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tv   Key Capitol Hill Hearings  CSPAN  January 16, 2015 7:00pm-9:01pm EST

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defendant wants. >> no but if he -- if you can see that he visited a website at the time she was saying i'm afraid of this guy or i'm afraid of what he's saying, you could prove up he knew at the time he was aware -- >> all he has to do is say either as i understood your brief it's therapeutic, it's a good thing i could do this or it's art. >> if he was on notice that she is in fear that is all we're asking for. that if he knows she is in fear, he doesn't have a right to continue on. that is what we view as stating an intent to cause fear. >> could you tell me whether it's your -- i'm sorry. >> could you tell me -- i'm coming a little bit off of justice ginsburg's question. you can infer what a person's state of mind is from the circumstances of how and what was said in words, correct?
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>> that is correct. >> so if that's the case, isn't the jury acting like a reasonable person in looking at the words and circumstances and saying did he intend this or didn't he? i don't know what the difference between the standard given and the one -- the instruction you want. >> as the government put it in this case, in the closing argument under the instruction that was given it doesn't matter what the defendant thinks. what matters is whether a reasonable person would foresee that the listener would be placed in fear. >> how is that different from what you intend? if you know, if a reasonable person's going to read this word this way, aren't they going to assume that's what the defendant intended? >> but that is -- that's a negligent standard. it holds him to a reasonable
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person's standard regardless of whether he actually was aware of that. it holds him to what a reasonable person would have known -- >> sort of along the same lines in getting back to what the chief justice asked you because i was a little bit surprised by your answer. i'm trying to figure out what exactly the level of intent you want is. so one the very very highest level might be i affirmatively want to place this person in fear, that's why i'm doing what i'm doing. all right? there's a step down from that which is i don't want to do that, i'm just fulfilling my artistic fantasies, whatever you want to call it, but i know that i am going to place this person in fear. all right? is that -- which intent do you want? >> the second. >> the second. >> that if you know you're placing someone in fear by what you're doing that is enough to satisfy our version of -- >> and how about just take it a step down more but not get to the government. how about if you don't know to a certainty but you know that
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there's a substantial probability that you'll place that person in fear? which is what i take it we usually mean when we talk about recklessness. >> i think we would say recklessness is not enough. the court said in u.s. gypson that recklessness were not enough of a right even for liability. so it said the same would apply here. traditionally courts have applied in a global type, the supreme court, this court said that willful blindness satisfies knowledge, but the willful blindness tests spelled out in global tech was beyond reckless 234es and it took an extra step to try to distinguish it from recklessness. >> well, what would be wrong with a recklessness standard? why is that too low? it seems a recklessness standard has a kind of buffer zone around it. you know, it gets you up one level from what the government wants. who's the person we should be worried is going to be convicted under a recklessness -- >> many of the speakers were
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online and many of the people who are being prosecuted now are teenagers who are sneeshlt shooting off their mouths or making sort of ill-timed sarcastic comments which wind up getting them thrown in jail. for example, there is pending now a case involving a couple of texas teenagers who were in a video game chat room. one called the other one crazy apparently for something he said about a video game and the other one responded "yeah i'm crazy. i'm going to shoot up a kindergarten and eat one of their still-beating hearts." neither one of them -- they understood that as sarcasm but as it happens there was a woman in canada who was watching. she reported them to the authorities. he was arrested. he was held for 4 1/2 months before he was eventually bonded out. and he's still facing trial. happily, texas is one of the states with a subjective intent requirements. so there's a good chance he'll be acquitted. but if you're talking about whether a reasonable person would view that as, i would not want to bet a conviction that that would not -- >> well, but it's not just a reasonable person. at least as i understand the government's submission.
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it's a reasonable person familiar with the context of the statement. right? so you don't take what's on the internet in the abstract and say this person wants to do something horrible. you're familiar with the context. you're familiar with the fact this was a couple of teenagers in a chat room playing a game, right? >> that is true. but the thing is everyone has a different view of what context matters. you could say ab inissueio or in advance or a priori that is going to matter. all they can say is i was put in fear and one of the things that matters in these prosecutions is how do you respond. and the fact of the matter is they investigated, they informed the school, and that has a bootstrapping quality to the reasonable person test because if you've reacted to it and presumably the law enforcement will react in any case it's prosecuted, they can use that as a sign we took this seriously, a reasonable person took this seriously.
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>> on the briefs i thought on the basis of the briefs there are two separate questions. one has to do with the state of mind, and the other doesn't. one that doesn't has to do with what the person does. what he does, and he has to do this or he's not guilty, is he has to communicate a true threat. what is a true threat? you've seen the definitions. the instruction that was given is similar to one embodied in the law. what you have to do is communicate a true threat, and a true threat is a threat that a reasonable person would understand to convey a serious expression of an intention to inflict bodily injury or take the life of an individual. now, there's a second question i found more difficult and that has nothing to do with what you do. it has to do with the state of mind. and that is what i want to know your view about. because i saw nothing in the government's brief that says a
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person could be convicted through negligence. rather, what they say, and it seemed to me this is hornbook statement of criminal law, is that you have to know that you are doing those things that are the elements of the crime. so you have to know that you are transmitting in commerce a true threat as i've just defined it. and if you don't know that, you're out. you're home free. that i would say is model penal code. that is brown commission. that is every sort of statement of criminal law that i read which may be a few but i don't know many that contradict that. so why isn't that the end of this case? >> because the way you're explaining it is different than the way i think the government is explaining because you seem to be suggesting that he knows that a reasonable person would be placed in fear. >> he has to know that. and i will ask the government
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the same question i have in their brief, things where i think what they're saying is the way i said it. but they will say perhaps something else. but that's up to them. >> but my understanding of the government position -- >> but forgetting the position for the moment, what do you think of the position i just took? >> the way i understand your position is that if he had to know that a reasonable person -- >> yes, he does, because if you go into a bank you have to know, there are certain elements for it to be bank robbery. you have to know that you have a threat. you have to know et cetera. now, here one of the elements of the crime is to communicate in commerce a true threat. so you have to know. >> if -- >> a true threat. >> well, the thing is, though -- >> i wouldn't have asked it if i didn't want your view. what is your view? >> i'm trying hard to give it to you. [ laughter ] if the government's view is he has to know mr. elonis had to know that a reasonable person would interpret that as a threat, i would think that that
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would be a big improvement. i would not view that as a bad thing at all. >> you wouldn't go along with that. >> i would prefer there be no -- he has to know -- but -- >> that would cover the situation in which somebody transmits an interstate commerce a warning that al qaeda is going to assassinate a certain person. that's technically covered by this statute isn't it? any communication containing any threat to kidnap any person or any threat to injury the person of another. this contains a threat. the threat of al qaeda. right? >> it depends. i'm not sure that that would be viewed as a threat because it's not, you know, stating one's intention -- you're stating your intention to cause physical harm. so i think that's -- >> you're back to what the intention of the sender is. that statement eliminates the
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intention of the sender, doesn't it? >> because i think, again we're just talking -- a threat is only -- the question is whether it's your statement of intent to cause harm versus you're warning somebody of somebody else's intent to cause harm. >> exactly. that's a big difference. and i had thought that your position took account of that difference. that you had to intend to place somebody in fear. >> that is right. our position -- >> once you eliminate that, you can accept justice breyer's -- >> but among the many things that is wrong with that, i'm not the only one who says this is a negligent standard. justice marshall said it. judge sutton said it. and that's because you're basing it not on what he knew but on what i reasonable person would have known under the circumstances. >> is it your position that a properly instructed jury can convict if it is instructed that
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the defendant communicated that threat with the intent to cause fear or intimidation to the victim? >> yes. that's correct. one of the things -- >> would you accept anything less than that in this case? >> i think that the closest thing is he knew a reasonable person would be placed in fear. >> but that's the way i read this instruction. >> i disagree. if a reasonable person. not if he knew a reasonable person would have that reaction. >> but he intentionally makes a statement. >> i e. intentionally makes a statement. says these words. and full stop a reasonable person viewing those words would view it as a threat. >> then it seems to me you that can't accept anything lesser than the instruction that we first agreed upon as your position, as your preferred
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position. >> again, it's my understanding the government is not accepting the idea that if he knew that a reasonable person would be placed in fear he would be guilty. my understanding is you're saying if he knew the words he said and also a reasonable person would view those as a threat he is guilty. it is, as justice marshall said in the rogers case, a negligent argument. i want to point out something they said on page 15 of their brief. of the government's brief. that said a general intent requirement allows him to be convicted so long as it is sufficient to preclude a definition based on facts the defendant could not reasonably have known. they're admitting there he could be convicted of facts he couldn't have known but reasonably could have known. >> your answer to justice kagan a few minutes ago was that it is not necessary for the defendant to have the purpose of causing fear but it's sufficient for the defendant to have knowledge that it will cause fear. >> that's right. >> which is of the two is it? a minute ago now in answering
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justice kennedy i thought you said that intent which i take to mean purpose is what's necessary. >> that's the reason we all hate the premodel penal code era. but if you look at lefebvre, lefebvre says subjective intent includes both purpose, which we're not asking for, and knowledge it's a virtual certainty something's going to happen and you do it anyway. >> you say it's knowledge it will cause fear on the part of whom? an average recipient or the particular recipient. >> what we're asking for is the particular recipient. but even a reasonable person would be a step up from what i understand the government is offering. >> if you continue you were telling me how that would be proved. what is in his head? he knew that she -- a reasonable person would be put in fear. how does the government prove that? >> the government proves it by proving the circumstances.
