tv Capital News Today CSPAN November 20, 2009 11:00pm-2:00am EST
authorities that we are putting to use, authorities that have been on the books for a long time, but no one has taken advantage of. the president believes in that if we use these authorities, we are demonstrating important domestic leadership on how to create a new energy future. our work has not simply been domestic. it does not stop at our borders. we achieved an agreement at the g-20 to phase out fossil fuel subsidies. we were able to achieve an agreement around black carbon. earlier this week, you may have seen the news that the agreement was reached in china, it is an important agreement. you have both countries speaking to all the component parts of
now let me spend just a few minutes talking about what i spend a lot of my time on, which is the domestic legislation. while health care is clearly dominating the news these days, you can hardly turn on the tv or picking up a newspaper without seeing something about the issue of health care. that doesn't mean there is not a lot going on around exrenlsive energy reform. what we mean are three things. first, we need to break our dependence on foreign oil. we need to put in place the
production capacity. we need to look at alternatives like natural gas to fuel our fleets. but we need to begin our work on breaking our depend enls on foreign oil. secondly, we need the policies that will create a new generation of clean energy jobs. we are seeing this is possible in the recovery act. it should give all of us hope. it is something you all have known but should give others who have not followed this sector as close hope that there is an opportunity, that we can have a new generation of clean energy jobs. senator bingaman talked about how a renewable electricity standard will help stimulate the creation of jobs. some of the things in the recovery act are helping to demonstrate that. but we need to make sure that comprehensive energy legislation takes us further down that path and skewers us as a global leader in the clean energy technology world. finally, we need to put a cap on the dangerous pollutants
that contribute to global warming and climate change. the house was amazing. chairman waxman, representative marky, and speaker pelosi, that bill was historic. it is a very good outline of what the component parts should be. we now have had two committees act in the senator. senator bingaman's committee, a bipartisan vote. senator boxer's committee have now done their part on the cap side of the equation. and i think noteworthy in building on all of that leadership is the recent op-ed by senator kerryy and senator graham. senator graham said carol, i'm not going to be with your administration on a lot of things, but i'm going to be there on this. it was a surprising phone call. and then he said when i say this, i mean cap and trade.
so i think we are going to see the outlines of what a bipartisan bill might look like in the house. we obviously have our committee chairs with important jurisdictions, senator baucus, the ag committee, and senator rockefeller. all of them have an important role to play. we remain optimistic. the reason we are optimistic that we can pass this legislation is this is a jobs bill. this is about creating jobs, and that is what america wants today. this is about giving you in the country the kind of certainty and predictability you need. you need to know what is expected of you. you need to know if you make those investments in alternatives that there is going to be a demand, a market. finally, there is this deep belief that this is the moral and ethical thing to do. i had the privilege of running the e.p.a. for eight years and worked with the world's leading
environmental engineers. they are great and have solved so many problems for our country. but the truth of the matter is there isn't one among them who can reverse sea level rise once it starts to occur. we have to start to take the steps today so we can give future generations the same kind of opportunities and hope that prior generations have had, and i think we will do it. it will not be easy. it will not happen without all of your help in whatever form that takes. we have a lot of people to educate. we have people to educate not just in congress, but in towns and cities across the country. but change is coming, and important change, and it is a real honor to be a part of an administration that wants to work with organizations like acore, that wants 0 work with the companies that you represent to create a different future. thank you again for the opportunity to be here, and i'm happy to answer any questions. [applause]
>> thank you, carol. you were so quiet early in the administration. you didn't start speaking until a couple of weeks ago. >> i was busy putting a recovery act together and other things. >> you were a little bities. thank you for coming this morning. >> thank you. >> two or three questions we might have? >> i am deeply concerned by the future generations because if $-- $20 billion is a lot of money, but it is also a lot of debt. i am concerned about the reality that we may have a society without equal opportunity -- not a speech, sir. a question? >> the question is this. how can we guarantee that new technologies, promoting two new technologies can actually get the financing they deserve?
the hard work and innovation can be paid off? >> how can we get the financing to scale this thing up? we talked earlier about the $30 billion to $50 billion we need every year in this sector. your thoughts on that? >> i think the recovery act is a good start. where congress decides to go in terms of continuing funding for those programs in the recovery act, which have been hugely self and many of the clean energy ones that are at the forefront remains to be seen. the administration recognizes that we need to give the industry a certainty and predictability so you know if you make that whatever, that there is going to be a market demand. we think an important part of doing that is to put a cap on carbon as a renewable electricity standard, and if we can get those in place. you will get a lot of what you need. i heard chairman bingaman talk about a financing mechanism and
others out there. we think those could be an important part of energy reform, and we need to see where that goes. we do understand that in addition to the regulatory certainty, there needs to be 134 funding, and so we will have to work with congress to see what makes sense. >> you are working with the partnership that is chaired by jeff right here. >> we met yesterday. >> we, the financial community, with the government in ways that haven't did not -- been done before. >> next question right here. >> i would like to know what you are going to do about the decentralized power. what about utilities able to hookup five megawatt or 10 megawatt generation. the egg level is kind of the level where we are. >> you want to know how the
small generators are going to hook into the utilities? >> yes. we are having a problem making that leap with the utilities. >> one of the things we have done, and i don't know if this is precisely the answer you are looking for, but we have made a significant investment in making the grid bigger, better and smarter, giving them the tools they need to better manage incoming and outgoing. one of the things we deal with in this country is the 50 state regulatory agencies, and they function under different laws, in most instances to good effect. i don't know if the chairman is here, but i know that fverageeveragerveragecrverage -- ferc and others have been dealing with how about we can deal with 50 organizations and
how certain problems get solved. >> we are here today with legislation that with the clean energy act, that they may break it down in industry segments. can you tell us how the administration feels about that? >> we belief that we need exrenlsive energy reform, and that means we need an economy-wide program. we think that you will get the most common sense, cost effective solutions if you have an economy-wide program. it is a what the president has said from the beginning. it is what we put in the first budget to congress. it is what the house has effectively done, and that is what we are going to be working for to the best of our ability in the senate. thank you all very much for the opportunity. [applause]
>> thank you, carol. we will now take literally a two-minute break as we take a transition. it is not a full break, but do stand up. we will be having the next panel in about three minutes. thank you very much. [captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute] >> next, a senate confirmation hearing for two treasury department nominees. following that, richard norton smith on the orel histories airing on c-span 3 saturday. then a look at the november 5 fort hood shooting with remarks from senators joe lieberman and levin. >> and then the court system that the alleged shooter will go through.
>> on tomorrow's "washington journal," we will talk about the health care bill with jillian vande -- bandes and patricia murray. we will also discuss the president's health care bill. and we have someone from the woodrow wilson center on u.s.-iranian center. >> saturday, the senate returns to session at 9:45 a.m. eastern to resume debate in alternating one-hour blocks until 6:00 p.m. then at 8:00 p.m. eastern they will again a procedural vote. 60 votes are required to move forward with the health care bill. watch live coverage on c-span-2.
>> in 1989, judy shelton wrote about the coming soviet crash. in 1994, the international monetary system. now, she is talking about the u.s. economy. >> this is unprecedented spending, unending deficits and what i consider an unconscionable accumulation of debt. >> judy shelton, sunday night on c-span's "q & a." >> now, a senate confirmation hearing for two treasury department nominees. members will question the administration's choice foss a deputy undersecretary and assistant treasury secretary. max baucus chairs the finance committee. this portion is 45 minutes. >> the hearing will come to
order. let me begin by saying chairman baucus could not be with us this morning because he is with his mother, who is ill in montana, and we want to send our best from all the members of the committee to senator baucus and his mother, and we are hoping for her swift recovery. we are looking forward to the time that senator baucus comes back to resume the chairmanship of this committee. we have a hearing this morning for a number of nominees, and we will get to that momentarily. i'm going to make a brief opening statement. then senator grassley will have an opening statement. at some point i want to alert people here and prap programs who are listening, that if we are able to achieve a quorum. we will break from this proceeding in order to approve
mom niece that have previously been heard. so no one take offense if we interrupt this proceeding once we achieve a quorum, if we are able to do that so that we are able to take action on previous nominees. i would like to begin with a brief opening statement. we have today experienced the worst global economic crisis most of us can remember. it has had a profound effect on this country's fiscal health both long-term and short-term. i want to remind everyone of the dramatic deterioration we have seen in our nation's budget picture. the final deficit total in 2009 was $1.4 trillion. not million, not billion, but trillion. that should sober us all. $1.4 trillion. looking other over the next 10 years, we see a sea of red ink.
the deficits have led to an explosion of debt. under the 10-year outlook i just described, gross federal debt would rise to more than 114% of gross domestic product by 2019. that is approaching the record 121% of g.d.p. that was reached at the end of world war ii. we need to remember that to finance these deficits and debt, we are becoming increasingly indebted to foreign nations. last year, 68% of our debt was financed by foreign entities. here is the latest tally of the top 10 foreign holders of our national debt. we now owe china almost $800 billion. we owe japan $731 billion. and on, and on it goes. we also have an outdated and inefficient tax system that is
in desperate need of reform. it is hurting u.s. competitiveness because it was designed at a time when a global business focus was the exception, not the rule. we hemorrhage revenue through the tax gap, off shore havens and tax shelters. the alternative minimal tax threatens middle income tax paperers. simplification and reform will keep rates low. we have before us three treasury no, ma'am needs whom president obama has chosen to serve this country. each of you will have the opportunity to help remedy the dire situation i've just outlined. you're -- your success will be crucial to all americans. as you approach your tasks, you have to take into consideration all that has gone wrong with the american economy. and in doing so, you can help us work together to find ways
to strengthen our economic recovery. i know all of you understand what a challenging task this will be. dr. brainard, you have been nominated to be undersecretary of international affairs at the treasury department. you previously served as vice president of the global develop economy at the brookings institution. and then the deputy economic advisor in the clinton administration where you worked on issues surf as the asian financial crisis and the w.p.o. entry. you will be an asset as you work with the or g-20 partners. you will be coordinating with ustr and other agencies to open key asian and other markets for exporters. the senate will expect you to keep in mind the competitiveness of american businesses and american workers i must take a moment to comment
on this committee's rigorous vetting process. it is troubling that the staff found some discrepancies in the information that you submitted. no one disputes your talents or economic and financial issues, and you have a reputation for honesty and integrity. in fact, i have heard from people all across the country atesting to your honesty and integrity. so it is unfortunate that it took some period to get full and complete information on these relatively minor tax problems. i know the ranging -- ranking member and the chairman share that view. all of us on this committee take very seriously the duty to pay taxes in full. from this revie, it is clear that there were a number of late payments on your state and local taxes. with that said, however, all taxes were paid in full with interest and penalties, and this a -- is a matter that each
member has to make a judgment on. dr. collins, you have been nominated to be the assistant secretary of the treasury for international finance. you spent close to 30 years at the international monetary fund in a variety of roles. you have examined monetary and economic policies in key regions of the world, including asia and the western hemisphere, and you have explained exchange and trade relations among nations. your experience will serve the american people well as you deal with monday tore and economic issues around the world, and i might add at an especially challenging time. you will work with our international economic partners to address key economic issues, and you will guide and advise dr. brainard as she zharges her important duties. ms. miller, you have been nominated to be the assistant secretary of the trshry for financial markets. you worked in various comasities at the t. rowe price
group. this gave you key insights to fixed income, allocation and other investment issues. your experience will be very valuable as you take responsibility for treasury matters relating to domestic finance. again, at a very challenging time. congress and the administration will need speaker tees like yours to find ways to address the federal debt. and as american businesses and families continue to navigate the economic recovery, you can make a significant contribution in developing responsible federal credit policies. we look forward to meeting you and your families and hearing your statements. at this time i will turn to the distinguished ranking member of this committee, senator grassley, for his comments. >> thank you, senator/chairman, and congratulations to all of you who have been no, ma'am nate. the nominees we hear from today deal with different but important policy areas within
treasury. as assistant secretary for financial markets, miss mary martin's portfolio would include the federal debt, federal credit policies. given the likelihood the administration will need to increase the federal debt limit, it is important that we get a handle on the deficit and how to fund it. mr. charles collins, if confirmed as deputy undersecretary, would report to the undersecretary for international affairs. these positions are crucial for advising the treasury secretary and assisting to develop international policy pertaining to international monetary affairs, trade policy, international debt strategy and other policy areas. ideally, the undersecretary for international affairs will have an eye for detail, and the personal integrity to represent our nation well in dealings around the world. in what seems to be a frequent currency of the current
administration in this nomination hearing, the finance committee will always be examining issues discovered during the committee due differently gents and vetting process. over the course of the past several months, majority and minority staff have been examining a series of issues related to ms. brainard. this week a memo was released that details those issues that the chairman and myself thought obligated to disclose to the whole committee and the public. i do not intend to examine each of those issues in detail at this time, but i ask unanimous consent that the memo with attach. s be printed to the record of the hearing. >> without objection, senator grassley. >> i want to again state the investigation of dr. brainard was consistent with long-standing committee practices.
