tv Key Capitol Hill Hearings CSPAN December 31, 2013 1:30am-3:31am EST
holmes's he ultimately adopts which is the clear and present danger standard. you know it from tom clancy before tom clancy made it famous it was a line in the holmes opinion and the idea is that speech is protected unless it poses a clear and present danger meaning unless the danger is one that we can divert in any other way. and you can't avert the stampede in the theater in any other way other than to say about it time it's against the law to do it. so you now i think it's very hard to adopt an absolutist interpretation of the first amendment. the problem becomes then how do you figure out what's protected and let's not protected and that is what gives people like me a job, to come up with theories and explanations. >> talking about a different character in the book that you didn't mention.
learned hand, a wonderful name for a judge. so he is not a young person. he's a middle-aged person. he also plays a role in justice holmes changing of his mind. can you talk about that a little bit? an interesting interplay of judges and this question. >> learned hand was on on the federal district court at the time. he was in his mid-40s. he was a very well regarded judge of the philosophical event. he hears one of the first cases in the espionage act and one of the first judges to interpret the act and deal with these free-speech questions that it raises. he adopts a very narrow construction of the espionage act so as to leave a lot of room for free speech. and he does this before holmes writes in a these opinions. the hand is reversed by the second circuit that he's upset
about this and he thinks he was right. it's really hand that starts this whole process among these men in trying to change holmes' mind because the two men meet in the summer of 19 -- 1819 just by chance on a train between washington d.c. and boston. maybe hand is going from new york to boston. they run into each other in hand starts talking to holmes about tolerance and holmes' response is strike the hand -- he can't believe holmes has said this and he doesn't know how to respond. holmes runs away and goes to join his wife as they pull into boston. hand follows up with a letter to holmes and which you makes a more sustained case for tolerance and holmes responds in a carry-on correspondence over the next year about free speech. hands deserves a lot of the
credit for getting the whole process started. >> we have time for one more question. you point out in the end of poignant story about hand and how his life turns into a different direction on the issue of the first amendment. if you could share that. >> in the epilogue i tie up loose ends of the other characters and what happens is although the country moves any more tolerant hand goes the other way. in the late 1940s he is now the chief judge of the second circuit and he gets a case involving the members of the communist party of america who had been prosecuted in the smith act for teaching the principles of lenin and marx. hand upholds the conviction and essentially guts the clear and present danger test holmes had articulated several decades before. so the question is why does
hands change his mind in the opposite direction? >> answer is that as his career progressed as a judge he came to believe more and more fervently in the idea of judicial restraint and came to believe that protections of the bill of rights were merely monitory and they were not judicially enforceable, even criticized the supreme court's decision in brown versus board of education arguing that the court shouldn't be imposing its new equality on the country. it really stemmed not from his support of mccarthyism. he was horrified i mccarthyism. he simply came to believe even more strongly than he had earlier that it wasn't the role of judges to interfere with what the result of the political process was. >> one of the lessons of that is what holmes says. we always are contested and it will never be perfect.
that is why it's important we continue to have these conversations and that is why we need to have these kinds of books. thank you thomas healy. the book is "the great dissent" how oliver wendell holmes changed his mind - and changed the history of free speech in america. as robin mentioned thomas will be signing books downstairs in the lobby and i hope you will join him there in getting a copy. >> thanks so much. [applause] [inaudible conversations] >> tomorrow night and booktv, biographies and books on booktv. first, april that stood up for education were shot by the taliban. then the author of ben
franklin's youngest sister and jasmine ward with her book about growing up in poverty in rule mississippi. >> i have been involved in politics for four years in one way or another. i worked in the administration and i have never seen so many people quoting and waving around the declaration of independence and the constitution. many of you never gave it a second thought and i bet not it is at the front of your mind and it is with tens of millions of us. and the fact of the matter is that tens of millions of us love this country and we don't have fundamentally transformed and we have to get to as many people as we can and wake them up and educate them. and i am not trying to pat myself on the back.
consider part of the program which is why we are under attack. >> on sunday. this best-selling author will take your calls and questions in depth. live life for three hours starting at noon, it eastern time. first sunday of every month on c-span2. >> you're watching c-span2 featuring live coverage of the u.s. senate. every week and the latest nonfiction authors and books on booktv. get our schedules on a website and you can join in the conversation on social media websites as well. >> the challenges facing military prosecutors in our
military courts. this is about one hour and 15 minutes. >> okay, i would like to begin by welcoming everyone to the first constitutional commutation here at stanford. and it is my special pleasure to introduce our guests for tonight. just raven of "the wall street journal" and the author of the recent book on sale at bookstores everywhere and you may want to grab that. and so this is probably the most serious account of what i've happened in the court system in guantánamo and a series of trials that have been taking place here.
i am not going to trespass on the subject because jess is going to give us a taste of what he has been writing about and i did want to introduce that he is a person that i got to know a few years ago when we were both traveling washington dc to williamsburg. the amtrak wrote down and we grabbed grab the car and wrote down together and had an extraordinarily enjoyable time. and just as one of the leading reporters in the united states and what they may not know is that she is a person of extraordinary humor and wit. and i would love to expose a little bit of that to you right now. because when he was at college
at harvard, he was roommates with what peter said is wait, wait, don't tell me. and he remembers that were part of the harvard crimson crowd. they were the lampoon crowd along with the head of that at that time, conan o'brien. i've been told this and i'm not sure that i can get the details right about himself and his cronies contriving an invitation to speak as a man of letters and the actor who played robin in batman movies and somehow they were managing to filter this and pretending to be the penguin, i think it is, and negotiating for the return of this cost into the
great hilarity of their entire campus. and there's a mutual friend who is a part of this as well, part of the military commission in describing something of a combination between edward murrow and david letterman. so we welcome you and we thank you for coming. [applause] >> thank you. i was just going to say that i didn't realize that the judge was going to mention it. that is but i was quick to say that he was forced to take this end he invited me here anyway. so showing me his judicial temperament and good spirits. so for the record it was burt ward who played in the batman
television series. for those who want to get the exact details, look for my next book. but tonight's topic is a bit more serious. so before getting into it, i thought perhaps an important documentary moment would be best for the beginning to the evening. so nathan, if you would be so kind to hit the lights and show us our first click. >> this is nice. [inaudible] >> can you see a? do need to turn off more lights? [inaudible]
>> the answer is yes as we try to handle it. >> the supreme court criticizes this he meant that is because they included the u.s. citizens. >> it is fair game. >> i don't think they will want to tell the judge that. >> we have to be prepared for it anyway. >> that seems like a waste of time. the facts in the case case are so sensitive. >> [inaudible] >> okay.
