tv Politics and Public Policy Today CSPAN October 23, 2015 3:00pm-5:01pm EDT
not to find a one size fits all aircraft solution but to go after those folks who would internalle violate, whether it be federal standards? >> in my written statement, i categorize the different kinds of users. so i worry a lot about the naive users and the reckless users. i think bad actors are a separate category. and i would have to say that there's relatively little we can do about that right now. >> mr. hanson, should we be focused on the naive users or the bad actors? >> well, i think intentional acts need to be dealt with, and i think there are existing laws and sanctions that can be put in place to do that. the naive or the uneducated community is one that we really need to focus on because we firmly believe and our experience shows us that the users, are good natured and conscientious individuals that just need the proper information. >> thank you.
>> if there are no further questions, then i thank all of the witnesses for their testimony and their indulgence today and the committee stands adjourned. >> the house has approved republican legislation that would erase key components of president barack obama's health care law and block federal payments to planned parenthood. the bill passed on a vote of 240-189. should it make it through congress, it does face a certain presidential veto. and house speaker john boehner announced the appointments today to a panel to investigate planned parenthood that will consist of eight republicans and six democrats. here are the republican members appointed. chair marsha blackburn of tennessee, joe pitts of pennsylvania, diane black of tennessee, larry bucshon of indiana, sean duffy of wisconsin, andy harris of maryland, vicki hartsher of missouri and mia love of utah.
republican presidential candidate donald trump is on the campaign trail and stops in miami this evening. you can watch his comments live on c-span2 at 7:00 p.m. eastern time. and texas senator ted cruz is on the road as well holding a town hall meeting in council bluffs, iowa. c-span will have live coverage of that at 8:30 eastern and we'll sit down with senator cruz after the meeting so he can take your calls. again that's coming up tonight on c-span. hillary clinton spent more than eight hours yesterday testifying before the house benghazi committee. you can see the entire hearing, tomorrow at noon on c-span and sunday at noon eastern. the special committee was set up to investigate the attack on the u.s. compound in benghazi where ambassador christopher stevens was killed along with three other americans.
tonight at 8:30 eastern on c-span, we're live from council bluffs, iowa, for a town hall meeting with senator ted cruz followed by a live call-in program. on saturday night at 9:00 eastern, the jefferson jackson dinner live from des moines. speakers include vermont senator bernie sander, former maryland governor martin o'malley and former secretary of state hillary clinton. and sunday evening at 6:30, republican presidential candidate carl fiorina will hold a town hall in buford, south carolina. live this saturday beginning at 11:30 on c-span2's book tv, the wisconsin book festival from madison featuring interviews with nonfiction authors including mary norris and her book on the english language. david maraniss on the city of detroit and evan thomas' book "being nixon." and former missouri senator and episcopalian priest john danforth on how he thinks the sense of religion can lead the
country out of the current embittered state of politics. saturday evenings a 6:00 eastern, cia historian on intelligence gathering during the civil war and why so few historical documents exist. sunday morning at 10:00, oral histories, julian bond who passed away in august in a 2002 interview on his civil rights career, growing up in the segregated south and his work with the student nonviolating coordinating committee. get our complete schedule at c-span.org. now, a discussion on russian and u.s. military operations in syria. receiven lee myers of "the new york times" and karen deyoung from "the washington post" talk about putin's leadership style and philosophy, driving russia's support of the assad regime and compares it to the obama administration's approach. the event hosted by the women's foreign policy group and new
york university's washington, d.c. center is about an hour and 15 minutes. >> so good evening, everyone. thank you all for joining us for a special beyond the headlines event. obama and putin. battlefield syria. with karen deyoung, associate editor for "the washington post." steven lee myers, who is washington correspondent for "the new york times" covering national security issues, spent a lot of time in russia and also was baghdad bureau chief. and most significantly for tonight is the author of a new book "the new czar: the rise and reign of vladimir putin."
i'm patricia ellis, president of the women's foreign policy group. we promote women's leadership and women's voices on pressing international issues of the day. and this is certainly a timely onep about on behalf of our board here tonight, elisabeth bumiller, theresa negroponte and we're pleased that you could be with us here tonight for our timely event. i want to extend a warm welcome to our diplomatic colleagues who are here and we're really pleased that you could join us. and a very warm welcome to our colleagues from nyu, washington, d.c., we really appreciate your warm hospitality. it's great to partner with you and great to be back here again in this beautiful space. so before i begin the program, i
also wanted to mention we have another event on wednesday on ukraine. we hope as many of you as possible can join us. so it's now my great pleasure to introduce our moderator for this evening, elizabeth bumiller, the washington bureau chief for "the new york times" who previously covered the pentagon and the white house. elisabeth? [ applause ] >> thanks, pat. you can all hear me? thank you for coming out tonight. thank you to my two colleagues, my competitor and my colleague. i'll just introduce, karen and i -- i was adding it up between the three of us, we have 76 years of journalism experience. it's rather daunting. i'll briefly introduce both of them and then ask steve to start, then karen, about five minutes each then ask a handful
of questions and open it up to all of you. karen is a national securities correspondent and editor of "the washington post." she's covered latin america, london, the white house, u.s. foreign policy, the intelligence community, she was the assistant managing editor for national news, national editor and foreign editor. karen and i used to go on trips together when we both were covering the george w. bush white house. she was very daunting. she knew everything. she was in the filing center until the middle of the night. i would think what is she filing? oh, my god. anyway, she's fantastic. she's also good company. steve, i just learned here he's worked at the "times" for 26 years, 7 of them in russia. he's an expert on putin. he has written about the war in chechnya, the orange revolution in ukraine, the winter olympics in sochi, the annexation of crimea last year, he was two years in baghdad as the bureau
chief in baghdad for the "times." he covered the wind down to the war in iraq. he now covers national security issues in the washington bureau. and i'm very honored to be one of his editors. and he's also author, as pat told you, of "the new czar." i believe it's available for you to -- it's available here, correct? and he'll be signing it for you afterward. and actually, it's a -- i have started it. it's a wonderful read. steve, on top of everything else, he's just a great writer. very readable, completely absorbing book about putin. so let me start -- did you want to put something --
>> elisabeth, thank you very much for that very kind introduction -- >> you're not live. >> i'm sorry, i just do what i'm told. how is that? is that better? i'll try to speak up. >> mine's on, right? >> i can try again. is that better? >> no. >> we have to fix the mike. >> i'm sorry about that. try it a bit higher. does that make any difference? >> it needs to be on. >> steve -- >> i'm happy except i'm plugged in. >> should we have karen start? >> sure. >> let's do that. >> karen will start. >> you're going to be -- okay. there you go. >> the green light's on.