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what he said. how he saw people reacting to it. his own personal statements about things at the time. >> on the facts of this case on remand could the government proceed on this evidence with your instruction? would there be enough to go to the jury with your preferred instruction? >> i believe there would be enough to go to a jury. we think this is a triable case though. if i could point out one thing in particular -- >> before you depart from your view, i had understood that to be your view. but if i understand it correctly when you have this disaffected divorced husband who wants to place his former wife in fear he doesn't call her up but a friend of his who knows about his malicious intent calls up the former wife and says you know
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your former husband has threatened to kill you. now, why wouldn't that meet all of the requirements that you insist upon? knowing that this would cause fear in her. the only thing missing is it is not his purpose to cause fear. but once you depart from that purpose you open the door to a situation like, that which it doesn't seem to me should be covered. >> i may have been distracted but i thought it was the idea that he is causing a series of events that results in his wife being told that he wants to kill her. >> i'm not prosecuting him. i'm prosecuting his friend, who calls the former wife and says your former husband has threatened to kill you. it's not his purpose to put her in fear but it certainly puts
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her in fear. any reasonable person would think -- >> i think the thing that is missing is that it is a warning that it is not a statement of his -- he is not saying i'm going to cause this -- >> exactly. he does not have the purpose of putting her in fear. so you're back to purpose which you keep denying. and i don't see how you can get to where you want to be without putting purpose in there. >> in any event it is our position that it is a big step up from a reasonable person standard to at least have it based on his understanding that when i say this it will put that person in fear. >> it's better but not good enough. >> but justice ginsburg, if i could return to your comment i want to point out there are a plethora of statutes that require subjective intent. fraud crimes, drug crimes. and it could be proved the person's intent the same way you do in all of those other cases through the circumstances surrounding it and statements to cohorts and things of the sort. >> well, let me give you a
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concrete example. this is one of the communications in this case for which your client was convicted. this is government exhibit 6 on 335 of the joint appendix. tone dougie. that's it. i've had about enough. i'm checking out and making a name for myself. enough elementary schools in a ten-mile radius to initiate the most heinous school shooting ever imagined, and hell hath no fury like a crazy man in a kindergarten class. the only question is which one? and then there's some individual who likes this. he puts a thumb up to this comment. now, suppose that this was altered a little bit so at the bottom he puts "just kidding. just kidding. laughing out loud." and at the top he puts tone dougie, aspiring rap artist. what's a jury to do with that under your theory? you have to get into the mind of this obsessed somewhat disturbed individual to tell whether he really knew that this
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would cause a panic on the part of the school officials and parents who found out about this? >> yes. exactly. and it's the same thing that -- >> you think that's what congress wanted? congress wanted to say this is okay, it's all going to turn on this inquiry into a really strange -- >> i will say that at the time it was very -- if you look, there are two things that bookend this. there's the benedict case vermont from 1839, and you have the wharton criminal procedure. and both of them say that you have to prove a threat statute you have to show intent to cause fear. and they don't say anything about doing it under a reasonable person -- >> in the example just given i guess there would be a jury question of whether he knew that a reasonable person would take this communication as a threat. the fact that he put at the top
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rap lyrics when he's not a rap artist and the fact that he put at the bottom just kidding, just kidding would perhaps when well argued by the prosecution convince the jury that of course he knew that. if on the other hand -- we have many difficult factual questions as to knowledge. is this more difficult than -- >> that's right. and these are things that prosecutors face every day. they always get somebody in court saying i didn't mean it i didn't think that -- i thought the deal was going to work. they convict people of fraud hundreds of times a year. >> you really have me confused at this point. your previous statement relied upon that case in the wharton by saying it requires an intent to caused fear. i did not understand that to be your position. i thought your position was you do not need the intent to cause fear. it's enough if the reasonable product of this statement is to
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cause fear -- >> i'm sorry. i've not made my -- >> and you know that. that's not an intent to cause fear. it's just a knowledge that fear will ensue. >> it's our understanding that the two things shown as specific intent under the old premodel penal code standard are purpose and doing something with the knowledge that this something is virtually certain to happen. we believe that is an intent standard. >> mr. elwood, when we have looked at fighting words statute, we've never applied this kind of heightened intent. as i understand, fighting words prosecutions, that all the government has to show is that you've said something that would cause a reasonable person to punch you in the face. and that's all we ask. so why shouldn't this be basically the same as that? >> it's a very different tradition. fighting words, i mean, traditionally there wasn't an inquiry.
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there were some case that's required it but traditionally there wasn't whereas here it's clear there was this traditional requirement that a person had into tend to place the person in fear. but here's the reason behind it, which is that fighting words has been essentially whittled down to a very very small category of speech where it's you hurling epithets nose to nose and it will result in reflexive violence, there's no time for anything but a law enforcement response. the only option at that point is to put the cuffs on the guy before he lands a punch. and when we're talking about incitement, when we're talking about true threats there is much more time for sort of law enforcement inquiry. there's options other than just immediately cuffing the person. and because it involves a much broader category of speech it's important you have inquiry into what the speaker's intent was to avoid chilling the speech. because basically under the government's standard any sort of speech that uses forceful language or violent rhetoric could potentially be a risk. somebody who in ferguson
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missouri the night of the riots tweets a photo of law enforcement officers over the motto, the old jeffersonian motto, "the tree of liberty must be refreshed with the blood of tyrants," would a reasonable person foresee that would be viewed as a threat by the police officers? again, i wouldn't want to bet a felony conviction against it. >> and this is valuable first amendment language you think has to be protected. >> i think there is -- >> the kind of things that were quoted earlier? >> i think when you're doing it as a category yes this is valuable language because virtually any language that uses forceful rhetoric could be penalized because they say the blood of tyrants quote or -- >> it has to reasonably put someone in fear. that's all the government's insisting on. >> exactly. which is a very low standard. >> it may be a low standard but to my mind it doesn't eliminate a whole lot of valuable speech at all. >> i would like to reserve the remainder of my time for
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rebuttal. if someone puts on their facebook page a picture of a woman walking into a family planning clinic over the phrase "turn or burn," maybe that is a statement of you know, christian doctrine and she's saying she's going to be going to hell. maybe that is a risk for fire bombing. but with that i'd like to reserve the remainder of my time. >> it would be for the jury i assume. thank you, counsel. mr. dreeben? >> thank you, mr. chief justice and may it please the court. this court has made clear that true threats, which may not be the best term in the world to describe them, but it's getting an important point, cause fear and disruption to society and to the individuals who are targeted. and for that reason congress enacted a statute that depends upon a mens rea component and an actus reus component. the mens rea component is that the individual has to know what understand what the individual is saying. congress reasonably presumed that people who are speakers of
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the english language and who know what the meaning of the words is that they speak are accountable for the consequences of those words. >> and the minimum penalty is what? a fine right? >> that is correct. there's a minimum penalty. there's no mandatory minimum prison sentence here. >> but it is a felony. >> yes, it is a felony. and i think that congress was quite clear that when it enacted this it did not prescribe any additional specific intent or purpose to frighten or to threaten that petitioner up until standing at the podium today appeared to argue for. petitioner's position until today was that it's not a threat if somebody can say hey, didn't really mean, it sorry, that wasn't my purpose or intent i knew that the words that i was speaking had the language in them that they did, i can take it that a reasonable person would have interpreted them that way. petitioner would even cut out recklessness. even if the speaker was
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consciously aware that it was likely to cause fear, petitioner -- >> can you go back? that's exactly the point that's bothering me. i'm with you down to forget the purpose. i'm with you there has to be a true threat. assume that. but now the question is knowledge. and that's the general requirement for mens rea where there's just a general -- that's the normal rule. knowledge. and you have to know those portions that make up an actus reus. you have to know the elements. one of the elements is a true threat. so i thought what do you say you have to know there? and when i read your brief you first said he has to know, he has to understand the meaning of the words he speaks in context and must intentionally speak them and is showing that the defendant acted knowingly in transmitting a true threat requires proof the defendant knew he transmitted a communication and he comprehended its context and context. now, when i first read that i thought, well, that means he has
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to know that it is a true threat, i.e. that -- you just saw people be sworn in. suppose someone comes, from i don't know, and hears them say i do, i do i promise, does he know the meaning of the words? unless he knows the action -- so a marriage is better. someone who's never seen marriages. hears the bride say i do. has the person understood the meaning in context? in context of those words? if he doesn't know that that means they're married and go through a lot of legal proceeding. and similarly can a person know the meaning in context of true threat unless he understands just like the words "i do" what a true threat is? >> the individual can know the meaning of the words without necessarily drawing the same conclusion that the recipient of the communication or a reasonable person would. that is i think --
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>> you're quarreling with justice breyer. obviously, you are. >> yes. >> why are you quarreling? it's not enough for you for us to say a true threat is when you intend to put another person -- >> in fear. >> in fear or you know that your words will cause a reasonable person to feel fear. you're quarreling with that formulation. >> that's right. >> you want something broader? >> what we want is a standard that holds accountable people for the ordinary, natural meaning of the words that they say in context -- >> well, but in context is right. what is it? is it a reasonable person? the examples that were given of teenagers on the internet. or is it a reasonable teenager on the internet? >> if there is such a thing. [ laughter ] sorry, chief justice. the context that was used under
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the jury instruction in this case, and i think it's an appropriate one it's more protective of the defendant perhaps than a reasonable listener approach is a reasonable speaker approach. whether he would foresee that a person to whom the communication is addressed would interpret it as a true threat. >> but there again we're talking about what subculture you're looking at. i mean is the internet exchange, is it the -- what the reasonable teenager thinks? how it would be understood by the recipient of the text. >> the speaker chooses their audience. the speaker can communicate in a completely private manner. on a facebook page the speaker can make certain aspects of the communication private or the speaker can open it up more widely. i don't think this case requires the court to decide the full dimensions to what the context is. but here it's quite clear what