>> are you okay? >> yes. >> okay. well, that is one of many dramatic representations of the military commissions project and wanted we learned is that the people involved extraordinarily good-looking. and it's actually from the television show jag, which no longer is on the air. and it would take the storylines from cases that took place. that episode aired in april of 2002. the president bush issued an order offering military commissions in november of 2001 and by the next spring one had
already taken place on television on that show. surprising i read the script that had really taken place and some that are taking place right now and i thought i would just point out that the thing that they are talking about is the exclusion of u.s. citizens from military commission trials and that is appealing right now and could turn out to be significant as to whether the project continues. but the book -- on the cover we have a bunch of people dressed as detainees that occurred in washington regarding this project. but the book is really not about terrorists and not about
detainees, except in this much that they are involved in the system that americans have set up. and the story that i wanted to tell was about the americans and the american values as expressed at a time of crisis and national emergency and what we learned is that iraq to our view of the law and what is more disposable depending upon the circumstances that we face. and this story -- to step back for a minute a couple of years ago, attorney general eric holder announced that he's going to hold the 9/11 trial in manhattan in new york and the five codefendants would be tried upon the u.s. code in the federal courthouse and there was
a big and political type of uproar about it. very little political support for the attorney general wanted to do. and eventually the obama administration decided to reassign those defendants at guantánamo bay. in three will that month-long controversy, there was not much controversy as to what this actually is. so the debate pretty much pretty much boil down to military courts that are tough. civilian courts are presumably weaker and this includes the enemies of the united states. and there was not a lot of
discussion about how these military individuals discuss discussed or operate and i think it's important for americans consider when deciding this is an experiment that we ought to continue or expand or alter in the year going forward. and so this book is a story of the development of the project is told through a number of individuals involved in it. some who were policymakers with high levels of government and others are judgment and mainly it's about a group of military and law enforcement officers who are carrying out this project and to do so under very difficult circumstances. in particular in finding every
corner in the way the legal system works and what these legal values are as far as being challenged of us. and the question -- just to back up for a second. having worked on this book for 10 years. i sort of forgot the idea that i had to explain what was to people. so if i step back and explain that the individuals who were involved in this project at the frontline and the military officers, they were people who had experience with the military bases around the world and those tend to be things like domestic violence, larceny, things like that. they didn't have a lot of experience with national security or other conspiracy charges. but they did know about military
justice, particularly after world war ii and the nuremberg tribunal on by others in allied powers as well. setting that is a pretty good bet country and reputation for the way that they treated the defeated enemy. and that image of the trials animated people at the top of the policy change who developed the system and for them it seemed to represent something else. and the kinds of trials that took place during world war ii were different from the ones that we had today because they did not follow many of the rules that civilian courts had since embedded in the criminal procedure. so for the people in the white house and going back to this model for defeated enemies.
it was a way to avoid the developments in the law that had taken place since world war ii. so since president bush issued his order, it was striking in the way that it resembled this in 1942, it involving the saboteurs from the individual that he refers to their. the concept was that this order would create a time machine and could be part of this in the wild trials based upon us, and they boil down to this. it is put into a reasonable person and the person was updated and otherwise there is not much else in it and that was about it.
and it could be admitted and there were no other restrictions or rules and explicitly stated that no existing body of law would govern the proceedings and they would not be practicable to follow the procedures used and he added that no person that he designated for the trial would have been privileged to appeal in the foreign or international court and the idea was to have this closed system of justice that really was starting from scratch. and what i discovered is that it's really hard to set up a system of justice from scratch. because those people have to implement it and what is reasonable and what is fair.
because they also directed that the trials be full and fair. so it shows how many of these lawyers grapple with this and what it means to have a fair trial when you are doing so without any rulebook at all to guide you. you don't always have the advantage of everything you want to go forward. i came into this with a marine officer and he was one figure whose experience seems to touch on almost all of the issues that continue to affect the project today. and he had been like many officers and he was from the south, from north carolina and he was an evangelical christian
and he was the kind of person that was extremely gratified by the election of president bush in 2000. and he had been a pilot when he went to the marine corps. and he later went on to law school and he became a military lawyer and one of his foreign buddies was a guy named michael works and left the service and became a commercial pilot and on 9/11 he was the copilot on 175, which is one of the united planes that crashed into the south tower. so when he was tapped to take part in this commission, he had really a perfect alignment of reasons to do it seriously and to exact as much justice as he possibly could for reasons for him that were patriotic and that were professional and were also personal. because he had been touched by 9/11 and this direct way.
and in fact he had some of his own cases traumatized as well, and involving an individual who cut the cords on the parachute and falls to their death and it's somewhat embellished in the tv version. the kinds of dilemmas that he faced were ones that i think really show the issues that come up when you make a system from scratch that presumably has no governing rules. now, i can go into some detail about that. but i thought i might switch as to how i got interested into this topic to begin with. on 9/11, i was living in new york. it actually was the first day of my vacation that year and i had not rushed into the office. if i had, i would have gone to
the subway stop and walk across the street where "the wall street journal" wise and i turn on the radio to hear the weather report and there was an announcement about a fire at the world trade center. and so i looked out the window and i saw smoke coming out of the world trade center. to get a better look at turn on the tv because they had close-ups and i think everyone knows what happened after that. and so my experience that day and the next day was very significant to me because as a news reporter had to go and figure out what was going on. i made my way to ground zero and i saw this transformed landscape and i also noticed as someone who is passingly familiar with legal ideas that the whole architecture around me had
changed. but the immigration courts were closed and all sorts of things that started happening in washington as well. and president bush issued back in november of 2001 in the guantánamo bay camp opened in january of 2002. and let's go to the next clip if we could. and so twice in january of 2002 amid guantánamo bay with a press group see the second or third group of detainees offloaded. and then only much more comfortable plane, the people at c-span were there as well here are a few clips from there as well with that trip.
and as you can see there is additional construction and the construction is done by contractors. currently that is where these detainees occurred in this radio range is a more permanent facility for the detainees and continuous with one of the greater distances for suppliers and one with the air conditioning going into it, it is facility over to the right.
