about how much the sanctions are having an effect, how the low oil prices are having an effect. we have seen statistics about capital outflow and about direct investment, devaluation of the ruble. what is the best that you can tell me now in an unclassified setting about the combined effects of either sanctions on oil prices on the internal political dynamic in russia today? >> the assistant secretary has given you some of the facts and figures that this policy has wrought, not only russia's phone ability to the low oil prices because of their lack of economic diversification over the last 15 years but also as a result of sanctions. i think we have yet to see what the political impacts will be but we can clearly see from some of the statistics that russian kitchen tables are being hit now by these policy choices that the

kremlin is making. when you hear the secretary talk about inflation at 15%-17%. when we have statistics of skyrocketing food prices across the russian space, 20%-40% in some places. we know that average russians are having difficulties paying for apartments and cars. we see imports way down. that goes to the point that the kremlin has prioritized their international adventure over the quality of the life of their own people and at what point that has an a political effect, we will see. >> the question about where will oil prices be in a year. this is something we should be wary about. there are people that have to make that speculation. some of the productions that -- projections that the oil prices

would stay the same. if we are a year and the oil prices have stated this historically low level, talk about what you would predict that you would see in terms of the internal russian economic dynamic and we can draw the line between that and likely political feelings. >> i think it is important to recognize that the economic outcomes that we have seen in russia have really been an interaction between what we have seen in oil and the impact of economic sanctions. higher oil prices would definitely be a positive for the russian economy. i think it is relevant to look at what both moody's and s&p have done to russia's credit rating. russia has been downgraded to junk for the first time since 2003-2004. the responsibility of agencies like moody's and s&p is not to

react to what the oil price is today but to think about how russia's economy is being managed, what the impact of sanctions is, and how that affects the russian government's ability to meet its obligations not only to foreign creditors but to its people. and so, i think if we saw higher oil prices, and i will not speculate on oil prices like you mentioned, but i think that even if we see oil prices rise, the combination of economic mismanagement and the impact of sanctions has cast the shadow on the russian economic aspects that is expected to persist and one manifestation of that is the decision of the rating agencies to designate russian debt as junk. >> thank you, mr. chair. i don't have any other questions.

>> thank you all for being here. secretary newland, in your statement, you outlined the goal as threefold. first, we want peace, then political normalization, then a return to borders. the question i have is how realistic, and the hope that minsk would offer that promise with peace coming first as a precondition for all of these things. how realistic is that goal given the goals that putin has himself. i think the goal that putin has, is not about the ukraine, it is completely we the post-cold war, post soviet border in europe. it is not just about ukraine. in the context, he was to weaken, divide, and force nato to fall apart. he has openly said that they believe that they need to

establish a sphere of influence and not just throughout the former soviet space but also in former warsaw type packed countries. this is just the excuse that he uses moving forward. the ultimate goal is to reorder the post soviet order in the region and to carve out for russia a strategic space for themselves, for influence. in light of that, why should we have any hope that these cease-fires were hold given that we know what his goals are? maybe, this is why there has been arguments that we should not go on sanctions alone because a good cause friction with the european union and split us with them. he might agree to a cease-fire to consolidate gains or to try to create a point of friction between hoping that we will jump out ahead of the europeans and create that. ultimately, his goal unquestionably is to completely rearrange the order in this area and carveout a russian sphere of

influence. how is it realistic knowing that about him to think that he is ever going to allow stabilization to return to ukraine and if he will ever return back to the borders how is it realistic knowing that about him to think that he is ever going to allow stabilization to return to ukraine and if he will ever return back to the borders given that we know what their goal is. he's a criminal and a thug, he is also a determined one. so, why should i feel optimistic that there's any chance of that happening given the goal that he has now unless the cost benefit analysis changes for him? >> i will not dispute any of your analysis, i will simply say that minsk is a test for russia. russia signed it, the separatist signed it, it is also a choice for russia. if fully implemented, it would bring back sovereignty and

territorial integrity. now, we have to test. as i said, the record is mixed and we have to be ready. both for the opportunity for success but also to impose more significant costs on russia with our european partners if minsk is violated. either because the agreement is not implemented or because there is a further landgrab, or because the separatists are further armed. >> what is wrong with laying out clearly exactly what we're going to do if that test fails? if this test fails, we will arm the ukrainians. by the way, as a sovereign country, ukraine has a right to defend itself against any aggression. in fact, we are trying to strengthen the writ of that government, part of that to provide for their own defense. we should be doing that anyways.

is it the position of the administration that we will lay out a clear picture about what the specific sanctions will be and what specific military aid we will provide if russia fails? >> i think in my opening, i made clear that we are working with the europeans to map out the costs. we generally don't signals those in advance but we are prepared. with regard to security assistance, we are continuing to evaluate that based on the situation on the ground. >> continue work on denying access to russia the swift system? >> generally we don't discuss in a public forum any specific measures, but we discuss a whole range of things as we are evaluating it. we look at the impact it would have on russia as well as the

spillover that would have on the global economy of the united states and of our european partners, but i don't want to, any specific action. >> irrespective, my question is -- maybe i don't expect you to comment on this, but irrespective of whether russia adheres to minsk or not, is it not the fact that we want to stabilize ukraine, and give the ability to defend themselves to aggression that may exist? we understand the absence of it invites aggression and the future. why is it a bad idea to provide them defensive systems irrespective? is there an argument to be made against providing defensive weapons irrespective of how the cease-fire turns out, since we are trying to help them stabilize government, and part of that has to be the ability to

provide for the national defense. >> as you know, we have provided a range of security assistance in the nonlethal situations, because the armed forces were not fully stripped bare but they were left lacking by the corruption of the last regime. i expect long pass this crisis we will have a defense partnership with the government of the ukraine. at the present time, defenseive lethal options are being reviewed but it is not something on offer at the present time. >> i have heard some commentary even among putin's critics within russia, there are those who do not support giving defensive weapons to the ukraine because that would lead to the death of russians and they cannot support that, the washington post had commentary from opponents. putin says there are no russian

troops in the ukraine. if we provided -- if that is true he has nothing to worry about. >> as i make clear my opening, not only did we believe that there are russian forces in ukraine, we believe they are responsible for command and control, arming, financing this conflict. there are many hundreds of russian debt in ukraine. it poses a threat for the kremlin at home. >> one quick point. i read in your statement, is it not accurate that as these coffins are returning to russia, russian families of the dead are being told not to comment on it or they will be denied death benefits. >> i did say that here. >> thank you, mr. chairman.

thank you all for your testimony. madam secretary, the budapest memorandum was basically a way to entice the ukrainians to give up their nuclear weapons, is that a fair statement? >> ranking member menendez, the primary intent was for russia to get russia to assure ukraine that it would not seek to take advantage of ukraine's sovereignty and territorial integrity so ukraine thought that political guarantee primarily from russia. there was never an intent to have treaty obligations. >> i gather that from your answer to senator murphy. it was a political agreement right? yes. so, we also signed that political agreement, so while you say the concern for ukraine

was russia, not seeking to attack it, or interfere with its territorial integrity, if it gave up its nuclear weapons, right? that is the essence of what was induced. is that not fair to say? they wanted the guarantee from russia and we just join with great britain another's to give them further comfort in this political agreement. it was to give up their political weapons. otherwise, their nuclear arms, otherwise there was no reason for such an agreement. >> they also sought assurance from the other nuclear powers, united states and great britain, that we would not seek to exploit ukrainian sovereignty, and we obviously have not done that. >> the whole purpose of it was to guarantee territorial integrity, and not to face the

threat from any of these powers, if it did what? give up its nuclear weapons? >> of course. >> how is this agreement different than the one we are trying to strike with iran? is it basically the agreement we are trying to strike with iran a political agreement? it is not a treaty agreement. >> i am not qualified to get into the intricacies of the deal we are tried to strike with iran. >> i'm not asking about the intricacies of the agreement. that is for another time with another panel. the question is, it seems to me that what we have heard from the administration as it relates to iran is to say that it is not going to be a treaty, therefore the congress has no need to have a say. it is going to be basically a political agreement.