>> how is that? >> how is that? no difference whatsoever. is it something i've done? >> do you mind just holding it? >> i don't mind holding it. is that better? there you go. sorry about that. always a little confusion. i was saying -- i was thanking elisabeth for the introduction and the chance to be here and to talk to all of you. it's incredibly timely now to be talking about vladimir putin. i think it always is, but who could envision a few weeks ago that we would be sitting here talking about an intervention in syria, which is really quite extraordinary for russia today and also i think confounding for a lot of people. and i don't think it has to be. i think it's actually a much simpler, though complicated equation that putin is making
right now and it has to do with a lot of factors. but ultimately the very simple explanation is russia is doing this because it can. for a lot of years after the collapse of the soviet union, a period we in the united states and europe and the west, the west being a phrase i thought we would retire at some point, but it's back with a vengeance now. i think for a long time we saw what was happening in russia after the collapse of the soviet union as being a positive thing for the world, a period where we could cooperate and engage with a new russia, the new republics out of the former soviet union. and in fact, inside russia it was seen as a period of great chaos. the decay of a great empire, the soviet empire, whether you liked it or not was beside the point. people like putin saw what was happening as a disaster. and it was for a lot of
russians. some people made the transition more easily than others. some became fabulously wealthy, the new oligarchs but some saw the transition to being close to catastrophe which is what putin once called it, very famously. in that period after putin came to pow er, the primary motivatin for him was to restore russia to some sort of greatness akin to the soviet union. some people think he's trying to re-create the soviet union. i don't think that's it. i think he's trying to get russia, as they always say, up off her knees. and there was this period where i think he saw the path to doing that as being cooperation with the west, with the united states in particular, certainly with europe, close economic relationships with germany and
other partners in europe. when you think to when he first came to power, he was a much more collaborative, cooperative leader, i think. and what happened in his mind is that was never reciprocated in any way and that the united states again especially and its nato allies continued to press their security interests, he felt, at the cost of his own, of russia's security interests. and again, people seem surprised that russia would intervene as forcefully as they have in syria, but he's telegraphed this punch, if you will, since at least 2003 when he vigorously opposed the war in iraq. he saw the united states again in particular he singles out the united states more than its allies, but he saw them as the -- the united states exercising a power abroad, force abroad in a way that he saw as
destabilizing outside of the context of the u.n., which if you think about it a weakened russia all they had was their u.n. at the time. not even sure they're secure in their nuclear security. and i think that feeling that the united states was pushing an agenda, exercising or exerting power abroad is something that struck very deeply at russia. it happened with kosovo before putin came to power, so it's not something unique to him. but certainly with iraq and then significantly with the orange revolution, as it was called, in 2004 in ukraine where he saw the west, again, the u.s. he singles out, as supporting the mass protest on the street overthrowing what he considered to be a legitimate government in ukraine. i'm not agreeing with that, but that's very much how he sees it. and if you rewind to all of the
events that have happened since then, particularly with the arab spring, he saw what we took to be peaceful uprisings against aging dictatorships or at least authoritarian government. we saw that again as a hopeful thing much as we did the collapse of the soviet union, he saw it with something close to terror, that the mob on the street being able to essentially usurp power. and putin at his heart believes in power. he believes in the central authority of the state as being the only thing that can stop chaos, that can stop bloodshed literally. and in the period when he had stepped down, i think this is not really appreciated at the time. dmitry medvedev, a much more mild figure, though very close to putin in a lot of way, inseparable, i think, in terms of most policies, but not as strident or as paranoid a figure, to be honest.
he was persuaded by the united states, joe biden in particular, of the need to intervene in libya when what began as a peaceful uprising became quite violent. and then eventually led to the intervention of the libyan government towards the protesters in benghazi area and medvedev, he didn't endorse the united nations' vote, but he instructed russia's representative to abstain. and putin was infuriated by this because he saw it as medvedev as being irresolute and allowing essentially yet another march of western forces overthrowing, you know, legitimate governments and we've all seen what's happening in libya since. we saw what happened in egypt, and the chaos that followed, the
fall of mubarak and the restoration now under general sisi of even today putin's chief of staff gave a long interview to itar-tass and he talked about, thank god that sisi is back in power and has restored order again. i mean, they see this as a fundamentally different problem that's going on in the world. and i think in the case of syria, it was a red line for putin. and, you know, the russian, the soviet union and then the russia that followed has had a longstanding relationship with syria. they have a base there, as everyone knows. and close ties. i mean, it was really russia's closest ally in the middle east. and for a long time again in this period of chaos after the collapse of the soviet union, i think that that decayed, that relationship had weakened over time because russia was weak. putin now back in power having modernized the military significantly in just the last
few years, little noticed, i think, beyond the people who watch this closely, realized that he was now at risk and again in his mind, of yet another western effort to topple a government. and this time he was in a position partly because the obama administration, which karen can talk more about, and other leaders don't seem to know how to address the conflict in syria right now. and he sees the chaos that's unfolding as something, again, that's marching closer and closer, if you will, to the kremlin itself. even the protests that greeted the elections when he came back to power, he saw this as part of the same plot, if you will, and plot's not too strong a word for it. he thinks this is something that's been orchestrated. but for the first time because of the power in the military, because of the uncertain response from the west to what's happening in syria, he's been able to forcefully intervene, to
stop what he sees as this continued march of overthrowing governments moving closer and closer and has basically done it, as i said, because russia can. with that i'll turn it over the karen. >> thank you. thank you, elisabeth. i thought what i'd do is just sort of set the scene last summer, how the obama administration saw it. at the time, they saw bashar assad on the ropes losing territory. the opposition getting stronger. they were distracted with the fight against the islamic state and thought that basically the fight against assad was succeeding. and they believed at the time -- and one can call this wishful thinking in retrospect, i think -- that russia actually
saw things happening that way, too. and in fact, was more amenable to starting some kind of political negotiations that would result in assad leaving power. and this was not the first time that the administration found itself in this position over the years. we're now in the fifth year of this civil war. a little more than one year with the islamic state in holding large portions of syria. but at various times, certainly at various times in 2011, at the beginning, in the summer of 2012 and at other points as this civil war's gone up and down, the administration has managed to convince itself, sometimes with reason, that actually assad was on the brink of falling and that, therefore, this pressure that was on them to intervene in some way was lessening. and that's certainly how they saw the situation last summer.