and the secretary of defense is scheduled to visit all of these facilities as well and then come up here. .. the detainees and -- [inaudible] internal and external security. see some of those -- [inaudible] [inaudible] the senators and secretary rumsfeld -- [inaudible] u.s. troops and went to press. [inaudible] i saw a portion of the
television presentation of it house of commons. i don't know how many of you did. [inaudible] when i go back to washington i'm going to write some of my friend there and suggest they bring some of the people who insulted our military over here to see this. [inaudible] world war ii seen a lot of worse placeses. and i lived in worse places than this. but i believe that the british parliament has done us a great disservice. the great disservice these young men and women are trying to take care of these people who -- [inaudible] and they're not war fighters of foreign nations. they didn't wear a uniform. they don't have patches on. they didn't wear a uniform. they don't have patches on. they weren't under military orders. they were volunteers in ab terrorist organization that said -- [inaudible] to try to destroy our country. i -- [inaudible] i sure -- [inaudible] i didn't expect to see them
treated so well. >> are we there? >> first of all, let me say what i'm worried about the -- [inaudible] not a long time, and it is going to be [inaudible] deal with the terrorist networks, they exempt -- there are thousand of people who have been trained to kill innocent people. not just americans but people across the globe. and the president is determined to -- [inaudible] was i cometting -- coming down make sure that everything was being done
properly. i see now -- [inaudible] i knew it was being done properly. [inaudible] that the men and women here are doing this job are people who went to our high schools and our grammar schools that are responsible. properly train, properly lead, and doing a first-rate job. i came down to say thank you. now, the last -- [inaudible] [inaudible]
next the traveling press and perspective of the day. >> the story is not just -- [inaudible] he came here as part of a larger story about how the prisoners are being treated and how they'll be treated in the future. >> do you have any frustrations coming down here and -- [inaudible] >> yeah, of course, as a reporter you want to -- >> do you any frustration coming down here and not being able to see what -- [inaudible] >> yeah, of course, as reporter you want to see everything there is to see. you're the eyes and ears of the i are public at large and in a place like this, which is a military base, with, you know, completely isolated military base. everything we see is up to the
department of defense and local authority here. so they decided what they are comfortable laying -- and there's no way to get around. normally if you write about a prison they may not let you in. you can go to the guards near the prison and talk to the guards after hours. or you can go to the bus station and meet the relatives of the prisoners coming if and get their perspective. there are other ways to get it going on. here they can only see what they dpdz to show and hear what they decide to tell us. [inaudible] so the terror court to my effort is to get around that. and show you what it is going on in military commissions that they did not to decide to show us and did not decide to tell us. any questions?
well, thank you for coming. okay. well, let he bring you up to speed where we are with him tear commissions. this last week free trial hearings continued at some of the case at guantanamo bay. they will resume later this month. and the trial of the 9/11 alleged conspirators will begin sometime next year in the estimation of the chief prosecutor. but now the chief prosecutor was brought on by the obama administration is a regular general. he's by many account the most impressive figure to be associated with military commissions today. he was a scholar and harvard law school classmate of president obama. he was, at one time this is considered a prejudice use thing. he was a property jay of general
petraeus. and he came in there with really the reputation of being perhaps the best or one of the best military lawyers there currently is. and his -- when he talked about military economieses, he's discussed how sure they had some problems in the past but what we're dealing today is something very different than the first rather primitive order that came out in november of twufn. he points out the supreme court looked at this project and there have been two acts of congress that have authorized military commission trials. and the most recent one passed in 2009 and signed by president obama. added substantially more in his view protections to the defendants. military commissions today. he called them reformed military commissions. as posed to plain old classic military commission. or what they might have been before. are something that should not be
confused with the most draconian and terribly unfair proceedings that could in theory have taken place had the supreme court permitted the first version of the military commissions to go forward. but there is a sort of paradox. and the paradox is this. the cases that general martins has to deal, including the 9/11 case are all colored by what -- tremendous abuse of the prisoners in their view wholly illegal ways of obtaining evidence and in such a way that it would be, in their view, difficult to prosecute them in civil yab court. it may or may not be true. but each of the revisions to military commissions, everything that has made them more closely resemble civilian courts or courts marshall makes it that
much harder to convict the defendants. which toik make it possible to convict the defendants without affording them the kinds of procedure protection that make a conviction harder to get in civilian court. so when you get to a point where a military commission is, say, 93 brnt is fair as a u.s. court or what have you, then it does raise the question of, well, what is the point the court-martial or a federal court in the procedures what is the benefit to the united in establishing a separate expwrution is system with its own rules where the ultimate legitimacy of the conclusions remains in question.
they haven't been blessed or rejected by the civilian court system and the perhaps the most point they asked the military judge in guantanamo to rule that or declare that the constitution of the united states applies to proceedings there unless and the burden beyond the government to argue why it should not apply in any specific case. and the government's position previously was the u.s. constitution does not apply at all except in the has been use clause which the supreme court imposed. more recently the position is that there's need for the military court to address the question at all. it's before getting to the whole
discussion of whether or not that applies. and so here you have a court takes place, a trial taking place pretrial proceedings where the body of law that governs it remains intha -- somewhat a mystery. are they governed by the constitution. which part. if not, why not. and that, of course, makes it a fascinating story to tell as a legal reporter. all right. nathan, you want to handle the question splication? >> at guantanamo, we have some residents being brought to the
trial, but we also have stateless yemenis and people who were swept up and it was decided we're not a threat and could be released. what right closet they -- rights do they have to get out of guantanamo? >> well, that's an interesting point. what rights do they have? well, so far, i mean, these are people who have not been criminally charged. this is an important distinction. there are about 150 people held at guantanamo, but only about a third of them. the government estimates can be charged or will be charged with specific violences of the laws of war that the military commission can try. so what about the other people? some of them have been cleared for release. others have not. the federal court have not questioned the government's power to hold enemy prisoners captured during armed conflict.