if that is the case, then we need to know the nature of what that means, as i see it unfolding here in the budapest memorandum, which was a political agreement ultimately to entice the ukrainians to give up their nuclear weapons, which they did the understanding that all of these powers were not going to affect the power integrity. i don't see the difference. i do think it is very much on point. it raises concerns from where we are going in that regard. you tell me you are not capable of answering that question. >> with regard to the budapest political commitment, the united states of america lived up to

its commitment under budapest. i think one can be reassured by our behavior vis-a-vis budapest. >> we have certainly, nor do we have any intention of interfering with ukraine territorial integrity. the reason we joined is to give comfort, support, and the ukrainians would think, that in fact that political agreement with these three powers, because the ukrainians didn't think we would invade their territory was that we would be supportive of their security, and their territorial integrity, but that, at this point, while we have not done anything to interfere with its integrity, the ukrainians would feel far short of what that agreement meant, and in terms of the actual implementation, so at the end of the day it is a political

agreement that can be interpreted as those who signed it wish to interpret it. that is, i think, a challenging proposition. >> i very much appreciate the line of questioning our ranking member put forth. this has been a very good hearing. we thank you for the testimony. it has been very unsatisfying to me. i would ask the secretary who meets with people around the world, surely on the heels of us never doing the things we said we would with free syrian rebels, and now we are aware of this budapest memorandum knowing the administration, i

assume this is another decision that sits on the president's desk, undecided. this has to have affected our credibility with others around the world. i would love to have your sense of that, and how damaging our lack of ability to make simple decisions, they have complex outcomes, but the decisions themselves, relatively simple. certainly highly supported by congress. we are all in this together should a decision be made, but i would like to get your sense of how badly on the heels of what we never did in syria, on a redline that was never adhered to, which is so important to world stability. i would like to know how it is affecting us with others.

>> chairman, i would say with regard to my patch, europeans do see the strong bipartisan bicameral support for ukraine, whether it is on the economic side or the security side, per capita we have done -- we have done far more than most nations to support ukraine. i do think that our leadership in this is recognized. we are having as spirited debate as is ongoing questions, there is a transatlantic debate. that question gets asked also in our diplomacy. europeans come out it at both sides depending on where they sit. >> we are going to have the record open for questions and move into the second panel area

i would just say that i have very much enjoyed our conversation. you have been very forward with your statements regarding the ukraine. i think that needs to be done and that has been appreciated very much by most of us. i would have significant difficulty coming to work each day with these decisions lingering in the way that they have, and not taking the steps that many people within the administration as i understand it feel need to be taken. yet we continue for some reason not to do those things. we have acted as if we might do. i have a number of other nations that i will send in writing. in all cases you are messengers and not the ones that have the decisions on your desk. we thank you for your service to our country and appreciate your candid testimony.

our first witness is the director of the eurasia center at the atlantic journal. we will begin with ambassador corblunblum.

ambassador, i want to thank you for being here. i know you are resident of nashville, tennessee. we are always glad to have bright people from nashville here testifying. if you would begin, we would appreciate it. >> i have also -- you might be more pleased to learn -- i have contact with the mother another city. i will be in berlin in three weeks to talk about the tremendous success in revitalizing the city and supporting entrepreneur ship. i think you have a little bit to do with that. i'm very pleased to be here both because of my tie to tennessee but also because these are issues that are worked upon a

lot in the 1990's. i participated in negotiations of most of them. to you and rating member -- ranking member menendez, i'm happy to be here. i have a special point to make. extremely good detail about how our government sees things. i think there is one thing we need to think about, which senator rubio in particular talked about, that is the direction of this conflict, and the definition of this conflict. my own view is, and i have been living in germany for a long time now, after i stopped being ambassador, i think that i can say with a certain amount of accuracy that whatever we are doing in ukraine and with

russia, we are losing the public affairs battle on this crisis. the narrative, as we say in the journalistic world. the narrative that is most prevalent in the united states even more so in europe, is that this is a russia which is reacting angrily because it was cheated, misused by the west after 1990. i think it is important that we focus on this fact because many of the decisions, and i will say couple points about that, will depend on whether the russians believe that they have the upper hand on this aspect of the crisis, and whether we in fact have maintained a strong situation, strong direction. the fact is that after 1990, we

dealt with the russian leadership, we saw the collapse of the soviet union as liberation and not as a western attack on russia and they knew exactly what our plans were. we talked to them in great detail about it. we didn't talk to them about details of nato or e.u. enlargement but we certainly told them that our goal for them and for europe was to establish democracy, establish free-market systems and to allow russia to join the western world, and on many of the discussions i had, the ambassador was long and i think he can attest to this we worked very hard to make this point not only clear but to establish things to make it real and now 20, 25 years later, for me, the narrative of this crisis is not whether russia somehow is

now a wounded power but the fact that the united states, three administrations in connection also working with the congress have established between the baltic states and now hopefully ukraine also and the south a community of nearly a billion persons which is democratic, which is secure, which is oriented towards free markets and which wants to be part of the western and the atlantic world. now, i say this so precisely because we have to remember what the situation was 25 years ago. 25 years ago, we had the western part of the continent democratized. the eastern part was, to put it mildly, a mess. when we first came in to establish relations with the new governments in poland,

czechoslovakia, hungary, we found they had hardly any of the basic conditions for modern industrial western society, so the cooperation within nato and with strong leadership of these countries has, in fact succeeded and many of the reasons that we have this conflict with russia right now is not because ukraine violated orders or not because russia has somehow felt threatened by the west. it is because russian -- leadership in russia after the beginning of this century has covered its own misdeeds, its own poor performance with an increasingly totalitarian system. and they're finding that the countries on their periphery and also until recently, much of their population wanted to join the west and not maintain an eastern orientation.

this suggests, for example, that entering into negotiations with the russians over how to conclude this crisis are not very relevant at the moment. there isn't any new security system which we can offer the russians which wouldn't include influence in these very countries we're trying to protect. there isn't any military arrangement with which we can enter into with the russians can help defend the countries to the east who have become democratic. there's no new political forum which would change the fact that the real reason that putin and his cohorts and russia in general feel threatened at the moment is not because of anything we've done and not because of nato sanctions, although i favor them but because of things we've

discussed here today. the oil price. russia's lack of investments in the high-tech sector. russia's inability to build an infrastructure necessary for a modern industrial economy, etc., etc. it also, i think, has to do with the fact that russia has in also failed to have the political leadership since 2000 which helped its population come out of the shock of the end of the cold war and to understand how closely its interests are involved with being part of the west. so we have a situation now which is important for all the reasons that our government officials mentioned to you today. they gave, i thought, a very comprehensive view of what's going on.

but we are in effect facing an even larger challenge, a challenge which is not only a challenge to europe but a challenge actually across the entire world, and that is that russia is -- whether consciously or by accident, is taking or by accident, is taking account of a growing unease around the world by what is called globalization, what is the modern technology world, the dislocation of industries, etc. and the russians have been able to harness this dissatisfaction in their own country. i can tell you i've been living in berlin for 17 years, and i am still politically active. these arguments are also having an effect in western europe, and they are having an effect in

other parts of the world. one of the senators mentioned that russia is financing, with very large efforts, movements in western europe who are anti-democratic, trying to undermine the western system, and russia is also continuing to threaten in one way or another the weakest points of our system, such as the baltic states, the republic of georgia where i worked quite diligently. we are facing not just the question, and it's a very important question -- i might add that i will mention to senator murphy that my wife grew up in the ukrainian community in hartford community, so she is very oriented towards ukraine -- we are very committed to ukraine, but the real challenge of this crisis is that russia

after immense efforts by the west has broken out of the channel of unity and cooperation among the countries of europe and is now adapting an anti-western and anti-globalization and anti-american approach. to understand the importance of this, there was an extremely good article in "the washington post" this week talking about the rhetoric that is being used inside of china about the west. it turns out to be almost word for word the same rhetoric russia is using. the same rhetoric is heard in the middle east, and even india, which we consider to be an important partner. putin has been visiting, and the indian leadership more or less

agreed with many of the things he was saying. we are not just talking about a problem with russia, which is an important one. we are talking about a wearing away at the foundations of the western community in europe but more so a wearing away of the ability that the west is going to have to influence, control the content of the new globalized world. that's the main consequence i see in this conflict. my final point would be, i'm very appreciative of your personal efforts to increase our information budgets. i think winning back the narrative and using the weapons you are financing is almost as important as considering military support for ukraine

which i support strongly. >> thank you, ambassador>>. >> thank you very much for this chance to testify. it's an honor to be here. i've been asked to talk about -- sorry. i've been asked to talk about the aggression in ukraine and how to counter it, but in order to take the subject on properly, we need a wider lens. there are influential people in the united states and in europe who do not understand the gravity of this crisis. they don't understand it because they think the crisis is about ukraine and moscow's aggression there. with that narrow understanding they oppose the strong measures necessary to oppose kremlin aggression and to secure american interests. the crisis that we face is, as every senator said, a crisis of