every nominee goes through a tax vetting, but it is not a tax audit that the i.r.s. would conduct. the purpose is not to slow down the no, ma'am nake process and not to deliberately look for problems. although the process for vetting finance nominees has remained the same for the nearly nine years i have been either chairman or ranking member, the bar has definitely been lowered with this administration's nominees with regard to tax compliance, starting with secretary geithner's $48 tax problem. we have seen a growing list of nominees who have had problems paying taxes, paying them on time, using credibility evaluations for deductions and accepting responsibility for all of the above. prior to this administration, we have never seen nominees with over $100,000 tax problems or the inability to accurately respond to committee questionnaires multiple times or the lack of straight answers
from nominees. what most people don't understand is that there were a number of bush nominees with lesser tax-related problems than some of the ones that we have seen this year who never even made it out of this committee. most of them never even got a hearing. but of course you didn't hear about it, because we were all obligated not to talk about it. and because that information is confidential, and we play by the rules here, you don't hear about it in detail now. at times we offered to let the nominees go forward if they were willing to make all the facts public. but in each of those cases, i told the bush administration that i would not defend that nominee's actions, and not one of them moved forward. now there was one instance where i was willing to move forward, but i said i wasn't going to defend that nomination on the floor.
but the other side was not willing to go forward, so that nominee did not move. more ominously, we have seen what i believe to be a political operatives from outside the senate leak what had been considered confidential information in the past. it is almost as if some of these nominations have taken on a political campaign. and what has really gotten ugly is the fact that these political operatives are targeting our committee staffs, putting disinformation out to the public. i saw one of the administrative lawyers -- administration lawyers, who helped with one of the early nominations this year quoted in the press recently saying our process is out of control, and that is amounts to an i.r.s. audit. well, that person is not in a position to know all of the facts associated with the nominees and potential nominees over the last nine years.
that critic cannot and does not have access to those files and has no history with this process in the last second aid -- decade, and he just doesn't even know what he is talking about. the fact of the matter is i'm concerned about what has been going on this year. anyone watching this process closely now knows that a nominee can get away with not paying tal of taxes or consistently get away with paying them months late and still get confirmed. all they have to do is blame it on other things. compliance with tax law should not be an issue. but in the currently climate, it seems to apply for some and not others. being nominated to a powerful position by the president is not an award, and it does not
indictle anyone to special treatment. rather, i would hope that presidential nominees would feel some sense of honor with regard to their own behavior and would see themselves at the very least bound by the same legal obligations as their fellow citizens, who are not as powerful or well-connected. we do not need anyone so badly in the federal government that we allow them to live by their own set of rules. i'm laying this all out on the table now, because given what is now going on, i'm not sure it is worth our time or our staff's time to even be asking these questions any more. it just hasn't mattered, except in one case where a nominee voluntarily withdrew even after nearly all of the majority side said all is forgiven and should be confirmed. one member was particularly critical of the bipartisan staff's vetting work the other day. i say to that member or any
other critics do you think vetting nominees for public policy positions dealing with the taxpayers hard-earned money be superficial? or should we say hola and not examine nominees' tax returns? is that the appropriate way to go? the chairman is not here right now due to the sad situation regarding rest mother already referred to. but i intend to discuss the process with him going forward. thank you. >> thanks to you, senator grassley. now we will pro to the nominees. welcome to the committee. we will start with dr. brainard. before you begin, i understand you have family members with you, and maybe we could ask your family members to stand, and you could introduce them to the committee?
>> thank you very much, mr. chairman, and ranking member grassley. i would like to introduce today my husband, kurt campbell, two of my three daughters. my baby girl, coco is at home. this is katie, kyra campbell, my mother and my father, al brainard. >> thank you. why don't you proceed with your statement. then we will go to mr. miller and dr. collins. >> thank you very much, mr. chairman and ranking member gressly and members of the committee. i am honored and appreciate the opportunity to appear here before you today as you consider my nomination for secretary for international affairs. i am glad i got a chance to introduce my family. as you know well, these are tough jobs, and it really requires the entire family to support people in them. and so i am very grateful to my
family, to my entire family, for their support throughout this process. i agree very much with the chairman that we are facing perhaps the greatest economic test of our generation, and it is one that i would be very honoreded to have a chance to make a small contribution to in terms of the way that america positions itself to compete and to lead in the international economy. this is something that goes back to really my youngest days. i grew up overseas. i grew up living mostly behind and along the iron curtain. many children, i think, are told to mind their manners. it my house, it was always followed by the admonition, don't forget that you are representing america. i took it to heart. it is something that i take great pride in. i have worked in my entire
career on america's competitiveness and america's position in the global economy. i worked years ago for mckenzie, consulting with clients at a time one of the big three car companies, who was challenged by asian competitors and looking for strategy to reposition itself. i worked for american banks who were trying to position themselves in increasingly competitive environments. and following that, went on to spend several years teaching students at m.i.t. both about america's competitiveness, but also about the very difficult challenges of helping americans bufted by the bracing winds of global competition to compete effectively and the policies that that would require. if confirmed, this would be my third time in public service. it is a very proud tradition in my family, on both sides of my family. my father served in the army and then for many years as a
diplomat. my husband, as you know, is currently serving in the administration. i served 20 years ago at the time of the fall of the berlin water on the transition in eastern europe. i served working on the structural embedments with japan. i served first as a white house fellow and in the white house for many years during the mexican financial crisis, during the asian financial crisis and working a lot with china on its trading relationship. since i left public service, the world has changed a great deal. it is a moment of great challenge, and we have to navigate a greatly changed global economic landscape. the global economy is coming back slowly and haltingly from the most severe and synchronized crisis we have seen in this generation. financial markets have stabilized, and we have seen the first signs of growth, but
unemployment is unacceptably high. too many americans wake up without a paycheck, wondering how to pay bills. that is a challenge that we all face. my job, if i were to be confirmed, would be to focus on how the global economic environment can contribute to good jobs here at home. it is absolutely critical, as we rebound, that we get this economy on a more sustainable path going forward, a more balanced global path, and that will mean selling into asian markets. that means convincing asian economies that they no longer can rely on the u.s. consumer and demand for their groith, but they need to receive our goods and services. i have i hope to have the chance of restarting the american engine of growth. if confirmed, i would be honored to work with members of this committee engaging in
those priorities which i know are central to all of you. thank you, mr. chairman, thank you, senator grassley, and distinguished members of the committee. >> thank you, dr. brainard. ms. miller also has family members with her and we would ask them stand and be reek recognized by the committee and be welcomed. if you could introduce your family members? >> thank you very much. i realize our thyme is short. i would like to briefly mention my father, james john, a professional of history at cornell university for 40 years. my husband of nearly 30 years, james dab any miller, and my oldest son, thomas marshall miller who is a graduate student in classics as princeton. my younger son could not be here today as he was performing in a production of romeo and juliet this evening at cornell. i would like to mention my
brother, james john, who has worked at the treasury and now the i.m.f. and last, my uncle, harry john, who served in world war ii and worked in the national archives here in washington. i thank all of them for the support they have provided me. >> and welcome to the finance committee. why don't you pro, ms. miller, with your statement? >> thank you so much, chairman conrad, ranking member grassley and members of the committee, for giving me the opportunity to be here today. i am honored that president obama and secretary geithner have asked me to serve in the treasury department at this critical time for our economy and our country. 32 years ago, i arrived in washington, a cornell university graduate with a degree in government. i worked as a legislative aid in the house of representatives before i went to graduate school at the university of north carolina at chap hill. i then spent four years as a
research associate in public finance at the urban ins too taught here in washington. there i wrote and studied about the fiscal and capital needs of local governments. for the past five years i have served as a trustee of the urban institute. in 1983 i took a job in baltimore maryland as a credit analyst in the bond department of t. rowe price and associates. i have been at t. rowe price now for over 26 years, and today i am the director of global fixed income investments for the firm. in preparing this opening statement for the committee, i recall that when i started at t. rowe price, our country was recovering from the longest recession since the great gregs. the unemployment rate stood at 10.2%, precisely where it stand today. at that time interest rates were much higher than today. the federal fund rate was above 8.5%, and the yield on the
10-year treasury bond was about 10%. looking back at 183, many people were pessimistic about the future of our country and economy. but as it turned out, we were on the brink of two decades of strong growth. certainly there were recessions, but in general the economy and financial markets performed better than expected. today we face both similar and different challenges to restar sound growth and financial markets. my work over the last 26 years has been primarily in the bond market, including the treasury bond market. although as a member of my firm's management committee, i do share a responsibility for our entire range of investments. i havities payed in the evolution of the financial markets and products as well as working through periods of severe market turmoil. thighs included saddam hussein's invasion of kuwait in august of 1990, the derivatives and currency problems ignited by the collapse of long-term capital management in 1998, the
frenzy of the dot come bubble in the 1990's, the tragedy of september 11, and finally the unprecedented financial crisis of the past two years. the opportunity before me today is to help with the restoration of confidence and capital in the markets. we need to ensure that our financial institutions are properly regulated, well capitalized and built to withstand downturns in the economy without creating undue stress. it is my hope that the recovery we have seen this year in financial markets can lay the foundation for broader economic recovery as we adopt these reforms. if this committee and the full senate confirms president obama's nomination of me to be assistant secretary of the treasury for financial markets, then ideal welcome the opportunity to serve in the treasury. i promise the committee that if confirmed, i will work hard,
and i will do my best to carry out the oath of office. thank you very much. >> thank you. thank you for your statement, and now we will go to mr. collins, who has been nominated to be the deputy undersecretary . mr. collins, i know you have family members here as well, and we will be pleased to have them introduced to the committee. >> thank you, chairman conrad. >> please stand. >> i am delighted to recognize my family members. i am glad they could be here with us today. my wife miriam, who came to this country from bolivia as a young student, has raised a family with me and has also pursued a successful career as a translator and editor. my two daughters, carmen, who a senior at harvard, and my younger daughter, isabelle, who is a sophomore in pennsylvania. for some reason they are both
studying economics. i would like to welcome and thank my brother, edward, from new york, for bringing his family to be with us here today . he works in the movie business in new york city. my sister in law, merrill, who you may not be able to see, she is a health care worker in new york city, and my two nieces, hannah and emily, who are in high school in new york. >> great. welcome to the committee. it is wonderful for you to be here to support your family member. why don't you pro with your statement, mr. collins? >> thank you, chairman conrad and ranking member grassley and distinguished members of this committee for the opportunity to appear before you today as nominee to be assistant secretary for international finance at the treasury department. i would also like to thank your staff for meeting with me last week to discuss some of the major international financial issues facing the united states at this most challenging time.