[inaudible question] >> tribal leaders wanted to be part of that and it seemed like he was a peacemaker. >> yes, originally the population at guantánamo was over 600 people at a certain point. it is true that the initial sorting of folks that were brought there was very rough and four military officials, if there is any doubt in their mind, they are not going to let someone go because there is no benefit if you are in charge of captains are people who have been turned over you by local forces. there is no advantage freeing someone who might end up being really dangerous. i mean, there is something about
this. if they turn out not to be dangerous and they are locked up anyway, there is less of an incentive with the freedom. but in this book i have tried not to talk about the broader question with enemy combatants or enemy fighters. i am trying to focus on criminal prosecution. but those questions do overlap in this way. and shortly after guantánamo bay was set up, the pentagon established the criminal investigation task force and the job was to prepare a detective squad for the guantánamo bay individuals. to turn him over for prosecution. and i interviewed a lot of those people and i looked at a lot of the records they came from another great cbs military seemed show and other
investigative agencies. with a raid into was a situation that was really upside down. normally they would try to find evidence and then find out what is going on and they found nothing. they couldn't find any crimes. so they did file a report saying that we don't have anything on these guys and they had seen most of them as being like dirt farmers. sort of an agricultural bounty of afghanistan. [inaudible question] >> is rhythmic that all of these legal issues arise in context with the situations for all of us. and it's great that we can learn about our systems of justice from this.
particularly for the folks that are being prosecuted. given that the administration has made clear that even if they are found innocent, they have shaped the case. and if you do conclude that this is theater for the entertainment of americans -- are we finding that the real aim for one of the things coming out of it is there is a use of these to control how this is told by the media and exemplified by how tightly the court or the judge can say about these cases and who can be
interviewed and who can observe and hear what is being provided in court. >> one of the ntis agents who objected strenuously and saw this in large share because they thought it would interfere with criminal prosecutions, he stressed that there are no such things as the secrets, but only delayed disclosures. so sooner or later things come out and this includes things that the government never intended to be released. i don't think the proceedings are fair. one thing is that you can see it and it's hard to see. although one change is that you actually can go and see this at fort meade, maryland. so to be fair, it is possible if you go there and they are not
recording. they are broadcasting. [inaudible question] >> yes, there have been about -- [inaudible question] >> he doesn't know he doesn't understand the motivations. >> as it happens, the proceedings that take place in the security courtroom, one is an audio feed that goes to a pressroom that is delayed by 40 seconds. there is also an audience gallery for some victims family people and some observers say it. and it is behind glass and you can't hear directly what is
going on in the courtroom. there is a 42nd delay and it is supposed to be there so that if something is inadvertently disclosed that the government believes is secret, they can cut off the audio feed. i will say it's interesting to sit there and see people who are talking 40 seconds ahead of you. and it is very odd. because the sound is not line up with their voices and you end up looking at the monitor. but the three or four times were a government censor has hit that button and every time the judge has ordered that information could be closed. the first time thought was just the word torture and then the judge was annoyed by that. and it was disclosed that it's not just a security officer in the courtroom but the cia off
base that also can be part of this. and whatever they have said has been able to come out. when we get further into this for the defense wants to bring up the treatment of the defendants and the government hands and they have indicated that they are not at all excited about getting into that. and we will see what happens along with transparency. at the other point, in the sense that it is scripted and we know how it will end. so far, no. that is something that i think is an important part of the story. in this project was conceived in the bush administration there was an expectation by the political officials. many of them well carry out our expectations that these people be convicted and dispatched in a
relatively short order. and that is not what happened. not only did they explain us, they raise real objections, but once cases did go to the trial to the extent that they have, the military officers did not act purely as rubber stamps of the government's objectives and the best example is this individual whose case led to the supreme court once and was possibly set to be discussed again. you had a guy with the driver of terrorism. he was osama bin laden's driver. because the people like this man and the other people who are suspected of more serious
crimes, they preferred to keep them away and they charged him with these offenses and the prosecutor who argued the case, he was going for a life term they acquitted him of conspiracy , which is a more serious charge and they convicted him of material support for terrorism. he convicted him of that and the prosecutor said, do not let him support terrorism ever again. send a message to anyone who might think that they may give him 30 years, not one day less than 30 years. possibly more come he might deserve more. that is what the prosecutor said. the jury deliberated for an hour
and they asked if he would be credited for his time in custody and they came back with five months plus served. and that is not what the government expected and one of the surprises that i think is worth noting that the military courts do not behave the way one might expect in some ways and you can compare similar charges and just look at the track record and you would be way better off be prosecuted than in a federal court where they don't have any existential crisis about the legitimacy.
>> one of the astonishing things that i learned was the assumptions about the way that this work was upside down. and basically that is true. but over the years it has been the military officers who have been the rock that have protected the basic boundaries and the civilians. that are trying to push them into avoiding making waves. i saw them all the way through until now. so the point about this importance of these officers is terribly important.
and it's turned into a kind of attack on a military officials and not a structural question that we are trying to raise about the courts themselves and i'm so glad that you made that point. and i have two basic questions. and what is going to happen and what's your impression about what is going to happen to the effect to prosecute and include conspiracy in and the military commissions. one of the ways that we should ourselves in the foot is that we may lose the ability to prosecute conspiracy because it may not be a crime like a law of war. and that is now going to be litigated all the way up. but it would be a useful mechanism and we had a choice. but we have been better off building this?