kremlin revisionism. mr. putin does want to overturn the post-cold war era. this order has been the unprecedented peace and prosperity that the entire world has enjoyed over the past 25 years. mr. putin has stated that he must have a sphere of influence not just in the post-russian world, but going into the warsaw pact countries, and he has the right to protect russian speakers wherever they reside. mr. putin has major resources to pursue aggression. he possesses the world's sixth largest economy, one of the world's two largest nuclear arsenals, and far and away the strongest military in europe. we all know mr. putin has committed multiple acts of aggression, in georgia in 2008 in crime era -- crimea early last year, and a covert war in ukraine's east. in this covert war, he has

escalated his intervention multiple times. he has agreed to two cease-fires and violated each one of them. his goal in ukraine is what the admiral said earlier, to destabilize the country, but to achieve that -- this is not clearly understood -- he cannot settle for a frozen conflict. he needs to be regularly on the offensive, albeit with tactical pauses. he has made clear by his statements and his actions that if he succeeds in ukraine, there will be future targets. the targets may include nato allies, specifically estonia latvia where ethnic russians and russian speakers comprise 25% of the population. recent kremlin provocations include the kidnapping of an estonian intelligence official from estonia, and that happened on the day the nato summit ended last september.

it has included the seizure of a lithuanian ship from international waters in the baltic sea. he is telling the baltic states you are not secure, even if you are members of nato. we have a vital interest -- i use the word vital -- in stopping moscow's policies before they moved other countries, especially to the baltic states. i think it was senator isakson who said that the kremlin menace is the most important national security danger we face today. i endorse that wholeheartedly. isiol is a ragtag bunch of terrorists, not an existential threat to the united states. moscow is an existential threat to the united states. even iran with its nuclear program is not in the same order of threat as one of the world's two largest nuclear powers on the move. if western leaders clearly understand the stage, if they

understood it, they would devote substantially more resources to dealing with it. they would draw a bright red line in ukraine, stop hooton in ukraine before he moves beyond ukraine. to date, western policy has been slow. and reactive. all too concerned about giving mr. putin a graceful way out of the crisis not focused on imposing costs that would make it too expensive for him to continue his aggression. we had a panel for the first two hours of this session, but they were all too reflective of slow, reactive approaches. to persuade mr. putin to put aside his revisionist dreams, we need to do things that pile on his weaknesses. strong sanctions are part of it. we have to do with the economy. we must persuade mr. putin that by announcing strong additional sanctions for aggression -- i

think it was senator rubio who said, why can't we tell mr. putin now what sanctions we would put down if you moves beyond the currencies fire? he asked a very good question. we have to have sanctions in place for if he moves again. that way, it may deter him, but if it doesn't, it will clearly weaken his economy, his political support, and fewer sources for his next aggression. i give the obama administration pretty good marks for sanctions because they are trying to pull along a reluctant europe. the other area we need to work on is the security side. mr. putin has a serious vulnerability. the russian people do not want russian troops fighting in ukraine. that is why he is lying to them. that is why the russian dead are buried in secret. that is why the families of the russian debt are told, if you tell the neighbors your sons fought and died in ukraine, you

will not get benefits. if we provide defensive, lethal equipment to ukraine, that means either mr. putin will be deterred from going further into ukraine because he doesn't want to risk the casualties, the political fallout, or if she goes further into ukraine, he suffers those casualties, and his support at home will weaken. this is a compelling reason to give weapons to ukraine. some people who argue against this say, if we do that, he will simply escalate. perhaps, but if he escalates, he suffers more casualties, he weakens his support, and he has fewer resources with which to pursue aggression beyond ukraine. i was one of a group of eight former officials who produced a report on this. we suggest giving ukraine $1 billion a year for each of the

next three years, $3 billion in weapons total. the report provides details. i want to mention to this committee two elements. we should be providing anti-armor equipment. the russians have used tanks in order to commit their aggression in ukraine. we should also be providing counter battery radar for missiles. ukrainians have suffered 70% of their casualties from russian missiles. we are giving them anti-battery radars for mortars. we need it for missiles. we need to keep in place the sanctions for the seizure of crimea. the atlantic council just released a report on substantial, systematic russian human rights violations in crimea. to whether essential elements of the policy -- we need to do more in nato to bolster the deterrence to russian aggression

against the baltic states. the administration and nato have taken some good steps forward. the wales summit talked about deploying -- creating this rapid reaction force and deploying soldiers to the baltic states. that is a nice first step, but it is small. we should put a battalion into estonia and the other baltic states, properly armed. we need to make sure that nato has a contingency plan ready for a possible russian hybrid war in the baltic states. finally, we need to do the right thing in the information war against russia. john already mentioned that. i know this committee supports additional funding for radio liberty. this is important to offsetting the massive russian propaganda

campaign. these four steps, enhanced sanctions, military supplies to ukraine, a stronger military posture in nato's east, and a ramped up information effort will give us a good start in stopping mr. putin in ukraine making sure he doesn't go beyond ukraine. this is a vital american interests. >> thank you both for outstanding testimony. i'm going to do for my questions at this moment to senator menendez. >> thank you, mr. chairman. thank you both for your service to our country. ambassador, let me just ask you -- i think you laid out a pretty compelling case and probably done it better than i've been successful in trying to do in

terms of the importance of it. you spent time in kiev as our ambassador, had a lot of opportunities to observe president clinton's behavior towards his neighbors -- president putin's behavior towards his neighbors. you largely referred to his intentions, but would you expect , for example, if unchecked, russian forces to move into mar iupol? >> mr. putin cannot accept a frozen conflict. a frozen conflict is a bad outcome. with a frozen conflict, ukraine could develop as a stable, democratic state. that is what mr. putin is against. he has to move beyond the area he controls. mariupol is the most likely target, but not the only one. the russians have been conducting a terror campaign in

the second most important city in the whole country, but they've been unable to establish a clear presence there. they will probe there. they will move wherever they can with the least casualties to themselves and the least uproar in europe. we need to provide ukraine the means to stop that from happening. otherwise, he will continue to go forward. >> with me ask you to answer two questions that are often poised in a contrary view to mine, that providing defenses, lethal weapons to ukraine, would create serious problems with europe, or providing such weapons would lead russia to further escalate? what would you say? >> mr. putin has escalated half a dozen times because he has not had any pushback.

you pushback, and i'm not going to say he won't escalate, but the chances of him escalating go down. the first question -- i watched very carefully chancellor merkel's visit to washington in february. she said "she opposes sending weapons to ukraine." she also said that if the united states were to do that, she would work hard to make sure there is no transatlantic disharmony. that is an amber light because she understands the united states may ultimately make the decision to provide ukraine the weapons to defend itself. i don't have any doubt that we can manage the alliance. what you need is strong leadership, which unfortunately we have not seen. strong leadership in washington, europe, and nato. this is manageable. >> thank you, mr. chairman. >> gentlemen, i apologize for

not having questions. i've got to get to a meeting at 12:45. this has been a very long but informative meeting. i want to thank you both for your testimony. i do think the strategy that you've laid out, ambassador, is very clear and helpful. i think, ambassador kornblum, the insights into what is driving russia were very helpful. we appreciate both of you for your service to our country, for being here as an asset to us as we's -- as we try to serve our country, and with that the questions will be open until march the 12th. if people have questions, they can send those in, and hopefully, you can respond properly. the meeting is adjourned. [captions copyright national cable satellite corp. 2015] [captioning performed by national captioning institute] which is responsible for its caption content and accuracy. visit ncicap.org] >> wednesday, the senate foreign relations committee hears from

defense secretary ashton carter on the president's request for military force against isis. the secretary has expressed concerns with the president's three-year timeline. he will be joined by secretary of state john kerry and joint chiefs of staff chairman general martin dempsey. see our live coverage beginning at 9:30 a.m. eastern. at 2:30, secretary carter will hold a joint news conference with british defense minister michael fallon at the pentagon. they are expected to discuss u.s.-u.k. military relations. >> the political landscape has changed with the 114th congress. not only are there 43 new republicans and 50 new democrats in the house and 12 new republicans and one new democrat in the senate, but there are also 108 women in congress, including the first african-american republican in the house and the first woman veteran in the senate. keep track of the members of the congress using the congressional chronicle page on c-span.org.