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the context -- >> you're asking for a standard that presumably would apply across the board. so if the teenager has a lot of friends on his facebook page, then you're going to evaluate it by a different standard. you know different age groups everything else. that's a different standard if he has only a few friends that have access to his statements? >> it will depend on to whom he's communicating the statement. we all know if we're communicating among friends, particularly in a face-to-face context, we can say certain things that will be understood as sarcasm. but when we widen the audience and put a statement out in a situation where reasonable people are going to react to it by saying this requires attention, this is a threat against an elementary school -- >> but that doesn't seem to me to answer justice scalia's hypothetical of the friend who calls to report the threat or another hypothetical. one student says i have a bomb in my lunch pail and the other student hears it and tells the
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principal. under your view the person who hears it and tells the principal could be liable. >> that's not our view. and i think it's important to clarify -- >> what is the suggested instruction you would have in order to eliminate liability in my hypothetical or justice scalia's hypothetical? >> the statement has to express a serious intention of the speaker to inflict bodily harm. >> oh well, that was not in the instruction that was given in this case. >> not literally, and it wasn't requested, and i think it is -- >> if you're saying it's waived, that's something else. but the instruction given by the district court in this case does not meet the standard you just gave. >> well, justice kennedy, i think it does if you read it in the entire context that it was understood as being a reference to the speaker's intend to carry out the threat. >> it seems to me that if that's the case you should have no problem at all in accepting mr. elwood's suggested instruction
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a specific intent. >> no, because -- >> or specific intent as you well know all the time. >> let me give you a couple examples of what mr. elwood's position as i understand it would cut out. it would certainly cut out people who are reckless, people who are consciously aware that this would be taken as a serious expression of an intent to do harm and the speaker says i'm going to disregard that and say it anyway -- >> how about using that exact standard? and it's pretty similar to the standard justice breyer ha it. because the way justice breyer had it it's knowledge that a reasonable person would cause fear. you can say it's basically the same thing to say substantial probability that the person you're talking to would feel fear. so either way there's a little bit of a fudge factor. but the critical point is that you have to know something about the probability that you're going to cause fear in another person. and if you really don't know that thing then you're not
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liable. what would be wrong with that? >> well the first thing that's wrong with it is it basically immunizes somebody who makes that statement and then can plausibly say later, hey i was dead drunk, i realize that i just called in a bomb threat and the police had to respond and an elementary school had to be evacuated. and i knew what i was saying but i was too drunk -- >> drunkenness is often not a defense in a specific intent case. >> drunkenness is a defense in an intent case. >> knowledge -- >> i think any standard -- >> i'm trying to get you to focus very specifically i think on forget the first amendment issue here. take it to the side. let's look at ordinary hornbook criminal law after the model penal code. there the normal, as you say in your brief requirement is that the person know the elements of
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the offense. that's normal. if it is drugs he has to know that this is a drug. if it is threat of force, he has to know that he has a threat of force, i take it or that it's a bank. so why shouldn't he here have to know what is an element of the crime? namely, that there is a true threat as so defined. hornbook criminal law. are we departing from it or not? >> actually your description of the he bank robbery situation is illustrative because if you look at the statute that this court is going to consider tomorrow, 2113, which was interpreted in carter to require knowledge that you're engaging in the conduct. no intent element, no specific intent element. so if somebody -- >> i agree with you no specific intent. that is, you don't have to have it to be your purpose. that's why i used the model penal code terminology, which for me is easier.
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you don't have to have it as your purpose. but you do have to know the elements of the offense. >> you just have to know what you are doing. you do not have to know -- >> all right. you have to know what you're doing. what you're doing is you have to communicate a true threat. >> and petitioner is not disputing in this case that he knew the words that he was saying. we're not disputing that the government has to show that the individual is aware of the words that they're speaking. the dispute here is over whether the petition -- the government has to show that the petitioner actually intended to cause fear or today mr. elwood has proposed moving down a level to knowledge. justice kagan has proposed moving down a level one level further to recklessness. my submission is when congress passed this statute it intended to capture all of those people by making no intent element in the statute beyond the knowledge of what the speaker is saying. and the presumption is that when
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you speak english words and you're an english speaker you're accountable for the -- >> so the drunken person who says i don't know what i was saying, is he or she guilty? >> yes. the drunken person who creates panic and instruction and would be reasonably interpreted as having uttered a threat under the government's view is guilty. under mr. elwood's position in his brief, that individual would not be because involuntary intoxication can negate specific intent. it's hornbook law that that is a defense. under the position he's argued at the podium today, perhaps not because voluntary intoxication does not negate knowledge. >> i'm still not sure how you answered justice scalia's hypothetical and mine. that the threat is just repeated. >> that's right. the person who repeats the threat -- >> with no purpose. >> say, a newspaper prints it on the front page. the newspaper is not expressing its intent to -- or making a
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statement that reflects the speaker's intent to inflict harm. what the threat is is a statement that the speaker makes which on its face and in context would be understood as an intent to inflict harm. repeating it doesn't have that characteristic. and i think we discussed, justice kennedy, that the jury instructions don't say it literally but in context that's how they were understood. >> if you have a statement made in the style of rap music, as this one -- or several of these were, is the reasonable person supposed to be someone familiar with that style and the use of what might be used as threatening words in connection with that music or not? >> so mr. chief justice, it depends on whom the speaker is speaking to. if the person is speaking to a general audience then i think that the individual has to understand that not everybody will have the same private
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meanings that that person attaches to rap music and will bring to the table -- >> so that does subject the prosecution, the lyrics that a lost rap artists use. >> not at all, chief justice. because in the context of those statements it's pretty clear that the purpose of the communication is entertainment. people seek out rap artists because they are seeking some form of entertainment. and that is -- >> so how do you start out if you want to be a rap artist? your first communication you can't say i'm an artist. right? >> i think that you have perfect freedom to engage in rap artistry. what you don't have perfect freedom to do is to make statements like the ones in this case where after the individual receives a protection from abuse order, from a court which was based on facebook posts that his wife took as threatening he comes out with a post and says fold up that pfa and put it in
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your pocket, will it stop a bullet? he knows his wife is reading these posts. he knows that his posts, despite the fact that they're in the guise of rap music, have instilled fear in her, and he goes out and he ramps up and escalates the threatening character of the statements. this is completely different -- >> you've just made a wonderful closing statement. but -- a summation. but why is the instruction that -- or any of the formulations suggested here going to harm that? >> i think, justice sotomayor, the clearest problem would be if the court goes with the position the petitioner advocated in this case, which is that there must be a purpose to frighten. because that would exclude the person who's conscious, yeah i know this would probably scare my wife but so what? it cuts out recklessness. it cuts out -- >> mr. elwood would disavow
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that. he said he has to know that she will be in fear. >> justice ginsburg he didn't disavow it but the time to propose a jury instruction is in the district court not from the podium as the petitioner is arguing the case in the supreme court. now, i agree that this court should decide what the statute means and is properly interpreted and what the fourth amendment required, but there was no request for a knowledge instruction. there was no argue mth that the proper standard is knowledge, let alone recklessness. >> my understanding of the model penal code levels and mens rea is there is a distinction but a razor-thin distinction between purpose and knowledge. so the idea that backing off from purpose to knowledge is going to make very much a practical difference is i think fanciful. there's a considerable difference between -- distance between knowledge and recklessness. would you agree with that? or do i not understand that
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correct? >> i think you basically understand it correctly. i think i would attribute a little more description. purpose is the conscious intent to achieve the very goal. knowledge under the model penal code is acting intentionally with knowledge through practical certainty that the result will follow. and then recklessness takes it down to you're actually aware of the risk and you're indifferent to it you acted grossly negligently. it doesn't have to be to the level of knowledge. it's just there's a significant rhys kk and you disregard it. >> exactly. i think that is the distinction. i think a lot of these cases would come up in domestic relations disputes, and in such a case the question would be, because people get into hearted arguments, you have to show the defendant used some words that in context would be taken as a
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true threat. or do you have to show that the defendant used some words that do have that characteristic and he knew they had that characteristic? now, if i'm right -- >> the former. >> hmm? >> the former. >> i know. you think the former. and the real issue is is it the former or the latter? >> correct. >> if it's totally open in the history and so forth i think people do say things in domestic disputes that air awfully sorry about later. and where the person didn't know that he was saying something that a reasonable person would take as a threat. i'm hesitating to say that congress wanted or it makes sense to -- he's lacking something there. maybe it's his fault he's lacking it but he is. >> the jury instruction in this case said, right before the passage that we've all been focused on, which is on page 301 of the joint appendix among many
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other places. after giving the definition of the true threat, justice breyer, the court said this is distinguished from idle or careless talk, exaggeration, something said in a joking manner, or an outburst of transitory anger. so the context of this very instruction took into account your honor's concern, and it cuts that out. >> lest we define deviancy down, i don't agree with the proposition that in -- well intramarital disputes people make physical threats to the person? i think that's rather unusual. >> well, i think that even in the -- >> even in the heat of anger. >> and it often will trigger just what happened here. the spouse goes and gets a protection from abuse order and the individual is on notice that that person's statements are being interpreted as a threat and a judge has validated that.
