fact were succeeding against isis, were pushing back against them, and that they are only capable of small acts against us. that has not been true since we started. it is certainly not true now. how do wethese committee members when we were pushing against the narrative at that time by senior generals and secretary of defense, etc., we were asked the same question. how could that be? how could capable people be so wrong? i think once we make up our minds we're going to do something, we drive towards it, and we have a tendency to see those indices that contribute to what the mission's success is.

and to minimize those. how do you fix that? one way and one way only. competent leadership. you don't permit that to happen. these are the things we said we are going to do. how are we doing that? how could you come to the conclusion isis is losing? it enjoys freedom of maneuver and can attack at will in a place of its choosing. if of force has that capability to do that and gets a manifestation of that, that force is winning. the leaders should say, what are you talking about?

none of that makes any sense. this is what they are capable of. we have got this wrong, and how are we going to fix it? that is about competent leadership. >> i am jealous of my colleagues 13 minutes. you said something i wrote down that we should not just the spectators. -- not just be spectators. you are going through the atrocities. we are spectators. congress has been a spectator. since august 8, we have been a spectator. absent one vote we took to arm syrian moderates, there is no evidence congress is concerned

at all about isil. our allies have no evidence congress is concerned. isil has no evidence congress is concerned. most tragically, the thousands of people who are deployed and fighting the battle every day they have no evidence congress is concerned about isil in the least. everybody calls it a war. the president calls it a war. president since jefferson have said that is the dividing line between an article to power and article one. for nine and a half months we

have failed to do what is our fundamental job what only we are supposed to do. there has not been an authorization for use of military force. there has been no house committee action. there has been no house vote. there was one committee vote. there has been no florida debate and no meaningful senate and floor action. how strange it is? we love to threaten lawsuits in the most solemn responsibility, we have been silent. when we got all these people risking their lives every day we have been silent. it is congress that is the spectators. we have got opinions. we are spectators when we ought

to be decision-makers. this is a war with a 10 month without a legal basis. the president has acknowledged he has gone beyond. the authorizations cover an organization that didn't form until two years after 9/11. that doesn't make any sense. congress has come up with one excuse after another to avoid taking action. the leaders went to the white house in june and said, do not make us take action on this war. you do what you want. congress adjourned within ongoing war six weeks before the election. we hadn't done anything about it.

after the midterm election it was, now the senate is going to change hands. we waited until january. then we came in and the president had an send us a draft authorization. i criticize the president. now there has been an authorization. more than three months. we still haven't done anything. i don't know what the excuses. we can only conclude we don't want to take it up because we are indifferent. while we are not doing our job, there are others doing the job.

we deployed thousands into the theater of battle. to folks who were pilots crashed a plane on takeoff the other day. we are deploying thousands and they are risking their lives. we have had deaths of american serviceman. we had deaths of american civilians who were held hostage. i still start executing american hostages until after we started bombing them on the eighth of august. we still haven't done anything. we had over 3000 airstrikes, and now the cost past the $2 billion mark in april, and we haven't done anything. i never would have contemplated before he came to this body there would be a situation which congress would tolerate an ongoing war and stand back and

say, i guess the president can do whatever the president wants to do. it's not supposed to be that way. one reason i am glad the chairman called this committee i am hoping if you go into the details of the special forces operation in syria, very serious. we were lucky. this is complicated and detailed. i wonder how much longer congress is going to just the a spectator. -- just be a spectator. we can criticize the strategy, but we haven't earned the right to be critics as long as we stand back and don't do the one thing congress is supposed to do.

senator mccain: i know there is a question in there somewhere. >> here is my question. does the current strategy in iraq and syria have any chance to succeed? >> that has been the basis of our testimony. >> i didn't hear it. >> i will gladly say it again and respect you asking the question, quite frankly. the answer is no. >> does everybody agree the answer is no. does everybody agree that the problems in iraq and syria present a direct threat to the homeland? >> yes. >> i had a conversation with the cia director yesterday. the average american needs to understand failure in iraq and syria is putting the homeland at risk because so many foreign fighters are flowing in, and they have the ability to potentially hit us here at home.

is that correct? >> yes. >> general kane, you described the strategy as not enough. is that correct? general kane: absolutely. it's far from it. we laid out details to support it. >> dus see any way to defeat isil in syria without the substantial army involved? general kane: i don't know how we get there. if we deployed troops, we can defeat isis in syria. i don't think anyone here would recommend such an event. i think people with vested interest should be involved. they would get involved. you know we have said as much. that is going to be a precondition.

>> they are not just going to fight isil and leave a sod -- a sod -- assad? quest we are seeing increasing support as an alternative. -- >> we are seeing increasing support as an alternative. the arabs are choosing to work with terrorists because there is a vacuum. >> i think some people are choosing to because of the vacuum. >> we find ourselves with our allies supporting a terrorist group because america is awol.

at the end of the day do you see a scenario of isil taking a sod out that doesn't require the same commitment by the world to put syria back together -- taking assad that doesn't require the same commitment by the world to put syria back together? we are talking billions of dollars. if this war keeps going on, do you worry about jordan and lebanon being affected? >> i think so. we are doing important things to strengthen that government. >> if we lost jordan we would be losing one of the most trusted allies in the region. >> correct. >> i was told there were more syrian children in school in lebanon than lebanese children?

does that surprise you? >> it does not surprise me, but it should shock us. >> there are more kids in elementary school than lebanese kids. if this continues, it will create chaos that will change the map for generations to come. do you agree with that? >> yes. >> there is no way to get iraq right until you deal with syria in a responsible matter. iran is all in when it comes to syria. >> it has been critical. >> you agree it is highly likely some of the money would go to a sod -- assad.? they are seeking domination.

>> do you think there is any evidence they are changing their behavior? what they are becoming more aggressive. >> would you say they are the most aggressive in modern times? >> yes. >> would you say they have contributed? >> they have contributed. >> would you agree the arabian peninsula is growing as a threat? >> not only that but isis is gaining position and yemen. >> do you believe syria is in perfect form to launch an attack because there are so many with western passports? >> yes. >> you agree the shia mission on the ground are controlled by iranians? >> yes. >> you agree we are doing permanent damage if we allow the shia commission to continue? >> yes. >> do you see anything good

coming from this strategy being continued? >> it is destined to fail. >> there is a better way. we just have to choose it. do you agree? >> yes, sir. >> senator cruz. senator cruz: thank you, mr. chairman. thank you for being here. thank you for your service and leadership. i would like to ask the panel for your assessment of the current level of success. >> it is failing. it is failing in iraq, syria and across the board.

>> why is it failing? >> it is ill-conceived to begin with. constraints have been put on limited resources. >> could you please elaborate on the restraints placed on the military? >> yes, sir. we have forces that could have made a significant difference in the fight for ramadi, had they been allowed to embed at lower levels, had they been allowed to perform functions and bring in precision air support. had some of the aviation been used in direct support, had the forces been able to go out and reach out to them directly rather than relying on the tribes to come to them.

there were a number of things this limited force could have done that would make a difference, but it was probably too limited to be decisive in any event. >> just to add to that, these other components, there are huge problems as well. the military component is under resourced. there are not enough advisers. the role of advisers is fundamentally flawed. the advisers have to be where they are doing the fighting at least at the battalion level. they help them plan and execute. they contribute to their success. they have the capability to call in airstrikes.