new congress, best access on c-span c-span2 c-span radio, and c-span.org. >> this sunday on "q&a," dr. adrian cooperman, dr. of the university of georgetown medical project -- >> the promotion of a drug actually starts 7-10 years before a drug comes on the market. while it is illegal for a company to market a drug before it has been approved by the fda it is not illegal to market a disease. drug companies have sometimes invented diseases or exaggerated the importance of certain conditions or exaggerated the importance of a particular mechanism of a drug, for

example, and then blanketed medical journals and medical meetings and other venues with these messages that are meant to prepare the minds of clinicians to accept a particular drug, and also to prepare the minds of consumers to accept a particular condition. >> sunday night at 8:00 p.m. eastern and pacific on c-span's "q&a." >> coming up on c-span>> hillary clinton speaks for the first time on using a private e-mail account while serving as secretary of state. then the supreme court hears oral arguments on whether police can conduct a warrantless search of hotel guest registries. later, a senate committee looks at medical innovation and its impact on patients. hillary clinton spoke with reporters about her use of a private e-mail account while serving as secretary of state.

she said her decision to use the account on one mobile device was out of "convenience" and that her 30,000 work-related e-mails will be made public. she made the remarks after giving a speech on women's issues at the united nations in new york city. the news conferences 20 minutes. secretary clinton: i want to thank the united nations for hosting today's events and putting the challenge of gender equality front and center on the international agenda. i am especially pleased to have so many leaders hear from the private sector standing shoulder to shoulder with advocates who have worked tirelessly for equality for decades.

20 years ago, this was a lonelier struggle. today, we mark the progress that has been made in the two decades since the international community gathered in beijing and declared with one voice that human rights are women's rights and women's rights are human rights. we can say that there has never been a better time in history to be born female. yet as the comprehensive new report published by the clinton foundation and the gates foundation this week makes clear, despite all this progress, when it comes to the full participation of women and girls, we are just not there yet. as i said today, this remains the great unfinished business of the 21st century. and my passion for this fight burns as brightly today as it did 20 years ago. i want to comment on a matter in

the news today regarding iran. the president and his team are in the midst of intense negotiations. their goal is a diplomatic solution that would close off iran's pathway to a nuclear bomb and give us unprecedented access an insight into iran's nuclear program. reasonable people can disagree about what exactly it will take to accomplish this objective. and we all must judge any final agreement on its merits. but the recent letter from republican senators was out of step with the best traditions of american leadership. and one has to ask what was the purpose of this letter. there appear to be two logical answers. either these senators were trying to be helpful to the

iranians or harmful to the commander-in-chief in the midst of high-stakes international diplomacy. either answer does discredit to the letter's signatories. i would be pleased to talk more about this important matter but i know there have been questions about my e-mails so i want to address that directly and then i will take if you questions from you. there are four things i want the public to know. first, when i got to work as secretary of state, i opted for convenience to use my personal e-mail account, which was allowed by the state department, because i thought it would be easier to carry just one device for my work and for my personal e-mails instead of two. looking back, it would have been better had i simply used a second e-mail account and carried a second phone. but at the time, this did not

seem like an issue. second, the vast majority of my work e-mails went to government employees at their government addresses, which meant they were captured and preserved immediately on the system at the state department. third, after i left office, the state department asked former secretaries of state for our assistance in providing copies of work-related e-mails from our personal accounts. i responded right away and provided all my e-mails that could possibly be work-related which totaled roughly 55,000 printed pages, even though i knew that the state department already had the vast majority of them. we went through a thorough process to identify all of my work-related e-mails and deliver them to the state department.

at the end, i chose not to keep my private, personal e-mails e-mails about planning chelsea's wedding or my mother's funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in inboxes. no one wants their personal e-mails made public and i think most people understand that and respect that privacy. fourth, i took the unprecedented step of asking that the state department make all my work-related e-mails public for everyone to see. i am very proud of the work that i and my colleagues and our public servants at the department did during my four years as secretary of state. and i look forward to people being able to see that for themselves. again, looking back, it would

have been better for me to use two separate phones and two e-mail accounts. i thought using one device would be simpler and obviously it hasn't worked out that way. now i am happy to take a few questions. nick is calling on people. >> madam secretary, on behalf of the un correspondents association, thank you very much for your remarks and it's wonderful to see you here again. madam secretary, why did you opt out using two devices at the time? if this hadn't come out, it probably would not have been an issue. if you were a man today, would all this fuss be made? secretary clinton: i will leave that to others to answer. but as i said, i saw it as a matter of convenience and it was

allowed. others had done it. according to the state department, which recently said secretary kerry was the first secretary of state to rely primarily on a state.gov e-mail account. and when i got there, i just wanted to use one device for both personal and work e-mails instead of two. it was allowed. as i said, it was for convenience. and it was my practice to communicate with state department and other government officials on their .gov accounts so those e-mails would be automatically saved in the state department system to meet recordkeeping requirements. that indeed is what happened. i heard just a little while ago the state department will begin to post some of my e-mails

which i am very glad to hear because i want it all out there. andrea, thank you. >> can you explain how you decided which of the personal e-mails to get rid of, how you got rid of them and when? and how you will respond to questions about you being the arbiter of what you release? and can you answer the questions raised about foreign contributions from middle eastern countries, like saudi arabia, that abuse women or permit violence against women to the family foundation? you are rightly celebrating 20 years of leadership on this issue. secretary clinton: those are two very different questions i will give you some background. in going through the e-mails there were over 60,000 in total

sent and received. about half were work-related and went to the state department and half for personal that were not in any way related to my work. i had no reason to save them but that was my decision because the federal guidelines are clear and the state department request was clear. for any government employee, it is that employee's responsibility to determine what is work-related. i am confident of the business we conducted and the e-mails that were produced. and i feel once the american public begins to see the e-mails, they will have an unprecedented insight into a high government official's daily communications, which i think will be quite interesting.

with respect to the foundation i am very proud of the work the foundation does. i am very proud of the hundreds of thousands of people who support the work of the foundation and the results that have been achieved for people here at home and around the world. i think that we are very clear about where we stand, certainly where i stand, on all of these issues. there can't be any mistake about my passion concerning women's rights here at home and around the world. so i think that people who want to support the foundation know full well what it is we stand for and what we are working on. >> i was wondering if you think you made a mistake in exclusively using your private e-mail or the response to the controversy. if so, what have you learned from that?

secretary clinton: looking back, it would have been probably smarter to have used two devices. but i have absolute confidence that everything that could be in any way connected to work is now in the possession of the state department. and i have to add, even if i had had two devices, which is obviously permitted -- many people do that -- you would still have to put the responsibility where it belongs, which is on the official. i did it for convenience and now, looking back, think that it might have been better to have two devices from the very beginning. >> did you or any of your aides delete any government-related e-mails from your personal account? what lengths are you willing to go to to prove that you didn't?

some, including supporters of you, have suggested an independent arbiter. secretary clinton: we did not. my direction to conduct the thorough investigation was to err on the side of providing anything that might be work-related. out of an abundance of caution and care, we wanted to send that message unequivocally. that is the responsibility of the individual and i have fulfilled that responsibility and i have no doubt that we have done exactly what we should have done. when the search was conducted, we were asking that any e-mail be identified and preserved that

could potentially be federal record. and that is exactly what we did. and we went beyond that and the process produce over 30,000 work e-mails. and i think that we have more than that in the request from the state department. the server contains personal communications from my husband and me. i believe i have met all of my responsibilities. and the server will remain private. i think the state department will be able over time to release all of the records that were provided. >> madam secretary, two quick follow-ups. you mentioned the server. that is one of the distinctions here. this was not gmail or yahoo!. that is a server that you own

-- is that appropriate? was there any precedent for it? did you cleared with any officials? did they have full access to it when you were secretary? will any of this have any bearing or affect on your timing or decision about whether or not you run for president? secretary clinton: the system we used was set up for president clinton's office. it had numerous safeguards. it was guarded by the secret service and there were no security breaches. so i think that the use of that server, which started with my husband, certainly proved to be effective and secure. now with respect to any sort of future issues -- look, i trust the american people to make

their decisions about political and public matters. i feel that i have taken unprecedented steps to provide these work-related e-mails. they will be in the public domain. and i think that americans will find that interesting and i look forward to having a discussion about that. >> madam secretary, how can the public be assured that, when you deleted e-mails that were personal in nature, you did not also delete e-mails that were professional, but possibly unflattering? what do you think about this republican idea of having an independent third-party come in and examine your e-mails? secretary clinton: first of all, you would have to ask that question to every single federal employee. the way the system works, the federal employee, the individual, whether they have one device, two devices, three devices, how many addresses, they make the decision.