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and then you have a petitioner going on and continuing to do that. i actually think the domestic abuse context is one of the best reasons for the court not to add a sienter element that 8 out of the 10 regional courts of appeal have not done for decades. it has not led to the problem -- >> mr. dreepben, you're asking us to go down it's not purpose, it's not knowledge of causing fear, it's not a conscious disregard of causing fear it's just that you should have known that you were going to cause fear, essentially. and that's not the kind of standard that we typically use in the first amendment. the only time we can think of is in the fighting words context. because we typically say that the first amendment requires a kind of buffer zone to ensure that even stuff that's wrongful maybe is permitted because we don't want to chill innocent
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behavior. so i guess the question is shouldn't we allow some kind of buffer zone here past the sort of reasonable negligence standard that you are proposing? >> i don't think so justice kagan. and if you look at the kinds of cases that have attracted is this court's buffer zone jurisprudence like "new york times" versus solving you're talking about there statements that were made to -- or about public officials or public figures, perhaps expanded to matters of public concern, where there really was a social interest in preserving that kind of speech. here what you're talking about are criminal threats, statements that are taking away any private meanings that the individual attached to them would leave observers of the view, hey this guy intends to carry out an act of violence against somebody. that is not something that has first amendment value. there are plenty of ways to express yourself without doing it in a way that will lead people to think this guy is
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about to hurt somebody. >> what about the language at pages 54 to 55 of the petitioner's brief? you know, make a nice bed for mommy at the bottom of the lake, tie a rope around a rock. this is in the context of a domestic dispute between a husband and wife. there goes mama splashing in the water. no more fighting with dad. all that stuff. under your test could that be prosecuted? >> no. because if you look at the context of this statement -- >> because eminem said it? >> because eminem said it at a concert where people are going to be entertained. this is a critical part of the context. it wasn't as if he said to hurt you in private or on a facebook page after having received a protection from abuse order. it wasn't as if he had appropriated a style of rap that wasn't anything he had been doing previously in the marriage and all of a sudden tried to express violent statements that way. i think in the context any
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reasonable person would conclude at a minimum that there is ambiguity about these statements being a serious intention of an expression to do harm. and this is critical here. we're talking about an area in which if the jury finds that it's ambiguous it has to acquit. it has to conclude that this is how these statements should be interpreted. >> well yes, but you're dealing with some very inflammatory language. the question is whether or not the jury is going to be swept away with the language as opposed to making the subtle determinations you've been talking about. >> well, there are two protection ppz one is the government has to prove its case beyond a reasonable doubt and that is subject to appellate review. and the second protection is it needs to be a true threat. as expressed in the watts case, whether it's a good term or a bad term it means that these statements are to be taken seriously, that they're not in jest, they're not in exaggeration, they're not hyperbole, they're not artistic expression. and this is not a standard that's led to any problems. >> the third point is that if the first two are correct this language is not worth a whole lot anyway, right?
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>> that is correct as well justice scalia. the proof i think really is in the pudding here. petitioner claims that unless the prevailing rule in 10 out of the 12 regional circuits is overthrown there's going to be a tremendous chill. but i think what he's overlooking is the fact that until recently 11 out of the 12 circuits followed this rule. the 10th circuit changed only while this case was under submission. and there's no evidence of chilling. the best evidence petitioner has come up with of a case that was prosecuted that he thinks shouldn't was one in which an individual after having tried to urge an fbi agent to recommend a prosecution and failing called him up and said, you know, have a good day, the silver bullets are coming. and the jury was able to hear in that case a tape of the statement, put the statement in the context in which it was made, and conclude that it was indeed a true threat. plus the very statute of prosecution actually did require
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proof of an intent to impede an official engaged in his business. so i don't think the petitioner has really come up with a good reason for this court to change course. >> in this statute there's a, b c, and d. a, b, and d all have specific intent. i think you would agree with that. >> yes. >> is it proper for us then to say it's likely that section c also should be a specific -- it's very add to say that a, b, and d are specific intents but this one isn't. >> well, justice kennedy i think it actually cuts the other way because congress in the other sections of this statute focused on an intent to extort and when it came down to prohibiting threats in 875-c it did not do that. i think it's also notable that section 871, which is the threats against the president statute, requires that the
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threats be made knowingly and willfully and that statute has been universally interpreted except for the 4th circuit as not requiring any proof of an intent or knowledge that it would be taken as threatening language that was designed to put the president in fear. it has been interpreted just the way the 3rd circuit interpreted this statute. and if petitioner's statutory argument is accepted that the word "threat" has some sort of inherent meaning of an intent to put somebody in fear, it raises questions about that almost uniform and long-standing interpretation of the threat against the president statute. and i think that statute only exemplifies in a magnified way the problems that are created by threats. the problems are that they disrupt people's activities and they put people in fear. now, the president is unlikely to be put in fear by an assassination attempt -- or assassination threat that's made over the internet that the secret service intercepts. he's made of hardy stuff.