again, that was a message that obama was very receptive to. for four years, in a lot of battles within the administration with some people usually in the state department urging more intervention and people in the pentagon saying no, he had always asked the question, well, if we do x, do we get y? and no one could really, in his view, assure him that that was going to happen. and so given his promises not to involve the united states in another war, given his assessment that this was not a vital national security interest for the united states, albeit a growing humanitarian crisis, i think his feeling was always that american intervention beyond what they'd agreed to do minor shipments to the opposition, trying very hard to
get some kind of political negotiation s organized and repeating that assad could not be part of the solution was as far as he wanted to go. in about mid-august, they started to get word from partners and friends in the region that the russians had asked for new overflights rights for some large cargo planes, some fighter jets. this was, as they saw it, or in retrospect, how they say they saw it, a sort of expansion but not a worrying expansion of what had off and on on for the past several years. the russians had a base, a naval base, they had some aircraft stationed there, they were constantly sending supplies in. they didn't see it as very troubling, but they asked their allies to deny these rights. they particularly asked greece and bulgaria.
greece didn't really have to make a decision because the requests kind of went away after a while. bulgaria after a specific request to deny the overflight rights did deny them. but the administration in late august specifically asked the russians, what are you up to, what are you doing, and they said, quoting again to the administration, well, we are fortifying our interests there. we are just as scared of the islamic state as you are, and we thing something needs to be done. and so the administration in response to all this adopted a sort of watch and wait. and again i think a sort of wishful thinking posture. putin gave two speeches, one in vladivostok in early september and another in mid-september. and especially the second one he stated very specifically what it was he wanted to do. he wanted to form a new coalition that would fight
against the islamic state, but he felt that it had to include the syrian armed forces because they were the only ones capable of defeating on the ground, to be the ground force to defeat the islamic state. and there was some rationale in this even to u.s. eyes. it's almost a mirror image of the policy that the obama administration has had in iraq, which is to bolster the local forces and to use a lot of air strikes to hit the bad guys and then go in and occupy territory that you forced the bad guys to vacate. of course, the administration didn't see the wisdom of doing that with the syrian military and especially not with assad in charge. but they decided as a result of
this that it was worth talking to putin. you'll remember that the united states had suspended all military contacts with russia following the annexation of crime a and further actions in eastern ukraine. there hadn't been any high level contacts at all. there was a big meeting upcoming on ukraine. and they decide because of that and because of this sear yaus situation, it was worth having a meeting with putin at the general assembly in early -- it is late september or early october? early october. yeah. so i think the assumption was always that perhaps the russians at some point would do some air strikes. they were at this point bringing in a lot of aircraft and they were repaving a lot of runways, expanding the aircraft that they were using along the mediterranean coast.
and it was pretty hard to continually say to ourselves that they weren't actually going to use these airplanes for something, but again the assumption was that they most likely were going to use them against the islamic state because that's what the russians had said. they had their meeting in new york. it did not go very well. putin and obama each laid out their vision. putin saying, you know, let's go in this together, but it has to be with assad and with the syrian army. and obama saying, no, you're welcome to join our coalition if you like, but assad has to go and his military has to become part of negotiations for a transition in syria that will not include assad. and, of course, putin came in early in the morning. it was monday. and left as soon as he talked to obama that afternoon. he didn't even spend the night.
and the air attacks started, i believe, even before he got back to moscow. it quickly became apparent that what he intended to do was to bomb the so-called moderate opposition and this conglamouration of opposition forces in the civil war in syria, which is primarily being fought in western syria while isis is primarily in eastern syria and in the north. the administration said we still want to talk to the russians, we're going to have deconfliction talks. did not make any sharp of bellicose statements. but a week later obama, in talks with his national security advisers, agreed to several proposals that had been on the table for some time. one was to directly arm kurds and arab forces in eastern syria who were fighting against the islamic state, and the other was
to greatly expand u.s. air strikes north of aleppo in the northwest corner of syria along the turkish border where the islamic state was coming from the east and assad's forces were coming from the south basically. and most of the city was being held by opposition forces. the air drops happened to the fighters in the east. they dropped 50 tons of ammunition and supplies last week. the expanded flights have not started yet. but like so many things in syria, events on the ground have started to outpace what's happening in washington and the speed at which decisions are being made. now you see even this week the iranian forces pouring into
northwestern syria along with hezbollah basically taking over the fighting on the ground in that area from the syrian military while the russians bombed the area moving on aleppo, syria's second largest city, the islamic state also moving on aleppo from the east. and i think a lot of worry among american friends and allies in the region that nobody seems to be doing anything about this. if aleppo falls, i think there's pretty broad agreement that the number of refugees will increase -- not incrementally. the other word. exponentially. and this will be an even bigger problem i think for europe. the americans say that they are studying other alternatives. the turks, of course, are still pushing for a no-fly zone and the russians don't seem to be paying any attention to what the americans have to say about it.