the airstrikes we currently have taking out facilities, you toss the ball rapidly when dealing with multiple targets. it is close combat in urban centers that are populated and where we get -- we, our forces, iraqi forces get very close to the enemy. to be able to do that, you have to guide the bombs from that airplane, take control of them and that's called close air support. that's what we need the forward air controllers for. so the effectiveness of our air power is this, 75% of the

missions that are flown come back with their bombs because they cannot acquire the target or properly identify the target so they have some assurances that they aren't going to hurt somebody with those bombs. that changes dramatically if we put those forward air controllers on the ground. i tell you what, if you're fighting as the fighting took place in ramadi and as that fight unfolded. they have prepared for weeks to get to ramadi. this was not due to a sandstorm. this is taking out supporting towns, other attacks that led to finally an assault using suicide bombers' vehicles to do that. if that force had anti-tank weapons, they could have killed those vehicles or apache helicopters, they could have killed those vehicles. they destroyed entire blocks and entire units because the explosives were so heavy. after that came the fighting forces themselves. again, if we had close air

support, we could have dealt with the fighting forces before they actually closed the iraqi military, helicopters would vr impacted them and we have a close fight and assuming the iraqi forces could deal with that. but i would tell you this, many of those iraqiy -- iraqi forces did fight in ramadi and a lot of them fled as they watched suicide bombers get blown out and watch the caravans coming down the road get blome up because we have proper surveillance and we have resources that can deal with that. anti-tank guided missiles and the like. we start to change the dimension on the battlefield very significantly as a result of providing them with the proper

resources. these are the constraints that are out there that are manifested itself in the behavior of the iraqi security forces. they have their own problems. leadership, discipline, morale and competence. but there is a lot we can do to make a difference. senator cruz: let me ask, the administration is currently declining tore arm the kurds. the peshmerga are fighting isis and they are effective allies. the judgment, the policy of not arming the kurds makes very little sense. i would be interested in the panel's assessment that should we be arming the kurds and is the current policy reasonable and effective in defeating isis? dr. kagan: i think it's a consensus on the panel we should be helping the kurds defend themselves, but the kurds will not be able to be effective

partners in retaking the portions of arab iraq that they control but we should be helping the kurds defend themselves, i think. senator mccain: could i point out that we are not refusing to arm the kurds. the problem is as it goes through baghdad and the kurds continue to complain that there is not the kind of facilitation of the delivery of those weapons. but the senator's point is for all practical purposes i think correct. senator king. senator king: one of the phrases struck a cord with me. raises the question of intelligence. and general keen, would you comment, do we have adequate intelligence, do we have any intelligence and have we become too reliable on signal intelligence and therefore don't have human beings giving us the information?

general keane: it is put to the military leaders when they come in here because they have the details of it. but this much i do know. my sensing from talking to my sources is the intelligence function is not robust enough. and yes, we are relying on national intelligence sources and some regional intelligence sources. some of that is surveillance and some of that is signals intelligence as well. but there's a lot more that we can do to assist them. we use surveillance a lot to assist the use of air power because it's not controlled by forward air controllers. we need different kinds of surveillance in there to assist grouped forces.

when we were fighting in iraq and now finishing up in afghanistan, our maneuver units used different kinds of drones. they are much smaller. they don't stay up necessarily as long as those that assist the air function and assist the ground commanders. that kind of capability there controlled by u.s. would dramatically make a difference for the ground forces that are in the fight because that would give them the ability to see the preparations the enemy is making and see the execution before it impacts on them and most importantly to do something about it. i think the entire intelligence function has got to be put on the review. we have a tendency to focus on other things that are kinetic, but the intelligence function in this kind of warfare is significant in terms of its enhancing ground forces and air forces to be able to use their capabilities to the fullest. mr. king: -- senator king: we continue to be

surprised. >> i'm at the university of south florida and we drafted a paper that ramadi was going tofall lasweekndt looking at dahrnource information. information and how to think about it. the warnings were there. the indicatorwere there. if we could see it at the university of south florida and institutes of warsaw that, we shouldn't be making statements saying ramadi wasn't going to fall and wasn't under threat because that creates another problem of its own and then you have a collapse and looks like

there is a real problem in our communication at the most highest levels of our government. senator king: and makes them look invincible and becomes a self-fulfilling prophecy. you made a strong case for things like close air support, forward controllers, all of those kinds of things. but isn't one of the fundamental problems, we could have all of those assets, but if the iraqi security forces don't have the will to fight and if the local population doesn't have any confidence in this government in baghdad, it's still a very difficult if not impossible proposition. can you give me some thoughts on that. dr. kagan: i agree with the statement that you made if those two conditions are true, then it's difficult to impossible. i don't think it's not true that the iraqi forces don't have the

will to fight. as we have seen repeatedly, will to fighton ovmatc mcapalities just as much t that's what we used to do. we are allowing them to be overrun in these circumstances and that erodes their will to fight significantly. your point about the political accommodation is incredibly important, we need to have an iraqi government that is able to reach out to sunnis. the more we try to subcontract these conflicts to local forces in preference to our own -- senator king: a shia militia and exascerbates the sectarian conflict and makes isis look

good to the sunni chiefs in anbar. i don't think they look good to anybody. but if they don't have confidence and isn't that one of the fundamental problems here is that isis has been swimming if not in a friendly sea but a neutral sea? dr. kagan: it is a fearful sea and terrorism works both ways and these guys are incredibly brutal in dealing with the populations they control. so people are going to require a certain amount of assurance that if they rise up, that they will win. the alternative is they would be completely destroyed as communities. general keane: the other thing is that the force that we had in iraq, the iraqi security force that took us a while to get them

to be effective, to be frank about it. and one of the things that made them very effective during a surge period where general petraeus changed the changes on the battlefield. platoons side by side and that dimension increased the capability of the force because they could see what right looked like. a sergeant could see a u.s. sergeant's performance, how he acted under stress, soldiers could see it and other leaders could see their counterparts. that force grew rather dramatically and we were there multiple weeks throuout 2007 and 2008, the three us on ide of the table. and that was an effective force. and i can tell you for a fact because i saw it with my own

eyes, i saw battalion commanders, brigade commanders and division commanders distinguish themselves in combat and under significant stress. and we felt good about that and we felt good about that force. we were saying wow. they finally got it together. what happened to that force? so much attention has been placed on malaki's malice and what he did to underminimum the political opponents, he destroyed that force. he saw the distinguished leaders who were accomplished as a result of their performance on the battlefield and people devoted to them, he saw them as threats to him politically. and he underpalestined that force and purged that force.

so that force is not there, the one we used to have. he put in his political cronies and pranks who didn't have the military experience. getting that leadership back and others who are willing to have that kind of commitment and confidence, that takes time to fix. but the fact we did have it at one time and it was pretty good, tells you that there is something there that we can work with and get it back there. whether that can be done in time is another issue. senator king: in 2007, 2008, how many americans were in iraq. general keane: we had somewhere in the neighborhood about 130,000 in iraq. and that's how that force -- but what i'm saying to you is, when we finished, when we had completed our involvement in iraq, the force that we left there was a capable force, iraqi security force.

senator king: what do we have to do to rebuild it? i'm out of time. >> i want to talk about the issue of correct and there has been discussion about how we have lost correct with our allies in places like syria. and i want to talk about the importance of the issue of correct with the american people. and there has been i think a narrative in the administration that has not been helpful in that there has been an emphasis on the fact that we are now -- our combat role in the middle east is now fin issued. well, of course, it isn't finished. just tell that to the pilots who are flying daily missions. we think combat in terms of the infantry soldiers, but we forget the brave men and women who are flying these missions daily.

that's combat. and also with the recent delta force mission by some very brave americans, that is boots on the ground. we are in bottom combat and have boots on the ground and there is this narrative. do you think that this narrative, which is a false one in my view, has inhibitted our ability to develop a robust strategy? do we need other forces on the ground? and yet, we are competing with the narrative from the house that says, no, no, we are done. and that would be a limiting factor to developing a strategy that ultimately would do what we want it to do which is protect america's national security interests? general keane: when i look at it and try to speculate about what is driving some of our decisions decisions, what is driving our narrative, one of the things i have observed since i have been

closer to it in recent years than when i was when i was a younger officer is that most administrations, democratic or republican, have a tendency to overreact of what took place in the previous administration. and this one is no exception to that. making it a principle of the administration to a guarantor that we will not be involved in any military activity in the middle east or in south asia that could lead to another protracted war. and i think that's probably a good principle. but the issue is, that should not trump what's necessary to do given the fact that isis represents a new organization with new leadership, a new

vision in terms of its global and regional strategy and that it is a barbaric organization committing genocide, assassination, enlavement and raping of women, as we all know and that it is fully intent on conducting a religious war based on their ideology. and we cannot let the rearview mirror of iraq and afghanistan so disincentivize us to deal

with the reality of what this is. and i'm convinced that the american people, when we inform them and we educate them and we take them through this, i mean i dealt with the bush administration, they never truly explained what radical islam is and why it's so dangerous. we never took apart the ideology. we never truly fashioned a strategy to deal with it in a comprehensive way and here we

sit with the same problem today. >> i think that's a great point and something that i think -- my own view is that you are directly on point. if we level with the american people and talk about the threats, talk about the strategy that is important and many of you have been raising that, i think everybody recognizes once we lay that out what we would or wouldn't have to do to address it. let me ask a related question from -- for mr. kagan. you written on the long war, the idea that sometimes we look what's going on with isis and other issues in the middle east and think, we are going to have this done in 18 months, 20

months, maybe a couple of years, do you think that there's an importance to having the leadership, both in terms of congress, but particularly the executive branch talk more broadly and again level with the american people about that this might be a generational conflict. this might be akin to the cold war where we have to lay out a broad strategy and your point early on about the need for a strategic concept is so important. lay out a strategy that the executive branch and legislative branch and the american people can get behind and then execute it. and level with the american people that this might not be done in 18 months.