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but it's highly disruptive to society. and when the secret service is considering what to investigate, it doesn't have access to the private intentions of an individual or his unreasonable interpretation of the language that he actually speaks. the threat causes the harm regardless of the subject's -- >> couldn't you say that about a lot of criminal law that the harm is the conduct irrespective of what was in the person's head? yet we insist on looking very often at what was in the person's head? >> yes. and congress statutes against a background and we accept that here. the question is what has to be shown. is it enough that the person had knowledge of the words that he spoke as an english language speaker understanding their meaning or does there have to be something more namely that the government must prove in each case that he intended the bad
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outcome, whether he had knowledge of it or was conscious of it and disregarded. there is nothing that requires any of those things. the harms inflicted are just as bad, just as serious regardless of those. one final point on the intent question that your honor has raised. i think congress would well have understood that the majority of these cases probably were people who intended to threaten some subset of them are people who are reckless. for congress it was no matter which those things were. the point was to impose a burden of proof on the government that could potentially -- >> let's go to that question. it may have been congress's intent but does the first amendment provide an umbrella that cabins their intent? >> i don't think so. the fighting words that justice kagen spoke of which is long standing in this court's
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jurisprudence focuses on the effect the words would have on the person who hears them. in the obscenity context there is no requirement that the person who has the items in question. >> to create more exceptions. >> nowhere in the common law you have found a hook to say that. >> one more example in the definition context it is true the court requires malice. any defamation statute and the harms that defamation protects are much less serious than the harms that are protected by a threat statute when you are dealing with people's safety. this court has calibrated the
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first amendment requirements not with a broad brush that says in all cases there must be mens rea but in some cases you do not need it. the true doctrine has been implemented and applied by the circuits has never been a context in which the court has thought it necessary to layer on some kind of intent. >> why is this really a question -- what was required in the statute is that some thing be transmitted. the thing is a threat. the question is what is this thing? is it a thing that is intended to cause fear or a thing that naturally causes fear? i wish you had time to answer it. >> justice, alito. there is a background assumption. i agree with the evaluation of what the statute focuses
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attention on on an expression of an intent to do harm. that is what you have to look at, the expression and the context. then the question is did the individual know what he was doing? if he did the statutory analysis is complete. >> thank you, counsel. >> five minutes. >> thank you. when we are trying to figure out what congress meant when enacting the statute it is valuable to look at traditions at the time. as i pointed out in state versus benedict and from 1957 which book end the period in which the statute was enacted both of those require a showing that the speaker knew he was putting the listener in fear. the first time the -- >> i thought you said it required intent the last time you referred to those two. >> i have been accused of changing my position. point is that when you say something with knowledge it is certain to happen that that is
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intent. and that is kind of knowledge plus. both form of intent which, by the way, we did ask for a knowledge instruction. but on both sides of that you have to intent to place the person in fear. the first case the government can point to that says we are going to hold people criminally responsible for what an english speaker would understand this to mean is 1966 in i think the pierce case. all the cases after that it is a relatively recent phenomenon that this has happened. when you are looking at what congress would have been thinking at the time the standard understanding at the time was that a person had to know that they were going to be putting someone into fear. the government's theory is that it is enough to make someone criminally responsible if you know you are a speaker of
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english and you know the words you are saying. i don't think there is any reason, any different reason why just as even the government would say if you are not a native english speaker you give more slack. we have all had experiences that we know words can have two different meanings. we give the example of bob woodward where the white house is saying you will regret it. he interpreted it as a threat. it's a mild example but the government wants to criminalize it when you have two people. we know what the words are capable of meaning. for the turn or burn for the blood of tyrants example english speakers know what the words are generally capable of meaning. what we don't know is what they are meant to mean in this particular case. the government wants to impose a five year liability on anytime there is a disagreement between those two parts between the understanding of the speaker and understanding of the listener. i wanted to point out because in
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his jury argument talked about how after the pfa was granted he continued to make arguments. i wanted to point out page 329 which is three days before the protection from abuse order was ordered to the idea that he just came upon as threatening his wife tlmpt is a long and painful to read rap there. he says there in response to a departing facebook front he calls an al qaeda sympathizer which tends to show he means this he says i do this for me. it is therapeutic. the idea that this is a recent invention there is stuff you can point to to show there was a misunderstanding between the two of them. the speaker and the listener focus on different things when
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you are talking about context. you can look at page 344. this is a page that shows this is the only record of the standard disclaimer which appeared on the web page which says all content posted is for entertainment purposes only. you can imagine a situation where somebody says i am posting this for entertainment purposes only. you can see the number of other things he posts. >> this sounds like a road map for threatening a spouse and getting away with it. you put it in rhyme and you put some stuff about the internet on it and say i am an aspiring rap artist then you are free from prosecution. >> and the prosecution would be perfectly free to point out all the things they find on the phone that they can say is inconsistent with the theory. you have to point out this is the only threats case i can think of where somebody is saying this isn't a threat. this isn't a threat. when you look at the jeffreys case in front of the court in
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october of 2013 there he says i'm not kidding, judge. it diminishes the value of a threat if the person doesn't know if they are being threatened. >> what do you say to those who say if the position is adopted this is going to have a very grave effect in cases of domestic violence? they just don't understand the situation? >> it is in their interest to have a standard that requires no mens rea because it makes it more easy to prove. the fact of the matter is many states including the states that you really want to have if you are going to win the electoral college, california, texas new york, all of the states have subjective intent requirements and the government has never shown that those states have had trouble protecting their populous from fear. >> get your entries completed
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now. produce a five minute to seven minute documentary on the theme the three branches and you for your chance to win the grand prize of $3,000. for a list of the rules go to student studentcam.org. you can see all of what president obama and prime minister david cameron -- --cg
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at a press conference president obama and british prime minister david cameron.
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they also urged congress to hold off on implementing new sanctions on iran in the midst of nuclear talks. here is some of what the president said about that. >> i take this very seriously. i don't question the good faith of some folks who think this might be helpful. it is my team that's at the table. we consult closely with allies like the united kingdom in making these assessments. i am asking congress to hold off because our negotiators, our partners, those who are most intimately involved in this assess that it will jeopardize the possibility of resolving -- providing a diplomatic solution to one of the most difficult and
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long lasting national security problems that we faced in a very long time. and congress needs to show patience. so with respect to the veto i said to my democratic caucus colleagues yesterday that i will veto a bill that comes to my desk. i will make this argument to the american people as to why i'm doing so. i respectfully request them to hold off for a few months to see if we have the possibility of solving a big problem without resorting potentially to war. i think that's worth doing. >> you can see all of what president obama and prime
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minister david cameron said at the news conference at c-span.org. whether states are free to limit marriage to traditional definition as a union only between a man and a woman. the question was left open when the court last confronted the issue in 2013. tuesday night president obama delivers his state of the union address. live coverage begins at 8:00 p.m. eastern including the president's speech the gop response delivered by newly-elected iowa senator and your reaction through open phones live on c-span and c-span radio. on c-span 2 watch the president's speech and congressional reaction. the state of the union address live on c-span, c-span 2, c-span radio and c-span.org.
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on the next washington journal michael warren discusses a possible presidential run by mitt romney and who his main rivals might be. after that the national education association looks at annual student assessments and arne duncan's request to congress. plus your phone calls, facebook comments and tweets all on washington journal live saturday at 7:00 a.m. eastern on c-span. one of the jobs of the coast guard is to stop drugs from traveling on international water ways to america. admiral paul zukunft says the guard is using 50-year-old ships that should have been retired. he is optimistic he will get funding because jay johnson understands the situation. he spoke about that and the guard's strategy for the western hemisphere, arctic cyber
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security and environment at the center for strategic and international studies. this is about an hour. well, good morning, everyone, and thank you for coming out to csis this morning. i run the international security program here at csis. let me thank lockheed martin making this meeting possible here this morning. and the coffee you are enjoying outside. it is my pleasure to be here to introduce admiral and my partner in crime from the u.s. naval institute. as you probably know, csis partnered with the maritime series to try to bring a forum together to discuss major issues in the maritime. it is wonderful to have as our second speaker just after the cno spoke the commandant of the coast guard, admiral zukunft. what we have here today is really the bridging of homeland security and law enforcement
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with national security and the coast guard lives every day in that space. from his own personal experiences starting as the coordinator for deepwater horizon, oil spill recovery efforts to working on issues in the asia pacific, the avenue here in the commandant certainly personifies what the coast guard is all about. without further ado, and thanking admiral daly for honoring this event, i would like to introduce admiral zukunft. >> thank you very much. thank you for stepping up to moderate this. you always have the chance to scan the audience and as i scan i probably see ten of you who have written fitness reports on me. it's daunting to stand in front of you today, but it's important because i spoke at sna
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yesterday, and there were a lot of people who didn't realize all the great things that the coast guard does, first and foremost, as a member of the armed services, as a law enforcement agency, as a humanitarian service, as a regulatory agency, as a member of the national intel community and all the great things that we do for our country. so i want to thank you first for taking time to be with us today, and i certainly want to entertain your questions as well and leave ample time for us to be able to do so. when i stepped into this job about eight months ago, the first thing i did is i put the commandant in direction. it was very straightforward but really building on the eight commandants that served before me while i've been on active duty, took the best of their ideas and had continuity of command rather than transition of command as i stepped into this position. but i also looked at how we've
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been executing our budgets since 1790. i'm sure when 10 revenue cutters were chartered under alexander hamilton, we probably wanted 15 but only got 10. we usually work with what's left over, and my first approach is we need to have a budget that is driven first and foremost by a strategy. by a strategy that is relevant, that resonates across whole of government, so we've been able to do exactly that. the first piece that we rolled out under my predecessor, admiral pat, is an army strategy. i recently released a strategy on the western hemisphere and i'll talk about that at length here shortly. in the next several weeks, we will release a strategy for cyber, and i'll talk a little bit about that as well. and i'm also very focused on what i call the energy renaissance. every day a new tank barge is entering our waterways with a u.s. certificate of inspection
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on it right now because right now we export more oil than we import. we are a net producer. we're an opec nation. we produce more oil and gas than any other nation in the world right now, which is why oil is hovering around $46 per barrel. so let me talk a little bit about the western hemisphere. there was a smithsonian back in the late '70s, there was this vignette that played, basketball players, three in white shorts, three in black shorts, and you watch very closely as they pass the basketball among them. if you pay very close attention, they pass that ball about 12 times. and about 65% of the people get it, but 65%, what they don't see, is in the middle of that vignette, someone dressed up in a gorilla suit, does a moon walk between them, and no one saw it take place.
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i use this gorilla metaphor in the context of the western hemisphere. today eight out of ten of the most violent nations of the world are right here in our backyard in the western hemisphere to include violent crime, undermining rule of law to governments, and how did that happen? what's happened is that gorilla was actually organized crime, moving drugs, moving people, moving weapons into central america. much of that destined for the united states, but that's why we now have eight of the ten most violent nations erected here in our backyard. we saw this play out last summer with unaccompanied minor children, and some of us when you look at that, the first thing you want to do is we need more detention facilities, we need more beds, how do we place these children, and that's creating a symptom. what's the ultimate cause? the ultimate cause are the parents of honduras, guatemala, el salvador.