that would have been tailor-made to do this job? staffed by judges and who could have built a system that would've gone nuts. we are 12 years into the process and we've been to the supreme court for times and nothing like the actual prosecution with significant numbers of people. >> those are great questions. when he first addressed the conspiracy point. early on after the u.s. started taking prisoners and getting them from various means, getting them turned over by allies or what have you. the question arose about how would you prosecute them and committing specific acts was a problem. and it was discussed to make
membership in al qaeda or the taliban itself a crime. and that was rejected because they thought the idea was seen as it had very bad optics. and it would be a problem. but they did decide to port this against military law and this is a crime because it's very easy to prove as opposed to the things that individuals have decided to do or have done. and the number of tribunal rejected conspiracy conditions for the most part. i think the nature of the
conflict is doing things in a group. and so that is part of this coordinated violence, making one participant guilty of the acts of all the other participants, it is just too broad and i think that is the rationale. but what happened with this 21st century military commission project was several civilian crimes such as conspiracy were imported into this military code and it raised problems from the get-go because these military officers kneeled that that is not a war crime you know, or the other things that traditionally have been war crimes. but what has happened more recently is this man has been back home in yemen and his conviction was appealed because he was officially a war criminal
and the dc circuit court throughout his conviction founded a material support for terrorism and it was not a war crime at the time that he did that. congress has since declared it and they probably can do that. the one they did that, it wasn't. so let that be a fact of this. the same issue applies to conspiracy in the u.s. government conceded that another detainee who was convicted of conspiracy, that the same rationale would mean that his conviction would have to be vacated and it was. the justice department now reportedly is planning to appeal that over the objection of general martin's, the chief prosecutor who doesn't believe in conspiracy theory, believing that the supreme court can be
inferred in the public position they would end up with a decision that would undermine their flexibility and the department of justice still has time, so a conspiracy is not a legitimate crime. but the government could seek further review. the other question that you had was what? >> oh, yes. okay. [inaudible question] >> i guess one question is what is the problem that military commissions were designed to solve and what is it that they could do that could not be done through other mechanisms that the united states already had at
its disposal. by late september, for instance, the department of justice had drafted a memo they thought had been committed in the 9/11 attacks and once they figured out that they all were especially. there were no complaints from other departments, the department of defense and the cia or anyone all said that plan was problematic. and in fact, what the cia people told me was they were perfectly happy with that because they were very experienced working with the department of justice and they have confidence in the prosecutors and the security clearance. so there wasn't any -- there wasn't anyone in the operational end of the government but said that our justice system has constituted this and cannot handle this problem and we need to create a new justice system
that can handle this problem. including the demonstration that the executive believe that they had in responding to an attack -- the 9/11 attack. it was not like we have a problem. let's get some people together and figure out the best way to solve it. it's like this means we need to have such a gigantic earth of discretion without any outside review just to show that we can do it and once they had made that claim and set up the marker, and kind of forgot about it. because as you say, they were holding people accountable and in wartime detention powers and other things. and so they kind of let it go and it kind of left it to these military guys to set this up
without support or help or interest. so my question is what would the article be and i guess it would be a statutory court that is not a ten-year court. and what would it do that the existing courts don't do. >> to the extent i am trying to think what the administration was thinking. they believe that the courts would make it impossible to get a conviction because of confrontation clause rules that would not have admitted hearsay and lawyers would come in and tell them not to talk in the interrogations would have to stop and you could have a whole set of traditional criminal
norms dropped upon to the process. to the extent the one a make those norms. and we had due process, but not by every john to what was going on the we insisted upon. and my sense is that you could have built this that was tailor-made to do this. and this includes senator stevens and it was a culmination about how you can't trust the military. so it seems that we went down and unnecessarily difficult path. and never thought about the option in the middle.
>> there is another option raised as well. >> i think that some advocates, what appealed about them is that they are military and these are guys who are tough and salute individuals and they wear uniforms and other things like fatigues. and they can also try the enemy prisoners and they have occasionally. and it looks like a military trial already using the rulebook. and there are so many questions that have come up and creating a
system is a huge enterprise and that means lots of additional litigation and delays. so had they decided to go this route, they would've had the precedents to follow. but yes, there are lots of ways that they could have done and you have to balance what are you getting in exchange for the complexity of setting up something brand-new. >> if you had to predict, do you believe that any of these issues, and if so, what kind of issues would be the most likely want to go to the court in the future? >> it's interesting.
they have not taken any since 2008. but i think that the odds are high that the government appeals the decision of the dc circuit, they will have to take that in the way that this is issued with this case is that a reporter, the justices said that conspiracy is not a war crime. and the fifth member of the case left that issue open and that is justice kennedy and now that issue is presented quite squarely and i think that they have, they have to resolve that clearly. and i think another question is one that they have jagged an anticipated right away. and this includes u.s. citizens and noncitizens.
so general martins tried to dismiss the solicitor general wanted to keep the issue alive. general martins having control of the military commissions wants to dismiss the conspiracy charges and i wonder if he could say something, and because he wants a clean prosecution. the holder justice department announced that they would prosecute in criminal court and not use tainted evidence then when they were forced to bring in the military commission they said and we are not going to use any evidence that would not be admissible in a civilian court. and so martins is trying to dismiss the problematic charges. the convening authority refuses to dismiss the charges.
can you say something about what you think is going on and attention of why all these various people within the administration seem to be pulling in different directions? >> yes. first, to start with the question of you know an appeal from the d.c. circuit and should the supreme court taketh? it's true the supreme court has turned down all the deals of the habeas cases from the d.c. circuit. those appeals were filed by the prisoners and against the government seeking to get released over the adverse ruling from the d.c. circuit. when the government appeals particularly when they appeal on an issue involving the constitutionality of the military commissions statute, i think the supreme court is going to find it much more difficult to ignore. i think the government says something these lower court judges have thrown a part of our statutes, we disagree and we wanted definitive ruling. you expressed barely left open
in 2006. i think the higher they will take it. secondly, the fascinating drama involved here is this. once it was clear from the d.c. circuit that conspiracy in their view was not a legitimate crime as we say general martins slots to, wanted to concede that point and throughout all the conspiracy charges in his case and let that one go and focus on the case on the charges he thought he could prove substantive crimes. he filed paperwork with an entity called the convening authority which is sort of a unique official for military commissions, sort of the quasi-administrator or quasi-grand jury entity. the current occupant of that office is a retired vice admiral named ruse mcdonald. clearly general martins expected that would be rubberstamped and
the dismiss the charges. instead, the convening authority admiral mcdonald refused to dismiss those charges and issueo were kept secret. they did not actually released a document explaining that he did send out a press release announcing that he had did the prosecutor's request to dismiss the charges. basically his rationale was the government thinks they are right and they have indicated they may appeal so i don't think it's prudent to dismiss these charges yet. that's what he said in the press release. however that may not be the end of the story because the defense lawyers for these defendants have themselves moved to dismiss the conspiracy charges citing the d.c. circuit opinion so they have made that motion before the military judge. the prosecutor, general martins has joined or if he hasn't yet
