the europeans don't. you have this body creating rules and the only imperative is how much privacy can we guarantee. them a have these. here who have to live with those rules. they have got rules that of an developed -- i'm overstating is a bit. roles that of an developed largely absent security considerations. that is another -- waiting at the war and they don't. even within the law enforcement model you have got limits on what the nations can do to protect themselves. i am finally down. now i am in brussels, the victim, and that is a small under resourced, from time to time is functional security service working for what is almost all the time a dysfunctional government. nature -- 90 have real issues. marc: yet people with no responsibility for the -- when they can prevent the attack,

they are responsible but not --gen. hayden: what i think will happen is you have the brexit on the monetary union, and we might not impact that over. is creating torque because they have transported security to the euro institutions and they feel uncomfortable about it. i think as they think through what i just said this privacy-security torque will create great tension within the union. unless the union adapts to what i just pointed out, this is going to get worse and lead frankly to the crippling of the union.

besides whatever it might do to the powers and so on. marc: the logistics chief those captured. key is what we would've called in the cia contact a high-value detainee. someone who of the whereabouts, location, identities. will we captured a high-value detainee, not only did not read them their rights, we did not announce the capture necessarily. we knew that if he did and people knew we had one of their compatriots, they would begin closing down the e-mail accounts, maybe accelerate their plans for an attack. in europe we had a situation were not only did they announced the capture, we had every european leader in the world holding a press conference and he's getting this information. which likely accelerated the attack. is that a mistake and doesn't this show the need for secret detention? gen. hayden: there are lots of things you can go back and be

run a video and say not so much. you can imagine the political pressure on local leaders to show progress, competency, or at least claim competency in terms of we're doing this or we are doing that. i agree with you. in a world in which were focused on security, in which you don't know where the next she was going to fall --shoe, is going to fall these are self-defeating things. if we had picked them up in somalia, i would buy totally into what marc set. that is not current american policy. there is a fair argument that if he had been picked up because of the energies of american lawn is meant -- law enforcement in the homeland, i'm running up a much steeper hill to claim we should begin detention inside the american intelligence services.

that is as a practical matter inside how we as americans view ourselves and how we pick between using the law enforcement model. even here, even if the cia, it would've been a tougher case to make to use the law of armed conflict model for someone who was arrested by american law enforcement inside the united states. all that said, one needs to make a judgment based upon the mentality of circumstances that you find yourself in at the time. the complaint people like me have is not that we did or did not do that in this particular case. it is that we do not do it. in any case. we have taken that tool at the table. people talk to me about would like to get the technique back? i stopped the conversation and said i like to capture somebody. we are not already committed to

putting through in article three a court process. marc: so in the obama administration they were caught in the same criticism in 2009 with the underwear bomber. they immediately read him his rights and it was a mistake. even administration today doesn't necessarily read them the rights on the first day. gen. hayden: that is right. that is a palliative to the stress point you just described. i'm a little worried. i like miranda. i don't want miranda adjusted casually. miranda protects me and you. rather than turning the dial backup miranda because you have chosen to do this from a law enforcement model, we are going to go light on miranda, i don't the fed's getting in the habit of going light on maranda. i think the solution is rather

than fooling with something of which we all rely, why don't you begin the process over here in the law of armed conflict model? anything you develop would never be used in a court of law. at some point later you would put him in the law enforcement process, i truly don't care. marc: exactly. that's the difference into law enforcement approach in the intelligence driven approach. law enforcement is capturing somebody after an attack has happened in your trying to get them to cooperate in providing evidence for a little conviction. time is a friend because you build rapport and do all these things. marc: and you can do more in the law enforcement model because

under the army field manual, district attorneys say would you rather be in a federal prison or the general population in rikers island? or if you cooperate we will take the death penalty off the table? gen. hayden: that's right. that would be forbidden. marc: you can see 9/11 coming. give the first world trade center attack. yet the uss cole, the mc bombings and other sciences was coming. -- signs this was coming. now we have the paris bombings and the brussel bombings. it seems like this story is repeating itself. the director of national intelligence testified it is likely that isis will try and directed attack against the united states in 2016. clapper said they will not be satisfied with lone wolf. they want directed attacks. are we reliving this movie.

gen. hayden: we are. a couple of thoughts. not specifically consistent with the thinking that this is post manuscript. a couple of things. i will try to be very efficient. if this was a degree of threat under which we exist, i'm pretending this is where we are september 10, 2001. through the efforts of two some of it -- somewhat different administrations we got better. we really did. about 2011 we got about here. since about 2011, it's going back up. here is not here. we are not get to that point. we are safer than we were on september 10. we are less safe than we were in 2011. if that is what you meant by your question, the answer is yes.

we are going to the same cycle. in terms of what do we do about it, i tried to do this extended metaphor two days ago. i only have three minutes. [laughter] here is the metaphor. if you take everything marc just talked about, how can the villages can do wiretaps? how far do you want to put the metal detectors up from the airport? let's think of soccer. we just had an argument about stopping penalty kicks, or at a minimum we talked about needing a bigger, struck -- stronger, faster goalie. the trendline, and this is whatever good to the europeans with, when something like this happens you start talking about goalies. how come you didn't know it was this guy? how can he did no better security at the airport?

white politicians make big statements and someone? it still within the 18. somebody has a real opportunity to score. practice defense, get some better fullbacks, train your goalie. that is not a winning hand. if you're playing inside the 18, are playing to stop penalty kicks, you know it's going to go back into the net again. be extended metaphor is control the midfield. move the game up. the metaphor for controlling the midfield is to do all those things you ought to be doing before the attacks. things like what? espionage, collecting metadata, comparing the data with known -- you guys know this. you do all those things that a lot of the european friends are wringing their hands about. i am less inclined -- i might

criticize the build him's what they did immediately. i'm less inclined to criticize them for their police did in that 96 hour period. i am more inclined to say now you want to have a conversation you thought you had two years ago about electronic surveillance? you want to do it now, with maybe a better handle on what the real facts are? and why this is being done? i just thought the soccer metaphor would work better in europe than baseball. [laughter] and i mean it. that stuff that became so controversial is about controlling the midfield. david ignatius has a wonderful piece in the post two days ago where he said after this all the europeans are now lining up in front of the american intelligence leviathan. [laughter] they are demanding more product. they are still wringing their hands about american collection. control the midfield.

