any case i've seen before this court in recent years in which the conference report so clearly gives you the answer to the question presented. >> there are three reports. one is really for you, and that's the conference report.

the senate report is somewhat against you because it picks up the foia or the foia exemption, and says that's what this means, even though you don't want to do that and -- >> your honor -- >> i would read all of them, the house report, too. >> let me address the senate report and the foia stuff. we think even under the foia standard, we don't think this is a particular matter, that that itself is too general. but, justice breyer, there's two other things about that senate report -- >> excuse me. then you would say that under foia i mean, assuming i follow justice breyer's approach you would be leading to the conclusion that the government -- if a foia request is made, the government has to disclose it because it doesn't because it's not the statute is not referring to a particular type of matter to be withheld. it's not particular enough for you. >> well, i think that the language of 114(r) in the first notwithstanding clause is enough to basically just bracket foia. with respect to the senate report -- >> just answer my question. you're saying the government

couldn't withhold it under foia? >> no, i think that they could under foia, which has a very different situation, which it's empowering agencies to try and make certain exemptions. the whistleblower protection act, i think, should be read with the reverse view in mind. justice breyer, the senate report, the senate language of the bill didn't even have the word "specifically" in it. so i'd urge you not to look at the senate report when reading the word "specifically." i agree there's some language where they talk about robertson and the like, but actually, page 154 has the text of the senate bill, and it doesn't even have "specific" in it. so that's why we would caution against using that as your template for deciding what "specific" is. >> mr. katyal, if you agree with the suggestion that this could be remedied by the president through an executive order, could i do you agree with that? >> i do. >> now, could i ask you how that would how that would work out? let's say -- let's just take this example. suppose the information in question concerns the layout in a particular airport. there's an area that that some

employee of the tsa thinks is not secure. so that's the information. then the information comes out that there's this problem with that particular airport and the tsa employee thinks that it's not being remedied, so this person wants to disclose it. now, how would that this information has to be disclosed to a certain number of people associated with that airport in order for the problem to be remedied. so how would that be dealt with in an executive order? the president has to issue an executive order about that specific thing and say, this can be disclosed to security people at the airport, the local police, maintenance people who are going to fix that. how would you deal how would that be dealt with? >> two different ways. one is through the classification regime. the other, as we've been talking about with justice breyer, is through the nonclassified ssi system. the president can pick up the ssi system, in general, under the exemption because it does

deal with national defense and foreign affairs. there are parts of ssi which may not fall within it, but for the most part, things like this would. and so the president could designate that information subject to the exception to the whistleblower protection act. i don't think he has to get into details about who it has to be shared with and who it doesn't, but he certainly could. with respect to the classification regime, he could also use the classified system to try and exempt this information as well. my friend on the other side says, oh, no, we can't share information with uncleared people, foreign people and the like. as our brief at page 52 points out, the classification regime already is supple enough to provide that, as long as it is in the defense of the homeland, as your hypothetical would. and more to the point, this court's decision in eagan, which my friend cites, says that the classification regime is entirely a creature of the executive and can be modified at will. so if they really believe that you need to do this and share even classified information with uncleared parties, they can do that. but i think so we're not requiring some sort of

specificity requirement, either in the executive order or in the congressional solution that is so every jot and tittle or anything like that. now -- >> mr. katyal, are there criminal penalties for violation of this statute? >> not of ssi material, but there are of classified information. >> mr. katyal, can we go back to your legal argument, and let me make sure i understand it. you're saying don't use the revised exemption 3 standard. 114(r) is narrower than that. is that right? >> that's correct. >> so that all of our exemption 3 cases essentially become irrelevant. is that right? >> correct. >> but the and you're doing that based on the notwithstanding foia language. is that right? >> well, i am saying that. i wouldn't want to go too far. i don't think our argument depends on this. in other words, i think if you adopted the foia 3 standard, i still think that this language, which is detrimental to the security of transportation, is so capacious, heaven knows what it means. i mean, mr. maclean, of course, thought what he was doing was

promotion of the national security -- of transportation security, not detrimental to it. >> i mean, it's very general language, that's absolutely true. and if you were writing on a clean slate, you might say, gosh, that's very general language. but we're not writing on a clean slate, and all our exemption 3 cases seem to suggest that very general language can meet the bar. and so i'm just looking at there's this case gte sylvania, which was a statute that prohibited disclosure, if disclosure was not fair in the circumstances and reasonably related to effectuating the purposes of the consumer product safety act. and we said that was enough, which it's like you look at that and you say, why is it enough? but that's what we said. >> right. but again, i think i think the foia context is very different than here because foia is something about empowering agencies to restrict disclosures. as this court's decision in robertson said, that that there was a preexisting legislative history about how they wanted to keep in place the 100 statutes or so that are antidisclosure. the whistleblower act, i think, has the reverse idea in mind.

we see this texturally, for those for those who are focused on the text, because the statute distinguishes, in the first part, between law, rule, and regulation and law. and i think it's specifically prohibited by law. and what congress is saying by that phrase in the context of this statute is, unlike foia, we're not about trying to empower agencies through general language. and i think this is the most natural way to understand what the statute says. i mean, i think when the word "specific" is used, i think the most helpful way of understanding what congress had in mind is to think of its opposite -- general. that there are two boxes, and detrimental to the security of transportation sounds very much like, frankly, the tsa's mission statement and not anything more than that. >> if congress wanted to reach your position and it had a choice of the words it would use in the second part of the statute, could it say "statute" instead of "law" and it would just come out the same way?