formally has indicated he will join the defense and asking the judges presiding over the actual trial to dismiss the charges. so here you have a lot of conflicts between these different parts of this apparatus. now i wrote, when i wrote a story about that event i referred to it as an indication of continuing disarray in the military commissions whenever and martins took exception to that. he said it's not disarray. that's implying that a military organization everyone has to be lined up together. i said okay that's fair to say it in a traditional kind of case, a traditional normal sort of case but here come the here you are talking about this fundamental legal point. you're not talking about the kinds of things that are rise in ordinary cases. here we are seeing a complete
disagreement within different arms of the administration about what the law actually is, which body of law applies, whether it even the crime exists. things like that which are the kinds of things that normally are not up for debate even in very serious criminal trials. and why? it's because there is in the governing law. there is in some place to turn to have the answers so you could possibly come up with many different answers to these questions. >> so what's the, what's the import of this? do the prosecutors feel they need conspiracy to get the sense that they are looking for for most of these people or is it a classic example of we are going to charge them with everything we can or alternatively i don't know how the evidence rules
conspiracy there so you can introduce testimony of a co-conspirator. >> well, at present, everyone who is charged with conspiracy was also charged the something else so therefore the prosecution believes they can lose that charge and not have any real problem. interestingly enough there are however about 10 or 11 detainees who are only charged with material support which the government is not appealing. cycle that. the d.c. circuit throughout the material support crimes and is not a war crime or was it when it was committed by mr. hamdan and all the people in guantánamo for 10 years. that's not a valid charge. there are some people who are only charged with that. those charges all disappeared because the government declined to appeal that ruling by the
d.c. circuit. the prosecution can try to find something else to charge them with but the odds are if that is what they were charge was so far that's probably the best that they had. but yeah i mean if you look at the charging documents for military commissions, not a typically they tend to really pile on throwing in everything they possibly can and one of several surreal moments of the perceived and khalid sheikh mohammed. this happened last year. it was this long day of her seedings at the arraignment and then the judge said wave the reading of charges which normally happens at these proceedings where the defendant generally doesn't want to hear the prosecutor recite all the evil deeds that he committed without having a chance to rebut them or whatever. so they are the defendants refused to waive their right at
arraignment to have the charges read in the prosecutors who have written this war and peace type lengthy thing naming every single victim of 9/11 and going into enormous detail had to read the whole thing in court and it went on for three hours. it was like performance art. no one prosecutor could do it. they took turns going up there and reading, so-and-so and so, it's clearly one of many moments done with the defendants have tried to irritate the government and try to sort of make clear what goes on in the courtroom. >> i think we have come to the end of our time. thank you very much and i would
like to suggest that we give a round of applause to our guests for a very stimulating presentation. thank you. [applause] >> thanks again and just to show you one thing in the military culture is that military organizations always have coins. maybe some of you know that the different units of the military will have these commemorative coins made up in when they meet each other they will tend to exchange them. if you want to see what the military commissions klein looks like, this is it right here. each event has a motto. does anyone know that one in latin? that is latin is still required here, isn't it? it's made by a general martins, that motto justice at the breech is what he tells me it means. in fact the english translation says that.
coming up, marcia coyle book the roberts court: the struggle for the constitution. >> thank you for coming. this feels like old home week for be. being here again and having a chance to chat with marcia coyle. we overlap for 20 years supreme court press room. >> boy, are we old. >> we discussed substance and i hope we do tonight. i will ask you to expand on the title of the book. it isn't who is constitution is it, but who understands the real meaning of the constitution. right? you framed this -- marcia made the interesting choice to frame
the story of the robertson court through the lens of four major cases. one about guns, race, money and health care. it doesn't get much more fundamental for that. you can have lots of struggles in the constitution with those subjects. so elaborate on that a bit more. >> the struggle is within the court over the meaning and the scope of concern provision in the constitution. it is a struggle outside of the court as well. as i tell the back stories of the four cases i picked to draw the reader through about seven years of the robert court. this is a story about the robert' court in general and then story specifically about these four cases.
you see the struggle playing out every day over the constitution struggles. i would like to tell you about why i chose the four cases i did. they cover race, guns, money in elections and health care. initially i was looking to do something i think most supreme court books don't always do. most supreme court books focus on the nomination process or what is happening in the supreme court itself. but i wanted to tell stories of how the cases get to the supreme court. they don't land at the door fully grown. it takes a lot of commitment by the people involved. a lot of strategizing and it is
hard slaw through the lower court. some cases get there quickly depending on what happened in the lower court. >> the court only takes 1-2 percent of all of the cases that reach them. >> they get about 8,000 petitions every year. as i was look for the four cases, i wanted 5-4 decisions. i wanted them not to show the court is always divided by four. it isn't, and in fact, as you will find out, more than 60% of the decisions issued are unanimous or close to that.
i wanted 5-4 decisions because that is where we learn the most about individual justice and how they view certain provisions in the constitution and how they approach their job. i wanted signature decisions of the robert court. the court under john robert, jr. and these four cases will always be associated with the robert court. and i wanted good back stories. you will read about a seattle mother who called herself a mama bear before sarah palin coined the term. her effort was to get her daughter into an over-subscribed high school in seattle. she found the school district
was using race as one of the number of tie breakers she filled a lawsuit and challenged it. it went all the way to the supreme court. and i found along the way, and didn't start with this in mind, these four cases had something else in common: they had very smart conservative or libitarian lawyers behind them. you would call them agenda cases in some ways. they were issues the lawyers or organizations backing them wanted to get to the supreme court for a final decision. and they had their eye on an increasingly conservative and hoping to have a sympathetic supreme court. i wanted it to be a book that is a good read and not a heavy legal book.
that is not what i wanted to write >> john roberts has been the chief justice for eight years and the predecessor was 18 years. so we are early in what we anticipate a tenure of maybe 25 years. john marshal was the youngest before him. did you ever have the feeling is it too soon to judge or offer a take on the roberts court? >> i did and point out i do consider this a young court. even though the oldest justice is 80. and we only have three justice still in their 50s. but i did wonder about that. i should tell you how the book
came about first. i was covering elena kagan's conformation hearing in 2010 when i received two e-mails. one was from an editor who was interested in a book from the supreme court. and another was from a young man who attached a photograph and asked me to merry him. >> marcia is already taken. >> it was a beautifully written proposal and i showed it my husband who proposed to me in a parking lot in downtown baltimore. i did respond to the one from the editor at simon and she
convinced it was a good time to look at the supreme court. and this was five years in the john roberts tenure, it showed a willingness to take on issues. part of the reason i picked the four cases i did was because i wanted issues that i thought based on the five years would have shelf life and we would see them coming back. and we have. this term in particularly. there are two cases involving race. next term there is another big campaign finance case brought by the way by the same lawyer who brought citizens united to the supreme court. i am sure another health care challenge will come up. as you read, there are a number
of lawsuits out in the country raising religious questions about the new health care law. and guns, gosh. there is litigation around the country trying to fill out the meaning of what the court did in the district of columbia gun law. so she made a case of let's take a look at the young court with new members and see what is going on. and that is why i decided to give a shot. but i do make the point it is early. and linda and i talked about what that means in terms of john robert himself. >> just to back track, the four cases, the gun case and integration case and citizens united of course needs no further induction --
introduction -- they are brought to the court prom repeat players from the right and asking the supreme court to take up the decisions and was leaning on an open door. there is a roberts court project or agenda he seeks to project from the constitution in your view? >> i think he has views of certain i areas of the law when i deal the seattle and louisville, kentucky cases involving race he has a clear picture in his mind on dealing with racial interaction.