>> on that bright note, let me ask both of you the same question, which is a couple weeks ago obama basically said that putin was going to get into a quagmire and it just basically -- sort of implied that this would be another afghanistan for him. he'd be bogged down there for ten years. is there any indication of that at this point? and do you think -- that's my first question. second question would be just about there seems to be consensus they've made short-term military gains especially with the new military that's on display here or do you agree with that? what do you think about obama's remarks? >> first, is this working now? not working. okay. i think it's too soon to start talking about a quagmire or not. the important thing to understand also is that russia's intervention is still at this point fairly limited. and what's striking about it is how much of an impact he's been
able to have with a force that's really a tenth of the size of the coalition raid against the islamic state. and i think that that goes somewhat to what karen was saying, that there's more of a clarity to the strategy that putin is employing right now in that he knows exactly what the immediate goal is, which is to shore up assad's forces. and by doing that, i know there's a lot of the russians blur the distinction of what opposition groups there are and they've said this, and again sometimes you just have to listen to what they say. everybody who takes up a weapon against the assad government is a terrorist, and they're going to kill them. even said that again in his interview. so there's something about what they're doing that makes it, i think, a clearer -- at least
short-term strategy that has, i think, begun to change at least the battlefield. it's not to say that he's won anything yet. it's still hard to know what the endgame is. and i think that's where you get to the question of the, you know, afghanistan. i mean, they poured 100,000 troops into afghanistan and were there for eight or nine years. and they haven't done that. putin, in fact, much like obama has ruled out boots on the ground. he wants s ts to exert the imp that he can with a force that does seem to modernize in the last few years and is more effective though still blunter than our strikes, which is another important factor, i think. he's not that concerned about the civilian casualties that might also, you know, suffer in addition to these distinctions between the various rebel factions. quagmire i think it's far too soon to say that because at least right now it's a very
decisive turn on the ground in syria. >> i think that's true. it's all a question of time. what i think the administration is talking about when they say, putin, you'll be sorry, is that what he's essentially doing is taking sides in what has become a very sectarian war in a very large country in the middle east, and he's taken sides against the sunnis. and the expectation is that, if the sunnis, who are fighting against assad, are driven out of that part, and if assad's forces with iran and with the russians end up fighting the islamic state, in other words, if they're the only two sides that are left there, it doesn't bode very well for what the sunni population will think of russia
and that eventually russia will suffer for this. you know, one of the assumptions is that what they're trying to do is to carve out a sort of rump state of syria in the western part of the country that can be where assad can have a little kingdom in the populated kind of string of cities in western syria and the russians can have the coast, which is what they want. and have their bases there. but i think the assumption by the administration -- and it's probably a correct one -- is that the russians are letting themselves in for a whole lot of trouble eventually. the problem is, as steve said, is that right now tactically the russian strategy seems to be working and that establishes facts on the ground that then change the long-term situation in ways that i think the
americans haven't figured out how to deal with yet. >> on that topic, obama just abandoned his training program after the famous number of -- you know after training four to five fighters who can actually fight. what do you make of the strategy now? i mean, it seeps to be a containment strategy that will get obama through the end of his term. so what happens with the next president if obama is just containing it and passing it on sth. >> i think it could be problematic even before that. you have, yes, the train and equip program got nowhere largely because the fighters who were recruited were asked to pledge that they would fight against the islamic state and that they were not going to fight against assad. these are guys who are fighting for their own families, for their own countries, they see assad as the enemy. and i think that it became very hard to find enough people who could survive this months-long
vetting process. what they've done now is really sort of jettison the vetting process altogether and said we really like these kurds who are on the border who have managed to push the islamic state back. they have some arab forces -- not huge, but a number of them from eastern syria who never had much to do with assad anyway who are willing to fight against the islamic state. and they've said, well, we will vet the leaders of these organizations and make sure they're okay and ask them some questions and we'll take it from them that their fighters are all good guys. so they've dropped a lot of ammunition and a lot of weapons. this, of course, just enormously irritates the turks who feel like the kurds are all of a part -- they consider the kurdish organization that we're now helping to be a terrorist
organization along with kurds who are in iraq. at the same time you've got our other allies in the region, the saudis, the qataris, the uae who are sort of throwing up their hands and saying, look, we've been following your lead, united states, and you've told us not to arm these other people, and so we -- i mean, they've done it kind of under the table, but they haven't done it as an official policy. and perhaps we need to start rethinking this. so i think the administration has a lot of decisions to make. >> what are the chances, both of you, of a collision in the air between the u.s. and the russian aircraft or a cruise missile? you know, they were working towards a very general or weak deconfliction strategy, but it hasn't happened yet? how dangerous is this right now? >> i think it's always dangerous whenever there's military
operations going on and with such a confoundi ining array ofh targets and forces involved on both sides. it's interesting that one of the first things that they did in terms of reaching out to the military was to deconflict, to make sure that there was some kind of protocols. i'm not sure they've quite hammered those out at this point. but i have a friend who worked for a long time, a diplomatic friend who worked for a long time in russia, and she put it to me -- this was some time ago before this conflict. that we have decades of experience of avoiding a hot war with the russians. and i think that that is going to carry through now. i don't have a sense that this administration or any of our nato allies who have seen an incursion already into turkey, i don't think anybody wants to go toe to toe with the russians now even in a limited way.
so i think there will be a lot of effort made to make sure that doesn't happen. but it's an enormous risk. >> no, i think that's true. and it becomes more of a risk as the two forces get closer together in this area north of aleppo. but again, i think the administration has stuck to its -- its kind of defining principle in this, which is what is the national security interests of the united states? it is the islamic state. and that is who we are fighting against. we'll help as much as we can the other people who are fighting this civil war, but i don't think that they feel that that's a justifiable national security interest. and so -- but the question will come up in the north where you have the islamic state moving closer, moving farther to the west and if, in fact, they're going to try to push them back,
that's exactly the area where the russians are going to be operating and where they've started operating as this campaign starts to take the city. >> what is putin's relationship like with assad? i know you're working on that. >> delving into that a little bit. the last time that i know that they met was in 2005. it's been a long time. and medvedev went to damascus in 2010 and had a very cordial meeting, obviously before the events of the arab spring. there's clearly a lot of coordination going on on the military levels which is where putin likes to operate anyway, it's where his instincts are, it's where his closest allies are. on the intelligence level there's been a lot of information. and obviously a longstanding, you know, resupply mission and the training that's been going on from the very beginning. even before in terms of cooperating with the syrian government. but personally, somebody once
described to me that their relationship is transactional more than personal. it's -- you know, they see -- russia sees its interests there in the region and again as i said in the beginning, they see the importance of checking, you know, the americans and the west and toppling yet another government and unleashing this chaos. i wanted to add one thing about the sectarian thing. in russia there are -- the estimates vary because they haven't done a census in a while with this question but there's somewhere between 14% and 20% of russians are muslim, and the vast majority of them are sunni. and so the russians i don't think view this as a sectarian conflict or at least their role in it as siding in a sectarian way, which could be the fatal flaw in his strategy given how