extend the metaphor. about one more -- i have got one more. after you establish control, you can plan attacks well before they are in your airports or your sovereign space. once you think about scoring goals why don't you get into the attacking zone? why don't you begin to threaten their goal rather than worrying about yours? aggressively take this fight to this that back to my speech and the german embassy, take it to where they reside. get real tough in mosul, get real tough of the islamic state. i will be overly dramatic. here comes. i would not be opposed if we used social media, traditional leaflets, we blanket that part of the earth called the islamic state with the notification if you move oil, you are going to die. period.

i think that's a legitimate act in the armed conflict in which we are engaged. you make it very clear that we are serious about this. in any event, the point i'm trying to make is a lot of the conversation gets right down to the last 18 yards. the real answers are deeper. they hearken back to those feaux discussions and debates we had over somebody's telephone or some country's metadata. marc: the administration would argue that they are getting tough in those places. they just killed the number two leader of isis. they claim they've taken back 40% of isis'territory. that's a little bit like letting a cancer go untreated for many months saying you have reduce the tumor by 40%. by the way, it's in your lawns but it is -- lungs but it's

spread to your liver. that something to celebrate? gen. hayden: you're asking me a political question and i will give you a political answer. professionally, i think you can fairly characterize our effort against isis is what we call a level of effort campaign. we have been told we will give that much. ok, do everything you can with that much and under these rules. i would say, and are probably good friends of mine that we disagree on the inside, i would say we are not working backward from the desired effects we wish to create. therefore, resourcing and governing our effort based upon

the desired outcomes, here is what we can offer. here are the rules. go to the best you can. and we are actually good. i said recently i got to be part of the greatest killing machine in the history of armed conflict. i am disappointed with the pace and the level of effort. a good friend of mine did gulf war 1. he would say the current air campaign is like a fine irish mist intended by god to be a thunderstorm. when you think of it, we are hitting at the rate of about 20 strikes per day. that is modest at best.

i would have amped it up. i would have moved the threshold with regard to direct elegant -- tolerance for collateral damage. on the outside looking in i think the right number for collateral damage right now for roe's is zero. i would make the argument that might be a moral position . because if you pass up multiple opportunities because of fear of collateral damage, you may end up with more dead innocent people because you have not suppressed the enemy's capacity to do harm because of your almost total allergy to collateral damage. we have talked about this. these are always hard choices. it's really unfair to second-guess but you asked. by the way, this is one war with a kinetic fight is ideological.

the battlefield defeated the enemy undercuts the ideological jihadist narrative. these guys are somebody because they are successful and they can advertise themselves as representing both the will and the hand of god. nothing undercuts that like battlefield feet. marc: exactly. the other thing, if they know the rules of engagement, when they think there is a drone fly over, how do they going to a hospital? guest: they have well practiced intermingling. marc: you say we are better than protecting the homeland before 9/11 which is why we are safer.

isn't that what becoming more complex? before 9/11, there was one threat. now, isis is spread out. you have all the al qaeda affiliates. we now face the danger from multiple terrorist networks operating in multiple countries and also the new dynamic of free market competition. you have two major terrorist networks. how do you and that fight? gen. hayden: it is more complex. i read the cia press every morning. very frequently, very recently, yet another great day to be another senior informant official. [laughter] gen. hayden: as much as what i

just said, you cannot kill your way out of this problem. if we could do that, this would have been over 14 years ago. you are more brought issues we have to take on. everyone in this room would agree we are less good at that then we are about the killing people thing. that is a part of the game we really need to recharge. it is a part of the game which we don't have direct control. it is a part of the came that we are far more dependent on our allies in the islamic world to achieve success in any success we could personally the chief. -- achieve. to begin the conversation, one of the things we have to do is to get over the fantasy that this has nothing to do with islam. by the way, the response to this has nothing to do with islam is they all hate us. ok?

frankly, i believe this begets that and they are both wrong. i think what we need is an adult acceptance. this has something to do with islam. it is not all about muslims. but it does have something to do with islam and we need to talk about our muslim allies. the king of jordan says the civil war is with islam and the president of egypt is wagging his finger at the theological fact that it is about islam. i am very careful how i say this. i understand this is one of the world's biggest monotheism. there is a struggle how it wants to deal with certain issues. we cannot resolve it, but i don't think we serve anybody by pretending that is not what is happening. therefore, perhaps, we can help

empower those voices within islam that we think actually have the best answer, not just for ourselves, but for islam. people like the king of jordan. so, there is a lot to be done and what i am saying, the complexity is beyond the battlefield threat complexity. there is a deeper complexity and our tools to influence that are in direct and distant. marc: and empowering people at the local level. the number one victims of islamic radicalism are muslims. their killing more muslims than people in the west, at least for now, right? gen. hayden: i will offer you a view, hyperbolic, but not without truth, that we are merely collateral damage. we are the collateral damage which is a war in one of the world's greatest monotheism. marc: one of the reason the search was so successful in 2003

in iraq because they were rejected by the very people they represent. gen. hayden: the sunni tribes. marc: they came to drive the u.s. out. that was a major ideological defeat. how can we empower people in the muslim world, who hate isis, to join us in that fight? gen. hayden: well, listen to woody allen. who's fundamentals of life is 85% is showing up. out of our way, our friends -- arab friends. given historical circumstances

and who we are in the world right now, which is not a permanent condition and does not indicate any -- given the reality of the world which we now live and the relative power we can exert, our showing up creates opportunities for things to happen. our not showing up actually cuts in the other direction and in fact, might be a negative because of his begin to go do things on their own, and it turns out they are not good at it. i am suggesting invading yemen, for example. it makes the situation worse. i think there is a powerful role for american leadership here. i am not calling for the return of brigades to the western iraqi desert. it is a powerful role to play.

this is all beyond the context of the book that closes out with snowden. that is in there. i do not understand the lack of a no-fly zone. things that i think would be broadly accepted by what i call the civilized world, christian, jew, or islamic. marc: you have accomplished what it not a single gop candidate has done, you got donald trump to back down. he said he would employ waterboarding, or worse. he openly used the word "torture." you pointed out that the military would not act down to break the law. is that going well beyond the edge? gen. hayden: do you have a copy of my book? we do somewhere. i'll pretend.