i am greatly honored by president obama's nomination for this position and sincerely grateful to secretary geithner for recommending me to the president. i am also deeply grateful to my family for their very strong support, en-- encouraging me to apply myself to public service. my parents are not able to be here today, but i would like to recognize them. they came to this country many years ago, sbiced by the opportunities and ideals it offered. they named their children after leaders. i myself call the middle name adlay. i welcome this opportunity, if confirmed, to serve our country, and to join such a distinguished and talented team at the treasury department. i have worked over 25 years in the international monday tore
fund after completing my dock trait at ox forward. i have gained long experience in dealing with a full range of economic issues. in the 1980's i was involved with the i.m.s. effort to deal with the latin american crisis. and in the early part of this decade, i returned to latin america and another difficult time for the continent. most recently, i have led the team preparing the i.m.f.'s world economic outlook report and have been deeply involved with the funds work to respond to the recent global crisis. if confirmed by the senate, i would be greatly honored to serve my country at this very challenging time. the swift and strong response as policy makers in the united states working closely with counterparts in major partner countries around the world has helped to stabilize the global economy following the crisis
and restarted growth. a recovery is now underway, but it is essential to build on this progress to ensure future sustained strong and balanced growth with robust jobs creation. achieving this end will require determined, well-directed and concerted policy making by the united states together with its main partners. the treasury department will be called on to play a key part in leading these global efforts, and i would strive to contribute to the success of this important task. if confirmed, i promise to apply myself fully and to the best of my ability to justify your confidence. thank you for allowing me to appear before you today, and i would be pleased to respond to any questions. >> thank you for your statement. i have three questions that i need to ask each of you before we go to policy question that relate to the positions for which you have been nominated.
so i would ask each of you in turn the following question. is there anything you are aware of in your background that might present a conflict of interest with the duties of the office to which you have been nominated? dr. brainard? >> no, there is not. >> ms. miller? >> no, senator. >> mr. collins? >> no, senator. >> the second question, do you know of any reason, personal or otherwise, that would in any way prevent you from fully and honorably discharging the responsibilities of the office to which you have been no, ma'am nailed? dr. brainard? >> no, senator. >> ms. miller? >> no. >> mr. collins? >> no, senator. >> and the third and final question we ask of all nominees, do you agree without reservation to respond to any reasonable summons to appear and testify before my dualy constituted committee of congress if you are confirmed? dr. wrainard? >> i do. >> ms. miller? >> i do. >> mr. collins? >> i do.
>> thank you, and we are glad to have those questions out of the way. let me go to each of you and ask. dr. brainard, in your opinion, what is the key challenge facing you if you are confirmed for the position for which you have been nominated? what is the key challenge or challenges that you would confront? >> mr. chairman, i think the environment that confronts us here at home and abroad is one that is extraordinarily challenging. the set of responsibilities that the undersecretary for international affairs has at the treasury department really is very focused on our place in the global economy. the challenge, i think, is to work with the tools that we have, whether they be diplomatic engagement or international agreement, to shape the most positive
external environment to have jobs here at home, to ensure growth here at home and to ensure americans have good incomes and standard of living here at home. that will be quite challenging as we move forward, coming as we are out of the greatest financial crisis i think any of us have witnessed. and it will require persuading and working with a variety of nations, that they are on the wrong course in terms of their own growth strategies, that they are going to have to reorient their economies fundamentally, to stop relying on the american consumer and exports for growth, and finally to take their economies and put them on a growth path sustained by growth that weather exports from the united states. >> how would you see the most significant challenges, mr. ms.
miller. fur confirmed? >> to maintain the confidence of investors, large and small in our financial markets. >> and what would be the things that you would bring to the table to deal with those challenges? >> well, i think that the bring the experience of 30 years of working in the financial markets. i have often said to myself that through different economic and financial market cycles, we are never handed the same script. i think you need to be pragmatic in thinking about the responses here and the range of choices, but to carefully construct the financial reform in ways that will reflect the markets and the confidence of investors. >> all right. mr. collins, how would you assess the key challenges that you will face? >> mr. chairman, i believe there has been some initial success in dealing with the initial impact of the crisis. the global economy is beginning to emerge from a very difficult period. however, looking ahead, i do believe that there are fundamental changes to the pattern of growth in the global
economy that will be required to ensure future prosperity, future markets no u.s. exports, and future robust jobs growth in this country. i do believe we need to work very closely with partner countries to ensure that those countries are also making the adjustments that do need to be made in order to ensure that we are able to achieve the strong, sustained and balanced global growth that is essential for prosperity in this country and strong jobs growth in in this country. >> thank you for those responses. senator grassley? >> thank you all for answering our questions and being willing to serve. i have a question to start with of charles collins. wait a minute. i had better ask a question of all of you that i usually ask. we do a lot of oversight in congress, and one of the frustrations i have from people
in government, in the executive branch of government, is getting answers very, very late and getting incomplete answers. i would like to know if you would try your hardest, each of you, to respond to our questions, and if you consider it an obligation to respond to questions from congress, even from individual members like me? >> senator grassley, i would consider it an obligation, and i would want to work very hard to earn your trust and confidence going forward, working with this committee. that will be an essential part of success in the set of responsibilities i would assume if confirmed at the treasury department. >> ms. miller? >> i absolutely believe that is my responsibility, and i look forward to a strong dialogue and exchange with your staff. thank you. >> all right.
mr. collins? >> and i also certainly regard it as an obligation to respond in a timely manner and in full to any inquiries from this committee if i am confirmed. >> let me start with you, mr. collins, on a question. if you follow me, you know i was very frustrated with the failure of the treasury department in the previous administration of president bush to name china a currency manipulator. now it seems to me we are continuing down the same trend with this administration twice failing to name china a currency manipulator. i am left frustrated. this is not a partisan issue for me. i believe that we should be calling a spade a spade. china is manipulating its currency in order to maintain export advantage. we should state that publicly and then engage china. china's actions to depreciate its currency along with the
falling dollar is troubling and has the potential to disrupt global recovery. other countries will end up bearing the burden of china's action. how would you deal with this issue? >> i share your concerns with the way china is managing its exchange rate. i have looked carefully at the currency reports prepared by the treasury department and understand that these reports have found that china does not meet the standards set in the 1988 trade act to justify the label of currency manipulation. however, the reports have truly identified issues with china's management of the exchange rate. there are issues with the continued heavy intervention by the chinese authorities, the accumulation of reserves and resistance of up ward pressure on the exchange rate.
i believe this is a major concern, particularly going forward. if the chinese maintain this policy, it will block the adjustment needed of the global economy, the adjustment that china needs to make to shift away from domestic leg growth. to export growth. i agree that we need to persuade the chinese to modify their policies. the u.s. is acting across a range of fronts to express these concerns with the chinese authorities, to persuade the chinese that change is needed. i believe that some progress has been made. the chinese are beginning to understand the gravity of the situation and the implications of their policies, but i certainly agree that much more needs to be accomplished. and if i am confirmed, i assure you that i would be doing my hardest to make sure that china
does shift its policies in this area. >> and dr. brainard, along the same lines, i want to refer to a june peterson institute releasing a study concluding that china's currency needs to appreciate by 21%, and then in october, the department a criticized china's reserves. and then referring to testimony you gave to this committee last year on trade law enforcement. you argued that we need to proactively prioritize the compliance gaps that have been identified that have the greatest overall economic costs. in your view, do chinese currency practices fall in this category? >> yes. senator grassley, this issue of china's overall strategy and the role their exchange rate policy plays in it is of
central importance. it is of central importance to our broader economic goals here in this country, and i think the set of tools and mechanisms available are being used by this administration. my understanding is that this was a topic that was raised at the very highest levels by president obama consistently throughout his discussions in asia. i know secretary geithner has worked very hard on this, using the mechanism of strategic and economic dialogue, and has built support no this position more broadly in apec and very much is a part of the rationale for the work that the president undertook in the g-20 at pittsburgh to create an agreement among the leading economies that they would all work together to take policies to adjust their economic
strategies to have a greater emphasis on demand-led growth in their economies and to stop relying on exports to the u.s. as the primary driver. the chinese exchange rate policies, as charles just mentioned is something that was a stabilizing force at the height of the crisis, at a time when some of the other surrounding currin says were weakening. concern now is that it is getting in the way of global recovery, that it no longer is a positive contribution, and that it is leading other countries in the region themselves to be intervening more. this is an absolutely top priority and if confirmed, something i would expect to spend a large part of my time working to address. >> you haven't made clear if, according to your testimony, you talked about compliance gaps. do china's currency practices
fall into that category? >> senator, i think the question about about what mechanisms can be used is a more complicated question. some of the jurisdiction for that lies with the commerce department. but certainly i would be using the tools available at the treasury department to try to push that agenda forward and support my interagency colleagues in undertaking a broader strategy in consultation with this committee and others. >> just forward, i want to associate myself with the comments of senator grassley with respect to china and the currency issues. it is about as clear as it can be. they are manipulating their currency to confer advantage on their economy, and i don't know what could be much more clear, and it is an absolute obligation of ours to press
back. i was pleased by the answers by both dr. brainard and ms. miller, and dr. collins. senator cattle well? >> thank you, mr. chairman and welcome to all the panelists. thank you for your willingness to serve. dr. brainard, could you talk a little more about why it is important to keep the u.s. dollar stable and strong, and how you would go about doing that? >> well, senator, i will start by the usual caveat as i am sure you have heard before. it is this administration's policy that only the secretary of the treasury speak to the dollar, and i would honor that as a good policy. but more broadly, i think it is very much in our interests and in our power to undertake a strong set of economic policies
that, first and foremost, strengthen the foundations of the u.s. economy, put it on a path that is more balanced, more sustainable, creates good jobs for americans. and in the medium term, ensures we are on a path towards fiscal sustainability, which is an essential part of making sure the u.s. is the most attractive investment environment in the world. >> policies like less dependence on foreign oil because energy prices are so tight, or strengthen the dollar, or confidence overall, or buying back debt, obviously deficit reduction. there is a variety of tools we have that we could be focusing on. are there things in that that you think are more important than others? >> as you said, there are is a set of interlinking policy decisions that will be important to strengthening the foundations of the u.s. economy. the most immediate is getting
people back to work and getting the economy back at full strength. alongside of that, president obama has put a set of policies and policy priorities on the table. among them, promoting different sources of energy, more renewable energy. health care obviously is a central focus of this commeefment and a fiscal framework that in the medium term will get us back on a sustainable path. . . ability to foster an environment of more economic opportunity? we may look at this differently. we look at china as the market because we already sell them coffee and software and agricultural products. do you think the recent announcement by the
administration on energy could pave way for more opportunities for us to collaborate? >> i think we are aware of the >> i think we are aware of the work you have done in this the economic dialogue is one important mechanism for engaging with china. in the first meeting highest it by timothy geithner a-- in the first meeting hosted by timothy geithner. that dialogue will continue to be at peace of our engagement strategy. the clean energy agreements just signed by the president point towards a future of greater cooperation. hopefully they will help to put
china on a path to lower carbon emissions and will create greater opportunities for producers to be selling into the chinese markets. the u.s. trade representative and commerce department are working through the wto mechanism to get china to put additional commitments to open its markets. all of those things will have to be part of the solution. i look forward to being part of that effort. >> i think this is important. if we think about part of this strong dollar is rebalancing. look at states like washington who are basically trade-neutral. if the whole country would be doing that, particularly with the opportunity of a $6 trillion market globally, it has
great -- we have to get people to lower tariffs. the community ought to get together on that. we have 35% tariffs on clean energy solutions. we should all be interested in reducing tariffs on clean energy products. i hope the administration will focus on that as well. >> i kno >> saturday the senate returns to session to resume debate in alternating one hour blocks. at 8:00 p.m. eastern, that will begin a procedural vote. 60 votes are required to move forward with health care bill. watch live coverage on c-span2. >> next, a quick look at the oral history airing on c-span3 saturday. >> richard, thanks for being
with us. how does the oral history come about, and when did you conduct the interviews, and what did you learn? director there one of the things i wanted to do was oral history project. as you know, senators are not alone in the fact they don't keep diaries these days and don't put a lot of themselves on paper. we know enough politicians, they are not the most reflective in the world. oral history becomes absolutely essential tool to get behind the scenes to get history you don't find in textbooks. so this project was done over period of about a year and a half. 2006, 2000 2007, 80 interviews conducted in all, six with senator dole, totaling about 12 hours. most of the others are with his senate colleagues and he
insisted that it not be about him per se, but that it really be about the united states senate and the political process and how they have evolved over the last 40 years. are we going to learn? for example, on sunday, i believe, you're broadcasting another interview in the series with former vice president walter mondale, who says thoughtful and candid things about the '76 campaign, about democrat wars in that debate, about his service as vice president under jimmy carter and about the way that both parties have evolved over these last several decades. >> host: and in conducting these interviews, did you find he was candid and open? >> yeah, well, you know bob dole is noted for being candid and open. from tim to time he said things he probably wished he hadn't said. we've known each other for 30
years so these are really much more of a nature of conversations than they are formal interviews. but i think you will find he is very frank and you heard him talk about '88. i remember asking him about, as you look back, do you have regrets? he said, i used to have dreams about the '96 campaign and what i could have done differently, but then i realized, you know, i'm 83 years old, let me enjoy the time i have left rather than dwelling on what might have been. >> host: he's often told the story in conversation with former senator george mcgovern, the democratic nominee in 1982, they served in the senate together and saesht dole, if i'm paraphrasing correctly said, when did it stop hurting when you lost the election and the response from mcgovern was, i will let you know. >> their friendship is one of
the great sort of unknown stories, you know, in this time. they have -- they both may have cancelled each other out 90% of the time on the senate, but their values compliment each other profoundly. you know, as you know, they have both been active in fighting hunger around the world and both midwestern boys who define themselves by their service in world war ii. and one of the best interviews in the series in fact as you might expect was senator mcgovern. >> we have another excerpt that looked into social security, one of the legislative achievements from the 1980s. let's listen and come back and get a response from you, richard northon smith. >> we were near the buzz saw, wasn't any profiling, if we didn't do it, somebody would get skew erred.