so even if you have a work-related device, with a work-related .gov account, you choose what goes on that. that is the way our system works. we trust and count on the judgment of thousands, maybe millions of people to make those decisions. i feel that i did that and even more, that i went above and beyond what i was requested to do. and again, those will be out in the public domain and people will be able to judge for themselves. >> madam secretary, madam secretary -- excuse me -- madam secretary, state department rules when you are secretary at the time were perfectly clear that that the employee needed to turn over those e-mails to be preserved on government

computers. why did you not do that? why did you not go along with state department rules until nearly two years after you left office? also, the president of the united states said he was unaware that you had this unusual e-mail arrangement. the white house counsel office said you never approved this through them. why have you apparently caught the white house by surprise? [laughter] does all of this affect your decision in any way on whether or not to run for president? secretary clinton: let me try to unpack your multiple questions. first, the laws and regulations in effect when i was secretary of state allowed me to use my e-mail for work. that is undisputed. secondly, under the federal records act, records are defined as reported information regardless of its form or characteristic. and in meeting the

record-keeping obligation, it was my practice to e-mail government officials on their state or other .gov accounts so the e-mails were immediately captured and preserved. now there are different rules governing the white house than there are governing the rest of the executive branch. in order to address the requirements i was under, i did exactly what i have said. i e-mailed to people and i not only knew but expected them to be captured in the state department or any other government agency that i was e-mailing to at a .gov account. what happened in, i guess, late summer, early fall was that the state department sent a letter to former secretaries of state not just to me, asking for some

assistance in providing any work-related e-mails that might be on the personal e-mail. and what i did was to direct my counsel to conduct a thorough investigation and to err on the side of providing anything that could be connected to work. they did that. that was my obligation. i fully fulfilled it and then i took the unprecedented step of saying, go ahead and release them and let people see them. >> why did you wait two months? why did you wait two months to turn those e-mails over? secretary clinton: i would be happy to have somebody talk to you about the rules. i fully complied. >> were you ever fully briefed on using your personal address e-mail with the president?

secretary clinton: i did not e-mail any classified materials to anyone on my e-mail. there is no classified material. i am certainly well aware of the classification requirements and did not send classified material. >> [indiscernible] secretary clinton: because they were personal and private about matters that i believed were within the scope of my personal privacy. and that particularly of other people. they had nothing to do with work. i didn't see any reason to keep them. at the end of the process. >> [indiscernible] forced to resign two years ago

because of his use of personal e-mail. secretary clinton: i think you should go online and read the entire ig report. that is not an accurate representation of what happened. thank you. >> thank you. thank you all. >> about an hour before secretary clinton spoke, jen psaki took questions on the review and release of hillary clinton's 55,000 pages of e-mails sent during her tenure. this is a look. >> that is consistent with what we had been discussing internally. let me give you a brief update on where we are. we will review the entire 55,000 page set and release on one batch of the end of that review to ensure that standards are consistently applied throughout the entire 55,000 pages.

we expect the review to take several months. the release will be posted on a publicly available website. i will have more information about that hopefully soon. the only documents from that 55,000 pages that we will review for a separate release are the approximately 300 e-mails already produced to the select committee. those will be reviewed and released prior to the release of the entire set. those will be posted. >> even if you have not filed a request, you will be able to see -- he will put them up publicly anyway. anyone can see them. both. >> they will be publicly available. >> all? >> yes they will be publicly available. >> i realize it might be hard for 55,000 pages but you have an estimate on how much time it will take? 300 seems easier. >> it is 900 pages but 300 e-mails. it is shorter than 55,000

technically. >> technically. >> i don't have an estimate on that particular piece. i can check and see. let me add one more thing -- specific criteria has included and would include since it is all in this thing standard national security personal privacy privilege and trade secrets. as per the regular process, we will identify the basis for any reductions -- redactions. >> did anybody ask, given the volume of this, did you will ask for an electronic version of it as well as the paper? >> i don't believe so. this is handled in a specific way for some time. >> see the full state department briefing as well as hillary clinton's news conference on her video library anytime at www.c-span.org. >> on the next was an internal

conversation about the war powers act and the president's request to use military force against isis. our guest is benjamin wittes. then, a look at the legal debate about the military force. we will talk to danielle pletka and brain katulis. washington journal is live every day at 7 a.m. eastern. >> here are some of the featured programs for this weekend. saturday starting at 1 p.m. c-span2's book tv is live at the university of arizona for the tucson festival of books. featuring discussion on race and politics, the civil war and call-ins throughout the day. sunday at 1:00, we continue our coverage of the festival with

panels on the obama administration, the future of politics and the issue of concussions in football. saturday morning at 9:00 eastern on c-span3, we are live from longwood university in farmville, virginia. talking about the closing weeks of the civil war in 1855. sunday morning, we continue our live coverage of the seminar with remarks on thise surrender of the confederacy. find our complete television schedule at www.c-span.org. let us know what you think about the programs you are watching. call us, e-mail us or send us a tweet. joined the c-span conversation. like us on facebook, follow us on twitter. >> the supreme court hear oral argument of whether police can conduct a warrantless search of hotel guest registries.

the case involves the city law that allows police to inspect guest logs and anytime without the need of a warrant. city officials say it is needed to allow police to invest the crimes like sex trafficking. the lower court sided with hotels and motels ruling there is an dictation of privacy under the fourth amendment. this is about one hour. >> argument first this morning in case 131175, the city of los angeles vs. patel. mr. rosenkranz. >> thank you, mr. chief justice . this case is about whether to deprive scores of cities of one of the most effective tools that they have developed to deter human trafficking and drug

crimes that have seized the ground in america's hotels and motels. the ordinance in questions is the least intrusive inspection scheme this court has ever encountered. it is limited to showing the police a single book containing only information that the hotels transcribed specifically for the city and that they have been turning over to the police by operation of law for 150 years. >> could you first -- two questions. is the information that they have been keeping for 150 years the same? because looking at the requirements, the early information was basically somebody's name and i'm not even sure their address. today's registry and requirements have information that federal law doesn't permit to be disclosed. like driver's license.

credit card information. you can't disclose that information. >> the interest, however, have been pretty much the same. it was name and address in the rate that they were charged and so forth. and that is the information that the hotels have argued is the most -- >> all of the things that you say, the most effective tool for trafficking, prostitution, child molestation, none of that sounds like it's the purpose of the search is administrative. >> it is administrative, your honor. to understand why you have to focus first on the target. the target here not people who are accused of crimes, the target is the motels and hotels

who are required to keep records to record information. why are they required to record the information? for the deterrent purpose. and the deterrent purpose more specifically is the criminals do not like to register. they do not like to record -- >> mr. rosenkranz, are you saying that the police will do this see the records on demand and they don't have to have any reason at all, reasonable suspicion of probable cause, nothing, because the purpose is to deter people from staying at hotels who might do bad things? nothing like a suspicion requirement. >> that's correct, your honor. it's the same rationale this court adopted in berger. that frequent unannounced spot inspections are necessary in order to achieve that deterrent purpose. that if the hotels do not record all the names, and more

specifically, they record most names but not the names of the guests they know are criminals there's no way to know unless you have this frequent unannounced inspection, that someone is missing. so there's a real necessity here as there was in berger and bezel. >> tell me how many prosecutions there have been -- i use the word both criminally or civil, for the failure to register people? >> there have been numerous prosecutions. i can't tell you how many. the complaints in this case, which are the beginning of the joint appendix, refer to the plaintiffs having been prosecuted multiple times or fined for failure -- failing to keep the records. i do want to underscore this point about necessity. the problem is not that the registers are empty. the problem is that the hoe tells decline to record the names of those who they know are criminals or the motels do.