>> they certainly could use statute. the -- >> and for purposes of this case and generally, there'd really be no difference? >> well, i think there may arguably be a difference. this is found in the conference report language. they said, we didn't use "statute" for a particular reason, which is because they wanted to sweep in not simply the statute and the u.s. code, but also judicial interpretation. >> oh, yeah, i'm sure that's what they all had in mind. i had no doubt of that. >> well, justice scalia, let me answer because, first of all, it is what congress said in the conference report, which is, of course, what congress votes on. and i understand many people don't like legislative history, but this is the apex of legislative history, as chief justice rehnquist pointed out in the simpson case -- >> does congress vote on the conference report? >> they do vote on the conference report. >> the whole the whole house? each separate house? >> i believe that the answer to that is yes. but i'd also say, the other thing about it is that i do think congress actually what they were saying in the report made some sense because the language is specifically prohibited by law. and i think what congress was trying to do was sweep in things

like the trade secrets act in which even if that language might look general to a lay observer, the words "trade secrets" have been fleshed out by courts over time. >> well, i'm a little maybe this doesn't make any sense, but you've been focusing on specifically as referring to the material that is covered. can't it also refer to the prohibition, specifically prohibited? in other words, it actually has to say, "you cannot disclose this." you think it's specifying what "this" is. couldn't it equally be well specifying how direct the ban must be, "specifically prohibited"? >> right. so this is the argument in the government's reply brief which comes up for the first time. it's never been advanced by anyone. there's no support for it in the in the legislative history or i think even, really, the text of the statute. i think "specifically" refers to "such disclosure." the phrase is "if such disclosure is not specifically prohibited by law," and so i think "specifically" is best read as referring to such disclosure.

justice breyer, back to your question about the senate report in 102(d)(3), which is what you were asking about earlier. it's real important i think it's important that i say that the court -- excuse me, the congress when they passed the whistleblower act rejected the idea that 102(d)(3) -- >> i think i'm talking about the report on the whistleblower act. >> exactly. >> and the report on the whistleblower act, which it came two years after foia, the senate committee said, "those disclosures which are specifically exempted from disclosure by a statute which requires that matters be withheld from the public in such a manner as to leave no discretion on the issue or by a statute which establishes particular criteria for withholding or refers to particular types of matters to be withheld." that is word for word. >> right. but -- >> did the senate vote on that, mr. katyal? did the senate vote on the senate committee report? >> they did not -- >> and did the senate committee vote on the senate committee report? >> i don't believe they did.

>> no, they don't. >> but, justice breyer, that senate bill that that language is interpreting doesn't even have the word "specific" in it. so that the actual bill the senate is using is at page 154 of that report, it doesn't have it in it, and that's why i don't think it's the best guide for what "specific" means. now, there is language, as you say, about 102(d)(3) saying 102(d)(3) would meet a specific prohibition. in section 2306 of the actual whistleblower act, which, justice scalia, congress voted on exempts 102(d)(3). congress didn't buy this argument that the government has come up with right now that says that the senate the senate report means that 102(d)(3) was a specific prohibition because they added this language "no provision of this chapter shall be construed to impair the authorities and responsibilities set forth in section 102." and so congress itself didn't believe this notion that 102(d)(3) was specific.

they wanted something -- >> you might be right about that, but what's bothering me is the more general question of driving an interpretive wedge between the foia exemption and the whistleblower act. i mean, that's going to get everybody good and mixed up, i think. >> your honor, i don't think our answer depends on that. that is, i think that this doesn't meet the -- >> yeah, but which in your opinion is the wiser way to go about it? i mean, assuming that this statute is not specific enough, which is the better way to go about it? to say the whistleblower act is special or to say interpret them both alike? >> i think either is equally plausible because foia and the whistleblower protection act are two very different statutes. this court has said in robertson that foia has two goals, one of which is about empowering agencies. here, nobody has said that. the text of the act never refers to empowering agencies as justice scalia said.

and congress with respect to the whistleblower act is concerned about incentivizing them to come forward. that's what the members of congress brief says, as well as the office of special counsel brief. there's no fear about chilling foia requests for heaven's sakes. >> but that suggests that we take, essentially, the same language and read it two different ways, just dependent on our sense of the purpose of the underlying statute. is that right? >> well, i think that is available to the court. but again, you can use the foia standard and there is no way -- >> but i'm just asking if we -- your decoupling argument is essentially based on the notion that these two statutes have very different purposes and, therefore, we can take those very different purposes and read the very, very similar language differently. >> yes, justice kagan, for purposes of 114(r), which, of course, bothers to specify only foia by saying "notwithstanding foia" and then goes through the detrimental transportation security. doesn't specify the

whistleblower act. congress can, of course, deal with this by having a more general notwithstanding clause. >> i thought you were relying on text. i thought you were relying on the difference between law and law, rule, or regulation. >> absolutely. that's our primary -- >> it's not just purpose. >> absolutely. so that's our primary argument -- >> thank you. i was worried for a minute. >> thank you. thank you. if the court isn't worried with anything else -- >> thank you, counsel. mr. gershengorn you have 4 minutes left. >> thank you, mr. chief justice. i'd like to make two principal points. first, the question here is whether the principal question i'd like the court to decide is whether this disclosure was specifically prohibited by statute. we believe it is, and i think it's very interesting today -- justice kagan, you pointed out that the precedent seems to require that. justice breyer, you pointed out that the legislative history in the senate report seems to require that result. justice alito and justice kennedy, you pointed out that the practical effects of respondent's position would seem

to be grave. mr. chief justice, you pointed out and we completely agree that the term "specific" which is critical to their argument could just as easily, and we think properly, mean express, which is what it means here. and justice scalia, you asked about criminal penalties, but the statute itself does not provide criminal penalties just as mr. katyal said, but it does provide civil penalties. we think in that situation where you have the prior case law, the legislative history, the practical effects and the plain text that to say that a statute that mandates nondisclosure regulations does not specifically prohibit disclosure is just a very odd construction. the principal practical arguments we've heard today are that we don't have to worry because congress could have had an executive order to make it work. we continue to think there is no dispute that the ssi system doesn't work under mr. katyal's construction. the idea that what congress expected was a duplicative executive order to mimic the ssi

scheme seems very odd to us, and seems like a very odd way to construe congressional statutes. there was a concern here that there's this fox guarding the hen house. that may be a concern with the whistleblower protection act, but it has no application here, where congress itself mandated the nondisclosure regulations, and did so knowing precisely what those regulations were when it did so. and finally, there's been some suggestion that the facts are in mr. maclean's favor here. i would only say this. what mr. maclean what a tsa -- what a tsa employee has before them is not a full picture of the threats, is not a full picture of the resource constraints, is not a full picture of the other means that the agency is taking and is not possessed with the same experience that tsa has. >> excuse me, i hate to interrupt you, but you worry me. i assume that if we find for your friend on the other side, the ssi regulations are not null and void.