we knew congress would never do it. can't bring up that in congress. >> what does that tell you about the political process of this time? >> a lot of cowards up there. great speeches when it comes to voting. where are they? oh, i'm for it, except that one thing, i will change it and vote for it. if we change it, we won't have anything. but people do get comfortable in the commission if they have confidence then people are on it for the most part. like the president and tip and senator baker and others, once you get the leadership behind it, then you got something. then it isn't blame senator dole or this is the president and speakers compromise. >> host: these oral history conversations will air over the weekend, first ever airings of
the conversations between the first direct offer of the dole institute richard norton smith and bob dole. how can people access these oral histories, richard? >> as a matter of fact, they are right now can access them by c-span because this is the first time that they have been made public. they are housed at the dole institute, but have not been opened and i'm not aware of plans to open them any time soon. this is actually in effect kind of a sneak peek exclusive to c-span viewers. >> he ran in 1980 and lost, 1988, the excerpt of the interview in his race with then vice president george bush and getting the nomination in 1996. how badly did he want to be president? >> well, you know, on the face of it, just from what you said, you think he wanted to be president in a bad way. there is a school of thought, however, and i think other people who have known him as long or longer than i might
agree with it, that he wanted to be nominated almost more than he wanted to be elected. of course he wanted to be elected, but there is something about -- bob dole wouldn't do a lot of things you need to do in this day and age to win the presidency. in some ways he's a classic illustration of why for the most part we don't elect legislators. you know, the skill that it takes to be a successful majority or minority leader, the ability to work behind the scenes and cut a deal, even the language they use, you know, legislatively it doesn't often translate. barack obama is an exceptional figure. john kennedy was an exceptional figure n. a lot of ways i think bob dole, whose place in history i think is secure and who will be seen as a great legislator,
was not i think necessarily by temperment perhaps or experience inclined to do the kinds of things that get you to the white house these days. >> host: finally, we just marked a mile stone of senator byrd, longest serving member of the house or senate. does bob dole miss the senate? would he still be in the senate if he had not resigned in 1996? >> i will let him answer that question. my hunch is -- let me ask a question you haven't asked, would things be different? i was talking to someone yesterday, a veteran of the hill saying with ted kennedy and bob dole were still in the senate, let's just say the healthcare debate would have unfolded very differently. >> host: richard norton smith, thank you for joining us, former director of the dole institute and the interviewee, interviewer
in the >> coming up, a look at the november 5 ford could shooting, with remarks from senators joe lieberman and carl levin. then, a discussion on the military's court-martialed system that alleged for a good shooter a major new doll house on will go through. -- major nidal hasan. >> the president of the american -- "washington journal"
is like every morning at 7 eastern and c-span.org. >> three nights of c-span original documentary on the iconic homes of the three branches of american government. the supreme court, home to america's highest court, reveals the building and explicit detail through the eyes of supreme court justices. friday at 8:00 p.m. eastern, the white house, inside america's most famous home, beyond the velvet ropes of public tours. our visit shows the grand public places as well as those rarely seen spaces. saturday at 8:00 p.m. eastern, the capitol, the history, art, and architecture of one of america's most iconic structures. >> next, a briefing on the force could shooting investigation with remarks from a homeland
security committee chairman senator joe lieberman, an armed services committee chair, senator carl levin. this is 15 minutes. >> center 11 who is the chairman of the armed services committee will come out. i would just say this. it is an expression of gratitude to the administration. this is the third classified briefing i have been in this week. one on tuesday, one this morning, and now this one with the armed services committee. this one was with personnel of the department of defense. the earlier meetings included representatives from the department of justice. there is an attempt to cooperate with the relevant committees in congress veteran instigating what i consider to be the terrorist attack that resulted in the death of 12 soldiers and one civilian at fort hood.
there is not much more that i can say at this point. part of this was for us to understand what the regulations of the military are regarding extremist behavior by members of the military and the obligation of fellow soldiers to repeat such behavior, whether it is expressions of opinion, or obviously in the extreme membership of an organization. we are trying to build an understanding of what the rules of the military are, regarding the relationship of members of the military to extremist believes an extremist organizations. as retired general jack keenane said yesterday, the normal rules of free speech first amendment rights to not relate completely to members of the u.s. military. you take an oath, you have to
act in a way that supports military cohesion, good order and discipline in the military, and loyalty to the united states. i think it was a good, informational assessed predict session. i cannot say much more than that. -- i think it was a good, informational session. we are getting into -- some of the existing regulations and rules regarding extremism come out of other circumstances. there was a time during the 1990's when there was some evidence of members of the military, enlisted personnel, being members white supremacist organizations. in one case in the vicinity of fort bragg, i forgot whether it was one or two enlisted
soldiers who were actually involved in the racist murder of two african-american people in that vicinity. i think it is a question of whether the wording in those regulations also covers what we are dealing with today, which is a very different kind of threat, the threat of islamic extremists. i think it is too soon to reach a conclusion about that. the other question came up at our homeland security committee hearing yesterday. it is to give enlisted soldiers one, a sense of obligation that if they see behavior are here statements made by fellow soldiers that they think is inconsistent with the purpose of the military, the security of the united states, they have an obligation to report that.
and that they will be protected if they did. the army has begun a review of this case. the department of defense, all of us are going -- a criminal investigation is aimed at finding out whether dr. hasan actually committed these murders that
he is accused of. congress is interested in this form of preventive point of view. was something missing in the behavior of people who work for the federal government, whether the justice department are in the military, that will help us prevent a soldier from wreaking
havoc and pain and death that dr. hasan allegedly did. the publicly available evidence is that there was information that was not as fully shared as it should have. it -- these are judgment calls. it is not a clear case of anyone's negligence. i worry, in part of this is now coming out in individuals who knew hasan in the
military at walter reed. they are saying things to the media that i am not so sure they said to their chain of command there at walter reed. that is what we are trying to find out. it is too soon for any of us to draw conclusions. there was information in different places in the u.s. government which, if it had been
put on one desk, people would have said nidal malik hasan is potentially dangerous. i am talking about the department justice and the u.s. army. whatever mission did the army have about him that might have led to concerns -- what information did the army have? >> does it make muslim americans lives more difficult in the service? >> as a general said to the island security committee yesterday, this is not a question of muslim american soldiers. this is a question of jihadism.
there are thousands of muslim americans serving in the military honorable. the best thing we can do to protect and honor their service is to make sure that when there is an occasion where somebody goes extremist, that we catch the signs and stop that person from acting. >> we just had a long hearing with the department of defense representatives, talking about the procedures which are in effect relative to reporting suspicious statements or activities, whether there are adequate, where the army is in terms of their review those procedures. we are in the middle of a
series of briefings which will lead to hearings at their corporate times. i will not be able to say anything which could undermine the prosecution which is now under way, because we obviously want that prosecution to take place without being negatively affected by anything we say or do. we have a responsibility and the senate armed services committee is going to focus on the defense department and any actions or activities which should have signaled something to them which did not lead to their taking steps to protect against the action at for good. that is basically where we are at. >> are you satisfied they did everything in their power?
>> it is way too early to reach any conclusion like that. >> one of the many things we are going to look into is whether or not the j.t. tx's, the representative of the department of defense on the joint terrorism task force acted appropriately and effectively and whether or not when it went to the washington bureau of the joint terrorism task force they took appropriate action, and whether or not other alleged e- mail's that existed were properly handled as well. that is all i can say.
>> was the announcement of the 45 day review just window dressing? >> this is an extraordinarily serious events and gates will be handling it with the lee -- with the appropriate seriousness and thoroughness that it requires. i am not troubled but designating it that way, and there are some who are reluctant to call it a terrorist act. i think there is significant evidence that it is. i am not at all uneasy about saying that it sure looks like that to me. you do not have to have foreign influence for a terrorist act. >> do you feel like it is the proper place to do it in the u.s., to do trials for terrorists?
in terms of what is happening in new york. >> that is a different question. >> people have been calling that a terrorist act, so i was asking you if you think it is proper for him to be tried in new york. >> i do. he is an american citizen, and he is going to be tried for the crimes he has apparently committed. i have to find out who you are talking about. >> i am talking about the trial in new york. people have called that a terrorist action, and it is going to be done in new york city. >> i think is appropriate to try him in new york, because i view what he did as a major crime. he wants to be treated as a warrior.
khalid sheikh mohammed is a criminal, and he should be treated as a criminal, and not as a warrior. warriors have ethics and ethical codes. warriors have standards and must abide by. he does not. he aims at civilians, a tax civilians, not in uniform. so i would give him what he wants, which is to be treated -- i would not give him what he wants in any way. i do not think we ought to give him that at all. we should not be in any way intimidated by terrorists. we should try them and imprison or execute them according to our loss and not be afraid to do any of the above, to try them, to put them in prison, or to execute them according to law. we should not in any way be fearful that. thanks.