so would have any of you -- dr. kagan, i know you have written about the long war. feel free to talk about that. when you talked about the strategic concept, what is it, 20 seconds left, that's a big topic, but point us to the direction of your wrigs or principles, that would be helpful. dr. kagan: this is a generational struggle that we're in at least. >> we don't talk about it, do we? dr. kagan: the point you opened with is an important one, the administration's narrative is that we are ending the wars and impossible to develop a cohesive strategy for fighting the wars. these are battlefronts on a common war that is going to last for a long time and we don't get to end it unless we win. you don't get to decide -- we may not be interested in war but war is interested in us and this is going to be a problem and we need to level with the american people as you say, as a basis for developing any kind of strategy. i totally agree with you. >> we need to find what we want to achieve. quite often over the last 14 years, we define our objectives in terms of what we are going to counter and defeat. that's important. but what has been missing i think comprehensively, whether it's in iraq, syria or afghanistan is the definition of what we actually need to leave behind in those societies, how we help others help themselves. i do believe at certain points president bush did this, certain points president obama does this, talk about the long-term nature. if you look at their documents as the administration used to say about afghanistan and iraq we are going to end it. extend it into who will be the next president. your point is terribly point and i have written a book about this, too. it's important because for our own society, there is a new generation called millenials that are actually this year larger than the baby boomers. our leaders aren't messaging in a cohesive way and part of it is

because of the partisanship we have in our politics. and i'm a strong sentist and we need to bring the american people along with us and something senator mccain has said earlier and before is that the debate we need to be having on the authorization on the use of military force, action on it. this is a moment which has not been seized. you can criticize the administration or criticize whom ever in congress, there has been this muddle. and we actually haven't defined for the american public in the

way that fred and others have argued here, that the u.s. has a special leadership role in the world. countries in the region are still looking to us to actually do more. but we need to actually take those steps beyond the questions on military and security steps which are terribly important. we need to talk about how do we fight these ideologies, we have done it with naziism and communism. our values are better, but what happened to the battle of ideas? we had that debate for a couple of years after 9/11 and kind of rediscovered about that, but our attention deficit disorder and our society and as leaders in congress, we have the responsibility to talk about this in a sustained way. >> we have all had one round but if anybody has a second round.

i'm going to seize the moment here to continue for a few moments. senator kaine: significant armed troops. qatar said if there is significant ground troop presence from the united states, and we are recruiting bonn ansa for isil. the meeting occurred with the saudis, so they are willing at least somewhere to take some significant military action to deal with threats in their own region but said u.s. ground troops against isil would be problematic. i didn't read that to say not even one or under no circumstances, but they were very wary about the notion of u.s. ground troops. we are trying to work that out on the foreign relations committee as we think about an authorization. are they right or wrong, and if they are right, how would you square that with a u.s. presence should mean? >> i actually think for all of the criticisms of the obama administration strategy, some of which i share, this is the one component that didn't exist before. mr. katulis: it has been underutilized. the summit last week, though there were news articles about it, there is a conversation to try to build on what can we do in partnership with them. if there is one thing we should have learned from 2003 to 2010 or 2011 in iraq, yes, u.s. forces can have an important impact on the security situation there, but there are downsides to having a visible presence.

i don't think anyone on the panel was talking about understandably given unforced errors. the regional dynamic has shifted quite a lot. the region u.s. in a very visible presence on the ground does have significant downsides for their own legitimacy with their own population. the region is taking action in what it sees as its own self-interest in terms of a multi region. honed in what my he can per tease and focus is, is working with those reliable partners from jordan to the united arab emirates to saudi arabia and the kurds and some of the iraqis to take what has been a significantly large amount of resources and activity and channel towards more constructive purposes. i don't see that happening in yemen or yet in syria. and i don't see that happening in many other theaters. the basic answer to your question and the leaders you spoke with are reflecting a very popular view at the popular level in their countries as well.

they understand that for whatever happens in the iraq war , the u.s. is better sort of seen as a backbone of support as opposed to out in the front. dr. kagan: we need to distinguish between the ideal and reality. it would be better for regions to be involved with the caveat that we do have a regional war going on and the regional actors we are talking about are on one side of that. we have to think about what the iranian reaction would be. i don't think we would enjoy that very much. and i think it might be worse than the iranian reaction to the deployment of u.s. forces in there. it is a complicated dynamic. in the world of reality, the jordanians don't have the resources and the military aren't capable of providing the kind of assistance to iraq. they don't have it in their force structure. senator kaine: how about the turks? dr. kagan: the turks might be able to provide some of it but no one provides the capability that the u.s. provides including the turks and they would be dependent on us. again, i'm not sure that the optics of the return of the ottoman empire would be better than the optics of having a limited amount of ground troops on the ground. the regional leaders are expressing an ideal version of a

strategy you would like to see. an amuf is where micro manages on what forces can and cannot be sent and it is up to the president to choose how to fight a war that congress authorizes. in these circumstances, it would constrain the deployment of ground forces which is exeemly necessary, would be extremely damaging. >> this reminds me of the myth i heard in iraq about u.s. forces were the generator of the antibodies that caused the nurns. it was a misreading of what was going on in iraq and the drivers of the fight. we have to be focused on what are our u.s. interests and how do we defeat this enemy. and the seeds of strategic failure are found in failing to define that enemy, define our interests, the costs and the risks. and if we do those things and we think about our interests, it will drive us to engage more seriously than we have in my mind. it is a very similar situation today. we study radicalization, recruitment for the foreign fighter flow. the u.s. presence in iraq is not going to dramatically increase that foreign fighter flow. it is being driven by a range of issues. and the different types of recruits that are being pulled in. the driver within iraq is not the u.s. presence, it's shia domination, it's the fear for their future and their own lives and lack of political inclusion, et cetera. that's the issue we need to get our head around.

went to think about what the iranian reaction would be. i don't think we would enjoy that very much. the regional militaries are not capable of providing the kind of assistance. don't have it in their force structure.

senator kaine: how about the turks? dr. kagan: the turks might be able to provide some of it but no one provides the capability that the u.s. provides including the turks and they would be dependent on us. again, i'm not sure that the optics of the return of the ottoman empire would be better than the optics of having a limited amount of ground troops on the ground. the regional leaders are expressing an ideal version of a strategy you would like to see. an amuf is where micro manages on what forces can and cannot be sent and it is up to the president to choose how to fight a war that congress authorizes. in these circumstances, it would constrain the deployment of ground forces which is exeemly necessary, would be extremely damaging. >> this reminds me of the myth i heard in iraq about u.s. forces

were the generator of the antibodies that caused the nurns. it was a misreading of what was going on in iraq and the drivers of the fight. we have to be focused on what are our u.s. interests and how do we defeat this enemy. and the seeds of strategic failure are found in failing to define that enemy, define our interests, the costs and the risks. and if we do those things and we think about our interests, it will drive us to engage more seriously than we have in my mind. it is a very similar situation today. we study radicalization,

recruitment for the foreign fighter flow. the u.s. presence in iraq is not going to dramatically increase that foreign fighter flow. it is being driven by a range of issues. and the different types of recruits that are being pulled in. the driver within iraq is not the u.s. presence, it's shia domination, it's the fear for their future and their own lives and lack of political inclusion, et cetera. that's the issue we need to get our head around. general keane: i agree what everybody said here and we talk past each other on this issue. no one here certainly is advocating that we should have ground units that are occupying towns and villages and securing them and therefore protecting them from isis attack that would put us right in the mainstream of defending against isis.