they would still apply to everybody except whistleblowers. isn't that right? >> yes. >> it would still be a violation for anybody to make those disclosures unless he's doing it in a whistleblower capacity. >> it would be yes, your honor, but the standard in whistleblowing is do you reasonably believe that there is a specific and substantial danger to public safety? that is a judgment made on the information known reasonably -- known to the employee and readily ascertainable. it is not a judgment made with the full picture of the security consequences. i suggest to the court, as a step back, that the right way to think about this case is that in a situation where the statute mandates nondisclosure -- just as if the chief justice were to tell the marshal to bar me from the courtroom, that it would be perfectly reasonable to say that the chief justice had expressly prohibited, specifically prohibited, my presence in the courtroom, even if the marshal were the one standing at the door. >> do you know how come that is, mr. gershengorn? >> excuse me? >> how common it is to have regulations specifically

mandated as opposed to authorized or permitted. >> your honor, we're not aware of very many statutes like the ssi statute, where congress has expressly mandated regulations. there are things like the 102(d)(3) of the national security act, which generally says to the cia director, protect sources and methods, and statutes like that. there are, of course, a wide range of nondisclosures, but we're focused principally on the nondisclosure provisions here. we respectfully ask the court to hold that this is specifically prohibited by law and in particular by the ssi statute. >> we would never bar you from the courtroom. >> he wasn't talking about you. thank you, counsel. the case is submitted. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]

next president>> obama and u.s. foreign policy. after that program on defense secretary chuck hagel. >> the c-span cities towards a tv and american history tv on the road. this weekend we partnered with charter communications for a visit to madison, wisconsin. he is probably the most important political figure in wisconsin history. foreman governor. he defined what progressivism is. he was one of the first to use the term progressive to self identify. he was a united states editor, as recognized by his peers

one of the five greatest senators in american history. he was an opponent of world war i, stood his ground advocating for free speech. above all, he was about the people. of thet the latter part 1890's giving speeches all over wisconsin. if you needed a speaker for your club or group, he would give a speech. he went to county fairs. eventt to every kind of you can imagine and build a reputation. he was ready to run for governor, advocating on behalf -- on the bowl all stop behalf of of the people. not too far from here. weymouth, massachusetts for a time. then he returned to madison.

hisrew up in madison, spent spente years there, briefly a few years at the university of wisconsin before he decided to take off and find his fortune in chicago. he decided he should come to this part of the country where her family was, the lloyd joneses, welsh pioneers. spent time in these hills. that is where he got two things. he got his love of nature, his understanding of nature and his sense of the topography of these hills. >> watch all of our events from madison. >> recently a debate was held focused on president obama's foreign policy. arguing of one side, brett

humans and robert kagan. facing them, new america foundation founder and marie slaughter and for recent cardiac. zakaria. ais is about an hour and half. ♪ >> you do not know. your fax will be demolished. >> [indiscernible] not know that your arguments will be totally destroyed. alexa -- you are shaken out.

you do not know what he said. he said something. ♪ toi can't believe i am about say this, but dr. kissinger, you have six minutes. biggest trading partner? that is the kind of political argument -- [laughter] >> you are annoying even though >> womenot funny. is are affected by lunar tides only once a month. men are subject to them every single day. as we saw when dick cheney rampaged across southern arizona.

>> no! [indiscernible] -- are weer to tax prepared to say this is your success limit? you always to us. ?ow dare you be so says one on my side ever that. >> imagine indeed a world without religious faith. there are no men or women who because of their faith are dedicating their lives to others. cool makes us objects in a experiment -- a cruel experiment. it installs a celestial

dictatorship, i kind of divine north korea. [laughter] ♪ ladies and gentlemen, welcome. [laughter] welcome to the munk debates on barack obama's foreign policy. it is my privilege to be the organizer of this debate and to once again serve as your moderator. i want to start by welcoming the north american why television cpac too audience, from c-span. onlinehello also to the audience watching this debate right now on munkdebates.com.

it is an honor to have you as a participant in tonight's proceedings. and hello to you, the people who filled the call to capacity for yet another munk debate. we engage in the geopolitical debate of the moment. has the administration of barack obama through inaction and incompetence, as its critics will claim, fan the flames of global conflicts and encouraged the very forces that want to roll back individual rights, the rule of law, economic globalization? has thist is a big or, president wisely, courageously does avoid that this about the role of global policeman for the united states, a role embraced ofhis predecessor, in favor

alliance building and targeted use of military power? these are the battle lines off tonight's contest. on the stage, for outstanding presenters, which would not be possible without the public spiritedness of our hosts. and melanie.uter thank you, guys. another great debate. [applause] bravo. the moment we have been waiting for. let's get our debaters out here on center stage and the debate underway. motion, first for the be it resolved president obama has emboldened our enemies and made the world a more dangerous place is one of the most prominent writers and thinkers on all things foreign policy,

institution's senior foreign policy, robert kagan. on out here. [applause] kagan, theb international affairs columnist for "the wall street journal," bret stevens. come on out. [applause] great team of debaters deserves another and i would ine you all to join me welcoming a woman of singular accomplishment. she is a renowned scholar of international affairs, a former senior official in the u.s. state department and ceo of the present is new america

foundation. ladies and gentlemen, anne-marie slaughter. [applause] her debating partner tonight is no stranger to this series. is one of the most formidable debaters to appear on the stage. ladies and gentlemen, please welcome best-selling author and the host of cnn's's flagship foreign affairs program, fareed zakaria. [applause] now, before we call on our debaters further opening remarks, i need your help with imple tasks. first, power up your smartphones. we have a wi-fi network throughout the building. you can engage with the debate through twitter, #munkdebates.

second, and this includes people watching online -- we have a url. a seriesnteract with of questions. vote often. americans did it last night with a consequence. third, my favorite part of the evening -- the countdown clock. it will appear on the screen at various times during tonight's debate. when you see it countdown to a roundease join me in of applause. this will keep our speakers on their toes and our the on schedule. finally, let's find out how the audience voted on tonight's resolution, be it resolved president obama has emboldened our enemies and made the world a more dangerous ways.