my wife says -- i thought i would have to spend the book tour explaining my collective aggressiveness and going to the edge. did not happen. because of the dynamics of the political campaign, the book tour was more or less consumed by my explaining that there were edges. [laughter] gen. hayden: no, we're not going to do that. rather than explaining why we were here, i was explaining why we would never be here. it was an incredibly remarkable thing. the easy one is that we are going to kill their families, too.

that is the one where bill mahr asked me. i already told you my view on collateral damage. i'm willing to embrace a bit more risk for the desired military affect. he was talking about killing the innocent. that's bad. i mean, just morally. that is incredibly stupid operationally. you still are mad for 9/11. we are 15 years. why do we want to create that dynamic inside our enemy? by our going -- by killing their noncombatants. the tougher one was his call for waterboarding, which i did talk about in the book, which we did take off the table, which i justify as having been effective and defend the people who did it.

there is a little more nuance and i haven't had as much chance to get into it. he is doing it with enthusiasm. we did it with regret. he's doing it because they deserve it. we never did it because they deserved it. we did it because we thought they knew something that we had a right to know in order to keep our citizens safe. he appears to want to do it frequently. we did it rarely to three folks. his language on waterboarding was so bad that it actually gave waterboarding a bad name. [laughter] gen. hayden: ok? and i recognize it, that -- there is a lot of language in the book that object to people having done it. i get that the greatest respect. all i argue is that we did it out of duty, not enthusiasm, with the legal judgment we had at the time.

it did, in fact, lead to information. a really honorable opinion is don't do it, ever. right now, u.s. law says it is off. you can't do it. i also make the point, i made the point on the book tour and i make it in the book that if a future president decides he was going to return to this, somehow creates a legal framework where it is no longer unlawful, i say quite specifically, he better bring his own bucket because the cia is not going to do it again. i explained it in the back two or three chapters in the book, the people who did it in good faith, believed there were covered by the government and by their government's legal opinion. they felt an undying sense of betrayal about what happened to them after the change of administrations, so there was a

show on showtime called "spy masters." they interviewed us a long time. we were very happy with it. they have several of us saying no to waterboarding. it was not a judgment of the actions performed in the past. it was, we thought when we did this for you, the big you, we had a social contract in perpetuity that the republic had our back. turns out, in perpetuity, is one off year election cycle and the agency has taken -- it is a complicated issue and

the most offensive part of the current debate is how stupidly marc: also, for trump, for us, waterboarding was the far end point. for trump, it is the starting point. michael: yeah. the reality is -- marc: we do need an interrogation program for terrorists that does not include waterboarding today. that does something more than the army manual. if we are going to prevent another 9/11, we are going to have to start capturing and interrogating them again. people who disagree with what is done by the agency, has to knowledge there was a line and the government, whether you disagree with the line should've been, the government did it knowledge online, stay within a line, and try to do it.

trump wants to just erase the line. doesn't that undermine destroying something we need? michael: that is my point. he is poisoning what has to be a carefully crafted, deeply conscientious conversation by a free people as to what it is you think is or is not legitimate based upon the totality of circumstances in which you find yourself. this put us back away from this discussion and poisons it. -- that pulls us back away from this discussion and poisons it. marc: they are trying to get -- unlock the phone of the san bernardino shooter. this is been painted as a dispute between the tech world and the national security world. in the tech world, you have people like bill gates saying apple ought to be doing more.

in the national security world, they have people like you, who have actually back apple. explain that to us. [laughter] michael: it's like, were you on the night of september 11? i go towards apple. there are many ways of looking at the question. it is a constitutional question. if you asked my opinion, i think the government has within its authority to compel apple to do what they want apple to do. congress can make it so. i don't think it is a constitutional question. but apple is throwing up the first, fourth, and 13th amendment. i don't think it is a privacy issue. he is dead. there are no privacy issues.

by the way, it was never his phone, so i don't think these specific acts began to engage question security versus privacy. i am over here looking at this purely in a security lens. i think it would be a good thing at the government could get there. i think the government has the authority to demand it. i just it is a bad idea. it's a bad idea because jim, said the most serious threat is cyber. that you have a private companies who apparently has developed a great encryption. the government cannot get into it. now they will demand this company create something that does not yet exist, which is a way to get through. all i am saying is, what apple has done, it would be less secure and less secure even if you keep it over here and it requires multiple keys and to go to a court.

all right? the fact that you have created this, by definition, is less secure than it would be had you not created it. the director of an essay, when you are going after a really tough algorithm, and i have one of my people come in and say, we just found out that someone else has been granted extraordinary access through the encryption. my response was, thank you, lord. by the way, that may not be enough, but the odds of my getting and have been increased because i have additional tools, that i can use to get beyond the encryption. when this began, i wanted to side with the bureau and the

theory under which i was trying to side with the bureau was this is good, this is bad. and i am not sure if this leads to that. but the longer this has gone on, the more i am convinced this is not a one and done. first of all, komen has testified that this will establish a president we will use in other cases -- presidents we will use in other cases. mr. vance, the u.s. attorney, said he has a room with 175 just waiting to go. i don't think it is one and done. i was trying to say over here, but now i am convinced, it cannot stay over here. this to a less secure operating system. i can do this very briefly, let's say i am wrong?

what if we say, ". what have we done through legislation or court order, prevented technological progress. i am not feeling good about that being a winning hand. ok? even if we are successful in doing it in north america, the sum total of all this will be pushing this offshore, which i think is the worst of all possible outcomes we could get. wait. there is more. if the government does get the authority to do this, what is apple supposed to do when other governments, for their own legitimate law enforcement reasons, what they perceived to be their own legitimate law enforcement reasons, now come to apple and say, i got to get in here, it is a fallen gun guy.

let me get into the phone. or the egyptian government comes and says, i got to get in here. he is a terrorist. i'm kind of suggesting that countries have brought definitions of terrorists. have you answer that? one more turn of the wheel. it doesn't matter. the march of technology is long and arc in which it will be more and more difficult to retrieve content from intercepted communications. there is nothing we can do to stop that. my counsel, and the folks i left behind, is get over it. understand that no matter what we do with apple, it is going to get harder and harder to get content. that doesn't mean it's going to be impossible to get intelligence out of intercepted communications. you are not going to be able to

get content. now imagine, apple has created this problem by creating this really powerful operating system with powerful encryption. and they gave you digital exhaust blowing out into the atmosphere that a good intelligence servant can't collect -- service can't collect. and glean an incredible point of information. one more point, did you ever think the last 15 years would be an anomaly? do you think that what is abnormal -- what is happened recently that you and i that were really well protected and decided to put it in our phone with -- were not readily retrievable? now we are all regretting it.