i think that's unnecessary an it would be a mistake. but also when we have a policy that says no boots on the ground, that doesn't make any sense either, because it denies us from having advisers that have a role to play. it denies us from forward air controllers having a role to play and other capabilities that are unique to us and we elaborated on what they are. they would make a difference in what the 60 nations have agreed to do, which is support the iraqi ground forces, as imperfect as they are. but let's give them a better hand to play than what we are doing. and i don't believe there is a single nation that would object

to anything of what we are describing are enablers that would make a difference. second, when it comes to syria i think this is the difference. and if you spoke to them about that, you know what their view is about assad. we have dealt with that in their regime and they know full well to deal with isis and syria, this is going to take a ground force and they would have to contribute to that ground force. i would think that they would logicically ask us to participate in that with them. i don't think we would necessarily have to be the largest contributor, but i think we would have to participate. and i think they would want us too, because of our experience and our capabilities if we would actually lead it. maybe not. but i think those two things

would probably be on the table for discussion. and i think it's reasonable that that kind of allocation of u.s. capability and leadership to deal with isis and syria, is in fact an eventuality. >> senator blumenthal, do you have questions for the panel? senator blumenthal: thank you for being here and thank you for your eloquent remarks and i was here in the beginning and i was diverted to another committee meeting after our vote. i want to come back to what mr. kagan was describing as the evil of isis, isil. and the absolutely horrid unspeakable acts of brutality that they commit, mass rape, mass murder and i agree with you that they are one of the most evil, maybe one of the most evil instution in history. we can argue about it.

but when i go home this weekend, most folks are going to ask me what's the threat to the united states. and 50 years from now, others will be sitting where you are and where i am talking about probably other evil institutions that are committing mass brutality because that seems to be unfortunately the nature of the human condition. that has happened throughout our history. and i think the ordinary person in connecticut over memorial day weekend is going to wonder what our role should be in stopping that from occurring, unless there is a threat to this country. so perhaps you and others on the panel could tell me what i should tell the people of

connecticut about why the united states should be involved, whether it is special operations forces or better air support or whatever the involvement is and why that matters to our security. dr. kagan: as a connecticut native i'm concerned about what you have to tell the connecticut people to get them on board with this. . as i was driving to virginia the other day, i was driving past the holocaust museum and saw the sign up there, which is never again. one of the things we need to tell the american people is that it is a core american value to take a stand. we do it too late, we try to talk ourselves out of it, but ultimately we generally do it. that's one of the things that

make us america. i think we shouldn't use site of that fact. the reality is isis poses a clear and present danger in the united states homeland. it has already been encouraging, cone doning and applauding lone wolf attacks here. it has made it clear that it has the objective of attacking america and the west, and it will do that with the resources of a mini state behind it which is something that we have never seen before with al qaeda. this is not a group of bandits hanging out in the bandits of afghanistan, and that was bad enough.

but if we reflect on the resources isis has access to controlling fallujah, ramadi oil infrastructure, the resources that were in various universitys in mosul and so forth. thousands of fighters, tens of thousands of recruits. this is an army. and this is an army that is very sophisticated and has an ability to conduct operational military planning and execute it that is in advance of anything i've seen from any of these groups and it has the claired etc. intention to come after the united states and shown a willingness to do that. that is something i think the people of connecticut need to be concerned about. senator blumen that will: i agree -- senator blumen thaul: i -- senator blumenthall: i agree with what fred is saying. there are groupsmark of them self-radicalalized or already radicalized and they're motivated to take action. seen plenty of evidence of that. the longer you permit the organization to succeed, can you

imagine what has gone out on the internet from isis around the world as a result of the success in ramadi and how that has motivated others that isis in fact is winning and they're standing up against the united states, they're standing up against these strong allies of the united states in the region and europe and they're actually winning. so this huge -- so there's huge danger there. as long as you let this organization stay and we don't decapitate it, then the motivation and inspiration of self-radicalization continues to grow, that's one thing. the second thing is in the region itself, and we showed on a map, they're moving into other countries, at the same time they're defending what they have in syria and iraq and expanding. this is what make this is organization so very different than what we've dealt with in the past.

they're looking at libya as -- because of the social and political upheaval in libya, and there's hardly a government there and anybody to push back on it, they're going to put huge resources there. why are we concerned about that? our interest in the region, our interest in north africa, that would be on the southern tip of nato there, not too many miles away from italy. in afghanistan, they have expanded rapidly beyond most of our expectations, i would assume, into eight provinces in afghanistan. now we have interests in afghanistan for obvious reasons. so this is a movement that we can tie directly to the security of the american people and to our national security objectives of the united states in this

region and in south asia. senator blumenthal: if i can put it a different way just to conclude, it's more than just -- and by the way, american values are directly and inevitably linked to stopping human atrocities, i agree totally with you, mr. kagan, but our interests go beyond those values and by the way, all of the reasons that you stated are the reasons i voted for the training and equiping measures that have been implemented but my frustration is that as you also have observed there is a huge gap between the goals and missions that we've outlined for the united states and the actual action that we're undertaking the train and equip activities are way behind what we might have hoped by this point and there's no clear timetable for really achieving the level of capability that we expected or hoped. i hope this has been a very sobering morning. i thank you all for being here. thank you.

senator mccain: i also want to thank the witnesses. it's been, i think, helpful to all members and this is not an issue that's going oy way, so i'm sure that we'll be seeing you again. thank you. [no audio] >> coming up, federal judges hear oral arguments in the

appeal of former governor mcdonnell's argument on bribery charges. and the racial divide in american cities. later today's "washington journal" live with your phone calls. >> here are some of the featured programs on the c-span networks. on saturday and sunday at noon commencement speeches by politicians, white house officials and teachers. speakers include tim scott at south carolina state. the u.s. ambassador to saudi arabia. hulu founding ceo jason kyler at the university of north carolina at chapel hill. monday morning at 11:00, live coverage of the memorial day ceremony from arlington national cemetery.

sunday evening at 7:00, cokie roberts recounts washington, d.c. during the civil war to the lives of some of the women. books on first ladies. on c-span three, at a record on lectures and history. on angel island california from 1830 to 1930. sunday afternoon at 4:00 on real

america, the 1945 production of "the true glory." the re-creation of the grand review parade of 1865, including reenactors portraying u.s. color troops who were not allowed to participate in the original procession 150 years ago. >> eight months ago, bob mcdonnell and his wife were convicted on federal bribery charges. he appealed the conviction to the fourth circuit court of appeals were his lawyers argued that the definition of official acts is overly broad and that jurors were properly -- improperly influenced by media on the case.

case, the u.s. versus mcdonnell. before you begin, i want to before you begin i want to reiterate that we have been very generous both in the time and in the oral argument. and we expect you all to honor that generosity by directly answering the questions and sticking with this that we set up. mind, mr. francisco? >> thank you. no francisco. governor mcdonnell simply set the meeting and pose for a photograph with jonnie williams

without asking anybody to do anything specific, he committed a crime. nobody ever thought that was a lot. if it were true, it we give prosecutors -- the district court compounded a series of rulings. including refusing to ask basic question, have you formed an opinion about the governor based on your exposure to pretrial publicity by refusing to sever his wife's trouser that she could testify on his behalf, and by refusing to allow the governor to explain to the jury the full scope of jonnie williams. >> is the jury instruction your most important argument? i want to be sure we get to what you regard it your most persuasive argument. >> our most important argument is the official act argument.