interesting. 43% agree, 57% disagreed. vote. a tie the second question -- depending on what you hear during the debates, are you willing to change your mind? whoa. 93%. this is a crowd that can be wooed. cutclearly have your work out for you. it is time for our six-minute opening statements. as per convention, the pro side will speak first. bret stephens, your six minutes begins now. >> a ladies and gentlemen, do you remember? do you remember the first time -- no, i don't mean that first time. [laughter] you heard barack obama, the first time you were spellbound by his wrongness --

his promise and his promises. we were going to defeat al qaeda . we were going to win the war that must be one in afghanistan while getting out of iraq. we would reset relations with russia. partnerships new in europe and the americas. we would reassure allies in asia. we would save the climate area stop iran from getting the bomb and prevent chemical weapons from being used against civilians in a genocide. that seems like a very long time ago, does it not? six years on, there is one thing we can say for sure. not one, not one of those goals has been achieved. the number of jihadists according to a rand corporation

study more than doubled from 2010 until 2013 and that does not include isis. we are not out of iraq and we are back in iraq. relations with russia have been reset to about 1956. [laughter] a syrian dictator continues to gas his people with impunity, the only difference being that toswitched from sarin chlorine. iran is closer to a bomb. america is were hated in -- more hated in countries like pakistan and egypt than it was even when george w. bush was president. the war in afghanistan forced so youngoung americans and canadians gave their lives has not, to say the least, been one. say, it is not all obama's fault.

he has been dealt a tough hand. the world is a complicated place. presidentsgentlemen, are often dealt a tough hand. wilson got a bad hand from hoover. reagan got a bad hand from carter. what makes a good president define events and leave the united states stronger and better respect it in the world. this is not to say the least has been the mark of obama's tenure. such is the gap between expectations and delivery that one might say to paraphrase a famous line that never in the field of political self-promotion have so many been promised so much by someone who delivered so little. why is this? i think it is a confidence problem. this is a president who is busy calling isis the jv

team. he didn't bother finding out who the intelligence agency was wiretapping. a president who has compiled a record of being harsh with his allies in the world or going on his way to accommodate america's adversaries. this is a president who talks about the portents of rules and fails to enforce those rules. "when dictators create atrocities, they depend on the world to look the other way you'd if we fail to act, the a a sad regime and others will not think twice -- " as a result, under obama,

america is no longer feared by its enemies. we no longer trusted by its friends. why is this uniquely dangerous? actionserceptions shape . our enemies take the message they could do whatever they want as long as they have the capability and the will to do so . "if the u.s. weeps bullets with words, tyrants will draw their own conclusion." colleague in an op-ed earlier this year. the second reason is that rogue regimes have an incentive to act sooner rather than later because they know obama still has two years in office and they suspect the next president will have more spine. the third reason is if america's allies cannot trust it, he will go their own way. we will live in a world of dangerous roads and equally dangerous freelancers. this is a world of unprecedented or nearly unprecedented

unpredictability in our lifetime . when your enemies are tempted to strike in your allies are tempted to preempt and all the hook is you are on the even as you are losing control. let me close by reminding you a nobelack obama won peace prize in 2009 in the expectation of making the world a better, more peaceful place. as you follow our debate, ask yourself with the benefit of hindsight, would you still give him that prize? thank you very much. [applause] seconds to spare. that was pretty impressive. blaming barack obama for the

state the world is in right now is like blaming a caribbean island for a hurricane. think very carefully about what our opponents have to prove. not only do they have to prove the world would be less dangerous if barack obama were not president, but they have to prove that the world is as dangerous as it is because he has emboldened our enemies. it is a two step and they have to prove. that means they have to prove haveputin would not annexed crimea. hardin when the ukrainian president left. dened when that ukrainian

president left. putin decide it was time to get serious and there's no way of dealing with the united states. it was when he thought we were more hired lined -- hard lined. --till is not responding isil is not responding to obama's lack of responses. it is not that he has emboldened our enemies. you have heard i am known for some could a schism's of our president. i have disagreed with him strongly and strenuously on syria. my criticisms have not been that he embolden assad to take the actions he is taken.

it is once assad decided to obliterate opposition, obama could be doing more and to pride -- doing more. you cannot lame them for the fact that the hurricane came in the first place. obama i think could do different things in response, but i don't think there is anything obama could've done that would've stopped aside from doing what he did. at how obama has worked to make the place -- the world a safer place.

the single greatest threat is the danger of a terrorist group with a nuclear weapon. stopping nuclear proliferation is absolutely essential as people such as a henry kissinger, george scholz, built terry all agree stopping nuclear proliferation is a single thing we must do. worked doggedly for a deal with iran. he has been externally tough when he had to be tossed. he has imposed -- with he had to be tough. he has imposed sanctions. he is closer than anyone has been in 20 years to that deal. we don't know he will get there. even her all my criticisms of obama on -- even for all my

criticisms of obama on syria -- he has decimated al qaeda. .e took out osama bin laden he is working very hard and successfully to contain isil appeared not to eradicate it, but to contain it so it cannot spread the on the middle east. he has also strengthened regional and international organizations contrary to what look like when he came into office. s without the united nations. it is important to restrain china and russia. those are just the state to state problems. what about the deeper problem? if you're reading the headlines on why the world is such a dangerous place, you're not just reading about russia should your reading about ebola.

you are reading about spaces that give rise to disease, violence, wars the spillover borders that fuel extremism. problemsrs to those are slow and complicated. they cannot be -- they focus on things like development. works on the longer-term problems that ultimately we have to address. like climate change. keep trying. work on longer-term problems. thank you. [applause] thank you.