it is simply returning to status quo. we lived through a period of 10 to 15 years where electronic surveillance, even law enforcement or for -- or foreign intelligence, has a golden age. we put it up there not knowing how vulnerable it was. you are kind of returning to the states back here. you are far more detecting it. sorry. far too long of an answer. bottom line is, yeah, i am shading apple on this one. by the way, think of all the things -- mike rogers and jim klapper have said about this dispute. ok, you are done. [laughter] they have not. this is not fundamentally a

foreign intelligence problem. it is a law enforcement problem. the foreign intelligence guys know they can cheat. [laughter] so, let's talk about the book. [laughter] marc: one more questions on apple. play doubles advocate -- play devil's advocate. everyone was criticizing them same a should have resolved it quietly. they put out the word saying, we can break into it. michael: we will see if it happens. if i install director of nsa and apple says we are not going to do it, and i am agreeing, the next phone call is down to omb saying encryption is getting better, i am going to need another $5 million because i'm

going to kick my way in. that is fair game. that is different from telling apple to build something that may make the system less secure. look, there are so many factors bearing on this. we used to do this map against encryption that was not universally available. when you do the math against encryption that is not universally available, game on, kick the door in. right? fundamentally, now what is happening is it is against encryption we all depend on. that changes the math problem. marc: fbi goes to apple and says, help us get in. no, we will not let you get in. that means apple has a security vulnerability. why would apple -- michael: do not presume the answer to that question.

that may the government's preserved -- preferred position. we just have this grand debate about nsa and vulnerabilities when it either creates or discovers a bone ability and encryption. the outcome of the national debate has been nsa has been shading too much of exploited the vulnerability rather than fixing it. marc: there is no incentive for them to help out all right now. if they figured out a way to get into iphones, -- michael: the incentive to help apple is there broad, moral responsibility to make america a safer and more secure place. marc: all right. let's talk about the environment we face today. if you go back to 1990's, 1988 when george h w bush is running for president, no one asked him about saddam hussein and hussein invades kuwait.

president, nobody asked about al qaeda. the 9/11 happened. -- then 9/11 happened. looking at the threat environment, you're in the middle of a presidential debate, what is it that nobody is asking the candidates about that could into of dominating the next presidential term? michael: used to get that questioned, who do you think is going to surprise you, general? here is how i into the question. my matrix is how bad are they and how much time do i have? vertical axis, horizontal axis, how bad, how much time. in the lower left-hand column are things urgent, but not existential. he can go bad because a tsa guy in dallas missing that decision.

i go out for years, i get another flavor of threat, a group of nationstates i have taken to label and fishes, brutal, and nuclear. north korea, pakistan, and i throw the russians in there too. when it goes bump, it is worse in what we are worried about because of brussels. i probably have 3, 4, 5 years to get a handle on them. i go the timeline to 10 and way up here is china. again, i don't want you to think i am treating china like al qaeda, or china like north korea, i am just saying that the accommodation of the people's republic is the most serious security challenge we have. we do have some time. that is how i make it. it is not quite the answer.

marc: tummy what you don't know, general? [laughter] michael: so he wanted to make it up. i do think that the brussels event will create incredible torque in the stability of a part of the world that is important to the united states. that added by the immigrant crisis, by the instability with turkey, we are going to have to pay attention to europe. that may be something that is going to be pushed. let me be kind. you have a populist government movements in several european countries right now if they were to be successful, would, i think would begin to challenge condoleezza rice and george w. bush's whole, free and at peace.

marc: let's talk about the tension between intelligence community and the press. in the book you write a great deal about the efforts you went to to prevent the "new york times" reporting things harmful to national security. you also say that the informed public is the lifeblood of democracy. how do we cut the balance between and if and the need for security? michael: the most important part of the book long-term is a conversation i had with carly fiorina, who was the head of the cia advisory board before she came -- became the presidential candidate. the question i gave carly, this was 2007, 2008, pre-snowden. i looked at carly and said, carly, i have a tough question for you -- will america be able to conduct espionage in the

future in front of a broader political culture that everyday demands more transparency and more public accountability from every aspect of national life? came back three or four months later, carly , america be able to conduct espionage which relies on secrecy for success? she looked me right in the eye and said it is too close to call. which is really important. what is happening is our political culture in terms of what is demanded before it trusts government is moving out from under the social contract the american intelligence community thought we had.

with american society. thoroughly ind the book. nsa was horribly back footed by the snowden stuff. i'm very disappointed that the administration particularly didn't explain things more quickly, more completely, just better. one of the reasons nsa was back footed on the 215, the metadata, your phone bills, is that this thing had been approved by the president. approved by two presidents. it had been no legislated by congress. it was well known to the oversight committee who are the strongest supporters of the program. overseen by the court. i say that is the madisonian trifecta. jack, we are good to go. that is the church bike solution. what happened when the program became public is a lot of our countrymen and not all of them are here on the wingnut population, a lot of solid citizen said i'm not so sure

that constitutes consent of the government anymore. that may be consent of the governors. you told them, but you didn't tell me. we really do have a challenge. how does my old community tell abouteaving you, enough what it is we are doing that we have implied sanction without telling you so much that it is not worth doing? raised the question you and my weight rephrasing it. that is the challenge we now have. isnswered bumper sticker ish we need to be more transparent. we need to tell you more. then i say quickly, don't totend that is not going shave points off of our effectiveness. it well.

but then again, we want you do it anyway unless we tell you more than we do already. hayden,i am with you, but not transparent. translucent. which is not bad. can see the broad shapes. i can see the broad movements. i can't see fine print. trying think what we're to find is what is that sweet translucent spot? we will never get the extremes. where most american say i have a pretty good idea of what they're doing, i am ok by a. that is as good as it gets. we have to find that spot. this is not going to pass. there has been a cultural shift. i make the point in the book in , we have to accommodate to it. that is how this works. >> last question for me and we will take some from the audience. doesn't it seem like the intelligence community is in this vicious cycle?