much this sectarian conflict is boiling over now in the middle east, but again in their mind, and putin has even addressed this, that he doesn't want to see there be a conflict. he thinks there needs to be a resolution of the interests in the region. he's intervening not so much on behalf of one sector or another but the legitimate government in his mind, whether you like it or not, is the assad government and that's where russia will intervene. >> for both of you, what is this -- what have we learned about the state of the russian military in the last two or three weeks, looking at all these cruise missiles going over there and, you know, coordination with the ground on air strikes and so forth? either one. >> i think it's easy to overstate it because the russian military is, you know, a shadow of what the united states' military is and the nato allies and combined they don't come close at all to the power of
nato. but after the war in georgia in 2008, which was a smashing victory for the russians and that they drove out the georgia forces, they routed them all the way back to their capital. if they had wanted to, they could have taken tblisi, but they stopped short of that. nonetheless, that war was a disaster for the russian military. they lost seven planes, four on the first day, to the georgia air defenses, mind you, let alone nato air defenses. but nonetheless, they took away the lessons from that war and put them to use. and a lot of attention is paid to the, you know, the big ticket items, you know, the showy aircraft, you know, the new cruise missiles, the new sahoi jets that are now flying there, but there's been a kind of quiet revolution in russian military affairs and the way they structure and organize their
forces. it doesn't make them the red army again, but nonetheless, they've shown a tremendous amount of improvement in some of the technological advances they've made, i'm told, have leapfrogged our advances because we haven't paid as much attention, for example, to the cruise missiles and some of the air defenses. you know, the talk of a no-flight zone now i think is moot because they have a ship parked off syria right now that will stop any no-fly zone from being established. >> that was my next question, actually. how do you establish a no-fly zone. everyone is calling for this, but how do you do? it. >> my question is how would they stop -- short of shooting down -- >> that's how they would stop it. >> but that would be the challenge. would they decide they're going to shoot down. >> back to the question of do we in this building or in this city want to go to war with russia? we can do a show of hands. i don't think that there's an appetite for that. there's not to intervene
forcefully in syria. and i think it would be a catastrophe. and no one wants that, i think. and you know, the notion of somehow forcefully stopping the russians and their intervention, that's what it means. that's what it would have taken to stop the annexation of crimea and there was not an appetite for anyone to do that. there's some people now in nato who question whether or not we have the appetite to defend our own nato allies in the baltic states, for example. there's a lot of wariness especially in the baltic states about our commitment to that. i think that's why we're in a really dangerous phase with russia right now because putin, as i said in the beginning, has reasserted russia's role again as a force the be reckoned with. >> just back to the administration and deliberations at the white house. so what is -- you touched on this a bit, but just tell us again what is the administration's best scenario
over the next year for what it's doing now, getting arms to the kurds, air strikes? >> it's that they hope they'll make progress against the islamic state and that they can push the parties in syria into some kind of negotiation. but that's been their strategy for a number of years. >> what do you think the chances are of a settlement before obama -- or just beginning in talks before obama leaves office? >> i think the chances are probably less favorable than they've been in a long time. i mean, you have the opposition group, the political opposition put out a statement about ten days ago saying no way. we'll never talk to assad. we will never agree to anything that includes him. you have the americans, excuse me, and the europeans saying, well, we're not saying he has to go immediately, although they've basically sort of said that from the start. everyone refers to the geneva
agreement, which is an agreement that the russians signed and the iranians in the summer of 2012 that said that all of the players in syria would get together to form a transitional government and that government would then -- will then decide on elections. it doesn't mention bashar assad. it doesn't -- it says that everyone in the transitional government has to be mutually agreed to by all sides. and the assumption was always that it meant it wouldn't include assad because the guys on our side would never agree to that. now that the opposition feels that they've been sort of betrayed by the west, i think that they're probably less likely to participate in a
negotiation. good question, i think, though, is whether the -- if some kind of stability can be found in syria without assad's immediate departure, is that something that's going to be suitable for the west? are the europeans, now that they've had this huge influkz of refugees, are they just hoping for peace in syria so that people will go home? or is everyone going to stick to their guns so to speak? and i think we don't know the answer to that yet. >> let me ask one last question. i just want you to talk about putin and his fear of the mob to reprise for the audience, which i thought was so fascinating in your book and for the "times" about how you go back to dresden in 1991 when the stasi office was being raided and tell the
audience about that because i thought that was so revealing about putin's mentality and his fear of, as you say, chaos. >> it was in '89, actually. >> sorry. >> right after berlin wall fell, putin was kgb officer in east germany. there was this euphoria that germany was coming down and putin was in this outpost and he describes the scene of the night a few weeks after the wall came down when the protesters in dresden basically surrounded and overran the headquarters on the river there a few hundred yards from where putin worked for five years with the east germans and the soviet military at the end
of the '80s. he describes and others who were there describe the scene of people. he described them as deranged. wild eyed people. he saw it as a mob taking over the building and in fact it was a fairly peaceful protest. it was fairly euphoric. even among -- certainly not the stazy but the chief of the department there in dresden basically threw up his hands and opened the gate realizing he couldn't stop history as it were. and people were then milling through the stazy headquarters with a notorious prison in it and going through the files and putin was watching this from a few hundred feet away and a number of protesters and i talked to a couple people that were there, moved up the street
to where the kgb office was. putin was there. he was the deputy. his boss was in town and he couldn't reach him. he tried to call the military base nearby to ask for reinforcements because he was terrified. there were several thousand people and some had come up to his villa. there was a description that he calls the officer at the base saying he couldn't help because he asked for instructions from moscow but moscow is silent. this infuriated putin. he felt abandoned by it. here are people outside. he thinks of them as this crazed mass, this hoard of people. overthrowing the legitimate government which he had an
enormous amount of sympathy for and this notion of mob rule is terrifying to him and it comes up again and again throughout his career. it came up when the soviet union fell and on through the '90s and as he rose to power. as you saw in ukraine and so forth. he had no instructions and a lot of legends grew out of this night that he had confronted these people at the top of the stairs waving a pistol. one version that he had an ak-47. no shirtless. heroic putin as it was told. in fact one of the guys who was there and witnessed the scene and described how putin came out. it was december. it was at night. he bluffed. he just basically said this is a protected diplomatic facility. we have orders to protect it.
the mood of the crowd was such they didn't want to pick a fight with the soviet union at that point. they achieved their goals of getting into the headquarters and they went away. putin as intelligence agents do, stood down the mob. you see it all of today. this notion of the chaos when people are let loose. it infects putin's idea about democracy and elections and it's a fear of the uprising that courses through his entire political career. >> questions. pat, you get the first question. >> it was a very small protest but just the other day there was a protest in moscow against
russian involvement in syria and i'm wondering if you could just talk about what it meant and what it means. does it have any significance. and to karen and maybe to both of you, in terms of the prospects for political settlement, secretary kerry in the next few days is going to be speaking with the saudi arabia, russia, jordan, in some way could perhaps this escalation and bombing lead to more talks and lead to more political settlement? >> >> the protest speaks to itself. it wasn't very big. there is an anti-war sentiment in russia.