>> thank you for coming out here to listen to a debate on foreign policy. here.a pleasure to be i know my colleagues are very pleased to be here. this is a date to be defending barack obama -- this is an excellent day to be defending barack obama in canada. [laughter] i suspect it might be a little bit tougher back in the united states. we all saw the results of the election. you may know what the approval ratings of president obama are up you what you may not know is that his general approval rating is significantly higher than his foreign-policy approval rating. pprovaleral a

rating -- his foreign-policy is between 30-35%. territory.rge w. that is george w. in 2006. you canadians may not trust the american people's judgment and i would except that. [laughter] maybe they are wrong now it may be they were wrong in 2006 with george w. or maybe they were right both times. is the world a more dangerous place. 65% say yes. they are not in any doubt about whether the world has gotten more dangerous. you could trust their judgment are not. are they wrong? are they wrong the world is more dangerous. there are two points.

is a romar dangerous? does barack obama have anything to do with it? -- is the world more dangerous? anythingck obama have to do with it? i think the world is more dangerous. statisticsbout noting that violence had decline. another answer is people have gotten nicer. i have a different answer. the study begins in 1945. of violence had declined from 1945 steadily over the decades. why is that? what happened in 1945? [laughter] 1945 -- worldin war ii, a period of global disorder.

many got together and built a liberal world order that we strengthened over the decades. it achieved three extraordinary things -- one come enormous spread of democracy. another, an enormous increase in global prosperity the likes of which we haven't seen before. saw in the first part of the 20th century -- if the world is more dangerous, it is because that of which is at risk is at risk today. i don't know what the future holds. icy areas for reason of concern that this world order is at risk. we see what is happening to the global economy. for the first time in europe since 19 45, we see cross-border

seeession -- 1945, we cross-border aggression. something without we eradicated in europe. is this barack obama's fault? of course not. has his policies made these things the situation worse? of course they have. of course they have. maria is reading into the mind of isis and what they think of what they want to do. we know how isis got to be what it is today. it was because the u.s. withdrew iraq.urely from he was because the president did not listen when it was repeatedly said they may be able jada'sd having failed by -- jihadists. beend behold, it has

filled in by jihadists. this a obama is a caribbean island sitting here watching the hurricane go by? [laughter] american presence are not all harmful -- presidents are not all-powerful. aggressiveowing more where least was to flex its elbows a little bit. that is not barack obama's fault. we see japan increasingly independent come increasingly nationalist come increasingly taking steps which if we're not careful could lead to a conflict in east asia. what is japan doing now? because japan is wondering whether barack obama can be trusted. his unwillingness to use force in syria after he said he was

did echouse force around the world and raise doubts among our allies about whether we could be relied upon. [applause] more to come. [laughter] [applause] >> well done. final opening statement. the floor is yours. >> thank you so much. ladies and gentlemen, i hope you will be service rated -- be persuaded. he is so persuaded by my colleague. [laughter] i trust you will vote the way she is voting in this resolution. clearly she has good judgment. [laughter] let me address the proposition very simply. the question is what has happened to the united states's enemy? osama bin laden is dead last i checked. al qaeda that launched the 9/11 decimated.

entirely decimated to the point it is unable for years to even aunch a major or minor terrorist operation. now it releases videocassettes. that is what osama bin laden's successors have done the last few years. two, iran.r we have good data on this. we have good data on this. in 2006, saudi arabia, egypt, jordan were on iran's favorability rating. why? iran was seen as the country standing up to the united states.

e.12, the same poll was don the number was 35%. why? barack obama assembled a national coalition and put in place tough sanctions and absurd theravance -- and gathered that arabstogether -- the together. experiment.his russia invaded another country during the bush administration. the consequence was zero. the bush administration did nothing. george bush was at the olympics. spent time palling around with putin. nothing happened. russia did something similar. you have nato and the european

union putting a place real sanctions. the u.s. put in place tougher sanctions. what you see in russia is growth has slowed to zero. its stock market has collapsed. the ruble is down 25%. russia jacked up interest rates. if you're wondering where to park your cash, and i put 5% in russia. i don't think any of you will do it. [laughter] those are the three principal adversaries of the united states. that is what barack obama has been able to do. yet the reality of the preemptive -- in this administration, there has been a recognition if the united states theoing to play the role as -asia.place of action is

if the united states is going to be the superpower, it has to be a pacific power. the obama administration has jealously -- zealously pursued a relationship with asia every open a base in the philippines. he has been able to put in place a symbolic, but important base of sorts in australia. making clear that the disputed islands would be covered by the u.s. defense treaty with japan. he has been able to offer a kind of vision of trade and opportunity to asia that bush was not able to do. all of these things have created a reality that the united states is now much more able to play that role of balancer and stabilize. it would not be enough.

correct. strategy is to makepoint i want about the world being so unstable -- really what you have is a world in which the middle east is deeply unstable. the rest of the world is in pretty good shape. the rest of the world has in pretty unstable if you haven't noticed. the 14th american military intervention in syria since 1982, since reagan sent marines into lebanon. how has that worked out? not so well. they tell us things are terrible. we are you may terrible situation. the world has become a much more dangerous place. the only word that describes this is appeasement. sorry. that was 1999. my mistake. i'm so sorry. [laughter]

[applause] american foreign policy will be of curtailed commitment and gradual withdrawal. this is an isolationist dream you for who knows come it is a nightmare. sorry. this is before 9/11. he now tells us we are in the 1930's, but we are always in the 1930's for robert kagan. [applause] >> terrific opening statements. we certainly have a debate on our hands. we'll do a quick round of rebuttals. bob kagan, you are up. >> ok. about theays worried

world order we had created collapsing. i was worried in 1999, i was worried about what iraq was up to and what might happen in iraq. i was worried about terrorism. some awful things did happen. i hope you appreciate the fact i have been critical of both administrations. worriedried, i honestly about whether it we are not through lack of action or miss understanding, foolishness, lose control of a liberal order from which we all renovated so much. let me tell you, it -- we all benefited so much and let me tell you, it is fragile. in his book, the post-american world, even as the united states declines, the world order will

continue. why? because china will step up and uphold it. anduse russia step up uphold it. will uphold the liberal world order even after the united states has lost the power that he thinks it is losing. i do worry about it. i don't want to ring alarm bells , theweek good over situation. but the task is to ask the question as to whether barack obama's policies have taken a dangerous world and made it better or made it worse? listen to our colleagues. barack obama has accomplished miracles. i cannot believe what he has accomplished. what he is going to accomplish. if you listen to anne-marie carefully, he is going to ians fromhe iran

getting a nuclear weapon. i'll take that on faith. it looks to me that is a question. will the warming? i'm really impressed by the incredible agreement we all came together, the united states, china, india, and europe, which is finally solving or even addressing the problem of climate change. maybe he is going to in his last two years when he was not able to do in the previous six years. when you look at the record of occurred, i'm thrilled osama bin laden is dead. i think that is a great victory. i just wish we were not in the situation where we are not facing individual terrorist operating in failed states, and facing organization that plans and is achieving the ability to create its own state. that is what isis is trying to achieve. [applause]