our second most important issue is the issue of pretrial publicity. turning to the official question, in order to engage, a government official must make or pressure something to make a specific decision on the act of the. the line is between access and advocacy on the other. here, governor mcdonnell never crossed that line and the jury was never told that that line or any other line even existed. case for example, the health care recession. it was nothing more than a cocktail party at which no business was discussed and no decisions were made, they cannot possibly be an official act. the same with respect to the meeting with ms. host up her. ms. hostettler repeatedly testified in this case. other than attending the

meeting, governor mcdonnell never asked her to do anything which is why she felt empowered as soon as that meeting was over. judge motz: it sounds like you are arguing the fact to a jury. what i'm interested in is what the jury instruction was that you wanted, how it was that correct statement of the law how it was not covered in -- how was so important that the failure to give it needs to be -- mr. francisco: we believe what that during instruction did and the instruction that was charged did not do was to explain -- >> -- mr. francisco: yes, explain what official acts were. the key flaw in the instructions of the court gave was that they swept in lawful and unlawful conduct because the district court instructed the jury -- judge king: some might say that

has to be looked at in context. mr. francisco: i would completely agree with that. judge king: context of the facts, what is going on. we have to look at it, as you know, in the light most favorable. mr. francisco: yes -- judge king: -- when it is a jury -- mr. francisco: -- know when it comes to a reversible ever. on the instructions, yes, you do need to take the evidence in the most favorable light to the government and we submit that even taking it in my that is favorable to the government, none of the conduct crosses the line. the instructions here even in context these instructions were over-broad, because the instructor the jury that virtually anything that a government official does an official capacity, including every step to achieving an end, constitutes an official action.

judge motz: that is not quite right. so it has to have -- there always has to be that connection. mr. francisco: that is insufficient when you give it an expensive gloss. judge motz: it seems to me that your instruction on 753 did precisely that he it gave it an expensive gloss. mr. francisco: i don't think so at all your honor. our instructors have a series of limitations all of which the court rejected. they told the jury that the instruction encompassed all several practices, including every step toward achieving an end. judge motz: i thought it said could. mr. francisco: the instructions

says includes. judge motz: there were a series of things that you object to that the district court instructed including this or that. i thought i understood your argument that was that there wasn't any countervailing instruction that it didn't include this. is that the gist of your argument? mr. francisco: it is both of those arguments, we are making both. first of all, if you take the instruction on its face, it is overbroad, it is very much like the instruction the first circuit. judge putin explained that the official act definition was not on its face objectionable, on his face, it was summoned to other instructions that were given. the reason was objectionable in that case was because it also swept and potentially lawful conduct. that is precisely what happens here. as the government accurately argued to the jury in this case under these instructions, an official act could encompass a thing as innocuous as a foot of

opportunity, that is because every step toward achieving an and is defined as an official act but the of court compounded that separate error by refusing to give any limitation on his otherwise all-encompassing instruction, including limits that are drawn straight out of this court's cases, light the jefferson case, the fact -- and i'm coding -- the fact that an activity is a routine activity or a subtle practice of an office holder does not alone make it an official act. obviously correct but this record -- this court refuses to impose limits on his otherwise all-encompassing instruction. here's another one. merely arranging a meeting or attending an event or making a speech or not standing alone official acts, even if they are subtle practices of the official. that is based on citizens united and comes out of the instruction that chechen rebel gave in the ring case -- that judge who val -- judge houvel.

the district court even refused to give a standard goodwill gift instruction, we propose quote a gift or payment given with the generalized hope of some unspecified future benefit is not a bribe. word for word at of jennings. here, one of our principal arguments without the governor believe that jonnie williams was getting goodwill gets in the expectation that he would give the axis and credibility that comes with hobnobbing around with important officials. judge king: the defense year was good faith. judge motz: that was one defense. judge king: that is what you said to the judge, you set up a crucial defense you called it is good faith. and you got a good fit construction. judge motz: we did, your honor. he said if the governor acted in good faith, did not have criminal intent, and there could be no crime, there would be no crime. how could it be better for you? mr. francisco: if the jury

doesn't understand the true scope of the official asked the jury does not understand the difference between a goodwill gift of -- permissible goodwill gift -- judge king: if he acted in good faith, it does make a difference. mr. francisco: that is not right, your honor. judge king: it is because that's the instruction was, if he acted in good faith and he could not have criminal intent and there would be no crime. mr. francisco: if the jury believes -- judge king: that is what you argue to the jury -- your closing argument. mr. francisco: that was one of our arguments. judge king: i know that you close it off. you closed at the argument off after getting instruction coming close enough by saying he acted in good faith and you quoted the instruction of their would be no crime, no criminal intent. mr. francisco: that is because after every instruction requested, that is all that we were left with the argue was good faith. judge thacker: so you were not seriously impaired in your ability to conduct the defense in regards of not giving the goodwill argument jury instruction.

mr. francisco: absolutely. judge thacker: did the government in its closing -- i know that you just said you withheld or were not able to make some of the arguments you had planned to give in the jury instructions, to the argument take advantage of the failure to give the instruction out of jennings that you wanted? mr. francisco: it drove a chalk through it. the government repeatedly argued to the jury that everything is innocuous as posing for a photo opportunity. or simply arranging a meeting without anything more. all of those things constituted official government action. he goes at the core of our argument. i think that no reasonable jury could clue the governor mcdonnell violated the law. even if you were to disagree with me on that, it is altogether possible that the jury did agree on the facts, but under these instructions, the jury still would have been required, or the very least authorize, to convict, because everything as innocuous as

sibley hosting a cocktail party so be suggesting a meeting without requesting anything happen at that meeting, as he testified, simply asking your lawyer to see you about an issue, another one of the official acts, under the instructions the district court gave, the jury was required or at least on the rise to conclude that those were prohibited official acts and that his current -- clearly reversible error for the same reason as -- two closely analogous cases that have faxed far worse than this one. the government theory is that there was no express agreement. he conceded that in his closing argument. no express agreement. likewise, jonnie williams notwithstanding his triple of the did you would only testify to an implicit agreement of the governor would provide some form of unspecified help, clearly not enough under the law and that fits with the -- in the face of the classic goodwill -- that is what the government's the real among was that you could infer a agreement to my pattern of gifts

and unloads in a pattern of official acts on the other. if there were no official acts, there are no patterns from which you can for a corrupt agreement. and here, none of governor mcdonnell con across the line the jury was not told that that line or any other line even existed. judge thacker: the jury was told by the statute to begin with. and that upn your closing argument with that quote. so, the term official action means any decision or action on any question, preceding or controversy, which may or at any time be pending. in other was, if there is not something pending at the person who is giving benefits to the public official, if there is something pending in which he is giving the benefits come up there is no crime. it is true. if there is, the net makes it a crime under the statute. mr. francisco: two responses.

i submit that the four of us could argue over the meaning of those words until the cows come home. but to expect a jury to figure out what those words mean is implausible, which is why the instruction immediately after quoting the statute says official action as i have just defined it includes those actions that have been clearly established by settlor practiced as part of the public official to -- position traits of it is telling the jury what i just told you, this is what it means. in a goes on to say that includes every step toward achieving an end. which is why the government could accurately argued that something as innocuous as a photo opportunity was included. notwithstanding that defining an official act of potential included within under the sun, it refused every conceivable limit on that otherwise all-encompassing instruction. going back to the issue about whether the statute alone was sufficient, it clearly was not.

it was defined broadly enough to allow the court to find perfectly lawful conduct was swept -- and here, i think if you properly instructed the jury that in the line between axis on the one hand and advocating for specific decision on the other nothing would qualify. i think sun diamond also answers your pending -- when the secretary of agriculture gives a speech to farmers on usda policy, even though he clearly has issues of you is da policy pending -- usda policy at any before and that is not an official action, if i can offer another example -- judge king: the gratuity statute -- mr. francisco: yes, your honor. judge king: we talked about it in the jefferson case. do you think he is wrong? mr. francisco: not at all, i think he did not address the issue. here, the line is between axis and advocate for a decision --

he was advocating for specific decision, but the line was a relevant, goes to the heart of our case here, the jury was never even told that it existed in governor mcdonnell's condit did not cross it but if i could offer you another example, suppose jonnie williams asked the governor who should i talk to about getting studies for net of block -- that is an secretary -- excuse me? judge motz: i will give maccoll and arrange a meeting. mr. francisco: even without that part of the hypothetical, it is still an official act in the government's definition, simply answering a question. that is the reason why the government's instruction is fatally overbroad, he clearly sweeps in lawful conduct. i would submit that if you take the next step and say, by the way, i will arrange for you in meeting, that likewise is not cross at the line because if it did, you really would be opening the net for federal prosecutors to pick and choose their targets amongst every elected official in america. member, the official acted

definition is not limited to quid pro quo bribery. it also applies in the gratuity context, the same definition. that means that if a wealthy donor makes a campus -- donation or maybe donation to a charitable foundation after getting an important meeting at say, for example, the state department, both the donor and recipient of the donor are on the hook for a federal gratuity prosecution. nobody has ever thought that that was the case. judge motz: did you have an argument in front of the court about these instructions you go mr. francisco: absolutely, yes. judge king: is that transcribe summer? mr. francisco: yes. judge king: -- is that transcribe somewhere? mr. francisco: yes. as we got two different points in the argument, i asked the court, would you like to repeat what i said at the beginning -- judge motz: did you offer the

court a lesser part i don't know if it is worth us discussing but i don't than the instruction on 58 that all of it is in fact the law, so did you -- was there any discussion about putting part of it in? the first two paragraphs? mr. francisco: yes, there was. judge motz: so it is just the last paragraph? mr. francisco: yes. we requested the following providing your credibility or reputational benefit to another is not in official act, define and official act the questions must decide are both whether the charge constitutes a practice and whether that conduct was intended to or did in fact influences specific decision the government actually makes. judge motz: i'm on 753. what part of 753 was sort of your ultimate fallback position? or was any part of it? you to say all the nothing?