>> now, more on the fort hood shooting with a look at the military's court-martialed system. from american universities national institute of military justice. it is an hour and 20 minutes. >> i am the co-director of the national security journalism the initiative. this is a major effort to help future and current journalists better explain to the public the very important national security issues facing the country today. as part of that initiative, we are creating a series of graduate and undergraduate classes culminating for graduate students in a three month in- depth reporting opportunity. we also are sponsoring a series
of professional development seminars, and we are delighted to be part of this effort. i think today's panel is going to be really fabulous. fabulous in addition, we will be funding the research fellows to provide original research on the nexus between national security and citizen engagement in that issue, how the media can better create that opportunity. finally, we will be sharing all of our research and reporting on the website medilmsj.org. today, we have a lot of expertise -- medillmsj.org. we are glad to be joined by this panel. starting at my far left, an
associate in the washington office of gibson dunn and crutcher. he has@ @ @ @ @ @ @ @ @ @ @ @ @r he also was instrumental in bringing the first ever trial before the central criminal court in iraq. he is a member of the national institute of military justice board of advisers. he graduated from west point and earned his degree from the university of connecticut school of law. he has an llm from the army judge advocate general school in military law. next is president of the national institute of military justice and senior research
scholar in law at yale law school. he is the co-author of military justice, cases and materials, a member of the aba task force on the treatment of enemy combatants, and has served as a judge advocate in the coast guard from 1969 to 1972. he regularly represents members of the military and members of the media in military justice matters. mashal mcclure is the director of the national institute of justice, which is based at american university in washington. she has served as judge advocate in the air force from 1997 until last year. she served as prosecutor, based defense counsel and a senior defense council in courts martial.
she has represented the united states as an appellate counsel and has argued such high-profile cases as the air force academy rape case. i am going to ask each of our panelists to talk briefly about the really complicated complex and ever-changing issues relating to the fort hood shootings and how that will be played out in the legal proceedings. also, what are the big issues that reporters might want to look out for? would you like to start? >> i would like to also welcome everybody who is here today and has taken the time to come to our media roundtable. we have done this several times in the past.
i think it is important to recognize that we are obviously here as a result of the case surrounding the fort hood shootings. it is important to recognize that this is the beginning of what i anticipate will be a long engagement with these issues. that has some implications. first, from the standpoint of journalism, i am not a journalist, but i fall the field. -- i follow the field. in a time of revenue concerns, particularly in the print media, it will be a challenge
for personnel managers, editorial management, to commit the kinds of resources that this story is corn to require -- is going to require. even the most stable and potentially healthy media outlets are going to be challenged by this story. i hope that they will rise to the occasion. i have some confidence that whawill happen. in this path that we are embarking on a will involve all three branches of government. obviously, the executive branch has responsibility for the conduct of investigations and the handling of prosecutions. it would certainly seem that
there will be judicial proceedings within the military justice system and it would not surprise me if those proceedings spilled over into the normal article three federal courts. finally, congress has already gone into the act. there was a hearing yesterday before the senate home when security committee chaired by senator lieberman of connecticut, concerned about whether the facts, as they have already begun to unfold, suggest witnesses in our internal security or national security apparatus. -- weaknesses in our internal security or national security apparatus. these will be challenges for journalists.
the other point i would like to make, and i am anxious to respond to questions, but this may present the rare occasion when a case of profound public interest provides the fulcrum for legislative action with respect to the administration of military justice. it is very rare that we look for congress to intervene. legislation -- sweeping legislative reforms have come very and weekly -- in frequently --in frequently. some tell me that it takes a case of high public interest and
trauma to galvanize congress into action. i do not know where the path leads in that regard. we do not know what the lessons learned will be. it does seem to mean that smart observers will be looking to see whether this is a case that suggests some areas that are ripe for reform. i might add that the national institute of military justice issued a report on the talks commission on military justice, suggested reforms in this area and, perhaps the combination of a synergistic effect that may provide the occasion for some other reforms in the military justice system. >> >> i guess, adding on to what
his comments were, i would give a few comments on the modern military. there is moderate jurist prudence in the area. from that time friend, until 1983, the military sent -- sentenced 70 people to death. in 1983, when the court of appeals invalidated the military death penalty and dismissed all the cases pending on death row. president reagan published an order and let out the career rules for capital punishment.
there are basically three factors that have to be played out. there needs to be an accused found of offense that calls for the death penalty. a jury needs to find aggravating circumstances and they need to find that any mitigationg circumstances are now done by other circumstances. there has to be a unanimous vote by a jury for the death penalty. they would start voting on the lesser sentences first and then go upwards. if someone boats against the death penalty or for a lesser sentence, then that sentence is [inaudible] a couple peculiarities is that a typical court-martial process
does not involve the unanimous jury. you only need a two-thirds jury for capital offenses. there are 15 offenses under the uniform of justice. many are more related offenses. most folks that have been charged have been charged with premeditated murder or a felonious murder. there has been roughly 49 or 50 capital chiles. of those, roughly one-third of them resulted in actually a sentence of death. of that small a percentage, there is currently five of folks remaining on death row in the military. nobody has been executed since
1960. there are five currently serving on death row and three others are awaiting recent incident. hopefully, that will give you a look at the broader process. we can walk through the trial process and the appellate process because there are some differences from the civilian courts. i will stop there to get some over the. >> -- get some overview. >> a couple of things that i left out at the beginning. you can find at our web page. for those who have not been able to find it, it is now at wcl.american.edu/nimj. since we're in the process of making changes, there will be additional documents and hopefully will find it useful.
certainly, we appreciate feedback if you find things on there that you have questions about or if you don't find things that you would expect to see. if everyone could, before you leave, we have some of our publications as well as a sign in sheets so that you can become part of our lip service. if you could leave your contact information, that would be great and we could invite she to future events. to kind of did you a first taste of what we can expect in this case, the hearings will be public. those of you who have covered military trials in the past understand that access can be to
different things. the preliminary hearing which is an article 32 hearing, and i expect that to occur in the next several months. it is the equivalent or attend to a grand jury proceeding in the civilian world -- or i caako a grand jury proceeding in the civilian world. it will be made available to the public. it is not going to be business as usual for military justice. this is a highly unusual circumstance. you do not get a time of murder cases in the military. especially ones that involve officers. it is fairly unusual to have multiple victims, especially the number of victim's that we have here. not in any case.
but military prosecutors and defense counsel really are not used to prosecuting or defending these types of cases. they do not happen on a routine basis. it will probably be interesting to see how the process works out as the golan because this is not the normal military justice case. it certainly -- in the case of this nature would take quite some time, but this one, in particular, the military will want to make sure that they are doing everything they can to make this prosecution appeal make this prosecution appeal prove-proof. >> if i could just add a couple of footnotes prompted by michele's remarks, it is
difficult to think of a time in which an officer at a pay grade of major or above has been accused of a crime of violence. i can think of one case actually involving a graduate of your all modern -- of your alma mater who was convicted of attempted murder, but that was many years ago. it is hard to think of other cases like that. i also have not been able to think of a case in which capital charges were brought against an officer. i do not recall whether lt. calley, for example, whether his case was referred, but they are certainly very uncommon. the one other point that
michele's remarks made me want to mention is that although the pretrial investigation, and let's assume there will be a trial, will be open to the public, mostly, there may be some times when these proceedings will be closed for reasons of national security. there will be problems getting access to some of the legal papers related to the case. of courgets martial, there's no court staff that members of the public are used to in dealing with civilian, federal and state courts. this has been a problem in the past, where important aspects of the prosecution or the case may be conducted on paper. there's certainly going to be a lot of motion practice in what is unfolding at fort hood.
and i think it's going to be frustrating to try to do a professional job, without regular, easy access to the motions and responses and so forth. i can mention that i in fact currently represent a woman who is a widow of an officer who was killed, and a capital court-martial ensued, and we had enormous difficulty gaining access to the legal papers in the case. and the government's position is that you had to request the legal papers, the motions, by using the freedom of information act, which is deeply frustrating, and frankly, silly. and i would hope that the media -- and i'm thinking now not
only of your organizations, but also the reporters committee for freedom of the press, would exert themselves now, rather than months from now when the problem really comes to roost. to insist on "rules of engagement," so to speak, so that you will and the american people and people around the world will be able to know in real time what the legal skirmishing is in this case. that's a foretaste of things to come, but i think that's a very real issue that's going to come up. we assume in this day and age that we're going to have essentially immediate access to the governing documents, and that is going to be a challenge, unless something changes in terms of army policy. >> i think we should open it up to your questions. >> don north, i'm a member of m.r.e. thanks for sharing your expertise with us this morning.