9/11 happens and we say why didn't you do more? and we set up the metadata program and the cia interrogation program and they work and the attacks don't happen in the following are disrupted. over time, people become complacent and say why are you doing all that. my privacy is being infringed in all these terrible things are happening. then we start peeling them back and another attack happens and we are back at the beginning of the cycle. is that what we are doing right now? mr. hayden: yes. i let myself one existential whine. i hardly ever get this at heinz field. american political elites feel free to criticize our intelligence service for not doing enough when they feel in danger, and immediately turn on a dime and begin to criticize them too much as soon as they feel safe again.

that is kind of harsh, but that is also kind of true. that is where we are. marc: let's take some from the audience. >> thank you very much. my question is that this war has been going on for the last 20 plus years and i think the cia knows everything that is going on around the globe. my question is that it started with al qaeda, then taliban, iso-, isis, and all the things continuing. do you think maybe osama bin laden has been dead, but still among these people? secretary carter and the german were speaking at the pentagon press briefing. finally, who is training them. where are they getting all these

weapons and financing. who do you think today you have to control, two or three nations you can control all these terrorists. thank you, sir. mr. hayden: this is covered a bit in the book. on the night bin laden was killed -- i say i was actually surprised by all those kids going to lafayette park. it was just, really? i guess what it betrayed was an attitude of people with our background knowing there was no finality in this at all, that everyone had to go back to work the next morning at langley and continue the hunt. the general population felt some sense of closure. on one level, there is a legitimate sense of closure. he was the guy most responsible

for the attack, but we never had any sense of closure. this is good, but it was going to be long-standing. i go back to what i said in the book. until you change conditions on the ground, you just get to kill people forever, and that is not a happy outcome. so we really do need to begin a serious dialogue about changing conditions on the ground. it is not in the book because it postdates the book, but we are seeing the melting down of the world order as we know it. we are seeing the melting down of the post-world war ii order. frankly, we may be seeing a little falling on the edges in terms of the power of the state for matters of the elegy and definitions of citizenship, and so this probably isn't about getting bashar al-assad out of

government. it is, but it is about so much more. and so i guess my answer to your question is we need to get on with this. we are not going back to where we were. iraq no longer exists, syria no longer exists. probably put lebanon in there. this is not about getting back to the stable world order that has pushed somebody out. that is gone. the next president is going to need the equivalent of the long telegram to kind of scope how fundamental the issues have now become. until we do that, we're going to be doing this for a long time. marc: in the back over there. >> thank you. kurdistan tv.

how important is it that the peshmerga should be armed? in your opinion, how did isis -- mr. hayden: i think that is called a leading question. it ties closely to what i just said. this is me being critical of policy, which is not quite the traditional intelligence officers role.

if you believe what i said about iraq not existing, why would you insist on approval from baghdad? my instinct -- look, i understand. if i am still back in the government one has to be careful about what one says. this is all about new structure in the middle east. i think a useful building block would be the kurds. i realize all of a sudden that all my turkish friends are getting concerned. if the old is gone and the new is yet to be created, i think a good conversation have is what is the future of the kurdish autonomous region? and the other coders reason, the one in syria now. i would not constrain myself for the old models. how did isis come about, long history. the most recent one i would tied to the american departure in 2011. as we left, this would have not defeated isis. it was simply that we were an

effective stopper in a bottle that was still unsettled. while we were there, the three factions in iraq still distrusted the others, but were reasonably convinced that as long as the americans were there and some numbers that the other two were not going to eat them. as soon as we left, they also may fear that they were going to eat them and begin to move to their respective corners and act in ways they thought were defensive but were perceived by the other two factions as being horrifically offenses. that created the petri dish for isis to resurrect. marc: this general and right there. >> about rules of engagement -- back in the day. what were the rules of engagement or roles of rendition

to a third country somewhere? >> we had to have assurances from the third country, and insurances we believe that the prisoner would indeed be treated humanely. and then we embraced with a moral and legal obligation to ensure that indeed what happened. i do get the question from time to time, how can you be sure? the answer i give you is after all the cia is an intelligence organization. those of the ground rules. the current administration, that rendition policy, the same today, ok? there is a little bit more noise and we insist on guarantees and so on, which i find a little offputting. as if we weren't as much

concerned about the law. there is powerful continuity between 43 and 44. there really is. one of the things the europeans remark on is not how much president obama is different from bush, but how he is so much like president bush when it comes to the war on terror. i would offer the view there is a bigger difference between the the first and second bush administration than there is between 43 and 44. i could fill the rest of the afternoon complaining about things that were changed. there is a quote in which a german is deeply lamenting, we

thought it was just george bush. we thought there were two americas. now we know, there is just one america. to which i respond, cool. [laughter] mr. hayden: it was stress producing for a lot of people who are friends in europe. marc: last question. lady way in the back. >> thank you, general. you had mentioned some limitations. i am with sinclair broadcast group. you mentioned limitations from some of our european counterparts, especially as it relates to intelligence. does this mean it is time for the u.s. to have a larger global role?

would europe be ok with that? mr. hayden: i guess my argument is we do have a large global role and we have stepped into that. what i would be inviting is we not be the lone striker dribbling the ball into the attack zone, that we actually got somebody on either wing. in that we have the sincere conversation with our putative teammates about the midfield. you realize that we can argue about specifics. this is not the forces of darkness trying to suppress european privacy. let's do that one again, all right? with maybe a better understanding of what it was. and then with regard to this definition, if you think you can handle this problem at the greek border and make it go away, you are wrong.

therefore, why don't you come up here and start playing ball in the offensive zone too? we don't have much time, and this is coming out harsh. this is a conversation among people who share our values and interests. with them we should be able to have these conversations. it is time for us to do this, ok? that german embassy thing that i was talking about, i am hitting this pretty hard. we feel comfortable doing this, and i'm getting pushed back. this is related in the book. the ambassador wants to find some common cause. i'm standing next to him talking to the gathered ambassadors and

he looks up and says, general, surely you must admit that we are all children of the enlightenment. [laughter] mr. hayden: i said, yes, sir, mr. ambassador. the europeans seem to be hugging locke a lot, and we are over here with hobbs, which are two great enlightenment philosophers that our common culture and civilization embrace, so why can't we begin to share our view of the problem. it is part of our mainstream. marc: thank you for taking our questions. [applause] marc: mike has agreed to sign books outside. please wait while we get him out to the table and then you can ask questions as he signed your book. thank you very much. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2016] ♪