>> that has nothing to do with the free right to search. those people who are refusing to do it are going to refuse to do it. a record keeping requirement has no -- has no constitutional challenge. what does is the unfettered access to that record. >> agreed, your honor. >> those people who don't want to do it won't do it. >> they go somewhere else or don't commit their crimes. but if they are -- if they are forced to do it, which is to say the motel won't let them stay there unless they register, then they will not commit those crimes in the motels. and the only way to make sure that the motels are enforcing that obligation is to descend on them without notice, as justice ginsberg was saying, and frequently so that they never know when the police are going to come. why? to make sure that they are

indeed, reporting the information. why is the real time observation key? it's because say the police show up and they have a register and they notice the room number 2 is unoccupied, according to the register, but they see someone in room number 2. they know only from real time observation that there is a violation here. if they get the register a month later, they have nothing to compare it to. >> you mean they can walk up and down the halls and see that nobody is a certain room? i don't know how you do that. >> it's not the way it works in particular. >> you have room number two as if it's right there. what if it's room 1204? >> motels, for example, are out in the open. you may be allowed to wander around the hotel. they probably will not see much

if what they are doing is wandering back and forth looking at particular -- >> supposing motels they can see what rooms have cars in front of them. and i suppose as to room 1204 they can see usually behind the desk what keys are missing. what rooms appear not to be occupied. >> that's correct, your honor. that's why real time observation is so key. because you can't do that a month later. and that's why we have the same necessary -- >> why? i mean what you're saying is it's easier to prosecute, but it doesn't mean that you can't devote some resources and find this out. you do a surveillance, which is what police do for a lot of crimes. and you watch people going in for two hours and leaving. and you keep a record of it. you can even stop those people who are leaving to ask them. there's a whole lot of law enforcement techniques that could be used to combat the situations you're talking about.

>> but not nearly as effectively, your honor. >> since when has the fourth amendment completely been abandoned to how effective the proof that the police can get at the moment should be? >> your honor, that's not the test, but dewy refers to the fact that it's not as effective. it simply doesn't work, your honor. let me give you an example. if all the police are doing is looking for who is in what room and what keys are missing, they don't know what to look for until long after the fact. they may be looking for the wrong thing. there are many motels where they can't -- where they can't do it, for example, look at the keys because they are not available in easy to see. it's having the information right in front of them. and then comparing it to things they might be able to observe.

>> mr. rosenkranz, why isn't this like barlows? it's not necessary on the following rationale. number one, most people will consent. so you go, the police go into a hotel and say we'd like to see your registry, most people are going to consent. if somebody says, no, and there's a real basis for believing that the evidence is going to be altered or destroyed, you can seize it pending judicial review. or you can get an administrative warrant ex parte and conduct a surprise examination if you want to. we talked about all of those things in bar lows about why that suggested that these warrantless searches were not necessary. what makes this different? >> your honor, what makes this different is the distinction between bar lows on the one hand and berger, dewy, bizwell on the other hand. that is the movability of information. that is the transience of the information that you use to

verify. in bar lows, if there is an unsafe condition, there is an unsafe condition. it's hard to see. this court said it also and distinguished -- this was distinguished on that ground. if you -- if it's the sort of condition that doesn't change over time, you can get a warrant and it doesn't affect -- >> what's going to change here? the registry is the registry. and as i just said, if an unusual case you have the feeling that the hotel is complicit, you can make sure to freeze the registry. but that's not going an unusual case. and mostly the registry is going to be there. as i said, mostly people are going to consent to the extent not, you can go get a warrant. >> what changes is the information on the basis of which you draw that comparison. if you only compare the register -- if you get the register a month later, you can't compare it to facts on the ground.

>> it's an hour later. >> you mean get warrant within an hour? warrants within an hour are not that easy to get. >> what's the probable cause for the warrant? if you haven't seen the register, what's the probable cause? >> there is -- >> you have to have a policeman sit outside the hotel for days? you don't have probable cause unless you know there are people who are in the room for a short term, who haven't registered. >> that's exactly right. warrants are for probable cause. that's why berger and bizwell said, no, you don't need to get a warrant when you're doing an administrative inspection. >> if you prevail in this case and a member of the court sits down to write the opinion, does he or she have to use the phase reasonable expectation of privacy and say there is no

reasonable expectation of privacy in our society, culture? do we just forget that phrase? >> under the berger case, the court looks at the statute, asks is this a closely regulated business, was it necessary, is it a legitimate non-law enforcement purpose. and so forth. >> another way to talk about reasonable expectation of privacy. >> indeed it is. >> talk about that in the katz case. telephone booth case. i'm not sure -- is that still a phrase that's necessary and required for us to address in an opinion like this? >> if the court adopts the berger rubric, what the court was doing is saying because this is so heavily regulated in the context of this case, because everyone knows that these registers have been reviewed by the police for 15 years, no one

goes into the hotel business unaware that their registers will be -- >> what are we talking about? hotel guests, right? >> no, your honor. the motel, the plaintiffs have taken the position that this is not about the expectation of privacy of the guests. >> yes, that's what i thought it's a hotel. you can't see my register. it's dear to me. >> even though i have entered a business that for 115 years has revealed these registers, and for 100 of those years actually revealed the registers to the guests. >> suppose that there is a statute that says -- they need to conduct the surprise warrantless searches because there's a serious problem with businesses turning up false

payroll records, is that constitutional? >> i would think not, your honor. at least not without more information. the difference is there isn't this long history of the government reviewing payroll records. and secondly, at least a closer question, and secondly, payroll records are not the sorts of things which you need spot inspections. >> they do. the government says that if you wait until they submit everything at the end of the year they'll falsify a lot of records and we really need to see what's happening right now on the ground in real time. >> either a record is false or not. you don't need real time verification. >> you do. because you don't want to give them the time to falsify things until the end of the year. we could have 1000 examples like this. >> my answer is still the same. it doesn't have the same real time need to verify against facts that are -- >> why not?

>> i'm checking to see if people are actually registered. you don't know -- until you see a person working. you at a construction site, you count the number of people, and say let me see your record keeping for your employees today. that's real time need. >> but either the ultimate record that is submitted is false or it's not. you don't have the real time ability to verify whether there's -- >> you just keep a register -- you falsify the register the way you're saying these people would. my problem with the closely held -- closely regulated is i don't see one regulation that's not applicable to virtually every public accommodation entity whether it's a telephone company or a hospital. i mean virtually all of these requirements that you list are part of the normal state regulation of entities serve people.

is it your position now once we say this is closely regulated that everything is? >> no, your honor. >> that sounds -- >> i'm heeding to my time, so if i may answer, quickly. first of all, the closely regulated exception is not -- is way more than just closely regulated. there are three other elements to it. you need to demonstrate the necessity. you need to demonstrate that it's not a criminal justice purpose. and you need to demonstrate that there is an adequate substitute for a warrant. there are no further questions i'd like to reserve the remainder of my time. >> thank you, counsel. mr. david. >> thank, mr. chief justice. may it please the court. the court can resolve this case on a much narrower basis than it has used in looking at other administrative inspections schemes such as the one in bar lows. this case did not involve entry

into the nonpublic working places of a business. it did not involve an entry into a residential property t involved an entry only into the public lobby area of a motel and brief inspection of the registry of the motel. >> it's very significant. it could well involve an entry into a drawer. we wouldn't normally say well because you can -- our rule's not simply because you can get into a house you're free to rummage through desks. >> that's certainly right. but what this statute requires is that the registry be produced for inspection. and the way in which the officer gets to the registry is to walk into the lobby. so -- >> you're saying if a police officer stands outside a house and says bring me whatever it is i want from inside, he brings it out, that's not a violation of the fourth amendment? because the compulsion tells the

what's inside. >> justice sotomayor, it would be a search. reasonableness would depend on the facts. >> my point here -- we are >> we are dealing with businesses which have reduced expectations of privacy and not dealing with entry into the nonpublic areas of the businesses which is what marshalls was concerned with. colonnade, berger, all those cases. the ninth circuit itself did not apply the rules that often those kinds of situations where the court has sometimes said an administrative warrant is required and other times said it is not. >> this is a challenge. are there any where a substantial number of instances in which the application of this thought would be constitutional? >> i think there would, justice alito. if there were circumstances to justify the access to the registry. most importantly -- >> then you don't need the statute. >> the statute helps because it informs the -- >> no. under circumstances you could

get a warrant. >> well, you -- >> that doesn't work? >> i think it works, justice kennedy, in the sense that the statute provides encouragement for a potentially recalcitrant hotel owner to produce it because it's an offense for him not to. more importantly, i think for the court's evaluation of the challenge issue, there is no record in this case about what kind of privacy expectations actually exist with respect to hotel registries. it's largely a matter of conjection, speculation, and everybody's intuition. >> i don't see why it was ever required more. always required is a person to say this is my business record. and why do they have to prove more? >> because -- >> what are they supposed to prove? they don't use -- that they don't show it to anyone else? we never required that? >> i think they should so there is a certain degree of confidentiality associated with. >> there is today when the federal law requires that you not disclose credit card