>> your rebuttal. i was reminded of one of my favorite movies. you remember the bitter dispute the tween the people and the -- she says al qaeda is decimated. qaeda in theve al arabian peninsula, taking over the country of mali and only stop by the french, which the obama administration opposed to, we have isil. you're right. it is not al qaeda, but it is more extreme. no one doubts the great tactical victory of killing osama bin laden, but i don't think any

intelligent person would dispute the idea that al qaeda or jihadist groups that there in our interest both in the middle east and around the world are more powerful today than they used to be. another movie i'm fond of is "austin powers." you heard them talk about sanctions that have decimated the russian economy. as a matter of fact, it has been decimated by the fall in oil prices that has happened since june, a remarkable contraction thanks to the large energy revolution taking place in canada as well as in the united states. a story in "the wall street journal" talks about the effects of sanctions on one of putin's favorite banks. nearly $21 million. remember that theme in "austin powers" where we will make a ransom for $1 million dollars?

$21 -- $21 million is pocket change. it talks let nuclear proliferation. what president obama has done to stop it. what is she talking about? saudi arabians come to our office regularly and threaten that they will develop if not purchase nuclear weapons if iran gets closer to a bomb. with respect to three things about iran -- the fact is in centrifugesad 3900 and today it has 19,000. admittedly, they are frozen. we will see how long that lasts. it is early to trumpet that achievement. you mentioned the pivot to asia. wase years after the pivot

announced, there were zero troops. the partnership agenda was dead. how can you call it a achievement if it weren't real? [applause] >> that outlines of this debate are certainly emerging quick and fast. you are up next. your rebuttal. thinghave established one without any question -- barack obama has emboldened the republican party. [laughter] >> so i just want to ask you again to remember what they have to prove. because they are witty and they me against uoting me. but they have to prove that the world is more dangerous now than it would be if barack

bama were not president. that's a counter factual. has to prove it's more dangerous now than it would be if he were not present and that one of the reasons we got there is he emboldened our enem els -- enemies. instead, what we've heard is he has not achieved all the goals he laid out in 2009. that is not unique to barack obama. that is pretty much typical of politicians. we have heard he's not reagan on roosevelt the ok, i'll accept that. he's not reagan or roosevelt. we've heard that he's not confident. that he gives speeches. what we haven't heard is how any of that emboldened our enemies and lead -- led to making the world a more dangerous place than it would be without our president. so you can like him or not.

t they have to show that its -- it's his action or lack of action that makes the world a more dangerous place. what we've also heard are attacks on the good things that both fareed and i say he has done. and we can debate that. perhaps he has not yet achieved a deal with iran and he may not, but he has done more than any other president. we are closer than we have ever been and our opponents agree that that is absolutely essential because if iran gets a nuclear weapon, saudi arabia will also and then turkey and vipt -- egypt will want to get nuclear weapons. those are the stakes. the worst thing i heard, and it was actually me against me, was that he may have made the japanese government nervous. ok, i'll take that, too. as far as i know, we're doing

quite well with japan. t.p.p. is not dead. we'll see what happens with the republican congress. and frankly if he did make the government of japan nervous by not following through on his threatened strikes with assad it's because he reasoned that leaving chemical weapons in syria where, as we now know, isil and any other group could get hold of them, would have been a worse threat. [applause] >> fareed, the final rebuttal. three minutes up on the clock. please prolet >> so it's been a central premise here we have to try to figure out. is the world deep, dark, dangerous and disordered, or are we in pretty good shape? bob kagan quotes me correctly as shaying i think the world is in pretty good shape. if you look around the world and don't look at the crisis du

jour and bomb du jour in the middle east, what you see is, 30 years ago latin america was quasi ictators, run in fassist -- fascist fax. today latin america say transformed continent. with exceptions, free market orientation, to the most part and the degree to which anti-americanism has wayned. -- waned. i was interviewing the new president of mexico, from the p.r. impings, -- p.r.i., a party, and american he was saying how it's transformed. asia is a different continent than 30 years ago. think of the 1970's with mao and india with its pro-soviet

stance. all that has been transformed. today india just elected a new pro-growth, pro-america prime minister. indonesia, a similar experience. japan. all these places, you are seeing extraordinary opportunities. look at africa compared with 30 years ago. if you want to ask yourself, what do people think of the american president, it turns out we ask this question a lot in the world. let's move again from full minuteations to facts. this was the approval ratings of the president, not the united states. how much confidence do you have in the president? when they were asked this in the last year of president bush administration, the germans said 14%. today that number is 71% the france, 13% under bush, 83% under observe ama. indonesia, 23% under beneficiary, 60% under observe ama. israel, 61% under bush and 71%

under observe ama. not the people you talk to, brett, but most israelis. china, 30% under bush, 51% under observe ama. i could go on all night. i'll close with one near and dear to your heart. canada, 28% in 2007, 81% in 013. >> well, the table has certainly been set by our opening statements and rebutals. now it's an opportunity for us to get these two teams of debaters engaging with each other directly in our exchange. bob, i'm going to start with you. fareed brought up an interesting statistic. 14 interventions since the marines went into lebanon. why to you think more intervention if this president had chosen that course of

action would have made -- made the world a safer place when the record of that is atrocious? >> first of all, the president has chosen more intervention, so he obviously thinks it's the right thing to do. and anne marie thinks it's the right thing to do. the problem in this case he has ignored the advice of his own hand-picked generals, chairman of the joint chiefs. you can make a list of all the thungs that have gone wrong in american foreign policy. it's a long r list than fareed likes to read. the question is has the broad thrust of american foreign policy produced a better world or hasn't it? i doubt anybody up here on this stage would disagree that what has been accomplished since 1945 has been extraordinary despite all the mistakes. i must say if i would -- could

just answer one of anne marie's points, i like the way she wants us to frame this question. she wants us to say that barack obama would have done worse than some other president. and i noy -- now know that what fareed wants to say is that we have to prove barack obama did worse than george bush. that's not the question asked. if you want to say all the things george bush did wrong, i would agree he did a lot of things wrong. but answering in the context of this question, has barack obama made things better or worse given the state of the word, i have not heard a single way other than what they hope he might achieve how he has made things better. >> anne marie, gib us a specific the on something barack obama has done up to this point in his presidenty -- >> he has strengthened our alliances with all of asia,