the language that you -- ok, maybe if you can help me with 753 since there are lots of volumes here. mr. francisco: you are looking at the proposed instructions. judge motz: i understand, but it every charging conference i have been to, there is some sense of give and take, and when i was asking you is in the charging conference was there any give-and-take yet coded you say all right, some of these sentences are not required by the law to it at least, is my view as we sit here. so which one did you think -- mr. francisco: we reduced it to two specific request. this is that pages 73 40 -- judge king: so you changed? mr. francisco: first he wanted our proposed instruction was her request. as an alternative, we requested that the court give two additional instructions at pages 70-40 and 73-41 at the appendix. and i can read it to you or i

can -- judge motz: this language -- mr. francisco: not verbatim. your honor, i think it is quite clear that as an sun diamond, as in the rather case, the district court claim to give an all-encompassing structure that swept in both lawful and unlawful activity. i would like to focus on one last point here before turning to publicity. our propose instructions both in the instruction itself another charging conference were clearly corrected statements of law that went to the but even if you disagreed with that, just looking at it in instruction on his face him a clear the object to that instruction on its face as being facially overbroad, and that instruction is a facially overbroad for precisely the same reason that the instruction in virtually was overbroad. the cousin allow the court to conclude or allow the jury to conclude that awful conduct like merely setting up a

meeting, or merely hosting receptions, constituted a practice of government -- governors and was a step toward achieving and and and therefore was an official act, just take simply answering a question, who should i talk to -- or sippy posing for a photo block is the government argued to the jury was an official act. given this went to the very heart of our case, it was incumbent upon the court as this court said in the unit sits against arthur case, to instruct the jury with the clear -- the clearest possible terms of what the lines of distinction were by refusing to do that, by likewise refusing to give a standard goodwill gift instruction the district violated the principle and the jury was permitted to -- even if, it completely agree with us as to what the facts of this case showed. i'm happy to answer any further questions the court has on this issue. all of this, of course, all of what we have been talking about assumes that we had a fair and impartial jury.

here, however, we don't even know that we had that. this was one of the highest row file criminal prosecutions in virginia history. judge motz: both sides wanted questioning. and there was give and take about what questions would be on the questionnaire. mr. francisco: not really. we join the submitted a written questionnaire to the court, both of us agree to it. judge motz: that's as ike -- -- that sounds like -- mr. francisco: oh sure, before hand. it included a question, have you formed an opinion that the defendants guilt or innocence in exposure to pretrial -- judge king: and it started out? mr. francisco: when they said the jury questionnaire at the jurors, he struck at questions of the jurors were not asked him have you formed an opinion based on your exposure to pretrial publicity? judge thacker: were there any questions about pretrial publicity? mr. francisco: the request is about whether you had been exposed to it and opinions.

have you express an opinion to somebody else based on your exposure to pretrial publicity? as we all know, there are plenty of people, maybe not in this courtroom, but there are plenty of people who hold opinions but don't feel the need to express them. which is precisely why we in the government agreed that the jurors should be asked happy for you and opinion? judge motz: they filled up the questionnaire is, some jurors were struck, you got a group of jurors there, and you all said no, we need this question. mr. francisco: absolutely. judge motz: so the judge said what is your problem? you said there are eight jurors, and they came up and they were asked the question. mr. francisco: may i explain? judge motz: yes, but your time is running out. judge king: you only name eight. mr. francisco: your honor, if i could explain. judge king: they say you waived it. mr. francisco: and he is clearly

wrong. we got to the hearing, we specifically said for those jurors expose publicity, they needed to be question. handed out the questionnaire page 1690, he said, no i am not asking these questions, you have to make a determination based on the questionnaire that we have. that is when he conducted his en masse standup sitdown proceedings, stand up if you heard -- judge thacker: and what happened? judge king: everybody sit down. mr. francisco: do me updated the third time. and we said, we cannot trust the credibility. so, three times rebuffed. then, your honor, and this is what you are getting at is 1692, the defense attorney made clear that he was calling out those who had answered yes to the question whether somebody had expressed an opinion, the only thing we were allowed to ask your it and that is where we caught at the jurors. it happened next -- we caught at those jurors who had answered yes to the question have you express an opinion comment on the very first one, we were

actually mistaken, the government's attorney pointed that out to judge spencer and said judge spencer, that first juror they called up has not said yes to the question, has he express opinion? he answered no. here's what judges spencer said and i am quoting from page 6096. i'm sorry ma'am, we thought there was something in your questionnaire. so you may have a seat. it is crystal-clear that at every stage of these proceedings from summit the questionnaire to showing up at the hearing to objecting at the hearing-- judge motz: then what happened at the end? did the district court say to your side, do you have any more? and the response was not on pretrial felicity. mr. francisco: yes, but that's because he already ruled -- judge motz: it's very difficult to be a trial lawyer. judge thacker: i couldn't agree with that more. [laughter] you have to keep making the

objection. mr. francisco: and we made it three times, your honor. with all due respect -- we cannot possibly -- the one thing would also point out is that waiver is in a legal issue subject to review and i do not think that you can credibly read this transcript and conclude that we waived him on the asked for it in the written questionnaire inextricably struck. judge thacker: and they asked in the written questionnaire? mr. francisco: yes. the government actually agreed and beginning that the jury on to the question on it. the district court then again said no, here is what -- said -- my position is that somebody is expose a pretrial publicity they have to be individually poor dude and i have a list of question is. we had them up. you are going to have toyed and by specifically the people that you think should be struck for cause, and the court make an assessment based on the information that we have -- i am not asking these questions. not aware of the case anywhere -- judge motz: but they did us

questions that you brought to the table. mr. francisco: only the individuals of the court permitted us to bring up, which were not by definition judge motz: did they say developing up a? mr. francisco: he said you can only be of those that had answered other questions beyond mere exposure to pretrial publicity. because we specifically said we want to be but a question every juror based on their mere exposure to pretrial publicity. judge thacker: so when they stood up that they had been exposed to publicity -- you wanted to question each of those in the corporate not permit you to do so, is that what you are saying? mr. francisco: yes. judge thacker: the court permitted you to do seven and those of the seven is said the express an opinion. mr. francisco: exactly, your honor. every case -- judge king: they said, if you can give them a fair trial, said down. mr. francisco: precisely. judge king: nothing like that -- mr. francisco: when a set, and i will close on this unless the court has further questions, no doubt each juror was sincere

when he said he would be a fair and impartial to the petitioner but psychological impact requiring such a declaration before one's fellows is often -- who amongst us with as of the question, no when asked if you can be fair and impartial? that is precisely why an individual -- is required. >> thank you. >> may please the court, i would like prevent a pick up right where the argument left off on the pointed out pretrial publicity. when the district court said after doing the collective questioning, the defense counsel could bring up jurors that they wanted individually question the court to not limit in any way the defendant to just asking

about the question of whether somebody had express an opinion. i think if you read the transcript when the court started doing the individual question, of jurors, you will see that the defense counsel was setting a variety of reasons for why they wanted to question somebody. there was not a point with somebody offered a reason to question somebody in at the court said no, i am not going to let you ask a question at this juror about that but that is not sufficient basis, i think they fair reading of the record is what the court was doing with say, give me a reasonable question i juror when you give me a reason. richard cooke: but we're not going to sit here and a medically question everyone. judge king: how many were sitting there? richard cooke: there were 142. judge thacker: re: saying the defense never said i would love to question all of the prospective jurors who were exposed to preach up illicit the?