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three of these violent nations, guatemala being number one, are trying to get their children to a safe nation. a country with 35% unemployment, 50% poverty, but a young child being born in honduras today, one in nine will be murdered before they reach the age of 21. how did that happen? so i'm looking at the cause of that and how that is taking place here in our hemisphere. besides the unaccompanied minors, we're looking at drug flow, and within the western hemisphere, i'm taking a very offensive approach and attacking organizing crime works the most vulnerable, and that's when it's on the water. we realize that when drugs come ashore, they're not coming ashore in the united states, they come ashore well south of here.
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so when i look at where does our maritime border begin, it begins at the territorial sea of 41 countries with which we have bilateral agreements to do counter-drug operations. once those drugs come ashore, very difficult to detect. so one of my imperatives under my commandant's direction is we will have intelligence via operations. we've been a member of the international intelligence community for more than 12 years now, 13, and a sign of vectorships. my last ship i left over 13 years ago. we would go out and pick a spot in the ocean, and i would say, they're going to come right here. more often than not it was like forrest gump before they caught all the shrimp, but more often than not, you went home and you were skunked. that's not the case anymore. a high endurance cutter returned just before thanksgiving with more than half a million of contraband. for those of you who have been
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in this line of business, one a year is staggering, but 13 in one deployment, but this is all intelligence driving operations. our intelligence product is so good today that we have at least one layer of intelligence on about 80% of the flow in the eastern pacific and in the western caribbean and even some of the flow destined for europe as well, 80%. on the best of days, i have an airplane, i have a cutter that i can vector to go after 20%. 60% get a free pass. why is this a concern to me? obviously we have this challenge with regional stability in central america. this is a $750 billion enterprise. i have a $10 billion slingshot in my budget.
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but if we use intel appropriately, again, where organized crime is the most vulnerable, where i have the upper hand is at sea complemented with the authorities we have. authorities are one thing, but it's also compliments, but i am the coast guard today. so much so that many companies are trying to replicate the united states coast guard. they have the color scheme right, they have the strike right. if i want to buy my ships instead of theirs. what they can't replicate is our people. what they can't replicate are authorities, are governance. we reach across any aspects, because any maritime stakeholder, they have to look at one place. as i try to wake others up to this challenge, this gorilla, if you will, there is another very troubling number, and that number is 450,000.
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those are the number of american citizens since 9/11 who have died due to drug overdose, drug crime here in our united states of america. we now have more people dying to drug overdoses, drug violence each year than we do highway fatalities. so i need to build up this click it or ticket, but at a much higher level as we're looking how do we invest in the coast guard as we look at some of the challenges we see in the 21st century. the next line of the western hemisphere besides going out and combatting networks is safeguarding commerce. 90% of our trade currently rides on the sea. yesterday, and this relates to our cyber strategy, we hosted a public meeting for the maritime industry. in 2002, the maritime transportation security act, probably one of the most wide-sweeping pieces of legislation to impact the coast guard, impacted a number of facilities that do international
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trade. and they balked at first when we said you have to build a higher fence, more cameras, credentials, security guards and so forth. but now they're coming to us and saying, well, we need to know what the international standards are for cyber. if you look to see what's playing out right now on the west coast with the ilwu renewing its contract, we're starting to see gridlock in our courts, and we live in an inventory economy. so there is no room for error if there is a disruption in any of our courts. especially if you look at a court complex in long beach where over a million dollars in congress is in that congress. that just goes through there. what you don't see is warehouses in the heartland. that's on a container that then gets on a rail car that goes to the factory just in time. that's keeping our economic engine running. i was down in sabine river about
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six months ago, and on sabine -- six weeks ago and on the sabine river there is a facility calledtia near that will be the largest lng exporter in the world when all six of the liqueification plants come online. just after that i went to the panama canal into the expansion project. it is 180 feet wide. they can accommodate ships with drafts of over 60 feet. that should open on or about april fool's day of 2016. with that there will be a flow of gas ships. there will also be a flow of container ships, some of them carrying up to 18,000 container units coming through the canal which may have an impact on where we do trade here in the united states. but behind all of that, the coast guard is the enabler. we do not want to be the inhibitor of allowing all this
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maritime commerce to take place. so that's a key element as we look western hemisphere and then how we enable congress and keep -- commerce and keep that engine running, as well. then the third piece of our western hemisphere strategy is securing our borders. and this question comes up time and time again. in the maritime environment, our border is not our territorial sea. our border begins at the port of debarkation for any nation that does trade with the united states. our maritime security regime, we have teams that go out and we audit all of the ports, all the facilities that trade with the united states. and their compliance with the international port security codes, they get a clean bill of health. if they are not any ship that calls on that facility within five times before it arrives here in the united states is going to have a welcoming committee. a very stringent inspection to
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make sure that their security standards have not been compromised as they go through these ports. so what that does to a shipper is either they don't do commerce at that port or that facility says, well, we better come into compliance. well, it's a very indirect way, if you will, to correct compliance on an international scale. at that point, as that ship leaves, the coast guard and customs and border protection at the national targeting center here in reston, virginia, we look at the cargo manifest, we look at the crew member, the contents of that product. we look for anomalies. is there a person of interest? is there perhaps something with that manifest that may cause grave concern? obviously, the worst case being a weapon of mass destruction. so we screen all of that well in advance of those ships coming into our territorial sea, way out in the high seas.
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we have 12 bilateral agreements with flag states of convenience that allow us to go on those ships if we think that there is a weapon of mass destruction on those ships. we don't have to ask for permission. but you don't want to board that ship as it's coming under the golden gate bridge. that's why we have flight deck-equipped cutters. that's why we have a tier 2 team, a maritime security response team, that uses the exact same tactics, techniques, procedures as our special operations forces to go on board, and if it is a worst case, to take positive control on that ship and buy us that trade space, that time we need of what do we do with the final disposition of this ship that was destined for the united states and perhaps torching off a very worst case scenario? and the other aspect of our border is the flow of illegal immigration. it's not just here in the united states, it's playing out in a global scale. it's playing out in australia
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with migrant flow going to that country. we're seeing that in the european union in just the last few weeks with very large numbers. the coast guard has been dealing with the phenomena now since the maritime boat lift of 1980. last month we had a 200% increase in migrant flow leaving cuba. there was perception that our feet dry policy was going to change, and what we saw were, as rudimentary as these vessels are, these were really makeshift chugs trying to get to the united states. as i'm dealing with that threat and moving ships around, we have a 50-year-old fleet of 210-foot cutters. they do have a flight deck on them. so if you're holding 100, 150 migrants, it takes several days to go through a screening process before you patriate these individuals. 40 of the 50 cutters we had to send so dry out.
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we have been doing a great job. all of the crews that went before that to maintain the ships. they're 20 years beyond their service life, but we're still operating them for 50 years. so what's the consequence? we have these great, brand new fast response cutters. they're about 150, 40 feet long, a crew of 22. but that crew of 22 is now holding 100 migrants for a period of five days. as these migrants get anxious, some of them will self-mutilate to be medically evacuated and then they become dry to enter the united states, but those fast response cutters were not designed to hold migrants for days on end as we look at the final disposition of these individuals. this phenomena i don't think is going to change in the 21st century. when i look at the abyss between have and have not nations, when i look at stability in the region, you don't have to look beyond the country of haiti whose economic engine just
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doesn't seem to get started. but there are a lot of other leading indicators throughout the region where the united states is going to become a very attractive target to emigrate to, much like we saw in the 1900s with the european phenomenon. they'll do so illegally, and we want to screen out who is a person of interest that may cause harm to the united states, and who is a bona fide economic migrant looking to better their way of life. that will be a challenge as well. i'll shift gears real quick to another area i'm looking at and that's the arctic. when i say arctic, it's also antarctica. when people ask me what do i lose sleep over, it's the coast guard cutter polar star that is brimming the channel as i speak. things are going a little slower than expected. a little bit more work than they anticipated. we have great imagery, but the ice is thicker, it's more dense, there is fast ice in here as
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well, but what happens if they have a major engineering casualty while they're breaking in? there used to be a point in time where i could send another heavy icebreaker to the rescue. right now they're going it alone, and every time i would swim in water over my head, it was always good to have a buddy. but the united states doesn't have a buddy system right now as we're operating at the very far extremes of the world. we have equities well beyond scientific research in antarctica. then as i shift to the arctic, for the next two years, the united states will chair the arctic council. the head of that delegation willqepjiìo.áf
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contingency. a major oil spill in the arctic may be several thousand barrels not on the magnitude of deep water horizon event. we need to be sensitive to the indigenous nations that have been living there as well. we are doing that on a daily basis, but we have the opportunity over the next couple of years to really make our presence felt in the arctic, but it's hard to do so in a very persistent manner when our nation -- these are national assets -- our heavy icebreakers is one.
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and our medium icebreaker, our fleet, is one. so i'm keenly interested in recapitalizing on our capability as we go forward. there is a number of directives that i've teed up as i look at this world around us, and the first area i look at is our human resource competencies. we operate in a much more complex environment. we have boats that are pursuing boats 140 miles offshore using warning shots up to and including deadly force and doing an arrest as an e-5. we have a cyber command, we have intel specialists, we have an acquisition program that is not only mature but received five federal government awards in the past year. our ships are much more complex, the systems on there to leverage them to their full capability, you cannot send others to sea.