information and driver's license information and these registries contain that information. you can't have it both ways. >> the registry is -- >> by law, they are required to have the driver's license information taken from people who are paying cash. >> that's right. >> and requires the credit card information of people who are otherwise registering. >> the registry doesn't have to have the credit card information unless they check in at a kiosk. what the ninth circuit did was invalidate the statute. regardless of any fact it can't be enforced against anyone. >> i assume, if the problem is license plates and credit card information and all that, it's not up to the hotel to complain about that invasion of privacy it's up to the guests, right? >> i would agree with that. >> this case does not involve guests. it's just the hotel. >> just the hotel. and there are a range of situations in which different

information is maintained in different ways. i think treating the spatial challenge is problematic. if you reach the merits, what the ninth circuit did was conclude this case doesn't trigger the very strong safe wards triggered when there is an invasion of a nonpublic space of a business. they treat it as an administrative subpoena case which does have fourth amendment requirements associated with it, but those requirements are that the subpoena be relevant. that it be reasonable in scope. and that it be specific. and the ninth circuit conceded that all three of those requirements are satisfied. section 4149 by itself establishes the relevance of the information for the administrative purpose that the statute serves. it is specific. and it is narrow in scope. and anybody who goes into the hotel industry knows that that is a -- inspection that they are subjected to. >> how do you distinguish marshall and bar low? >> you do, justice kennedy. the distinction which is the ninth circuit itself, is that

involved entry into the nonpublic areas of the business. which exposes a much wider range of information to the inspection of the authorities. marshal covered every industry in interstate commerce and allowed osha inspections without any limitation. in that circumstance -- >> i don't understand that. you're saying it makes a difference actually whether you keep the registry at the front desk or back office? >> what i'm saying is that the ninth circuit analyzed it precisely that way. walk into the lobby of a hotel the court so said, in the case you're not invading any expectation of privacy. all you do is ask the hotel keeper, front desk clerk, to show you the register, which can be done simply by just moving the computer screen so that the officer can see it. and that is the most minimal intrusion on privacy interests if they exist. >> if i were running a hotel, i think i might prefer to have two uniformed detectives in the backroom where the guest doesn't see it.

i think it's quite intrusive. >> the ninth circuit treated it as a lesser degree of intrusion than inspection of all the private areas of the business. that's why it applied to this line of cases. once you apply the subpoena in live cases, you realize the statute itself serves the purposes that that line of cases is designed to serve. the only remaining claim that's really -- the judicial review would be very difficult to accomplish in this case because the whole purpose of this administrative scheme is, we are not -- we regulate prostitutes. narcotics activity through the criminal law. the place where they are frequently conducted are low budget motels. the regulatory purpose of 4149 is to target not the criminals but the place where they conduct their activity. and doing it in a classic administrative way.

this is lawful activity. you can rent a room. you just have to not rent it to people for cash for short terms. for no reservations. when they don't have an identification to show who they are. and you need to keep a record of what you're doing. >> i'm trying to figure out what you think is relevant here. let me give you a high poe it's not a hotel but hunting lodge. and there are record keeping requirements about how much people shoot and when they shoot them and what they shoot and so forth. the fish and wildlife service or some state equivalent of that says we do not -- we do not want to rely on people reporting this to us. at periodic points. we just want to make spot inspections, surprise inspections all the time. would that be all right? >> it seems like a much more difficult case to me in part because -- >> a public hunting lodge? >> private hunting lodge. this is a private hotel. >> there's a difference. >> will i have to defer to the members of the court. i think the interest that's being served there is far weaker than the interest that's being

served here. which is a genuine problem reflected in the fact there are 100 statutes like this across the country. >> that's how you're going to distinguish it because it's more important? because the fish and wildlife people think it's awfully important to make sure that all these rules are complied with. >> i agree with that, justice kagan. do i think this court and its classic fourth amendment analysis governs the government interest to make sure of the intrusion. i don't know enough about the hunting lodges you have in mind. i will say this, that a mere requirement you expose books and records you're required to keep at a regulatory matter and no one disputes that, to a law enforcement officer in a public area of your facility, that's this case. >> there is no dispute here that you can require the hotel to keep the records. >> that is correct. we are not challenging that. >> i think there would be a big dispute with regard to private hunting lodges whether you

require them to keep the record. >> there may be second amendment concerns the court would weigh in the balance. i think that the court can resolve this case in an extremely narrow fashion. >> i think it's even more dangerous. look at almost how many businesses, retail businesses transact their record keeping in public areas. talk about any shop in the country. they don't go to the back virtually, any of them, and transact their business, keep their credit card information. they put it right on the computer in front of them. intruding on someone's private information in a public place eliminates the fourth amendment. >> i think you asked three questions. first the substantiality of the government interest. second the nature of the intrusion on privacy. and third on necessity. there is a strong need in the

case of these hotels where prostitution and narcotics activity flourish because criminals do not want to identify themselves when they check in to have regular unannounced inspections to give the hotels the incentive to comply with the registration law. >> thank you, counsel. >> thank you. >> mr. goldstein. >> mr. chief justice, may it please the court. we ask the court to hold that the city does not need to go to the judge in advance and get a warrant but instead that it merely needs to issue us a one-page subpoena. we can object to that subpoena but it's going to be enforced unless the city isn't actually implementing a legitimate administrative scheme because it's searching to harass us or investigate crimes. >> is it your position that there is no instance in which this statute and the implementation of it would be constitutional? >> it is because the hypothesis that you would use it for exigent circumstances or when you waive the right to privacy don't actually involve the

enforcement of the statute. what's necessary here, the value in the fourth amendment, is the requirement that there be a regularized scheme. it's going to be a regularized scheme that either appears in the administrative rule itself. that doesn't exists here. there's no limit on when they can search. how often they can search. or the reason they can search. if there isn't that, then you put a court into the process. we make pre-enforcement judicial review available. the reason is the fourth amendment protects our sense of tranquility. the hotel owners and individuals and other context, businesses and other context need to know these officers aren't going to at their whim conduct these searches. >> suppose a city or state wanted to establish an administrative inspection regime along the lines of bar lows. what would it have to include in your judgment? could the warrant be issued by an administrative law judge as opposed to a superior court judge?

>> yes. >> would it require probable cause? >> no. >> could they -- could it be done without prior notice? >> yes. >> could you have different standards for different types of hotels? >> inspections for all hotels but much more frequent inspections for hotels that rent by the hour, hotels that have a large number of guests who pay in cash, and so forth. >> yes. >> all those things could be done. if that's ok, it's not clear to me what that would add to the ordinance before us? >> that was, and justice kennedy asked, how bar lows plays out in this context. mr. dreeben is half right in his answer. he is absolutely right the court said if you're not physically inspecting the premises, then you don't have to ahead of time get a warrant. justice scalia, it's not a

probable cause criminal warrant. all the court is required in this line of cases is that the government show it's part of an administrative scheme. the second part is what's missing. the key case mentioned in passing it hasn't gotten enough attention, it's called donovan vs. lone stare. it was decided by justice rehnquist, unanimously opinion and it considers a circumstance similar to this. that is under the fair labor standards act, the government can do what it does here. it demands employment records. the reason this court said that that comports with the fourth amendment, there is a balance. that is that the government has to issue a subpoena to which the employer can object. and that accomplishes two things. the first is, without burdening the government, it interjects the possibility of judicial revue. that way you know the enforcement -- >> each of the objections, mr. rosenkranz, in answer to my question, there is no notion of probable cause, reasonable cause. the hotel owner is required to

keep these records. that's not disputed. they are required to keep them. the police don't have to have any reason. what would be shown by that hearing? >> your honor, this court's consistent line of precedence, there are six cases that have dealt with the subpoena rule have said the following. that is the concern when you have a scheme like this one that doesn't tell the officer how often or when to search, is that the officer will do two things forbidden by the fourth amendment. one is they'll do it in a harassing way, and second they'll use it for crime control. the real concern here, the city is validly saying they want to look at the record for example find prostitutes or the johns who are involved in renting the rooms. so that's why what you do is you let the police issue the subpoena. they don't go to the judge ahead of time. but the prospect there can be an objection, you can go to a judge, is what protects the sense of tranquility of the business owner.