and the courts it, no. -- pretrial publicity. in the courts said, no. richard cooke: the way i would put it is the court said give me a particular to the juror reason and did not say you know, look, you can only call up people who said he expressed an opinion. judge motz: you'd entire to the questionnaire? richard cooke: i think he was looking for a reason out of the questionnaire, but there were 99 questions in the questionnaire and you could -- they brought up exposure to press, expressed an opinion, a variety of reasons for individual questioning, and then at the very end -- that the very end, he said, do you have anybody else? and they said, not on pretrial publicity. judge motz: i think my colleague

is asking you a question what happened before that. let me try one more time. judge thacker: did the government ever object to the defense asking jurors about their exposure to pretrial publicity? richard cooke: what happen is, -- judge motz:judge thacker: so, no? you said the court should ask about that in the questionnaire. richard cooke: right, there was a questionnaire where we requested a question about have you formed an opinion and the court did not -- the district court did not include the question but they were a variety of other questions i covered that. then at the hearing, when defense counsel wanted to question every single juror prospective juror, we said, how about as an intermediate step that you question everybody who said that they had followed the case very closely or somewhat closely.

in the courts a come i am not going to do that. judge thacker: so every jurors stood up when asked the question have you seen any pretrial publicity about the case? richard cooke: right. judge thacker: is that what happened? every juror? richard cooke: that is correct. the court asked two questions. set, first, if you have read heard, or seen some thing in the media, i want you to stand up. then the court said, based on what you have heard read, or seen relating to the case, if you could -- if you are in your mind able to put aside whatever it is that you heard, listen to the evidence in this case and be fair to both sides, then i want you to sit down. and that is appendix page 963. judge king: interview but he said down. judge motz: -- stand up sit down -- richard cooke: no. that is what the court -- judge motz: the question that i have from what the opposing counsel said was that after

there had been this stand up sit down, they said, no, we want to have an individual velarde year of each one of these people to discuss pretrial publicity. is that what happened? richard cooke: right. judge motz: in addition court said no. richard cooke: right. judge motz: and eight people cap to the bench. so how do that happen? richard cooke: they said, we want to question everybody. then we proposed an intermediate step of the people who have said they follow the case there he closely or somewhat closely. and then the district judge hearing that said, look we don't do that is required but out of an abundance of caution that would be the better road to go on to it in the courts of well, you know what, am not want to do that i'm going to disappear my and devising, and his own devising was defense counsel, give me a reason, you've got -- i mean and terms of what he is saying, he is saying, you have got a very full

questionnaire, give me a reason for why you want somebody brought appeared. they offered up a variety of reasons and they cited them in a transcript, if you're be -- he will see -- judge motz: not just pretrial publicity but a variety of reasons? richard cooke: not just an express the opinion question. and the judge question a series of people and they said, we don't have anybody else on pretrial publicity. judge motz: did they ask questions and other things? richard cooke: there were further questions. the last part was about pretrial publicity, so there were some additional questions. judge king: -- richard cooke: yes, that's right. there are cases in baker and bailey, the court has said collective questioning is permitted and both of those cases involved collective questioning whether wasn't -- the defendant had not gotten what they wanted on a questionnaire. so here, this case has the added

benefit to full -- that the parties were armed with very extensive questionnaires and i court said, give me a reason and i will question further, so they did that, and they got to the end of it in the court succumb anything else and they said no. judge motz: can we turn the jury instructions? richard cooke: i would like to focus on the instruction that i think defense counsel has focused on as the key problem here, which is his proposed jury instruction number 58, on official act. judge motz: where is that? richard cooke: that is on appendix 753. that instruction is just erroneous. because what it says -- judge king: their proposal is erroneous? that is what you are saying? richard cooke: right. judge motz: that is why a probe

-- their fallback position, can you discuss that? richard cooke: the fallback position -- judge motz: tell me what you think is erroneous. the first two paragraphs and not erroneous. richard cooke: we don't take issue with those. judge motz: in a basically gave those. richard cooke: right. it is once again into this third paragraph that you start having errors they suggest that a government official decision on whether to attend an event or meeting or respond to a phone call are not decisions on matters pending before the government, and so they are suggesting that a meeting can never be an official act, and that is clearly wrong jefferson involved in of meetings that this court concluded were official acts -- judge motz: what about the next sentence? they are explaining, and in a say this is because mere ingratiate should an axis are

not corruption. would that -- ingratiate should -- ingratiation and access --short answer is no. but richard cooke:, i don't think of the supreme court in writing was meeting to provide a definition formally for bribery. and what i think it captures is the notion that if you lack an agreement -- judge motz: this is talking about campaign finance -- richard cooke: if you lack an agreement with corrupt intent to exchange things of value for official acts, then you don't have then, you have gone before -- beyond ingratiation and access. judge motz: did they ask for an instruction that included that sentence? in addition to the first two paragraphs? richard cooke: i don't believe so. what he has pointed to -- judge king: they only ask in the

context at which it was presented here, is that is what you are saying? richard cooke: no. there is this official action, specifically has it, now, today, he has pointed to starting on joint appendix page 7340, a fallback position that says, to convict the defendant, the official must receive the payment in exchange for performing or promising to form some specific official act. that takes out the course of content provision in it he says a gift or payment given with a generalized hope of some unspecified benefit is not a bride. that is the way, i suppose, of saying ingratiation and access. we had good instructions -- judge thacker: judge motz: it is a statement of the law -- it is word for word out of jennings, what you've just read, a gift or payment given with the generalized hope of some a specified future benefit is not

a bride. so that is a correct statement of the law. so where is that substantially covered in the rest of the jury instructions? the concept richard cooke: to read richard cooke: that concert discovered in two ways. one is that there is a good, essentially, i think unchallenged instruction on the requirement of an agreement. that what you have is both through conspiracy and you have the overarching quid pro quo instruction that is appendix 7669, which says, the official must receive the item of value corruptly in return for being influenced and performance of any official act. in that you have the good-faith instruction, which is judge kane pointed out, they labeled their critical defense and that is at appendix 7360, that the charge conference in the good-faith instruction captures this notion that if you are receiving the

gifts without an agreement, if you receive the gifts in good faith, but he were not guilty of the crime. and so, that is that point is substantiated -- substantially covered by the lack of agreement in the good-faith. and that provided them with ample basis to make that argument. judge motz: tell you what i would like you to address. it looks to me like the instruction that was given is correct as far as it goes. but it talks about things that could be crimes in a doesn't say anything that is not a crime. that is, i think, the just of what -- the just-- -- the gist

--it do that is a fair characterization? because they can be crimes, then it doesn't say anything -- it is not a crime. richard cooke: right. there are several points and would make in response of that. the first is that the key point is that the court begins by saying that the term official action means any decision or action on any question, matter, cause, preceding. so it has limited there, like look, this is the ultimate standard for an official act you have to make that. and as the court was pointing out, they began, you know, they are closing by emphasizing those very judge motz: restrictions. it seems to me that if the court had repeated that sentence every other sentence, but that might have done -- that would've made the charge more even, if you will. and that is what, you think that one engine of that -- or you had several points. tell me that your other points. richard cooke: the other points

are the you have considerable discretion in choosing the specific wording of an instruction from the district court. and you have cases like patterson where the court has said although more specific instruction might have been desirable, the defendant -- the discretion in choosing the particular wording, there is also the principal that as this court has said, good jury instruction has often that the council are you a factually in terms of a legal standard rather than making -- having making the judge make counterarguments for them. and there is the broader point that what happens is you have offered to the judge a large collection of instruction of the judge correctly concludes are wrong, then you have a long charge conference where a budget proposals are submitted to the judge, specifically that are either have their own flaws again or are things in