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starting monday, the supreme court cases that shaped our history come to light with our .eries landmark cases real life stories of constitutional crawlers and constitutional arguments. >> is the ultimate in the presidential case. it is exactly what you know what to do. the supreme court said it shouldn't make decisions about those. >> landmark cases begins monday on c-spanonday night and c-span.org. >> on wednesday the supreme

court heard oral argument over 150 yo whether the health care w violatested mandate the religious freedom restoration. this is about 90 minutes. >> we will hear argument this morning in case 1414, zubik v. burwell. >> the little sisters of the poor and their co-petitioners faced a dilemma that the religious freedom restoration act is not allowed. they can in here to their religious beliefs and pay millions of dollars in penalties, or, they can take steps that they believed to be are morally and religiously objectionable, that the government believes it is

necessary for them to provide contraception coverage through their health care plans. the government concedes the sincerity of these religious beliefs, but attempts to recast them as an objection to the very act of opting out. with all due respect, that is simply and demonstrably not true. >> can you explain to me, the analogy with -- many of them felt that general believe they were pacifists, that if they registered as pacifists, that would mean other people would serve for them. they were going to jail and many of them were going to jail. why is going to jail less burdensome? or less important than paying a financial penalty? >> i don't think it is, but let

me sick to the conscientious objector example. i think the way to analyze a conscientious objector is to say because they face jail time, there is a substantial burden. and if you get to the second part of the analysis, you focus on the objector actually objecting. justice sotomayor: let's stop there. to the extent that a conscientious objector, if i register someone will serve in my lieu, what burden is it on the government? the government sends out how many notices to people to come and serve 1000, 1200 -- do you really think it makes a difference if it knows whether or not one person is going to show up? if we are going down that road,

with what is the difference, why would that law survive? paul: i think it would because it would be very difficult to administer the kind of assistance if you could not even know about the objection or take any steps. justice sotomayor: isn't that the same thing here? if you don't know who can pay or who is eligible to pay, how does the system work? mr. clement: two things, your honor. this is a unique program where the government can provide an exemption without requiring someone to opt out, because that is exactly what they do for

churches, the integrated auxillaries -- justice sotomayor: the churches don't have to tell the government -- somebody has to tell the government who is eligible and who was not eligible. mr. clement: first of all your honor, that is just not true with respect to the churches, they are augmented auxillaries, and the religious orders that stick to their -- and only engage in religious activities. actually, there is that the station. the most important thing, your honor, i would distinguish between a situation where someone has a objection to opting out, because someone will find their spot. and, a conscientious objector who objects to objecting on a form, where the only way they can object, is that they released the name of someone else who is eligible will then be obligated to serve in their stead. >> you began by saying the

government mischaracterizes your position. i am just not quite sure where that argument is going. we can get more into the specifics of it now. can you began again there? mr. clement: i would be delighted to, justice kennedy. my clients do not object, -- my clients have not been shy about objecting. they told government they were making a mistake when they made it only to religious orders that step two early religious things. my clients did not qualify because they serve the elderly poor on a nondenominational basis. they objected when they filed this lawsuit, they reaffirm their objection when they filed the notice necessary to comply. justice sotomayor: that might be so, but what if somebody does object? if somebody does object, it will make it easier for the government to fill my spot. that is a perfectly

understandable thing to say. and that is part of my sincere religious belief, and you say, the sincere religious belief is what controls. there too it would seem you have to say that is a substantial burden. even if it is just objecting to objecting. mr. clement: first, it would only be a substantial burden if they were faced with penalties. that is a relatively rare situation. justice kagan: we have the same penalties as are here. and they're just objecting to object, and that is part of the religious belief, because that will make it more likely that the government will be able to fill the slot and take efforts to provide contraceptives. mr. clement: i understand, that brings me to the next part of my question. the right way to understand that

hypothetical, just a hypothetical -- justice kagan: it is directly impacted by your theory of the case. your theory says that everything depends upon a person coming in and saying this is against my religion, and that is the end-all and be-all. mr. clement: that is not our position. the sincerity of their religious believes, the government can question, a legal analysis about the substantial burden. but the substantial burden analysis in this case is very clear because of these millions of dollars in penalties. the exact penalties issued in hobby lobby. justice kagan: you're not answering the question. mr. clement: i am trying to come up with all due respect. that brings me to the second part of the analysis. if our objection is contrary to fact, if we absolutely object to objecting, if you come in and the government, based on our objection, provides this service through the exchanges, through title x, through an aetna uber

policy, we in fact, objecting none of these things. but if we did, i think we would lose under the second half of the analysis. justice kagan: if a person had a sincere religious believe, and it was a form of complicity come of the would control, and you would have to go to the second art of the analysis very which is to say, is there a compelling interest? has the government response been narrowly tailored? essentially, the difference between objecting to objecting, and your clients position, is not a difference at all, with respect to the burden analysis. mr. clement: i do think my clients objection is distinguishable from the hypothetical. it is not objecting to objecting. one way to understand this, if there were in fact two forms, one was an opt out form and another an authorization form, my clients would have no objection to signing the opt out form.

but they would have a problem with the authorization form. justice kagan: what i'm saying, i understand the factual distinction you're making, but that does not matter, given your own legal analysis. mr. clement: i don't think it does, based on this court's precedents either, but even if i am wrong, it is certainly cite an opinion that there are three legs ta stool in this case. there is the fact that the government demands more than an objection, they enforce it with massive penalties, and, the reality, that if that happens, they are going to hijack our health plans and provide the coverage against our will. justice sotomayor: what i don't understand, when will any government law that they claim burden, ever be insubstantial? because every believer that has ever come before, including the people in the military, are saying that my soul will be dammed in some way.

i am not naysaying that that is a very substantial, perceived, personal burden by them. but, if that is only going to be substantial, how will we ever have a government that functions? how will we ever have anything that the government can demand people to do? mr. clement: two things, the first, i do think what you are saying about the government not being able to function under the substantial garden and least restrictive alternative analysis, is exactly what justice scalia said. and justice o'connor had a different view. and they had a debate. justice sotomayor: if we are not asking you to do something besides identify yourself, it is going to do the action, either the government, or a third

party. if that is the balance that we have struck, it is not a substantial burden, it is someone else. someone else's going to do the act that your objecting to. mr. clement: if the only action involved as a third-party action, you are right, that is not a substantial burden. but when the government says, and i want to be as clear as i can -- a they admit in pages 80 nine through 87 of their brief, that we can raise our hand and opt out. they need additional information about our insurer. so they require more. >> who is the insurer? they have an independent

contract. the insurer, or tpa, they are not dealing with the employer at all. they have an independent obligations that they can impose on it, and not the company. mr. clement: that is true if and only if we provide the form. it is not just the information on the form. the government treats that form as an authorization. in the case of self-insured plans -- justice ginsburg: the law, the regulation requires it. it does not matter whether you say yes or no. you could say i thought the form, i do not authorize or permit. it would not make any difference. mr. clement: it makes all the difference.