he signaled that in a texas redistricting case when he didn't join kennedy to agree a dict was redrawn to get out hispanic voters. but he said a line this is a sort of business dividing us up by race. and i thought that was a flag. he surprised us in 2009 with the voting rights case. everyone thought section five of the voting rights act, which is a key provision that requires concern jurisdiction with a history of voting discrimination to get changes in their policy pre-cleared by the justice department or a federal court in washington, and he wrote in an opinion in that case where the
court didn't strike down section five but he shot an arrow saying the country changed and we will see what happens with the voting right act again. i would not be surprised if he writes that case. so i think race is one area where he has a clear idea. i don't know if it is an agenda. an agenda is something you think people are looking for particular cases to bring in. i think race is a concern. the first amendment, he has strong feelings about that and i believe he thinks the court is developing a view of free speech especially speech we don't particularly like but should be
protected. i don't know if he has an agenda, but i think strong feelings about certain areas of the law. one justice said william briner was one of the most influential was he looked for cases he wanted to take because he had a definite view he wanted to get into the case law. >> well at the time he was doing this he thought he could win. no point in taking the case if you not count the five. >> that was his famous line. it was all about counting to five is what he told the clerks >> talk about reporting this book out. you did talk to justices, walker
and you are a working journalist who shows up at the press room every day. >> i am worried about the lunch with the chief justice he holds every spring and reporters and how he is going to look if he knows anything about the book. but i requested interviews with a justice and i was surprised at the amount of access i did get. i hope i got that because i have tried hard. and you can tell me if i don't succeed on the news hour and in my work for the national law journal to play the court down the middle and try to give everyone enough information to make their own decision about whether you think the court did the right thing. so i think they viewed me as fair. but they are very nervous about
talking to the press. it surprised me how many of them don't really understand the ground rules. one justice said i will talk to you but it is all off the record. and i said you know, i am an old fashion journalist and off the record means i cannot use anything you say to me unless i can find another party to say the same thing or confirm it. what about background that means i can use it but i don't say you said it or name you. and the justice said that is fine. so you would think after all of years they have been on the court and had interviews with press they would understand the ground rules. some of them only talks off the record but were gracious enough to let me go back and talk about
things i would like to put on the record. scalia allowed me to put portions on the report and so did another justice. it is tricky. it was the first time i spent a lot of time with them. i was lucky to get like an hour or more when i did sit down. and when i think become on that, i wish there were a lot of other things i had asked that i didn't. and i guess i don't see it as a conflict doing the book because i tried again in the book to do what i do every day in my job and that is to present the court as fairly as i can and let you decide for yourself whether you think the courts made the right choices that it has. i quote in my introduction
justice suitor who has retired from the bench and he spoke in a private conversation at the new hampshire society and he talked about how the court does its job. he was asked how do you know if the court is doing law or politics. how does the average person tell? and he said you have to read the decisions. and i wonder if that is too much to ask. but i think he is right. you have to just try to get as much information as possible to see if they made the right choice because the constitution doesn't always give clear answers to all of the questions. >> back to john robert, is he running the court? is he the leader of the court? you look at the health care case
and he wrote the controlling opinion. much of which he wrote only from himself and the four justice to his left joined him that holding the penalty on the mandates is sustainable. the justice to the right not only banded him but dissed him openly. he is chief justice in name, of course, but in fact is he chief justice? >> i don't know. i was thinking i'm not sure chief justice frank was justice in fact. when you talk to the justice they all say no one is the leader of the court. there is no leader of the block. another justice said there is no leader but there is not nine stove pipes. they say what you have to do is
you have to go into conference meetings after they hear a case and you have to listen really hard to what is going said by each justice. and then you have to find the play in the joints. if it looks like it is going to be 5- 4 or 4-4 who might be the one that has to go one way or the other. we often called the court the steven court because of john paul stevens' success. but he wasn't the leader they said. he didn't believe in going dawn down the hall to chat and persuade.
he did everything through writing. he felt strongly each justice should make up his or her own mind. i don't know when you have nine truly independent, strong minded very experienced judges how a chief justice really leads the court except perhaps in very special circumstances as we saw earl roberts did. >> he came in in an unusual circumstances. when justice o'connor shocked everybody by retiring and a chief died and there was no change in 11 years in the membership. >> 11 years, right. >> the seven of them having been together 11 years and john
robert is the new kid on the block coming in and being chief justice you become first in seniority. and he had never actually run anything. >> he had only been on the lower appellate court for two years. >> and then he is not only the chief justice of the united states but he is the head of the jud judicial branch with thousands of employees and budget matters and all kinds of stuff. so you have a sense that -- talk about the job of being chief justice >> well that is exactly what you said. there is an administrative part of the job that is very important. he also appoints the judges who serve on the foreign intelligence court which is a
secret court dealing with sensitive matters dealing with national security. and the head of the judicial branch. he is trying hard and has been to be sure the judges are paid the way he thinks they should be. >> that has been a failure >> that has been a failure and i don't think it is really his fault. trying to get anything through congress is very, very difficult these days. i remember chief justice rank saying the phrase that when you are chief justice within the court your first among equals. and i think i remember probably you remember this, we used to have lunch with chief justice rank and one of the comments about the court was that there are so many justice that are
writing separate opinions and can't you do anything about this? having the court speak with one voice. and he sat back and laughed and i think he used the word it is like herding cats. i have not heard complaints about the administration site but i am not sure he enjoys it. we have to wait and see what kind of chief justice he is going to be >> we have the phenomenon of o'connor expressing to some degree regret about bush against gore. did you sense any of the four cases, citizens united comes to mind, having watched what
unfolded since it came down, are having second thoughts about it? i am asked that all of the time but i will save my answer because i am interested in yours >> the five judges who voted no, i don't think they have regrets. the ones i talked to felt this was an obvious way to go. last term the court had a petition come up involving the state of montana. they had a hundred year old law that banned corporate elections. and they said citizens united doesn't play. we have a history of how corporations owned the montana
government and we don't want to go back. it was challenged again by the lawyer who brought sit citizens united. at the supreme court, they said sorry, citizens united applied even though two justice said it might be good to look at the law perhaps the premise which citizen united is based on is weak if you look at what is happening with money in election but the court didn't have a signed decision. it just said we are not going to hear the case. citizens united applied. >> they overturned the montana's supreme court's ruling? >> yes. i call this a bold conservative
majority and this is a good example. there are no regrets. i am not sure what might happen if guns comes up again. but i would be surprised if they backtrack on the district of columbia gun decision. they will probably not backtrack on the individual holding rights. but i think it will be interesting to see what they say on questions that are coming about gun regulations and what kind of scrutiny the court should give to gun regulation. no, i think this court doesn't have many regrets yet. >> what surprised you the most that you uncovered? you have a few interesting tidbits in here. >> tell me what they are?