substantially covered at some point, the judge isn't responsive for coming up with a good proposals. judge motz: that makes a modicum of sense. mr. francisco: ultimately -- judge thacker: in a don't have to come with a good proposal here because the defense attorney done that. based on the lot. mr. francisco: they come up with the proposals that were erroneous richard cooke: or that didn't -- whether didn't train on the point that they are now suggesting. here is another would but the point. they have a proposing continue to propose a series of restrictions on official action that are just wrong. so they keep going back to something like a formal executive process, voting on bills, contracts, that is wrong under jefferson and him birdsall, you have to have some sort of policy-setting authority

at stake and that of course excludes a host of what lower-level employees and government to, and more the case of the prison officials the prison guards at taking bribes is a good example of that. they are not at the setting policy, they have arguments about the things the government provides, which, in jefferson, this court said look, a benefit that a foreign government in nigeria, for example, is going to account, and so, here, in contrast, we have studies that clearly -- judge thacker: can you give me this site again to where the good-faith instruction is located? richard cooke: that is a joint appendix 7692. judge thacker: is that the instruction that was actually given? richard cooke: yes. and the point where they said that is a critical defense is -- richard cooke: i found that-- judge thacker: i found that part, thank you. richard cooke: they have also

said categorically that meetings and events are never official acts and that is not true. tables and suggested that you have to accomplish the goal of the bride payment and that is definitely not true on cases like evans and brewster that said fifth almond of the quid pro quo -- judge king: you have to richard cooke: have a corrupt agreement? richard cooke:right. judge king: --judge king: you have to have a corrupt agreement richard cooke:? richard cooke:right judge king: you have to have a corrupt agreement? richard cooke: right. they have to come up with a more reasonable intermediate step it is never offered. judge motz: that it was that is why i was trying to talk about the charge and orbit hearing with the papers but there are lots of paper so maybe it was there somewhere. and maybe whether they came up as their fallback position with something that did not contain

errors and when you were sort of taking off these things, i think you are looking at the proposed instruction number 58 on the ja 753 and up the charge -- maybe you can tell me -- richard cooke: i rely principally on what they argue now at the charge conference. they have now directed your attention to 7340 and for that, i think it is covered, you know the concert was available. judge king: -- as a prosecutor, a long time ago, we used to screw rule 32 to require objections to be made after the instructions were given to the jury, but prior to the deliberations. that would boil it down. the judge would send the jury out and he would then hear specific objections to the

instructions as given. and then, after it was over he or she would tell the jury that they would start deliberating or bring it back into give more instructions. we always thought the rule required that, but you didn't do anything about that. you just obstructed them and set them not to deliberate, and nobody ever raised that kind of question. richard cooke: your honor is exactly right. judge king: courts are required to be done that way. rule 32 d requires that in order to preserve the points because then they boil it down -- you are not proposing instructions you are at the end of line. what would improve, what do you want now? richard cooke: the rules, your honor, is describing has a lot of sense in so far as what it does is it says after the judge

is actually read the instructions to the jury, that is the point where you have to register in objection so -- judge king: that is what the rule says great if you don't resurvey, and specifically, if you don't do it that way, and you raise an appeal, there is room for error. judge motz: did the race it? richard cooke: after they read the instructions, no. judge motz: did you make the objection? judge king: nobody said a word. there you go. richard cooke: in fairness, this is a point that -- at the charge -- judge king: if we had a better record for an appeal of things were done that way. richard cooke: if the charge conference -- judge king: whether it's preserved are not here. judge motz: i thought that the before or after the judge instructed -- before the jury deliberated, i thought that the defense counsel did say something like, we have our objections -- at some point, you

can say we have our objections we talked about -- judge king: that was before the instructions were given. the judge says he has been over there several times. richard cooke: and he told them your objections are preserved. which is why -- judge king: but we don't know whether he actually inserted him word for word, we assume he did. sometimes, as a say -- richard cooke: that is what we listen very closely -- judge motz: when you're calling was arguing maybe you can address that for me? richard cooke: in that case, one of the key points i think from that case is that you did not have the 20183 definition provided to the jury, you had something that was really broad where official action was defined in terms under the cloak of office.

which does not have the limitations here. and so, that case is one which -- we had straightforward constructional ever because we can capture the requirements of official action. judge motz: i thought that the piece he read to us allowed -- and i can't find it -- there is so much stuff -- the court said something like, defining, or reading just the statutory definition is not enough. no? richard cooke: i do believe that is in there. i may be mistaken, that was that is not my memory of the case. i think that the key point here is that it did not use a definition that fits the statutory language, and i would say the other thing, you know not everything in a case is

something that we agree with, and part of the problem is that not only did you have an instruction that didn't attract the definition, but the court's analysis did not stay tethered to that language either, which in this course opinion and jefferson, it was tied directly to that definition, and that is the way to go and that is how you analyze this case and that is why i think jefferson is a much more helpful case to the court then the other one. is because -- judge motz: to say nothing of jefferson being a president. richard cooke: that is exactly right. judge king: that was out of your district? richard cooke: it was. judge king: you say that this case was stronger than jefferson. because it involves an executive rather than a legislative? richard cooke: that's right. there offers several respects in which i think jefferson is a stronger case. admittedly, the conduct their in

dolls a lot more money and jefferson ended up with a longer sentence and so there are important ways in which what jefferson -- judge motz: more quid and more pro, so how is this a stronger case? richard cooke: in the sense of a definition of an official act and what was promised, in this case, what you have is ultimately what jonnie williams wanted was state-funded research studies and coverage in the state employee medical plan and that is more squarely in the realm of what governments do then the various trade and business ventures in africa that were at stake in the jefferson case, so in that respect, you have something that is much more core to what the u.s. government is doing and secondly, what you have is the influence that is being exerted here and the

official act that is being taken on the matters are all directed at a chief executive subordinate employee. jefferson was essentially lobbying these foreign government officials over whom he had pretty limited powers. they want the united states government to be friendly to them, but it is a different matter when you have somebody like mcclure or lazo, the doctors that these universities getting the governor of the state saying, but this is a good thing. i mean, that is just a very more direct -- when a highest government official -- judge thacker: before you finish, i want to ask you one question about the goodwill instruction that the offer. that was taken out of jennings. if the government objected that?

-- did the government object to that? richard cooke: honestly, i -- judge thacker: it is a correct statement of the law. richard cooke: in the context of -- judge thacker: -- richard cooke: their proposal on 73 40 still had the specific official action requirement which read out in our view, the course of conduct scenario, because in jennings is said both were true, like you could have an agreement for a specific official act or you could have this course of conduct theory which is what we had here. judge motz: included in that, the government found it objectionable but there may have been some follow-up back-and-forth that we will hear about. richard cooke: if what they had been offering was just the goodwill gift, i don't know that

we would have objected. what they are offering was a proposal that got rid of the course of conduct theory that has been repeatedly upheld by this court and in jefferson and in jennings both. judge thacker: they certainly argued gifts. richard cooke: that is true. judge thacker: no doubt about that, it permeates the argument. richard cooke: at some point, we don't have to offer instructions for them. they made multiple tries with errors in them. judge king: they have to offer correct instructions. richard cooke: exactly. judge motz: this case strictly as one in which -- this is not an earth shattering observation -- but that there was a lot of quid pro approval and there is not even much of an argument about that. the quote isn't -- the quyoo is

much thinner. richard cooke: i would say about that, the nature of the payments has evidentiary force in the sense that many see some of the getting $177,000 worth of payments in cash and luxury goods and that sort of thing, that is informative about people's motivations and what they are doing. you still need to meet -- you don't have to have the official acts performed, but there has to be an agreed-upon official act. so you have to meet the test. judge motz: will you meet the five actions? richard cooke: i mean, it it would have been a difficult case, but that would suffice. whether the government would have persuaded the jury that there really was an agreement here with -- without good faith

and corrupt an attempt to fraud i'm not sure whether we have secured in it -- a conviction. when you have a two-year pattern of conduct in the timing of it in this case is just, i think devastating for the defendant. you have him going on the vacation, he drives the ferrari home, that drive home, he lies about it saying, there is no recreational use, and of course there was. and 90 minutes after getting home, he is sending an e-mail to bill hazel who is a guy to fix that jonnie williams has got a lot of junk and refers to him as the tick tack man says, said the deputy in the morning to meet at the mansion on the planned studies of -- at uva