particularly with southeast asia, such that we are now present, none other than yu said the biggest problem is that the united states is not there. we are there, we are working on a trade agreement, we are actively present in east asia in a way that george bush was not. and wait a minute. i want to answer speckly your point. you said you are worried that the world order that the united states and cannot and all the allize in world war ii built is at risk. george w. wush -- bush did more to do in that world order against the security council and pretty much the world than anybody else the barack obama has systematically rebuilt the trust of the world in our willingness to work through the security council and others -- >> anne marie, that's nonsense. i do think that everyone so -- should know that everyone on this stage supported the iraq

war. fareed, brett, anne marie and i, ok, as long as we're talk by the iraq war. but in materials of him systematically rebuilding, you must not talk to any of our al lies in the world to -- to leeve that. if you talk to japanese officials, they are worried about the extent of the u.s. commitment. radak sikorsky, the polish foreign minister, they don't say these things publicly because it's not so easy to find it but amazingly enough he said it on a telephone. he say the marijuana guarantee is worthless. -- that the american guarantee is worthless the >> he said something worse. >> i'm sorry in sfle said it's bull [beep]. >> i don't like to use that word in a friendly debate. >> dick cheney has been saying hen he goes abrood all his

friends tell him that america can't be trusted. of course. the dictators send in a few fighters, thank youing at our coattails. senior officials having cozy relations with past administrations think that way. but let's look at japan, since you brought it up, bob the 25% trusted the u.s. under bush, 60% out -- barack obama the we actually have very good data on this. the real question autopsied asked a wull question right here, what would you like to see instead? we know the one administration bob did not have many objections to is the bush

administration -- >> i didn't object to the bush administration? that's nonsense. >> but he loved the aggressiveness, the expansionism, the hegem ony. is that going to work? bob's problem with the syrian intervention that it is not vigorous enough. the problem is not that barack obama has invaded syria, it's that he needs to do it more whole heartedly. and that worked out so well. yes, i was one of the people who originally thought getting rid of saddam hussein was a good idea but $2 trillion later and 5,000 iraqis perhaps dead and wounded later i learned something and i don't want to replicate that lesson in syria, the neighboring country. [applause] >> you're plauding because it's fun and because it's easy to switch the subject.

they would like nothing more than to make this debate a referendum on the bush administration. you notice how we've somehow slowly worked ourselves into a conversation about bush. >> well, who are we comparing him to? >> we have 43 predecessors to barack obama. surely you can find a george h.w. bush or a ronald reagan or other presidents who proved that they were able to be effective. when it comes to military intervention, again i would love to just quote a little piece here from anne marie's piece because it's so wonderful. >> this is just the irony because i think she should really be -- she secretly, she was typecast on your side of the debate, but she has a kind of split personality here and i'm just bringing the other, the hawkish side of her out

where she talks about, together with as many countries as will cooperate, we could use force to eliminate syria's fixed wing aircraft as a first step toward the red lution the such a strike would announce immediately that the game has changed. after the strike the u.s., france and britain should ask the security council's approval they did after the nato intervention in kosovo. i couldn't agree with you more, anne marie, ok? now, again, this is, you've heard this quote about. it deserves to be said again. everyone is entitled to their own opinion, they're not entitled to their phone -- own facts. to make the case that this administration has pushed its democratic allies in congress to bring about a free trade agreement is simply not true.

the free trade agenda under obama has been dead. by anne marie's own admission earlier, maybe now that the free trade republicans are running congress, maybe something will be done. the suggestion that our allies, japan and south korea, are reassured, is false. interesting story in the paper not too long aol -- ago, the japanese have noted that because of military cuts in the united states, we have -- we will have a four-month stretch next year where there is no u.s. aircraft carrier in the pacific. why is japan building a nuclear plutonium facility for $21 billion that will produce nine tons of weapons usable plutonium a year if they are not having serious doubts about e reiblete -- reliability of

broke -- barack obama's security guarantees? why would they spend the money? >> anne marie, you respond first and then you goat -- get a follow-up. >> i will be completely frank. when i was originally asked to be on this side of the debate, i did wonder because i have been very, very okal, as -- vocal, as you have heard in terms of what this obama administration should have done in syria and i don't think they responded correctly. but when i thought about it, really thought about it, i thy wait a minute, disagree with this president on a number of issues but do i actually think he's made the world a more dangerous place? no, i don't. in the first place, most of the things we're describing, like china rising, which is why japan is really nervous, happened completely independently of barack obama. the question is what does he do in response? he at least tries to get a trade agreement, which is certainly more than any other

president. >> no, he doesn't. >> yes, he does. he laumped the t.p.p. in europe and is rushing >> when was the last time barack obama gabe a major foreign policy address saying my fellow americans, like bill clinton did with nasa, saying we are going to promote free trade because it's good to our country. he didn't because he capitulated to labor. cite me the speech where he stood up as clinton did or al gore, who sent to debate what's his name, ross perot, on the great sucking sound. you all had this fantasy about barack obama. he was the savior, the was a jesus. you had the feeling but it didn't work out! [applause] sbret now brett --

sounding like the college republican at the cocktail party that you are trying to move away from. [applause] >> i wanted to, by the way, since we're at it, i haven't mentioned this but i have a reading discussion -- suggestion to you if you are enjoying this debate. brett has a new book out, "american retreat, the new isolationism and the coming world disorder." it's wonderful, it has all the things you look for in a good work of fiction. i really suggest that you pick it up on your next long beach vacation. but what i was going to actually say, let's try to broaden this topic out one beat, which is foreign policy surely is also about rebuilding american strengths i think all of us would agreet only way the united states can play the pivotal role we want it to may is to be fundamentally strong

at home, particularly economically. we have a good controlled experiment again. europe, the united states, japan, the three largest industrial blocks -- blocs, coming out of the great recession. the federal reserve had an aggressive monetary response and fiscal and regulatory response, the banks were given stress tests so we basically made them more like canadian banks. the three worked brilliantly much the united states is the strongest economy out of the great recession. there is no question on this front. you ask any economist in the world to judge the performance of those three blocs and it's clear that because of public policy, the united states has come out of the global financial crisis in much better shape. it has also come out much better because of other public policies for which the