i haven't been there since the strikes began. i was there last in july. you do hear people questioning the strategy the same way we are tonight wondering what is the end game. i've heard some people that i was talking to the other day about the economic pain that russia is going through right now, economy is in terrible shape, because of the sanctions and low oil prices so people questioning can russia afford this and can they afford to lob a $500,000 missile at syria. what is really the fight? some of the same questions you hear as well. what is russia's national security interest? i think that has very little influence on what putin does. last year there was a much larger protest against the war in ukraine. they had 50,000 people on the street. but even a number that big is a
fairly marginal one i think in terms of influencing policy making. they largely ignore that. it's ignored on tv. maybe it makes some of the opposition feel better or feel like they're at least registering their disapproval. it's not that important. on your second question to jump ahead, the thing that strikes me is that everybody seems to agree on two things. the islamic state is really bad and only a political solution is possible. putin said it himself. he knows that he can't bomb his way out of this situation. he can't keep assad in power by using 36 jets. so i think at some point -- you know, i can imagine a scenario but it seems a long way off that there has to be a negotiated end
as there were in the conflicts in the balkans. all wars come to an end through some sort of negotiation. that's obama administration policy. that's putin's policy. the question is how do you find the process that allows that to happen and i really don't see it on the horizon. i think eventually it will come to that. >> i completely agree with that. i think the americans say that the russians are still giving them signals that they're not wedded to assad. i think that's probably true. i think if they could find someone who would serve the same purpose that would allow negotiations to go forward, that ultimately that's probably the way out. although you have seen in the past couple weeks a lot of senior syrian military officers getting killed just all of a
sudden and there's some -- there's one theory that this is assad and his backers getting rid of people who could play that role in order to protect his own position. i'm not vouching for that interpretation. that is what some people think. i think you're right. eventually that is what has to happen. i think that this -- it certainly is much farther away than the administration thought it was going to be last summer and what's happening on the ground needs to play itself out. but i don't know again what happens to the opposition in that scenario. they have not managed through all of these years to really organize themselves cohesively and to a political body that could sit across a table from anyone or convince the world let alone assad that they were, you know, capable of joining together to present a united
political front completely separate from the military situation. >> how credible is the strategic link between putin's pressure in syria and the flow of refugees into europe such that the europeans cry raise the white flag and say at the end of january we'll end the sanctions so long as putin reduces the pressure and therefore reduces the flow of refugees? >> i haven't heard that. and it's entirely possible that i missed something. as far as i can see for now, at
least in the public statements, the europeans are hanging pretty tough. i mean, if anything, putin has increased the pressure on aleppo and i think things are moving very quickly there. and you're drawing a link between syria and ukraine, yeah. >> the sanctions. >> right. right. i haven't seen that. >> i think that's very much what putin would like to see happen. and i'm not so sure that that's a grand bargain that's in anyone's interest right now. there's a notion in russia that is completely misguided that the world eventually will accept the annexation of crimea and i don't think that will happen soon. eventually perhaps maybe we'll have to deal with them again on the iran nuclear talks we did on this settlement but i think that
at least in this government there's going to be a desire to make sure that the sanctions imposed because of the annexation remain in place. let alone the shootdown of the malaysia airliner. he's not out of the woods yet. i think that in his mind, he sees those as punitive measures that eventually he'll just wait out and whether that's part of some negotiated solution, you know, we'll see. >> thank you. back to syria, two questions. how far can the kurds go? the further away, the more difficulty they would face. do you expect -- how far do you expect kurds to move? and what kind of agreement or
arrangement do you see between assad and the kurds? number three, what's the best scenario for the kurds in the future of syria and with whom they would have to work? they've expressed reluctance to work with the political posit n positions. so with whom can the kurds work in that scenario? >> i forgot. could you all state your name, please. sorry. thank you. >> you know, the americans believe that part of the deal for helping the kurds was that they would not move west of the euphrates river. the official american position is that they're not helping the kurds, they're helping the arabs. i think that they are all pretty much mixed together there now. as you said, there are reports
of kurdish pockets fighting around aleppo. the turks believe that there are many, many, many of them and feel that this is a betrayal in some way. i don't know what the reality of that is. certainly the kurds have their own objectives and have their own goals in terms of what they're fighting for in syria. for now the americans believe that because they have been really the only effective fighting force against the islamic state in syria that they've been able to find and because they have struck a deal with their leadership and believe that for the moment they can trust them, that's the direction they're going in. again, it's made the turks very unhappy. i don't know what the kurdish long-term objectives are in syria.
certainly the americans have tried to downplay any link with the pkk, with other groups that are actively fighting in turkey and against the turks. i think that those links are there. and it's sort of tactical alliance right now with the americans whether over the long-term it works to anybody's advantage, i don't know. as long as nobody wants to put troops on the ground to fight against the islamic state in syria, it sort of viewed as a good option let alone the only option that's available at the moment. i agree with you. it does pose a lot of difficult questions for the future. >> one of the things that i was struck by when i was spending a lot of time in iraq is it seems particularly relevant now is whether or not anybody has an appetite to reopen the issue of
borders and partition and there is an enormous desire for independence among kurds in iraq certainly. essentially they have a sort of de facto autonomy. you wonder whether or not -- i've heard this in russian speculation analysis of whether or not it's time that we look at partitioning both iraq and syria as part of a longer term solution. i don't hear that being taken very seriously in terms of policy right now because i think everybody knows that that's opening a pandora's box. it may be ultimately a kind of solution. i don't think it would be opposed by a lot of kurds. >> yes. up here.
>> to follow up on what you were saying, steven, what does it take to prop up assad? is it an enclave where he's strong? what is putin's short-term objective? what does that actually mean? and secondly, what is the calculus in the nonislamic state opposition more of a threat to assad than isis. i guess finally to put it more stark ly -- >> i think the russian calculation is that the people who are on the front lines with the fighting of the syrian government are people where you have to start bombing.
and those, for the most part, are not islamic state fighters who as karen pointed out are the other part of the country. they are intervening against the immediate threat to the government. at least government control of a lot of areas. again, with the air strikes being as deliberate as they are and as blunt as they are, not making a lot of discrimination about civilian casualties either unfortunately, i think that they can have quite a lot of impact. we're only three weeks in. it seems to have, you know, cleared the way for some advances by government forces backed up by the iranians, hezbollah and so forth. it seems to be having an impact.