there was a case that i was involved in reporting in 1983, just a week before the invasion of iraq. it took place at camp pennsylvania, the 101st airborne base for the operation into iraq. about midnight we heard a couple of tremendous blasts, and it turned out a staff sergeant of 20 years experience in the 101st airborne and a muslim lobbed a couple of grenades into officers' tents. he killed -- it was two or perhaps three officers and wounded two or three others. i've forgotten his name. but since that time i've read and not been aware of what happened with this, and it could well be a precedent for judicial proceedings in the fort hood case. i'm wondering if you followed
this or are up-to-date on what happened with this case. >> you said 1983, i assume you meant 2003. i want to make sure we're talking about the same case. it was the akbar case. it's a personal case to me, actually, a personal friend of mine and a current judge advocate in the army, was one of those folks in that tent who was injured by those grenades. his life was saved because he was sleeping with his flak vest on, so he was one of the fortunate folks who survived that. but as you point out, that case happened in 2003. it went through this exact process. went to trial, and he was found guilty and he's currently one of those five folks that are identified on death row. now, the appeals process is still ongoing for him. and the typical time for appeal for a capital case in the military for completion of
appeals is around eight years, and that's kinds of the standard time. so he's somewhere in that process, but he has been convicted at court-martial and his appeal has gone forward and he's currently at fort leavenworth in disciplinary barracks on death row. >> you can't plead guilty to a capital offense under the uniform code of military justice. so let's assume he pleaded not guilty. but this may be as good a time as any to take a second and scribe describe the appellate process -- describe the appellate process. michelle, do you want to run through that briefly? >> sure. and we can use the akbar case as an example and we can build on the other four individuals who are currently sitting on the military's death row. the first level of appeals that happens after a court-martial finds an individual guilty of capital murder is actually a process called clemency in
which the convening authority or the commander who initiated the court-martial has the opportunity to wipe out the entire conviction, to mitigate the sentence. the military justice system is, as we've all heard, it's commander-driven. it's really the commander who is in charge of the court-martial. so the commander has the opportunity to say that the charges should be dismissed or dismiss the charges himself, actually. now, certainly that's very rare that that happens. the court-martial process is started for a reason, because the commander this is that the individual has committed -- thinks that the individual has committed a crime. but after the clemency process, assuming the commander does not decide to mitigate the sentence or the conviction, then it goes
to the first level of appeals, the service court. and in the akbar case, it is currently pending at the army court of criminal appeals, which is the same court, the first level appellate court, that the hasan case would go to, assuming that he gets convicted. and then from there -- and anyone who gets a sentence of a year in confinement or punitive discharge, dishonorable discharge, bad conduct discharge, or in, the case of an officer, a dismissal, gets the opportunity to appeal to that first level of court. the second level of appeals is the court of appeals for the armed forces. it's the highest military court, presided over by five civilian judges, and not every case is automatically appealable to the court of appeals for the armed forces. but i assume in a case of the charges that we're looking at
here in the fort hood tragedy, that it would get to the court of appeals for the armed forces. >> so it's mandatory for capital cases. >> exactly. >> if it's a capital case, it's mandatory review. >> and assuming that that is the case here, which all indications are that that would be the case, then the court of appeals for the armed forces would hear the case. and then there's the opportunity to go to the supreme court, which is not always afforded to military members, and even now one of the things that was a recommendation from the recent koch commission and also a movement that has been afoot in congress is to expand jurisdiction, so that military members who -- whose cases are not heard by the court of appeals for the armed forces can still make it to the united states supreme court, because
civilian defendants are afforded that right and believe that the military should get there as well. so that's the -- the supreme court is the last court in the direct appeal, and then if gene or brian wants to jump in for the next step after that. >> just a couple of things i would add to that. maybe it would have been more helpful to walk through the trial process, so you can see how the appellate process builds off of it. so maybe we'll just step a second back to see that. the very first step of the process, the one that's been initiated now is the preefrl of charges. in this case major hasan has been charged with counts. and what happens from there, those initial charges, the preferal of charges -- in a civilian world there's a grand jury proceeding which is closed, secret and private and only the prosecutor takes part in it. in the military, it's very much
a -- it's a more open hearing, and as gene pointed out, the press would be allowed to go to it and it's a public hearing. at that point basically there's a mini-administrative hearing where evidence is presented by the government and the defense to make a recommendation to that commanding general are whether or not a criminal trial should go forward. so after that article 32 hearing takes place, a recommendation will go to the commanding general of what he should do with that case. and what i would point out here is along this step, what you can probably expect to see as a point of interest from the media, i would expect at some point here somebody will raise the issue of the sanity of major hasan. so there is a process in the military, under rule 706, for a sanity hearing, for lack of a better word. it's basically an opportunity to assess the competency of someone, whether he's competent and fit to stand trial. and that process will take
place sometime along in this process. and we can go into more depth than that, if questioners are interested in it. >> brian, can i ask a question to follow up on that? >> sure. >> the sanity issue is different in the military, or the definition is different, isn't it, than in a civilian court? i understood it was a higher bar. >> each state has different versions of insanity. so on the spectrum there are some states that are higher, and the most famous case is on a bit higher bar, but not so differently -- not that much that would be different from civil as well. to differentiate, that's different from the insanity defense which might be raised at trial. so kind of the threshold question here is, is somebody fit to stand trial? and that would go into the convening authority's and the
commander's recommendation, if he is going to refer this matter to a trial, because none of that would have happened at these early stages. in other words, there will probably be a sanity hearing, which is between a board of civilians, including at least one psychiatrist, where they basically answer several questions of the they look and say does this person suffer from a mental illness, and if so, what is the clinical diagnosis of that illness? and then they ask, at the time he committed this act, what was his mental capacity? did he have the ability to understand and appreciate what he did? and then at the present time now, what is his current mental capacity? does he have the capacity to understand the proceedings against him and what is going on? >> i think, brian, you may have said a board of civilians. i think you meant board of physicians. >> physicians, yes, i'm sorry. >> there might be a civilian civilian on there, but they're physicians. >> absolutely. >> maybe this would be a good time to open up the floor for
questions. >> well, this is relevant to this part of the process. can the defendant request a change of venue, and how does that work? >> yes, you can request a change of venue. it's highly discretionary as to whether the venue would be changed. remember, the uniform code of military justice applies, quote, in all places. that's what the statute says. so you could have a change of venue to anywhere in the world. venue to anywhere in the world. whether a chang whether a change of venue would be granted we be a function in the first instance of this bit -- decision making, but it is subject to judicial review. at such time that one is assigned, it is hard to handicap the right now because it may be some considerable time before the trial process cranks up. i suppose i would have to say
that it is more likely than not. is my own intuition that this trial will be held someplace other than for good. i think the alternatives would be one of the other large army installations, whether it is fort lewis, or one of the others around the country. my bet is it will be some place else than for good. -- and fort hood. the commanding general at fort hood is the one with authority over this case right now. he can go to his hire general who would either pull that case from him, or he could request and it would be granted to somewhere else.
this is the early phase before it goes to the military judge. the military themselves could make the decision they choose to remove its. . . three corps commander who could decide to send it somewhere else. so that's kind of where it starts from. >> since this is such a high-profile case and because of the complexity of it, do you have any idea how long before we get to the plgs? should we expect a year, should we expect an extended period of time, more than a normal court-martial case? court-martial case? >> i think easily be six weeks before we see that. we're really still at the beginning stages. it's only been a couple of weeks since the tragedy, and we're not sure exactly where the investigation is going to
go. depending what the investigation comes up with, i could easily see six months to -- if the investigation gets very complex, even up to a year, because he's going to be held in confinement during that time. and the supposition is going to be even though there are speedy trial protections in place, that his ultimate sentence is going to be something longer than six months to a year, and so the harm of delaying a trial would be minimizeed compared to, say, some other lesser case. >> let me say that i think it is unlikely that any significant legal proceedings are going to happen until dr. hasan's medical condition fully stabilizes, because questions could be raised about his ability to participate intelligently in his own defense if he is on significant medications. >> but i do think -- there are speedy trial issues, and if he
is kept in pretrial confinement, you're not talking years before things happen on this case. medical condition notwithstanding, i think three to six months there should be some of these steps taking place. perhaps first the sanity hearing, if someone requests that, or if not, an alternative, the article 32 hearing, which is kind of the preliminary hearing to make a recommendation to go forward. i would expect that you'd see one of those two steps in the next matter of months, depending on the medical condition. that will be sorted out first. >> did you say earlier the appeals process in a couple of cases took eight years or longer? >> i think that's a statistical average for the case that's have gone through the military court process. that's exactly right. >> it's clear that between the trial process and the command review process and then the appellate process that michelle described, the military system does not hurry to bring people to completion of the capital
process. and then the collateral review process begins. this is habeas corpus in the federal district courts and the whole -- you know, the appellate process kicks in. so just as we're familiar in the civilian community of capital litigation lasting a very long time, the he can act same thing is true. -- exact same thing is true. and, of course, one of the major speed bumps -- it's more than a speed bum -- unique to the military system, you have to have the affirmative approval of the president of the united states. and the fact is that presidents have not been quick to act on capital cases. i think they're the type of business that outgoing presidents are perfectly happy to leave on the president's desk in the oval office on inauguration days and let their
successor worry about it. interestingly, i think brian mentioned the case from 1961, the case of private bennett, who was the last person to be executed under the ucmj. president eisenhower had approved his sentence and approved the execution in the late 1950's, and by the time inauguration day came around in 1961, bennett was still alive. and so the question was presented a second time, this time to president kennedy, as to whether the execution should go forward, and president kennedy obviously did not stop it. >> and just for context in that, recently, since that execution, of the five folks that have been on death row, there's only one whose sentence has been approved, that was done in 2008 by president bush. so that's the most recent time that a president has in fact approved a court-martial's death sentence and that it
happened. that is the gray case, and that is -- as a result, he's approved that sentence and now it's going forward with federal civil habeas review. so that's the one that's farthest along the line toward a possible death sentence of the five folks that are on death row. only one has been approved by the president. >> have there been five since 1961? >> no, no, it's much more than that. >> one of the issues that you see is that several of these cases have been appealed. they've been appealed and overturned and several things have happened much the most recent, a sergeant's case, he had a death sentence and it was commuted to life without parole and that case went off the death row docket, if you will. so there's been several capital cases. five have gone through the appellate process and remain in some phases of the appellate process. the one farthest along has had
his sentence approved by the president and now it's collaterally challenged and is in habeas review. and if you think of the akbar example being the other one in 2004, that case was brought to trial. he's been convicted. it's now at the first level of mandatory appeal. >> for clarification, we usually look at -- for numbers, we look back to 1984 when the rules were significantly changed, as brian talked about, by president reagan. that's usually our starting point for counting cases. since then, as brian said, there have been approximately 50 cases in which the death penalty was sought, but some of those cases -- gene talked about one case that -- no, actually, in at least two cases, the individuals have been acquitted, two cases quite recently, actually. and in most -- the vast
majority of those cases, they received something other than a death sentence. only 15 of those 50 or so cases actually resulted in a death sentence. in two of the 15, the commanding general, the convening authority, commuted the sentence to something less than death. and then in eight other cases, the appellate courts have overturned the death sentence, and three of those are currently pending, awaiting resentencing. >> let me mention that in addition to being slow to impose the death penalty as a sentence, the military justice system is slow to approve it on review. and the best research on this has been done by colonel dwight sullivan, who has written
extensively about the military death penalty. in addition, professor gary so last, a member of the advisory board and teaches at west point did a study during vietnam of the war crimes cases, basically , and the result were quite remarkable about sentences being reduced materially as they progressed through the command review process and through the appellate review process under the ucmj. really draconian sentences tended to be reduced dramatically. i'm not saying that's going to happen here. there's a lot of steps along the way. i think brian mentioned life without parole. as this case unfolds, -- the military is great at acronyms. the acronym that you may hear is lwop, which is life without
parole, l-w-o-p. and i guess the only other thing that i wanted to mention right now is more broadly, going past the army record, the other services also are not what i would call blood-thirsty in terms of administration of the death sentence. and indeed, the united states marine corps, i believe, has not had an execution since before the war between the states. so it's a system that is quite slow to impose the death sentence. >> and one example of that -- and then we'll take some more questions -- just the gray case alone, which is one of the five death penalty cases, his death warrant was signed by president bush last year. but my understanding is that it's been sitting on the president's desk for basically his entire term. it was something like seven years. so just from the time it got to
the president's desk to the president signing it was an additional eight years after all the other appeals we talked about. so it's a very slow process. [inaudible question] i don't know. i can't say exactly why that is. >> i know some of the speculation is it's not a popular move to be the first president to issue a death sentence for a military person. certainly that could have been a factor. but i think everyone is kind of speculating. in some ways, i think president bush was a good candidate to let one go forward, as he, as the governor of texas, was pro death penalty. even he took seven years to do it. previous presidents didn't act on it at all. so it's hard to know why he chose that one to go forward, and just that one. >> president clinton did not have scrupe els about approving
death sentences. there was a notorious case in which he returned to arkansas, i think, to expressly approve a death sentence under quite controversial circumstances. so, again, that was an eight-year presidency in which there were no military executions. >> i have two questions. the first one is could hasan remain at fort hood, once he's healthy enough to go into confinement? could they move him somewhere else, or will they leave him there? the second question in his the big scheme of things, looking at from preliminary hearings through trial, how long are you thinking that process could take? could it be years before we see everything finish up, or do you have a guess? >> if i were to guess, i would say -- this is mid november. i would say a trial might well be over a year from now.