administration seeveds some credit, for example, fracking the but -- fracking. but economicy, from where the world was, dysfunctional, in its third recession, with a japan that just now is trying moan tairstimlaugs because it doesn't have the guts to do that which the united states was doing. this is at the end of the day what is going to allow the united states to power itself forward. >> does this mean it's not the post-america world any more? >> if you read the book i said the united states was going to be the most powerful country in the world by 2024 by far. but the question hef -- we have to ask is are we strengthened by more interventions? one of the things i think obama has done in solid terms he deserves credit for is being

somewhat restrained in terms of the foolish, misguided inter ventionism. dwight eisenhower was asked to intervene in the suez. he renude -- refused the the french asked him to intervene in dien bien phu. he said no. at the time, people like bob kagan pilloried eisenhower. >> eyes er hour? my god, that's what i call power. >> but the reality was these were very wise exercises in restraint. sometimes as all of you who are in business know, saying no is the hardest thing to do and many has said no in many, important cases. >> by the way, the effect of eisenhower's policies in 1956 was to cut the legs out from

all our allies, which you know perfectly well, fareed. i hesitate to keep quoting anne marie. but this is all quite unfair the he's an extremely formidable person but we've been asking reed to hold up this argument -- fareed to hold up this argument all by himself since anne marie has been on our side. 2013, "the solution to the demrice ukraine lies in part in syria. t's time for barack obama to demonstrate that he can authorize the offensive use of force" -- close your ears, fareed -- "other than in secret drone attacks. he result would be seen in

damascus, beijing and tokyo." >> he's doing it now, so putin must be trembling. obama has now 500 strikes in syria? >> let's talk about putin for a second. i think it's worth talking. anne marie is exactly right, that putin went into cramia because of -- cr ifert mea because of what happened in ukraine. what's happened since then? how do you deter putin from going further than he had already gone? fareed is talking about all the incredible suffering the russian economy is going through and certainly it is. the only problem is every day putin continues to pour troops and weapons into ukraine in violence of the -- violation of

the agreement and the only response of the u.s. is we will think about sanctions in a few weeks. we couldn't be bothered to provide the ukrainians some weaponry, some training? that is the least we could do. >> i'm not doing any work tonight and i love that. but i think anne marie has the right to respond because this is a direct line to her. >> remember that line in "annie hall" when woody allen says, i mcluhan here and he can answer the questions and mcluhan says, "you're an idiot, you know nosk my work." [applause] >> anne marie -- >> the response of the obama administration to putin's aggression sufficient? >> yes.

yes. >> let her answer the >> this was about syria. i mean we're all here to debate and we actually believe in reasoned deliberation and we believe that if you hear facts, and well-expressed opinions based on facts, it can change your minds. that is the premise. i ny you would -- knew you would quote that against me, and i absolutely believed it when i wrote it. i have since then, spent the summer talking to russian experts about what is in fact driving putin and i think at this point that had we done what i suggested, it wouldn't have changed putin's calculations. >> so don't do what she suggests now? >> but equally important, it our well have torpedoed

actions in iran. i fully believe barack obama's calculus that says this is the single most important thing in the region and i am gun -- not going to do anything that strengthens iranian hard-liners and might jeopardize a deal the i respect that has -- as a foreign policy calculation that is absolutely focused on an extremely dangerous threat and he is in that way certainly not enticing putin to do things that otherwise putin would not do and he may well be playing for what is the biggest success of all. >> can i, i just want to step back to syria. just a clarification for the record because fareed said something that was very hurtful me and i was certainly no

republican in college. fareed was president of the college republicans at yale. he's the college republican! [applause] what bstantively -- we're talking about here, ukraine, syria, iraq, we're talking about interventions and let's be intelligent adults. there are some interventions that work and some that fail. you have to as a leader be pragmatic, prudential, think things through. and every president should do that when confronted with various crises. when you don't interfear, in, say, a sudan and don't in somalia, for better or worse the let's think about syria. for the first six months of the syrian uprising when we failed to lifty finger, failed to even call for add -- assad's

removal, there were peaceful, it was an almost entirely peaceful uprising of syrian citizens saying enough to their sir -- tyranny, an effort to replicate what had happened in tahrir square which inspired the world. only then did elements of syrian civil society, responding to massive brutality by the assad regime, start forming a free syrian army. at the -- we refused to support them because we said we don't know who these people are, it's all very complicated. obama likes to say he's the man who ended wars, he did not start wars. so things became worse, thens -- next thing you know, 25,000, 50,000, 100,000, 250,000 human beings slaughtered the nothing happened. 1,000 people are killed in a

sarin gas attack, all right, and we said that is our red line. well, guess what? you're going to talk about we removed a lot of the chemical weapons? there are still chemical weapons in syria by the u.n. organization that is responsible for this. in reality, in the meantime the tragedy diven the syrian people while we have not interveined has been a million refugees in turkey. the rise of isis, the near collapse of the iraqi state, its division between spheres of evil between hezbollah and al qaeda. this is the price of nonintervention. fareed will play a useful trope, there are consequences to intervention, and he's right. but there are consequences to

nonintervention. it's a brutal picture did you -- but do yourself a favor and look at it. look at the pictures of the syrians who starved to death during the assad regime while we sat on our hanledssair -- syria has gone from a local crisis to a national catastrophe because we wouldn't intervein. [applause] >> fareed, you can have the last word on this section not -- of the debate and then losing statements. >> i think it's a fundamental misreading to look at syria as rebels rising up against a dictatorial regime. first was the christians in lebanon. 1970's, you began to see a mass uprising against that regime.

it turned into a brutal 15-year civil war. finally, war-weary, they came to minority regime was iraq. we kindly got rid of the sunny minority but they fought back in an insurgency which continues to this date. second mostl the semiconductor violent country in the world and has had hugeiraq consequences. syria is the third. over 85%. what you are seeing is exactly that rebalancing take place. that anow turned sectarian conflict but at its heart it always was. sunnies.suppressed the that opposition movement had and highlyent religious from the 180's. remember the hamad massacre place 25 years