if we do not provide the form, then the coverage does not flow. we have not provided the form in these cases. as a result, the coverage has not slowed. i think it is most obvious, but true of all of them, the government thinks it needs something from us so that it can take that something and make it a plan. justice ginsburg: the government has another interest at stake. one thing you said that i want to clear up, that it was not involved at all. no one doubts for a moment the sincerity of the belief of your client and all the others.

since the sincerity of their belief is accepted, it is off the table. in none of these cases, is that an issue. that is accepted. the government is asking, the original plan did not -- it thought compelling interest, marginally ignored up until then. as in all things, it cannot be all my way -- there has to be an accommodation. that is what government tries to do. mr. clement: i agree, but just because they call it an accommodation, does not mean it is immune from analysis. if what they gave my client is what they gave the three to 45,000 churches, their integrated abilities, and purely religious activities of religious orders, if they take that accommodation to my client, we will fill out any form they want to. but the problem is, we have to fill out a form. and the consequence of us

filling out the form is, we will be treated very differently from those other religious employers. >> we started to talk about the self insured plans. is it the case of that the form, or the notice to hhs in that instance becomes a planned instrument? mr. clement: in both cases, it becomes a planned instrument. if the government thinks our notification is the functional equivalent of the other form -- the reason they require the form, is because the way they were originally designed, you did not raise her hand and tell the government i object. you sent a form directly to the insurer, or directly to the tpa, which they then treated as a permission slip to provide coverage. it is not out. justice ginsburg: but then you defied the government. mr. clement: but thanks to the court, we can now file an objection that the government treats exactly the same way. the only thing that is

different, it is a mailing rule. they take our objection, and they provide that objection to the third party administrator. that becomes every bit as much a planned document as the form 700. with all due respect, it is rich for the government to say, this is not your plan, don't worry about it. their whole interest is in seamless coverage. if it is seamless to the user, but i don't think the little sisters's perception that it is seamless to them, is an irrational belief by any stretch. justice kennedy: the essence of your argument, your objection, is that contraception is being done through the health insurance you contracted with? mr. clement: that is a fair description of a justice kennedy. the only problem the government

is having understanding our position, is about plan is somewhat intangible. if you put it in more tangible terms. the consequence of us filing the term, is that they would come into one of the little sisters homes and set up shop in a room, they could operate a clinic out of our homes, i think everyone would understand that of course we are complicit in the coverage that is provided on our premises. just because of this is more intangible, i don't think the principle is any different. certainly from the perspective -- justice kennedy: do we accept your client's view on complicity? can we see out for the causation goes? do we just accept your view on complicity and see whether or not the accommodation is possible? mr. clement: i think that is the role your courts have. they don't want to get in the role of having the truth detector test. that is not just the hobby lobby decision. that was back to the thomas

decision. you had a religious adherent who had an objection to cylindrical tanks. there was another jehovah's witness that said we don't need to object to that. this court specifically said, we are not going to get into the business of refereeing those disputes, or the business of second-guessing whether mr. thomas is correctly understanding his faith. here you have a ton of amicus briefs, that are at issue here for the little sisters and my other clients, are not at all idiosyncratic or wrong as a matter of faith. but that is not an area you should get into. >> are you finished? you must have thought about this question, i suspect. i am going to assume for purposes of the question, that

this is not just a matter of signing a form. your clients are involved and the health care plan in major ways. they probably sign papers every friday or every day, and they choose insurers. it is the icing on the cake that pushes it over the adage, which is that you have to fill out the forms they might object to. so the question is, putting that altogether, are they protected by referendum? i think the reason the court went from sherbet and burn them

over to smith was that they could not figure out how to apply it. this is at least one difficulty. i even read saint benedict here it not for religious purposes, i'm trying to find out something about being a member of society. sometimes when a religious person who is not a hermit is a member of society, he does have to accept all kinds of things that are just terrible for them. think of the quakers. the quakers objected to vietnam. think of the people who object to laws protecting blasphemy. think of the snow in front of the walk that will lead to the abortion clinic. think of the christian scientists who know when they report the accident the child will go to the hospital and receive medical care that is against their religion. there are loads of things, i have just given you four, think of the taxes. there is no question it does not violate the religious clause, but plenty of other things do. so what is the line? why do the quakers have to pay taxes for vietnam? but, you don't find a religious

jew or muslim getting in a next her day off during the week when the law says nobody can work on saturday, because of their sabbath? i have been reading and reading to find a clear, simple statement of what that line is and how it works. to repeat, the difficulty of sherbet in werner, -- and verner-- mr. clement: i would say you are exactly right. smith was more administrable, here is how you work it and draw the line. you first ask, is there a substantial burden. if i was trying to claim, a tax on wine -- justice breyer: the quaker.

mr. clement: i think there will be work to be done on the second half. there are some fairly obvious differences between a regime aware essentially, the government has showed that people cannot opt out, it is too important, to universal. then you get a case like this. the thing that makes sherbet and easy case, as of the government of south carolina had already taken care of the sunday objectors. at that point, the whole system would collapse. it was not a persuasive argument. here, they have taken care of the churches.