>> the military -- you know, we, in the washington area, are familiar with something called the rocket docket, which is the u.s. district court for the east and district of virginia. the military does not function as a rocket docket particularly in these cases. even though it is sometimes said that purpose of the military justice system is to dispense prompt, lichty split type justice. it doesn't function that way. it's quite a deliberate process. >> your first question, my understanding is actually that he right now, if i'm not mistaken, is not at fort hood anymore. he's in san antonio, if i'm not mistaken. so the expectation of where he would be following that -- i mean, he will most likely be kept in pretrial confinement. i don't know that he'll go back to fort hood. he may very well stay down in san antonio, and it also may function -- the answer is the ability is there to put him
wherever. the jurisdictions -- while there's not a legal impediment to where he goes, there's probably a practical constraint. and my guess is i don't know why they would bring him back to fort hood unless they were going to have the trial there. >> in terms of the venue question, obviously, this case has generated a lot of national and international attention already. so one of the challenges is going to be finding jurors in the military justice system -- they're called members -- who are impartial and who have not prejudged the case. that happens in the civilian community as well. the military justice system, like the civilian justice system, has a process for screening jurors, or members. screening jurors, or members. it's called voyeu forit provides the judge
to provide questions to the potential jurors just to make sure they have not been exposed to really overwhelming presidentiaprejudicial publicity don't come to the process with fixed opinions that would preclude them from proper service as members of the court martial. that will be an issue. it will be a challenge to wherever this case is held. the same is true, by the way, to the prosecutions that have just been moved from guantanamo to the southern district of new york. there will be issues about finding injuries who are fit to sit. -- fined injurijuries who are fo
sit. >> in this case, he is an officer. on there arthere are many enlisd people. they will pick soldiers from within his jurisdiction. smaller subset of that 10% or so. so the pool of folks that you can pick from for a jury of officers, that will be an added wrinkle because of major hasan's rank. >> right. and remember, the members of the jury, the members of the court-martial, have to be senior to the accused. so these officers would presumably be either like colonels or above. i wouldn't be surprised if there were one or more generals on this panel. some of them might be majors, but who are simply higher than dr. hasan on the active duty list and their date of rank. >> it's a requirement. he couldn't request having
enlisted. >> he wouldn't get it. enlisted personnel who are accused under the ucmj have a right to request enlisted membership, and if they make such a request, at least 1/3 of the panel would have to be enlisted personnel from another unit, by the way. that doesn't apply in this case. that's a privilege enjoyed only by enlisted personnel. >> is it seven or nine? >> it has to be 12 for a capital case now. >> that's a relatively recent reform, by the way. >> and that's for a capital case, it will be 12. >> and it has to be at least 12. so that's unlike -- we've come from having to have at least five, which was the old rule, until the recent changes. you had to have at least five for a general court-martial panel, and that was used even in capital cases. now -- and i think it was partially in response to the
first cox commission, it has to be at least 12. so you could potentially have 15 people sit on the case. and that's something that's a little bit different from the civilian system. we're looking for a fairly large member pool, because they do have -- you have to have quite a few more than a normal general court-martial. you've got to have all the officers, an they all have to be seniors. so it most likely will be, even if it's moved, a large army base to get that population. >> we probably should take a second and talk about the lawyering in this case. obviously, there are trained attorneys prosecuting the case, or there will be. and there will be attorneys on the defense side. dr. hasan has employed a
retired army colonel as his civilian defense counsel. that's at his own expense. that person is called the civilian counsel. there will be detailed counsel who are uniformed lawyers made available by the government at no expense to dr. hasan, and he can also request individual military counsel, which would be an officer dn one or more officers requested by name, and they have to be made available if they are reasonably available. the interesting thing about this aspect of the military justice system is even if you were able to afford an attorney -- and as a major, dr. hasan would presumably be in a position to pay an attorney -- you get them for free under the military justice system. that's unlike the civilian justice system, where only people who are paupers are entitled -- or indigent are entitled to free defense counsel in criminal cases.
>> could you talk about voir dire again for a moment? is it different than in civilian courts, and how does it work? are there a certain number of strikes that counsel get to remove members? >> do you want to take that one, brian? >> it is very similar to civilian court, i guess i would say, in that regard. also, there is some discretion in it. some particular judges choose to do voir dire themselves. each counsel will submit questions to the judge and the judge will ask the questions. some judges allow, just like in civilian courts, the individual attorneys to ask the questions. there are both challenges for cause and a set number of preelm torres. i don't remember, i think it was just one preelm tore. i don't know if that's different for capital cases. i don't think it is. so it is a very similar process, and typically what happens is it starts off with
kinds of either questionnaires that either side can commit to the court to try to get specific questions -- have you ever had family members involved in certain incidents like this? do you have anyone in your family with mental health issues? those kinds of questions to probe in advance and then more specific to the whole group of panelists, and more specific questions that can be addressed to individual members of the panel or the jury if concerns arise, if someone had someone who was killed in an incident similar to this. >> the jurisprudence on this, by the way, it's called the liberal grant rule. so that military judges are under very -- an injunction, basically, to be generous in granting challenges for cause. so if the defense or the government can come up with a plausible basis for releasing a potential court-martial member, the judge is supposed to grant it. now, the process is not all to
dissimilar from the civilian criminal justice process in that the doctrines relating to exclusion, for example, of racial minorities are applied, the so-called batson issue, b-a-t-s-o-n. that's familiar territory in the military justice system. the military is alert. military judges are alert to the potential for abuse in the exercise of challenges, and that's been a fruitful field, actually, for litigation. and i'm sure that that will have been thought through very carefully by all the players, prosecution, defense and military judge. incidentally, the prosecutor in a court-martial is called the trial counsel, rather than the prosecutor or district attorney. so if you see references to the trial counsel, that's -- that means the prosecutor. >> interestingly, along those lines, one thing you'd want to
think about and an issue that might raise itself is the issue of religion. i think that will be an issue when you think of the panel. i think you can expect to see discussions on that, unlike race and gender, which is a very clear grounds. the case of batson versus kentucky makes very clear that you can't strike somebody because of their gender or their race. religion is not quite as clearly resolved. and i expect it to be an issue in this case in terms of, you know, an issue of whether someone is either a strong christian or a strong muslim, would they be an appropriate person to strike from the panel based on their views. the same is true on issues of whether somebody is a firm believer or not a believer in the beth penalty. those are the tines of questions that will be interesting questions that you can expect to see some skirmishes on. >> we should go back and take one second. i know there was a hands or two in the back of the room, but we should go back and talk for another second about the pretrial investigation, the so-called article 32 investigation.
even though this plays a role somewhat comparable, a sort of screening role comparable to a grand jury, it's important -- it's different in important ways. for one thing, it produces only a recommendation to the commanding officer, the convening authority. the convening authority can accept or reject the recommendation. the other thing is the dissent can play a very active role in an article 32 investigation. the defense gets to sit there, cross-examine the government's witnesses, put on its own witness. sometimes the accused, he or she, may take the stand. i would be skeptical if that's going to happen here, but, you know, we'll find out. but it's one of those aspects of the military justice system that's commonly pointed to as more generous to the accused
than the civilian justice system is. >> there were some hands up in the back. >> you had mentioned that the prosecution was going to be looking very carefully with an eye toward making this appeal-proof. what are the kinds of concerns will you have in terms of potential appeals? what are they going to be looking to in terms of potential appeals? >> michelle, why don't you -- you can start on that. we could all probably comment on that one. >> well, there are any number of pitfalls. obviously, all the appellate issues that could possibly be raised in a shoplifting case or a dorm and barracks theft, there are all of those, but there are ones that would be specific to -- and again, assuming that this would be a capital case -- ones that are specific to capital cases.
we often hear death is different, and there are certainly some very important pitfalls that this case will want to avoid, things like making sure initially that he's got counsel who are what you term death qualified, and making sure that these are individuals who haven't just tried one shoplifting case or one failure to go to work case, an awol case. we want to make sure that you've got individuals assigned to this case who understand the ramifications of trying a capital case, who -- and in the military system, the convening authority has control over the purse strings when it comes to hiring expert witnesses, and that's something, in this case, that's going to be particularly important, because in a capital case mitigation experts,
individuals who specialize in looking at the background of the accused, the defendant in this case, are critical to providing a fair trial and to having a case that will be upheld on appeal. so those are a couple of the things, and i'm sure that gene and brian have some additional kind of pitfalls -- classical pitfalls for this type of case. >> i mean, following up on what was just said, truthfully mitigation experts -- the most recent military court-martial death case, sgt. kreutzer was the case. he had his sentence commuted from -- you may recall a bit of a time ago. he was the individual sergeant down at fort bragg in 1995 who laid in the woods and opened up and shot a bunch of folks, killing one and injuring 17 others, while laying in the woods.
his case -- and the main issues dealt with this mitigation specialist and the government's refusal to provide them with a mitigation expert. and so that kind of is a significant issue, because, again, as we laid out kind of early on, one of the factors that goes into whether a death sentence can be approved is whether or not any mitigating factors are substantially outweighed by the aggravating factors. so this case will focus a lot on dr. hasan trying to show whatever problems that he has or certain mitigating circumstances, religious, mental or otherwise. so you can expect that. i think we also mentioned about 80% of the cases, the death penalty cases, that had been overturned for some reason or another, every those, 1/3 of them were from ineffective assistance of counsel, if you will. so counsel kind of failing to raise right issues. another, i think, almost 1/4 had to do with bad instructions by the judge or rulings by the judge, so denying someone's
request for an expert, or perhaps it could be a change of venue. so issues like that. so one of the things that you will see is the defense pushing for different issues. and i think the government is going to want to be wary of that and make sure they err on the side of -- whether it's giving additional time to do things or additional resources, those are the types of issues you'll see. and there's a challenge on that, because the military is interested in trying the case and bringing it forward promptly with these concerns that they want the case to stay, and the recent history in these cases is it's very difficult to get a capital case all the way through successfully through appeal. successfully through appeal. >> there has been so much attention that you could make up a shopping list of issues that you could end up on the
table if there is a trial. evidence may be excluded by the military judge or admitted by the military judge. those are areas that are fruitful sources of appellate litigation. obviously, a speedy trial is an issue. we have all heard of unlawful command influence which comes up in a variety of different ways. or the dice loaded when the members were selected by the members? we have mentioned venue questions and the insanity defense which might come into play. pretrial publicity. leakage of confidential information may turn out to be an issue, it would not surprise me.
access to experts has been mentioned. request for experts, both investigative assistants and technical advisors, such as physicians and psychotherapists and the like. are there qualifications comparable? is there a significant difference? another issue -- and this, i guess, has to do with the exclusion or inclusion of evidence -- will have to do with the claim that aila akbar was heard -- that dr. hasan was heard to say that, whether that is so prejudicial that a judge should exclude that. let's see how the evidence unfolds there. but there are other aspects that might be really highly controversial, for example. dr. hasan's religious
involvement and views, does that come in as a matter in mitigation, or does it come in as a matter of aggravation or both? and the final thing that i wanted to mention is whatever issues the parties bring up or the judges inject. if this case ever gets to the u.s. court of appeals for the armed forces, which is, by the way -- all civilians, five civilian judges, presidential appointees confirmed by the u.s. senate, those judges have a practice over many years of identifying errors on their own. they have a central legal staff and they posterior over records at trial and regularly -- pore over records at trial and regularly brief issues that they specify.
so they may well go beyond and say we'd like you to brief right to counsel issues, for example. we see this problem or we see some other problem. in that respect, by the way, it's quite a paternalistic system. that's been a matter of controversy. but the court historically has been proactive in ensuring that there is meaningful civilian review and that g.i.'s get a fair shake. >> it goes beyond the convening authority. >> yes, that's a very good point. and, by the way, for shorthand, we're all used to the phrase "command influence."