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we get the general approach, they leave and it brings us back the next wave of apprentices. we have to be proficient in 21st century. that includes our prevention world of war. we regulate an industry that is now turning to alternative fuels. they're offshore supply vessels using lng as a supply force. i don't want to find ourselves luring from an industry we're trying to regulate. we should be imposing the standard and not learning from industry. we've never had closed loop communities other than the aviation community within the coast guard, and we need to tighten those circles a little bit more than we have in the past whether it's seagoing, whether it's response, doing intelligence, doing acquisition, all of our support missions, every one of them are valuable, i need it all, but i need to make sure that i've got competent individuals and i have an assignment process that grows those subject matter experts, because we can no longer be that swiss army knife, that jack of all trades, master of non as
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we're doing brain surgery out here in the 21st century. so we're going to overhaul that as well. i'm also directing, as we look at the flow of oil within our inland waterway system. two years ago, about 2 million barrels of oil went downriver. last year it was 50 million. it went up by a factor of 25. as i mentioned, more barges are being built when they come down on high river conditions. they're shifting silt, and there's a lot of exposure and something could go bad, but i need to make sure that maritime transportation system, the waterway, is reliable. we're maintaining that with 60-year-old maritime buoy tenders, so if you thought those ships were old, i have something even older yet. i need to take a harder look at that and how do we recapitalize that.
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there is a lot of talk about, hey, we have gps. we won't need that anymore. but what happens if that gps signal goes dark? then what do we do? i'm very focused on that aspect as well. that keeps me awake a little bit at night as well. not just in our navigation systems, but this is our timing system. our financial market relies on gps. there is no backup right now. that's another key focus area of mine as i look into the 21st century. i also look at climate change. not what's causing it, but i know that the sea level is rising. you know, we've measured the ocean temperatures. those are rising. and there are two phenomena that i observed in the last year. in 2013, it was super tycoon hiwan. that came into sea at 196 knots, the highest in history. we topped that this year and that was super tycoon vongfong.
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as they were digging out eight feet of snow in the northeast they were dragging snow across the united states. if you can imagine one of these beasts coming ashore in the united states. katrina was a category 3. sandy was a category 1. this is a category 5-plus-plus. do we have the resiliency within the coast guard to respond to an incident of that magnitude at a point of time where my active and reserve combined are less than 50,000 people as we look at how to respond to some of these contingencies. we're staying very focused on that as well. i close by saying there is not a point in time where we have not had a better relationship with the united states navy. i'm meeting with admiral greener on a regular basis. very soon we will swap out the strategy for the 21st century. when i look at the challenges
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he's facing, gone are the days when you have six months to lead up to a contingency. when you have unpredictable leadership on the korean peninsula threatening our country with icbm missiles, clearly the navy does have to reposition. and as they reposition, what do you pull from? so in many cases the navy has had to pull from the western hemisphere. as they do so, first and foremost, i applaud the great support and teamwork we have had with our navy, with law enforcement attachment on those ships. i paint a bleak picture, but it would have been more bleak without this relationship we've had with our navy. but as the navy repositions to the pacific, i'm repositioning to the western hemisphere. our presence is up 40%.
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obviously, i did not put together a fleet of 40% overnight. we're using intelligence, we're doing what i call risk-based decision making, but one of my highest priority threats on a global scale, and right now they're right here in our backyard to go after that gorilla. it's a great time to lead this organization. when i spoke to the corps cadets at the coast guard academy, i said, your biggest challenge when you leave this institution, you're going to leave an enlisted workforce that is more experienced, more mature and better educated than you are. now, if that is your biggest problem then bring it on, but the strength of our human resource capital i've never seen where it is today. so when i step back and look at our united states coast guard, i could not be more optimistic. i could not be more thankful to the 88,000 active duty, our reserve, our civilian, and our auxiliarists.
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to a person everyone of them are collectively punching well above their weight class. i look forward to hearing your question. thank you for listening to my view of our world from a coast guard perspective, so peter, i turn it over to you for some moderating discussion. [applause] >> my intent here is to just ask a couple questions and open it up quickly to the audience. thank you for your remarks. we had a forum last month where a speaker who really looks at this closely looked at the coast guard's acquisition construction and investment accounts and noted the fact that historically it had been at 1.5 to 2 billion and now is 14 out centered on more than 1.1 billion. you mentioned that the cutters were over 40 years old. what does this do to your ability to recapitalize that
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force? >> my primary responsibility, as i told my work forces, i spent most of my work as operator, and now i'm in marketing sales. i need to market our united states coast guard. we've done our due diligence. for two years running now, we have a clean financial audit opinion. we were the first military service to do so and then the marine corps followed suit last year. well, we did it again. when you look at the fact that we can maintain a ship for 50 years, it was designed at a point in time where that ship was designed to maybe go out for two weeks and do search and rescue before the magnusson act was even signed. now we've been able to modify that cutter to remain relevant in the 21st century. i think we have been a good steward of the resources the taxpayers have provided the
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united states coast guard. over the last several years, our acquisition budget has gone from 1.5 to just south of $1 billion. and i cannot run our coast guard on a budget like that. we need the fast response cutters. the national security cutter has been a game changer for us. gone are the days where you go out for a two-month patrol. they deploy, they provide persistent presence, and are providing tremendous return on that investment. quick sea story. coast guard cutter just completed a rim of the pacific, the largest rim of the pacific this last year. as she was doing her workups in san diego, we diverted her twice and she did two drug interdictions. she was the first time the p.a. participated in the rim of the pacific. when that was said and done, they went out and forced our eez against fisheries all in one
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deployment. where we are lacking is our middle ware. we are down to three competitors of offshore cutters. i have gone to my staff and scrubbed every specification that's on there with a view towards affordability. we view this as though i am personally paying for it out of my checking account, one that is affordable, but two, this is going to meet the requirements that i foresee in the 21st century. but i can't do it on a budget south of $1 billion. >> shifting gears just a minute, you've been commandant now for about seven and a half months. in some sense you spent most of your life preparing for the job, and there's probably no surprises. but i always feel like it's worth asking, now that you're the man, you're the number one guy, is there any aspect now that you're in the job that has surprised you or at least was
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unexpected? >> actually, two surprises. the first surprise is in the last month, i was on five continents. i've met with every geographic component commander, and they all said we want more united states coast guard as an instrument of national security in their area of responsibility, because many of the threats that they see are coast guard-like, criminal activity. law enforcement authorities are requisites. that's been the first surprise of how far and wide can i spread this peanut butter across the globe? we've tried to do that in years past, but now i'm stacking peanut butter, i'm stacking some of that in the western hemisphere. that's the first surprise. the other actually comes as no surprise and i call ourselves the silent service. because we don't overstate. in fact, we often understate our value to the nation. how few people understand what
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the coast guard delivers to our nation day in and day out. we have daily contact with american citizens, with bad guys and we're great instruments of diplomacy overseas, but very few people understand that. the epitome of that is when we do our coast guard foundation awards, and we had a rescue swimmer in the last year save 13 lives on multiple rescue missions. this wasn't just on the open water, this was in the search zone against the cliff as people are being scraped across barnacles, and all 13 of them in all likelihood should have perished. he saved all 13 of their lives. as he stepped up to the podium to receive his award, i said, would you like to say a few words? he said, i'm a rescue swimmer, this is what i trained to do, and i had duty that day. and he walked off. it is mind-numbing. we have 88000 people just like
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that. we train them, we empower them, they do great things. but the value they provide the nation is often underappreciated. >> you talked about the west hem and the fact that maybe the navy is focusing more on the asia pacific, the other side of the asia pacific. this opening with cuba, and today represents a bit of a threshold because some of the requirements eased up just today on travel restrictions and the amount of money that could be spent, use of credit cards, things like that. what does this opening to cuba mean to the coast guard? >> first i'll say what it means to the coast guard and i'll mention what it means to the department of homeland security as well. we've had this unique policy with the government of cuba now for a number of years, this feet dry policy, and it's been very
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challenging for those of us on the front line having been there as the likes of key west appear on the horizon. a lot of times people looking to better their lives will go to desperate efforts to try to make landfall here in the united states. once they do, they're home free. it's the only policy like that. so it would make our world of work a little bit easier. what i don't know, would the government of cuba try to prevent people from leaving because there's been a policy change? and then if they do, there might be a reverse effect. you might have cuba nationals leaving the united states destined for cuba and trying to embark there and then bring them back the other way. so it could play out one of two ways. i look at it from a couple different aspects there. from a department of homeland security aspect, we're unique in that we're 22 components but we're not weaved together like the department is under the nichols act. secretary jay johnson released a memo shortly after i became commandant talking about unity of effort in the homeland department of security. how do we apply it to what are the most relevant threats viewed
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by the departmental level? we joined three task forces. we joined task force east led by vice admiral dean lee, focused on dhs equities maritime. his deputy will be a member from customs and border protection. there will be a joint passport west. that will be led from the border patrol, robert harris. his deputy will be a coast guard individual. then we'll have another joint task force for investigations, which is really getting into the criminal networks, led by immigrations and custom enforcement. his deputy will also be coast guard. so we're starting to turn dhs a little bit more peripheral by the creation of these task forces as we look at emerging threats, and then how do we apply -- resources will always be scarce, but how do we optimally apply resources and deal with those threats?