that's something that's pie in the sky speculation. could you envision an international agreement where you would go to the u.n. and redraw borders? i think de facto is what's already happening in large areas. certainly i think that's what you see with kurdistan in northern iraq. a kind of autonomy. even there no one is willing to say let's talk about independence. you know, maybe -- i think it was obama that said that the 19th century power politics are over and when borders were drawn like this by force. you know, putin redrew the border of ukraine by force. you know, at least right now no one is prepared to stop that. i think they'll sanction it. you wonder whether or not that notion which we thought we would move beyond is now not not back
at the center of discussion. >> i agree with what they're trying to do tactically on the ground now is try to regain control of the road on the coast to open the lines of communications and transport among the large cities in the west and that putin who said this publicly, you know, the only force that can defeat the islamic state is the syrian military on the ground with help from a broad coalition. in order for the syrian military to turn its attention to the islamic state, it's got to get rid of these pesky opposition people first. and that that's what they are trying to do now. i think that they believe -- you can correct me -- i think what putin's strategy is that once we get rid of these people, the
fact that everybody agrees that islamic state is bad, there won't be any other option. we'll all have to join together to get rid of them. and meanwhile we will preserve our equities in the region. >> yes. up here. >> thank you. my name is sarah cobb. george mason. a school for conflict analysis and resolution and prior to that i was at harvard law school. i've had a lot of years thinking about negotiation processes. i'm interested in your view, steven, about the title of your book is about the metaphor of the czar. could you tell us a little bit about how he understands the way in which governments change. what's his view on how that works because the fact that 1917
or something didn't happen, i don't know how he incorporates that into his own world view because it would be possible to otherwise have a conversation with him i can imagine about the creation of a process for the transformation over there. a political transformation that would make sense to him. i don't know what kind of political transformation would make sense to him because simply the maintenance of a given government is not a strategy for political change. i can see status quo as something he would like but i wonder what is his theory about how political transformation would or should happen. >> you know, it's interesting that only recently in the last few years i've begun to hear the argument that what happened in
1917 was a foreign invasion that corrupted russia, the great imperial russia was tainted by a bunch of foreigners plotted in the west. some kind of foreign infection that came into russia from abroad. you know, how does putin -- putin is not, i don't think, great thinker in the sense that you are thinking about these kinds of issues. i think he's much more instinctive. i think certainly his background -- not just as a kgb officer but as a proud soviet boy, i think that he grew up in a kind of heyday of soviet power when they put a man in space. it was a period of rebuilding after the war and so forth. not, you know -- it wasn't in his -- i think in the end he is a conservative person and
doesn't like abrupt change and sees things being evolutionary. himself i don't think he's trying to restore the soviet union but he is looking for a kind of creation of a stable political model for russia, which draws on a lot of things. he's well read. he's read russian philosophers and so forth and is picking and choosing from each of them the elements of the state ideology that is really about him. it's about him as a leader of a new russia, which is not quite the empire or the soviet union. it has no real ideology behind it other than the continuation of his own power and the central idea of the state being the
stabilizing force that holds the society together. russia needs something to hold it together. for a lot of years it was the empire and the czars and then it was the communist ideology for seven decades and since then they've been very much searching for that. i'm not sure that that again is the model that you're talking about or that he thinks so much about how that applies to a country like syria except that in each of the cases, the pattern is clear. he sees when people take to the street that chaos follows. i think he sees elections as being dangerously destabilizing and even his own experience the first election when he worked for the deputy -- he was deputy mayor working for the mayor of st. petersburg, who is one of the great democrats that emerged
and was an ally of yeltsin. this is a guy he worked with during these early years. and in 1996, he faced re-election and he was a huge personality. like yeltsin in a lot of ways. and thought that just by sheer force of his charisma would cruise to re-election and in fact another deputy on the level of putin challenged him in the election and putin was infuriated by this. he thought it was an act of betrayal which is something very important to him. he called him a judist. he couldn't conceive of the idea that the people could get rid of this man he quite adored. it was almost a father figure to him. i think that he lost that election fair and square. it was a real vibrant election. and with a campaign, american
style, you know, ads and so fort a forth, to putin it was a disaster when you let the people decide. >> to your specific question, russians believe in the geneva process. they believe there should be transitional government formed of all of the players followed by an election. they don't think that assad should be barred from that process, however. they think that if there's an election, he should run. or someone who they feel equally confident will protect their interests there. so what they say is what's the problem? we all agree on what has to be done. we're here. assad, the government, ready to talk. who is on your side? who are you speaking for?
>> let me just -- one last question. no one has a question. there it is. okay. >> i don't understand this idea that all wars are ended through a negotiation. that's not what ended world war ii. it's not what ended the civil war. it's not even what ended vietnam. two years later north vietnam invades south vietnam and conquers it. that's the first point. second point is i can't see what the negotiated outcome would be. what do you negotiate with islamic state? these people are so extreme. could anybody outline what a negotiated solution would look like? >> i think they're not part of this process. they're separate. the negotiations would be between assad and his government or assad's government and the opponents of his government.
the islamic state is something completely separate. and that i think is part of the russian point. they are saying we all agree that we have to fight against them as you said earlier. we agree they're the bad guys. so let's get this civil war finished so we can all go fight against them. nobody is arguing that they should come to the negotiating table. it's the people who are fighting over syria and not the caliphate who are supposed to come to the negotiating table. >> i think you make an excellent point about world war ii certainly and even the civil war. both of those were followed by political processes. i agree about the islamic state. you can't negotiate with them. nonetheless, there has to be within syrian society a negotiation about how they're going to live together, you know, as a people, as a nation, or we go to the question of
partition. if they just simply can't live together anymore. it's true in iraq as well. i agree that islamic state is not something you negotiate with. i don't think you can defeat islamic extremism by military power alone as well. i mean, i think in the end there has to be a political process not so much in peace talks but in isolating the extremists elements such that they don't have support in significant parts of the society. you'll always have the people willing to blow themselves up i think for ideological reasons but the question is how you can incorporate the society to completely marginalizing that element of it. >> thank you both. thanks to all of you. steven will be here. [ applause ]
republican presidential candidate donald trump is in florida for a two-day swing through the state with rallies planned in miami this evening and jacksonville tomorrow. the campaign recently hired a florida state campaign manager. florida's primary is march 15th. you can see mr. trump's rally tonight live on c-span2. and ted cruz is on the road holding a town hall meeting in counsels council bluffs, iowa. that's tonight on c-span. >> c-span provides the best access for coverage of former secretary of state hillary clinton's testifying before the house select committee on benghazi. >> there was no credible, actionable threat known to our intelligence community against our compound. >> our hearing coverage without