>> some back stories. citizens united. the case was reargued and wasn't on the list of major cases. so what happened there? >> the concenus was the deputy being questioned by the chief justice and presing him on how far the argument would go in terms of regulation of corporate spending. and he made a concession that the government could ban books.
he meant you could regulate the money that was used to publish the books. but it was an ah-ha moment where they thought it was astounding. and then after that we get the announcement that the court is going to rehear citizens united and it is going to consider it. it said specifically and this was the court's own question on whether it should overrule the 1992 ruling that did ban the use of corporate funds in the federal elections. ...
of going to write a fairly narrow decision. this case involved a movie. a movie that have highly critical of hillary clinton, and one of the questions before the court was, you know, whether the law even applied to the movie. and the chief -- we've come to unction, was going write a narrow opinion saying that it didn't. and that would have been that. >> that wouldn't have meant very much. >> to, it wouldn't have. justice kennedy, and justice
scalia, but justice kennedy for a long time made it clear that the 1992 decision banning corporate expenditure was wrong. and they had said that in several decisions after words, and this was sort of the er than what the chief justice was going write, and suddenly the chief justices majority swung to justice kennedy. and the chief justice had to decide, you know, what was he going do? because he had just in, i think it was 2007 in another case brought by him citizen united supreme court had a affirmed the 1992 decision and the key provision in the mccain law.
>> exactly. he wrote a concurring opinion that was focused really solely on the concept of standing by prior decision. this it opinion, why he should not standby those prior decisions. what was going on at the same time the justice. he had been assigned the decent by justice stevens. and he wrote a blistering dissent about the fact that the court was going to release an opinion. it was before second argument, and rule on issues that really were not before the court. the citizens united organization had abandoned a big challenge to the law in the lower courts. there had no briefing on those issues before the u.s. supreme
court. and he basically said this is not the way we do things around here. it will be nidis sent that is not the way we should be doing things. that's why i was told there have an constitutional button than if, you know, the court is about to do something, that might look bad for the court in terms of its constitutional representation. >> not to use the word activist. >> right. okay. they -- they pressed it hard with the chief justice. it's really why -- the justice said to me and a number of them said to me they don't remember if they took a vote on reargument citizens
united or whether of it just consensus that it should be reargued. but that is why they said they reargued it in order to give the lawyers in the case more time, an opportunity to brief the two questions that the court presented. it was sort of a little disingenuous of justice kennedy ultimately in the citizen united decision when he opened by saying something to the effect that the case raised these issues, and yet as was pointed out in the dissent the court raced the issue not the case not the lawyers initially anyway. so that's really how to came about. justice stephens ended up writing the dissent because justice retired from the bench. and so -- >> they at any time have him to kick around anymore?
>> no. >> we're going to keep talk for another minute. you see the two standing mic here. if people have questions you can start lining up. >> there's a look in the book too about how the justice do their job. they did talk about what it means to have new justice coming in. and how it affects them. in effects in some cay the injuries prudence, as one said. the old alliances are suddenly gone. you can fend on them to vote a certain way because they agree with you. suddenly t no longer true. another justice talking about how being on the court is really like being in a marriage. you're there for a long time. you have to learn you know what sort of things pick off another justice when to, you know, got bat and when not to with
interpersonal relationships. some justices like a close personal relationship. others, you know, prefer a little more distant. it's really interesting how the changeover affected them. >> number justice stephen's lovely memoir by the chief, he said that the he thinks the most important thing that happened during the renner qis court was the retirement of the thurgood marshall and his replacement by clairn thomas. i think one you can say the most important thing to happen was sandra day o'connor's retirement and replacement by justice alito. >> absolutely. you can't underestimate that. they were both conservatives. different kinds of conservatives. justice alito is much more conservative than justice o'connor was. he has tipped the balance in certain areas of the law. he has tipped the balance in
abortion. his very first term. he tipped the balance in campaign finance, and. >> and on race, yes. one of the key decisions on affirmative action is very much in play in the cases out of the university of texas that the court will decide probably before june. so he's been very important change. and she was the center -- what we call the swing vote and once she left and justice alito came on. justice kennedy really moved in to that swing vote category. i had does not swing to the left as justice o'connor was willing to do. that's all sort of solidified the conservative majority on the court.
>> i think it's probably time to start questions. i'll alternate but start over here. give your name. >> [inaudible] supreme court justices put a lot of energy in the dissending opinions. does it bear flute a positive way? >> absolutely. i think justice ginsburg said dissending justices write for the future. and perhaps the best example of that was chief just is renner qis. he was known as loan ranger in his early years on the court because he wrote dissents and often wrote them for himself. but once the court began to shift to the right, he started to see some of what he believed in become majority opinion. so yes, i'll tell you a funny story once.
i was having christmas lunch in d.c. and justice scheeg -- klieg ya was having lunch at the nearby table. why wouldn't we send over, you know, it was an italian restaurant, obviously. why don't we send over an after dinner drink to him as, you know, spirit of christmas. well, he didn't accept it. he came over though to explain. he said he would have accepted it, if he was writing a majority opinion but had to write a dissent. he needed a clear mind for that. [laughter] >> what do you sympathy going happen when about a dozen people aciewnted for about 80% of the super pac money. where do you think the country is going go if we can are going to continue on this route, which is clear the conservative majority is going continue on this route.
so you're going have just a very handful of people controlling the vast majority of money that is spent on political elections. the supreme court will say go to your congressman. there are attempt being made not scefltly to change a federal election loss in order to want to at least provide more public disclosure who is behind the funding of campaign. they haven't been to be get that through congress. so again, -- it's not 1900% clear. disclosure laws would be upheld. >> that's right. exactly. the court did it in citizens