>> what's the purpose -- you agree it's constitutional to require the register? >> absolutely. >> why is the state interested in requiring the register if it can't look at it with little notice? what's the point? >> justice kennedy, the fact that it's only interested in law enforcement i think is a point in our favor. but just recognize that what mr. rosenkranz is describing is the scenario that gave rise to your question about 1204 is inaccurate. if i play out a hypothetical his point is follows. an officer shows up at a hotel and sees someone -- sees a light on. what he wants to do then is look and right then determine, look there is a registration card for room 2. i don't know what that proves because he doesn't know anything inappropriate is going on in room two, it doesn't matter. what the officer does is makes a record. there was someone in room two on june 1 at 12:00 a.m. and comes back two days later and serves the subpoena.

there is no reason in the world -- that doesn't give any advance notice to the motel owner. if he has a particular concern he can sequester the records. so they can have them held separately. if there's going to be an objection, which is rare there's no reason -- his concern is about contemporaneous observation. that's not the issue in the case. he can sit outside and look outside the room. the issue in the case is do you have to go in and have no opportunity for a judge to be involved before you search the record? >> seeing the light on doesn't prove anything unless you know that the hotel has not registered the person who is in the room. >> justice scalia, remember, our objection is not to them being able to either require the register or inspect the register. neither one of those is at issue. the question is, can they do that without giving us any opportunity to say to a judge what's actually going on in here is law enforcement or harassment, they have come in five times during the day. and that system, which is they issue the subpoena, they don't

go to the judge ahead of time. they give me a subpoena, right. they say, we want the records. and if there is an objection the officer has made the observation about room 2. and they can go ahead, telephone warrants are easy. there is no reason the subpoena objection can't be heard by a judge late on. he's observed and made a note about what's going on in the hotel. >> they could fill in while he's running off getting a subpoena. >> the subpoena -- >> who is in that room? >> he's not running off anywhere. the subpoena is simply handed at the desk. this is an administrative one-page piece of paper. let me say -- >> i don't understand. he has it in his pocket? all you're asking for from this litigation the one who wants to inspect it just pulls out a piece of paper and hands it to him and makes it ok? >> there's two parts. that's how the subpoena works the reason this court has the -- has required at the bear minimum, accepting the very

limited berger context, when you hand the subpoena, the person who receives the subpoena says this is an unusual case, i'm going to go to the trouble of objecting. i think can i tell a judge and prove to the judge this is law enforcement in disguise. >> i could say the same thing without the subpoena. >> yes. our critical point is this guarantees him the right to say that to a judge. >> allows him the opportunity while the policeman is getting the subpoena to fill in the name of the person in what is otherwise a blank space. >> mr. chief justice, he's not going to get a subpoena. subpoenas don't work that way. >> i thought you said if he serves the subpoena, the other person can demand judicial review. >> that's correct. >> the police officer has to go somewhere to get the judicial review with whoever the hotel owner sends. >> it might not work that way. that is the hotel owner may have to file a motion to quash. it's not particularly important.

mr. chief justice, here's the problem with that argument. >> it is important. because we are trying to figure out how this works. the subpoena, the hotel owner says i object. what happens? how long does it take? >> it doesn't take any amount of time which is why the court has consistently required it. that is he says, i'm not going to give you the records. i'm going to file a motion to quash. if the police want to enforce it right away, they can go to an administrative judge. >> they go somewhere. >> yes. >> during that time, doesn't the hotel clerk take his pen and say, i didn't register this guy in room 2, i'm going to get in trouble, and he fills in -- >> no, for the reason given by justice kagan. you can sequester the records. we are talking about a set of cards. this is a real concern. it is a concern made up the by the city's lawyers in this court when at trial they did not produce any evidence of this. it would be equally applicable in every kind of required record, same is true in a

construction site -- >> if you object and say i'm going to take these records and keep them in the police car trunk until we resolve this? >> yes, you can do that. >> there is authority? >> sure. it's very similar to what this court has said on the fourth amendment context. remember when the police show up at someone's house and they are concerned about the destruction of evidence inside, what they do is simply -- >> that's much more intrusive than -- >> justice kennedy, don't think the government can have it both ways. these are our private records. they want to do something incredible unusual that the fourth amendment forbids. they want a scheme that doesn't say when they'll search, how often -- >> they are records required by law to be kept. and you are not objecting to that at all. >> justice scalia, that's right. the other side makes a good point. and that is these are business records that receive reduced fourth amendment protections. we understand that. so did the unanimous court in

stare. what it said that's the reason we don't have a probable cause requirement here. that's why we require the minimum amount of judicial process which is the prospect that if the owner has a good objection, they can go to a judge. that's why we don't have the fourth amendment's full protections. >> they can be sequester by the police officer, even asked by the chief justice, do you have to have some kind of onsite approval. if the hotel owner says you can't have these records, the police can say, give me the books and take them away. >> yes. not inspect them. hold them aside. this is a real problem, which there is no evidence of, if they want to hold them aside, then they can be just sequestered. nobody looks at them. >> that is the seizure. >> absolutely. >> why is that justified in looking at the information not? >> this court has held that in

the identical circumstance, this arises in the fourth amendment context. when the government is concerned about the destruction of evidence before it can acquire a warrant, it can sequester the property. it can seize control of the property without searching it. >> that's just if it has probable cause. >> your honor, it has the relevant level of cause that's required in the particular context. >> i thought you said in response to my earlier questions that the city could have a regime under which an administrative law judge issues a warrant, not a subpoena, for a periodic inspection. so the officer would have the warrant, would go to the hotel. here's the warrant. this is your periodic inspection. there would be no prejudicial review. there would be a challenge later. >> no, your honor. what this court has said in cases, is when you get the pre-enforcement judicial review, that is the judicial involvement required.

we would be perfectly happy with that. the difference between your hypothetical and this one is that a judge is involved and shows that this isn't for law enforcement, it's the orderly operation of administrative scheme. whereas what the city wants is for a beat cop to go in at any time as often as he wants for any purpose. >> the complexity in the answers and frankly surprise i have at some of your answers may indicate that this is not a basis for a spatial -- not a case for a spatial attack. we have to go back and decide these issues on a case by case basis. >> justice kennedy, ail give you my response to that. that is the court in all of the colonnade lineup cases has dealt with things on a categorical cases. never on a case buy case basis because it looked at the structure of the scheme. this is a scheme where they are not going to have any reason -- they don't need justification to come in. we know they can seize. it's a particular record. they can do it any time.

that kind of scheme what the court has insisted on and i hope the court will take a look at lone steer is there be this minimum of a subpoena process. >> i'm sorry. i thought the stronger answer would be we have always looked at a lack of procedural protection under a challenge. any time that the challenge is to the lack of process, we have looked at it, implied, whatever, it doesn't need to be. >> let me add one other point that's underappreciated in the case. not only does our complaint assert an as applied challenge there was a trial on that, and the record on the as applied challenge in the record in this case, we pursued our spatial challenge only after before the second trial it stipulated they only had spatial defenses of the statute. that's the reason we had this oddity we are here on the facial

challenge. the evidence had a been collected. there is nothing to be gained by having a second trial. >> you constantly said that one of the objections that the hotel owner can make is that you want these records for enforcement of the criminal law. you say that's bad. >> yes. >> but the whole purpose of this thing is to enable the criminal law to be enforced isn't it? >> there are two different points being made here. one is, you are quite right. they have an administrative scheme. the point of the administrative scheme is to judge for criminal violations. imagine on tuesday, a police officer comes in and says, look, i think there's a prostitute in room 3. what i'm going to do i'm going to invoke this 4149 and see if that person's name matches up as a prostitute. that's criminal law enforcement. it requires probable cause.

the fact that they have an underlying administrative scheme doesn't mean they can investigate crimes through using this evidence. the court has said time and time again in its administrative decisions that it's really important that we involve the courts because those -- in this case has presented more starkly than any other, that you misuse the administrative process -- >> i think there may be an exception to that principal where the whole purpose of that scheme is to enable the detection of criminal activity. and then the objection would be the whole scheme is bad. you cannot require them to keep books. because it's whole purpose is to detect criminal activity. that's not what you're arguing. they can deep the books in order to detect criminal activity, but if they request the book in order to detect criminal activity, it's bad. it doesn't make sense at all. >> because it's not the argument. and that is -- >> what is the argument? >> their defense of the statute is not that the records are used to detect crime. they are used to deter crime. they don't look at the records to find criminals. all they do is look at the records to make sure we are keeping records. my point is that one day a