if only the little sisters would not go out and care for the elderly poor -- they have demonstrated this is an easy case. thank you for your time. >> mr. chief justice, and may have pleased the court. the government here has the same interest they have with respect to every other employee in the country who does not get contraceptive coverage from an employee based plan. but the government tells us it furthers our interest in other ways. the government therefore needs to prove that those other ways are somehow insufficient when it comes to the petition employees. but it is limited to one column of the federal register. that is insufficient before the government can demand that organizations like tax lists -- less charities and little sisters of the poor engage in conduct that all agree. they regard as sinful. instead, what we have is a religious employers definition, as opposed to organizations like the petitioners here, they gives a full-blown exemption to organizations even if they don't object to providing contraceptive coverage, that

treats other organizations differently. justice ginsburg: are you suggesting that once you have this category, the church, any other religiously oriented organization has to come within that same category as the church itself? the government cannot treat the church as special and give it an exemption, but it does not give to religious oriented organizations. >> no, your honor. i am not necessarily suggesting that. when you look in this case that what the government has done, and what congress has done, that is the line that congress has drawn, both in the title vii exemption for churches like the houses of worship, our clients

get treated the same. in the tax-exempt and regime, the entire line is drawn from the tax rolls, where the line with a defined those who have to file informational paperwork -- justice ginsburg: can the government say we are going to treat the church itself and also protected? religious-oriented organizations are protected, but not at the same level. >> no, i don't think they can do that they are not any less the core of a church or house of worship. >> the same with the university? >> yes, your honor. when you see how they have drawn the line, you are answering in the

affirmative to justice ginsburg's question. >> not quite, your honor. the problem is, the government has to draw a definition that is coherent and rational to read the problem is, we have drawn a definition from the tax regime that does not apply when you carry over to this regime. in the tax world, when the churches and universities, and little sisters of the poor file that informational tax return -- >> you have made it difficult for this court to write an opinion. saying you have to -- i find it very difficult to write. >> we are not suggesting that. when the government has the same interest here that it has for all of the other employees in the country they don't get coverage from an employee based plan, not just the religious employers or grandfathered plans, and addition you have the self-employed, unemployed, and employees of small businesses. government has the same -- justice kagan: there is a very strong tradition in this country, that churches are

special. there was a long line of cases which says that there is something very special about churches themselves. if you're saying every time congress gives an exemption to churches and synagogues and mosques that they have to open that up to all religious people, and the effect of that is that congress just decides not to give an exemption at all. that is why there are extremely strong supporters were deserted this clause right here because of the mortal danger it poses to churches. francisco: just to be clear, i am not suggesting that whenever you give an exemption to churches, it has to apply to all other religious organizations. i am suggesting that when the government has the same interest

with respect to both religious and secular employees, the churches and religious employers, the employees of small businesses and grandfathered plans, they further those plans with respect to employees in other ways. whether it is the affordable care act, medicare, medicaid. at a minimum, they need to explain why these are sufficient for all those other employees. justice ginsburg: many statutes have grandfathered tradition. many treat small enterprises differently. are you saying that once the government exempts from the law a small business, once it has a number like title 15 employees, that is it? it has to open what is a exception to a small business for everyone? francisco: you can't discriminate on the basis of race, unless -- i think that

would undermine the purpose of title vii. that is precisely the exemption that you have in the contraceptive mandate. justice alito: if they surveyed the employees of churches and other nonprofits, and categories of religious nonprofits, the little sisters caught the university, and determine the percentage of employees in each of those groups who are members of the religion, and draw a distinction among those groups based on that survey. could congress do that? francisco: they can do that, and many other things as well. >> but we just assume that if they are part of it, that they are not going to buy contraceptives?

that is their religious tenet. while we worried about this case at all? why, because there are some women who don't did here to that particular religious tenet, and the government has determined, they have a real need for contraceptives. francisco: that goes to the larger problem, the utter absence of evidence. justice sotomayor: there is plenty of evidence that was relied upon to show that when contraceptives are provided to women in a seamless way, that the number of unintended pregnancies dramatically falls. as does the number of abortions. and so, that health risk to women who want contraceptives that cannot get it, is proven.

scientifically, and otherwise. francisco: but that problem with seamlessness or burdensome this, that is a problem that exists not just with respect to employers, but every other employee -- justice sotomayor: we exempt certain employers from title vii. it is not because we don't believe that racial discrimination is a bad thing. it is not that we are not committed to eradicating that problem, but because at a certain point, we have assumed that as a society or government, you cannot do everything. you can't take care of the health needs of 100% of women, but you can a significant number. why is that?

-- why is that a judgment that is not entitled to some respect? francisco: because it means one of two things. either the government can tolerate all the problems that affect employees with respect to grandfathered plans, with respect to the employees of small businesses, and those of religious employers. either they are willing to tolerate the problems with all of those people, and it does question whether they have a compelling interest in enforcing these petitioners to comply. on the flip side, if they are not willing to tolerate the problem, but think they can further their interest in other ways, the question becomes, why are all of those other way sufficient for other people

suddenly insufficient when it comes to petitioners employees? that is a fundamental breakdown on the government side of the case. more generally, an absence of evidence on the critical issues. let's assume for the sake of argument we knew what the size of the problem was. how many people actually have -- lack access to contraceptive coverage? if we knew how much of that problem would be reduced by forcing programs like petitioners to comply -- we don't know that. we don't know if the government could achieve a comparable reduction through different means. those are sufficient to further their interest with regard to the other employees, don't get contraceptive coverage -- justice kagan: i have to admit to not understanding this argument. the laws often have exceptions in them. there are often small business exceptions, transition rules, like the grandfathering provision here. if every time that existed, somebody could come in and say, the government must not really

believe in the slot because there is an exception to it, then we might as well pack it all in. there is not a law in town that does not have exceptions like that. francisco: i don't think that is right, your honor. justice kagan: it is lower and lower every single year. if you make any change in your health plan, you're out from under the grandfather. and it is inevitable that over the course of years, any employer is going to make changes to the health plan. it is a transitional. -- it is a transitional period. francisco: except that they allow employees to raise the co-pay, and continue adding employees without losing grandfathered status. that explains why it has leveled

off at about 25% over the last couple years. putting that aside, once you have drawn a massive exemption for both secular and religious reasons, it tends to do one of two things. either it shows your interest is not that compelling because you're willing to tolerate a whole bunch of bad stuff for other people. or, what it means here, the government is telling us it has the same interest with regards to grandfathering -- justice kagan: you would be saying to congress, next time you put in a law, don't put it in the exemptions to churches. don't write transition rules that will help people adjust to a new legal regime. you're going to have real trouble doing that. don't write exemptions for small businesses, even though there are very particular concerns that small businesses face.

those are terrible incentives to give to legislature, are they not? francisco: what it means, when the government claims an interest, the overwhelming interest of force organizations like petitioners to violate their beliefs, yes, when it says we will exempt some organizations for purely secular reasons, some for political, and others for religious reasons, it does. justice breyer: let's imagine a widespread government program with exemptions, and some need exemptions for religious reasons. we look at other exemptions, some think they are good reasons, or terrible reason. we should exempt the religious,