military justice mavens are particular about this. we say unlawful command influence, another acronym, u.c.i., and the other one is ineffective assistance of counsel, i.a.c. but u.c.i. comes in a variety of shapes and colors. people have at times said -- statements by presidents and other senior officials have gummed up the jury pool, polluted the jury pool and so forth. those allegations are regularly made, but they very rarely get anywhere. and even when charges of unlawful command influence gain some traction in theory, it's quite, quite rare that anybody gets any actual benefit at the end of the day in terms of having a conviction overturned on that basis. why is that? because our political leaders -- and here i mean the civilian political leadership, the political a-point tease who are
in charge of the -- appointees who are in charge of the service departments -- were not born yesterday. they are advised to be circumspect in their comments. they typically are pretty good at that. and i would be surprised if anything said to date were the cause of any really wrinkles in the investigative or prosecution process. what happens tomorrow, i can't say. but so far, i think they're probably on safe ground. >> just so people understand that issue a bit, if you will, obviously, if the military hierarchy, and so everyone who is going to serve on that panel or that jury reports up a chain of commands all the way up to the president, so usually what happens, how these issues can get raised at the more abstract level, is some high-level official, whether it's a general or otherwise, comments on how he thinks the case should be hands. that guy should get the death sentence or something like that. so the issue then becomes raised, if you're a superior
officer in a higher organization has some indication of how things should go, does that influence you in how you'll decide the case and how you act. and that's one way that it's raised at the higher levels. there other ways that unlawful command influence can come in as well. >> well, just one example is suppose you had a commander who said, gee, i just don't see how, if you put somebody on report, your company commander can then turn around and say joe is a good guy and should be permitted to serve out his enlistment, you know, serve as a character witness. you can't chill -- you can't lawfully chill people from coming forward as witnesses either on the merits or on sentencing. and by the way, let's be very clear about one other thing, and we're sort of doing this in bits and pieces. but remember that a court-martial is divided in two stages. one is what's called the merits or guilt or innocence stage, and the other is the sentencing
stage. and so the jury would get -- the members would get to vote twice, first guilt or innocence of what, and then the sentencing. so they'll be out, if it gets that far, for two sets of deliberations. one might be very short, one might be very long, you don't know. but it's a two-stage process. other questions? >> on the documents issue, is there an established policy on that, or is that sort of made up as it goes by the commanding general? >> on access to the legal papers? all i can say is that this is -- we talked about this in the case that i was describing, it was u.s. against martinez and we were told that we had to
proceed under the freedom of information act. i think eventually, had we prepped it, we might have gotten traction with the military judge. i think the judge ultimately entered some kind of order, but there is no general rule on this, and i think this is a ground rule for cases that are, let's say, high-profile cases that ought to be resolved once and for all, instead of not having to do it in real time. real time determination of an issue like this is, as i understand the journalism business, is really unacceptable, because for daily journalism, you don't want to have a long conversation with lawyers and getting the legal department into a discussion when 5:00 or 6:00 or 7:00, whatever the deadline is, is fast approaching. so i think that is something
that people may want to be proactive on. >> talk about the judge who will preside over this. it's usually from an outside command. talk about the selection of judge. >> different services do it a little bit differently. some of the judges are stationed at a particular base and they're responsible for that base. in others, they're responsible for a region. there may be five or six, depending how large their judge corps is that are responsible for that part of the country or part of the world. and it's generally either the chief judge for that region or that base who selects the one who would sit. in this case i would say that -- and actually, going back to the preliminary hearing, the preliminary hearing -- the article 32 hearing is not usually presided over by a judge.
it's usually just, for lack of a better term, random, unaffiliated judge advocate. but in this case, i foresee a judge being assigned to the preliminary hearing and a very senior judge being assigned, if not the chief trial judge in the army, being assigned as the trial judge. i can certainly foresee him detailing himself to this case. because, again, if it's referred as a capital case, there aren't that many defense counsel or prosecutors who have the wherewithal and the experience to do those types of cases. and there aren't very many judges who would be mindful of all of the things that you all have asked about as far as appellate pitfalls. so i foresee it being a very senior judge, if not, the senior trial judge in the army. >> one point about the military judiciary -- and by the way, we
talked about the uniform code of military justice and we talked about the pentagon and the military sort of in gross. in fact, the military justice system is quite decentralized. the different branches have their own systems. they come together at the second stage of appeal. but in important respects, these are serviced by service arrangements. now, talking about the military judiciary, one difference between the military justice system and the civilian federal justice system is the terms of office for judges. we're all familiar with the fact that under the u.s. constitution federal district judges enjoy life tenure. and in fact, their salaries can't even be reduced. those don't apply to military judges. in fact, the supreme court said the due process clause doesn't require a military judge to have any term of office. to its credit, the army, even
after that case, imposed or created terms of office for its military judges. that's the good news. the bad news is that the terms they created are only three years long, which is as judicial terms of office go, very, very short. that is a difference. speaking personally, i think that's unfortunate. i think the military and congress ought to do better in terms of protecting the independence of military judges and a three-year term of office is something we would never tolerate in a felony case in the civilian community. we'll see if those kinds of concerns about judicial independence play out here. i'm an optimist. but i do think the structure could be improved and military judges could be given longer terms of office and terms of office that were prescribed not by regulation, but by an act of congress.
ma'am. >> you're talking about it being referred as a capital case, so is it not already a capital case? >> it's merely a potential capital case. >> so when does that -- >> it's in the process. initially these charges have been brought against major hasan. as we talked about, there's going to be an article 32 hearing, which will happen -- who knows when? perhaps in the next six months or the next few months, where both sides get to go forward and present some evidence, and the officer, whoever is in charge of convening that hearing will make a recommendation to the commanding general of go forward with charges, go forward with these specific charges, make a recommendation that either he be charged capitally or not capital. at that point, after the article 32 hearing is complete, they'll go with a recommendation to the convening authority, who will make the decision whether or not to convene it capitally or not. so that's kind of where the big step will take place. now, the expectation is that
because of the crime and the fact that they're charging him with multiple counts of premeditated murder, they're setting it up for that route, so the convening authority would have the ability to recommend capital. but that's kind of -- that will be the step in the sequence. >> you mentioned congress earlier and the congressional investigations that are already being discussed or begun. how will that affect, or, you know, what does that mean in terms of this trial? what are the concerns, or are there no concerns? there no concerns? but clearly, this it's not going on in a vacuum. all three branches are involved in this. what does that mean?
>> i think that there is a danger that congress in the pursuit of its constitutional powers may create stumbling blocks or potential stumbling blocks. i am sure that i am preaching to the choir but i would hope that senator levin, chair of the armed services committee, and his opposite members would err on the side of caution as they decide whether and how to explore some of the constitutional issues that are already presented by the facts. we have had this situation come up before where matters of great public moment have come to the attention of our
legislature at the same time that there have been criminal proceedings. . >> if there is a way to avoid public erring these issues in legislative form, i would certainly hope that the senators and representatives give careful consideration to holding the phone and allowing the military justice system to function without having to bump into the legislative process to record second be a very long wait. quacks-process. clucks that could be very long wait.
>> if it goes into going to public hearings, in a way that could deprive the doctor and the prosecution of a level playing field, that would be unfortunate. >> a relationship issue -- a related issue is whether this case can be tried in the military or under some kind of terrorism. i do not think that is an issue. those of the type of issues you can look at it the attorney
general felt that these crimes were crimes of terrorism and felt there was a different venue. that is another potential. of conflict. but that is all in the executive branch. the status of other potential type of conflict. but that is all in the executive branch. >> one point worth making is that we're talking about a traditional product line that led to the founding of the military justice system, there have been issued for the last eight years. some of these issues may intersect. one of them is the willingness of the board to come forward and
represent individuals who were deeply unpopular. the defense of misconduct may be viewed with this may by the american public. -- dismay by the american public. since the time the john adams defended the redcoats involved in the boston massacre, members of the bar had been willing to come forward. in civilian and uniformed the judge advocate's to represent people whose conduct is deeply baffling and a stir in to the american public. >> are there any other questions, comments? at the start of this morning, i
think that promised you an enlightening discussion and i think, thanks to our panel, we are all leaving this morning's discussion with a much clearer idea of a very complex question that is about to unfold. i want to thank all of you. [applause] thank you, and we are adjourned. >> if you have individual questions, our panel will be willing to stay late. >>
watch live coverage on c-span t2. in 1989, judy shelton wrote about the coming soviet crash, then the money crash. now she is talking about of the u.s. economy. >> this is unprecedented spending and this is an unconscionable accumulation of debt. >> to judy shelton sunday night on "q and a." >> now a discussion on renewable energy policy. this is hosted by the american council on renewable energy. this is one hour and 10 minutes. >> good morning, everyone.
welcome to the eighth -- can you believe it? how nice it is to come back again. now, time has long. -- has flown. what an honor it is to hold this annual review and think about where we are going in renewable energy in america. thank you for coming and i hope you enjoyed this day. believe it or not, that is a symbol of the danish embassy, the embassy of denmark, where we will have a reception this
evening. it is a great place to go from here to think about where we are going next in copenhagen. all the other sponsors, lockheed martin is in our space. all of these companies helped produce this and we thank them. me remind us that the theory of this conference is called phase two. what does that mean? in 2004, we define this phase one/phase two idea. we started someplace in the '70s and now we're commercializing. we realized that that is not the way that it is. there was actually an r&d phase and then a deployment phase.
we defined phase one has a time frame between 1975. -- 1975-2000, we had a great fund are in the program. during that timeframe, $100 billion was invested. 50 billion in nuclear, 25 billion in fossil, 14 billion in renewable energy and $11 billion in efficiency. i will speak about the $25 billion and renewals, and this was a successful government program. look at the technologies it has come from this program. it has now swept the world and is being deployed everywhere.
a rare, and declared success. sunday, they will declare it a success. phase two is putting these technologies and to use at scale and it is not going to happen in a year. it is one to happen in 25 years. that is the scale of. y'all know what an s curve looks like. this is the upscale of the es curve -- the s curve. this is the upscale. this is the tough part. this is the lift that we have to do. this is what we have to do in this congress. to think about how we will do that. each year, we have had bigger and bolder ideas to see beyond this year's urgency and look ahead to what it will take to
scale this up. so, today's topics, and i want to thank the cochairs of this conference, who, since august, have been meeting in conference calls to plan the topic of this year. we went through phases, thinking it was copenhagen. it must be the steppingstone to copenhagen, but then we thought no, it is a steppingstone to copenhagen, but renewable energy scale is still its own task. bacto the issues of today, that will be discussed on this stage today, it is the framework of policy.
we have different perspectives from technology, industry, labour, finance, all different perspectives to be brought to bear in setting up a framework for the policy's going forward. -- the policies going forward. we already saw this in denmark and germany and spain and now we have china coming. this is competition and we are up to full speed. this is full speed competition. is the west or to win this? -- is the u.s. going to win this? i have been asked, so many times, by the export import bank what we need to do to increase exports of renewable energy from this country and my answer has been to build factories. that is what we need it. that is this part of phase two.
next is how to finance the scale oup. they have estimated that it will take $30 -- $30 billion-$50 billion every year going forward to reach 20% by 2020. not a 3-5, 30-50. the task ahead is to double what we have ever done and do it every year. >> can the government do that alone? >> absolutely not. >> absolutely not. this is clearly a partnership between the private sector and the government.