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>> do you see that you'll be able to deploy, or at least employ, coast guard forces further south in the hemisphere and maybe operate from other countries or have more access to launch activities from? >> these are not staged questions, by the way. it's a great question. you may know the white house, when we released our western hemisphere strategy, if you release a strategy, you want to make sure you have connective tissue. so our first connective tissue is to our department that has a southern border and approaches campaign. but the next piece is to the white house that has a strategy for central america. president obama has met with the presidents of honduras, guatemala, el salvador. he has heard their concerns. a lot of that violent crime is collateral damage for the flow of contraband destined for the united states. so there is a responsibility for
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the united states to step up to the plate. so as we look at, i have six patrol boats in bahrain as i speak today, and they've been there 12 years, the very same concept could apply in central america. a dedicated squadron of patrol boats operating in this region could first of all help build up their coast guards, but at the same time there is actionable intelligence. i can divert them to either do unilateral or combined operations with these countries. as they look at their navy model in this region, the countries of this region, it's very much a coast guard model. so it's a very good fit for us, and i think it's a very good fit for our nation as well. >> thanks. just as a guy who operated out there in the persian gulf with those wpds, i just want to say that they were fantastic in their contribution, and to the mission also, super impressed with the junior structure obviously in those small wdbs
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and what those officers and crew accomplished out there was impressive. as promised, i wanted to open it up more quickly to audience questions, and the gentleman right in the back there. sir? >> admiral, good to see you again, sir, as always. your initiatives are incredibly aggressive, they're exciting to hear. we hear the added almost tasks that are being put on you by our country and our global partners, but it still seems like we're still using admiral loy's analogy of the dull knife. is the administration and the department of homeland security ready to go to congress and work with them on their offer to get the coast guard the funding needed to get you not to be the dull knife but the sharp tip of the spear?
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>> my responsibility, and i'm very optimistic in that regard, especially when i go to my boss, secretary johnson, and his first concern is counterterrorism. obviously. look at what played out in belgium, look what played out in paris before that, and we're looking at a continuum if that were to continue. he's been very vocal, one, in lifting that continuum resolution and having a fully funded department as he looks at counterterrorism. his number two concern is recapitalizing the coast guard. i'm happy being number two. we haven't always even been in the top five, but to be number two at an inflexion point where we need to invest in our coast guard in 21st century, i'm very thankful for the leadership i have in the department of homeland security right now.
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>> we have a question right here. sir? >> good morning, admiral. good to see you again. will watson of the maritime security council. can you speak a little bit to the coast guard's role in safeguarding american or u.s. flag owned and crude shipping in high risk areas like the gulfs of guinea, malaysia and et cetera? >> ironically, there is only one u.s. flag bona fide crude ship and it's out in hawaii. it's primarily a form flag fleet. we just released a notice of proposed rule making in the last day or two. as we look at violent crime, we look at safety standards on cruise ships, and very early on in my assignment, i think it was in week two, i met with all the ceos in the cruise shipping industry. and i said from this point on, we're going to have a relationship, but what we are not going to have is a partnership. it is in our mutual best interests as a regulator that we
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provide enough maneuvering space between the two of you, and we do periodic inspections on these ships, make sure they're in compliance with international code. but now we're doing spot checks. we show up unannounced just to keep them honest. and it's in their best interest to say we got a coast guard seal of approval and we've been spot-checked. so it provides us better credibility, but it's certainly good for their business product line as well. but the next piece of rule make -- making, and it's still on the street right now, this ranks in my top five regulatory packages i'd like to see get through next year. >> the lady in the back row there? >> i would like to ask you a question concerning your arctic capabilities, especially in the interim of budget cuts and what
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are your immediate plans to increase your polar iceberg fleet? thank you. >> first we need to start with what are the requirements for the 21st century. and if you're going to be operating in the arctic till -- domain you want to make sure you meet or exceed the environmental standards that are in the arctic. that's everything from gray water to the type of fuel you burn, the emissions, and right now none of our icebreakers meet today's modern standards, and those are going to be updated even more so with the release of the polar code. i say that because we're also looking at what will it take to bring the coast guard cutter polar sea back to life? it's been laid up for over six years. it could run for about 10 years, so we're still doing an assessment of what would it take to bring a 40-year-old ship back to life and then hopefully keep it on life support for another ten years. but it's like that old car you just don't want to let go of. at some point you throw good money after bad, but this is
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taxpayer money, and i want to make sure we make a sound investment. if i'm sinking so much money into that to the point where i could have could have re capitalized that ship, that ice exactly what i should have done. it's going to take several years for our shipyards to be able to produce a heavy ice breaker, just the technology that goes into building a hull with a hull skin of several inches thick which is what we have in our polar ice breakers. clearly, this needs to be a new line item in our acquisition budget. clearly, an ice breaker -- the coast guard operates and maintains it. but it really answers a lot of mission needs within our federal government and, also, internationally as well. we're looking across all of government to find the resources
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of our capability. >> thank you for your comments. you coverd such a broad scope. it's hard to decide what to ask. but i an curious. you mentioned being in panama to look at the canal. what are you're thoughts on the chinese building a canal in hon honduras honduras? >> nicaragua. >> well, my term is four years. it won't happen on my watch. there's an envierntal component. it would take much longer if this were rve completed to maintain that canal.
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does it provide competition? i think there's going to be many, many changes. they want to meet sedge e schedule. it's not just the canal. it's all the infrastructure that would need to go up around that to be a viable waterway. much like the suz canal. it will take decades for that to really realize its full potential, even if that canal was completed.
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>> i'd like to just go back to the competition for resources for a moment. you know, you talked about the fact that yes, we have the three capitalization challenge. we talked about that. now, you're at a higher priority within dhs. but, at the risk of getting into a sensitive subject dhs itself has a target on its back pli e pli e politically because of the highly-charged association issue. everybody else has a full-year budget. you don't. what type of prost latizing needs to be done to protect the coast guard in the u.s. environment. >> it goes back to the marketing and sales of this market. my responsible tyility is toe to engage the coast bard budget.
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what i'm doing is going to take that a step further and the coast guard will have a qdr, if you will. a five-year strategic intent for the coast guard. around i've had some of my predecessors when asked, well, how big does the coast guard need to be? i need to be able to provide at least a floor. but, right you will no i am below that floor right now when i look at the mission requirements that i have at hand. but what i owe my boss and what i owe our nation is a strategic intent that takes into that
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count the external environment some of those challenges and opportunities that i laid out before you. put that into a coheernt strategic document and not a fist-pounding saying i need more, to be able to articulate that: >> that allows some of us that have the idea of spending what you have for special emissions. >> one of my collateral duties
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is the coordinator of chairman drug control policy. base right now we're putting teams downrange. you know, using, you know, state department support to be able to do so. but we're doing it with a whole of government approach, just before the thanksgiving holiday, i took the entire leadership team, from the interdiction committee, and we went first we went to puerto rico. puerto rico is seeing a 300% increase in flow. and at the same time they've seen a violent -- tremendous spike in violent crime there, as well. but i haven't seen 300% increase in flow leaving puerto rico. at least not by sea. so i met with the governor, i met with their regional
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commissioner, we're protecting that front door, but what's leaving the back door? from there we met with the presidents of panama, honduras, and colombia, so they could see firsthand what the challenges are downrange. and the demand signal for u.s. capabilities, whether it's capacity building, or whether it's basing resources in those countries is as loud as i've ever heard. but you really need to get down and see firsthand, you know, it was important that you bring other members of this leadership team, whole of government down to see for yourself. so i don't see, and i'm trying to tell the person next to me, and as that communication goes
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down the line the message gets scrambled and it's not understood. we're all seeing the problems from different aspects but with whole of government, on what needs to be done down there. and i'm very optimistic for the opportunity that have presented themselves. >> we seem to be at the end of our allotted time. just want to one more time thank the admiral for coming out and making himself available. excellent remarks and the q&a was wonderful, thank our sponsor lockheed martin one more time and our partner csis. we think this is a wonderful partnership, between us, the naval institute and csis. thank you very much, sir. give the commandant a hand. [ applause ] live coverage continues at 10:30 eastern today when the brookings institution will host
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>> from here at the bipartisan policy center, this is an hour and a half.q >> good afternoon, everybody. thank you for coming this afternoon to our event on the sony cyber attack and strategic implementations. about almost four years ago i had the pleasure of working with general hayden and some others to put on a general shock wave.

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