commercials or commentary will air in its entirety saturday and sunday at noon eastern on c-span. the supreme court heard oral argument this month in a case dealing with whether juveniles should be sentenced as adults. in montgomery versus louisiana, justices will decide if their 2012 decision that life sentences given to juveniles are unconstitutional would apply ret retroactively. henry montgomery was 17 when he killed a louisiana deputy sheriff. mr. montgomery served more than 50 years in prison so far. this is an hour and 15 minutes. >> we'll hear argument first in case 14-280, montgomery versus louisiana. mr. bernstein? >> mr. chief justice and may it please the court, the issue is whether to decide the retroactivity in this case or in
a federal case as in 15-1 on this court's docket. there's no jurisdiction over that question because the point of section 1257 is to enforce the supremacy laws and when that applies, the judges -- these are key words -- in every state shall be bound thereby. there is no such thing as supreme federal law that depends on whether a particular state voluntarily makes federal precedence binding. when a state does that, when a state voluntarily adopts nonbinding federal precedence, that creates no right under federal law, which is what 1257 requires, and michigan versus long does not apply. >> how would you describe the adequate and independent state ground on which this decision rested? >> i would say that the lack of a binding federal law question
before you get to independent and state ground analysis. >> why don't we answhave jurisdiction to answer that question? >> you have jurisdiction to require whether teague is constitutionally required. the second part of our brief said why it is not constitutionally required in state collateral review courts and that's this court's precedence from danforth back to the beginning and they have said that the teague -- what have been the teague exceptions are members of equitable disdiscretion adiscretion and not matters of the constitution and the federal habeas statute on its face only applies in federal court. the federal habeas court can
grant relief is relief is warranted under the teague exception. >> if the state says we acknowledge we're holding a prisoner in violation of law but we choose to do nothing about it. there's not a second answer that the state can be required under the supremacy clause under its own procedures to enforce the federal law and if i were to argue the second position, i'm not quite sure what case i would have to support me? >> i think your honors opinion in martinez versus ryan suggested there are advantages to citing the federal habeas right in the federal habeas statute rather than a free standing constitutional claim. a major advantage is if you say
that the state courts are bound by the teague exceptions, by the constitution, then when it goes to federal habeas there will be very differential review. if you say that the redress question as the rationale of danforth indicated in state court is a matter of state law, then when the issue goes to federal habeas, it will not apply because the state court would not have decided the federal issue. that's a major difference. you would actually be weakening the federal habeas statute to recognize jurisdiction in this case and this court will benefit from having de novo percolation in lower courts which are out the window if there's jurisdiction in this case because the lower federal habeas courts will only be able and the courts reviewing them on appeal to apply the highly differential
review. >> are you saying the is clause binds the state in direct criminal proceedings? >> no. >> is that another way of phrasing your argument? >> it would be that supremacy clause binds the state in collateral readings where it's an old rule. if you are talking about the retroactivity of a new rule, then that's where the two teague ep exceptions apply. they apply to new rules and they apply to collateral review. the court has already held that both direct review and the application of old rules present federal questions. >> how do you differentiate this case from standard oil?
>> in standard oil, the issue was the underlying status of the federal government arm and the court said that question is controlled by federal law. standard oil is like miller itself where the issue was what does the 8th amendment require. that's a federal constitutional issue that applied. in standard oil, as a combination of statute, regulations and federal common law, federal law controlled the question. here the statute doesn't apply in state court as danforth and numerous other cases have held, like the federal rules of evidence don't apply in state court, even though many courts follow similar provisions and certainly follow federal precedents in interpreting. >> we did say that that state could define the exemption any which way it wanted. >> correct. >> it's almost identical here. we would announce what the
federal law is, send it back. the state has already said it's going to follow teague. but i guess it might or might not be free to change its mind about doing that. >> i think the difference and what makes this case special is that this court has held since murdoch versus city of memphis over almost 150 years ago. 87 u.s. at 326 to 327 that the 1267 jurisdiction is question by question. it is not like 1331, case by case. it is question by question. and i do not believe the court has jurisdiction to skip over the question of whether federal law applies and then answer the hypothetical if federal law applied, what would it be. i think the question of whether federal law applies is a jurisdictional question. >> how -- let's think of the first teague exception. suppose, substantive matters. suppose that many states had sedition laws, that make certain conduct unlawful so there are
1,000 people in prison. this court, in a new rule, holds you cannot criminalize that behavior. all right. what is the law that would make that retroactive to people in prison? it sounds to me that it isn't like some kind of statutory discretion. rather, there are human beings who are in prison who are there without having violated any valid law. because it was always protected by the first amendment. if that's right it's the constitution, the due process clause, that says they are being held, even though they committed the crime 22 years ago, they are now being held in confinement without due process of law because you cannot criminalize their behavior. you see where i am going?
that being so, it's a federal constitutional law, teague drops out of the case, the only question is whether to satisfy the two exceptions. >> well, in your hypothetical, respectfully, i don't think that would be a new rule. >> i have made it a new rule for purposes of my hypothetical. i'm making it a new rule. >> if it were a genuinely new rule, then under danforth and going all the way back, the justice harlan's opinion in mackie said we're not creating the substantive exception because the constitution requires that -- >> danforth is a case saying the states could be more generous. it wasn't a case -- this is a case that the opposite of being generous. can they be more stingy. and i cannot find anything in harlan. maybe i'll read it again, but i cannot find anything there, nor can i find anything in danforth that answers the question. so i thought, it is a new question. hence, that question i posed you
because i want to get your response. i don't think you can answer it by means of precedent. i think you have to try to figure it out without the help of precedent. >> if it is a new rule, the court has held and sorry to cite a precedent, linkletter held that retro aactivity is not unconstitutional. >> then we have teague and teague is saying we don't like linkletter and -- >> teague said we don't like -- >> you're saying that we have -- maybe then that's wrong. i mean, why doesn't it violate the constitution to hold a person in prison for 20 years for conduct which the constitution forbids making criminal? >> well, it does violate the constitution. >> it wasn't criminal at the time. it wasn't prohibited by the constitution at the time he was convicted, right? >> fair enough. >> would be the reason.
>> fair enough. >> but the -- the constitution, according to the cases, is satisfied by the federal habeas remedy. i think this is where -- >> is there anything else you can say? i could say, which -- witches, being a witch. some people in salem were imprisoned for being a witch. lo and behold, in 1820 it was held by this court that that violated the constitution. now, you see, i just make a more outrageous example of the same thing. i want you to say, okay, i got your point. it didn't violate the constitution at the time. i also got the point you have some authority. anything else? >> this court has been reluctant, even when there is a violation of the due process clause, to create an implied judicial remedy on top of the federal statutory remedy. that's cited in our briefs.
>> that's not what's happening here, mr. bernstein. i mean, if you assume the premise of justice breyer's question, which is that there is a constitutional violation in keeping somebody in prison for some conduct that can't be criminalized, the state has set up a collateral review mechanism. we're not asking it to set up a new mechanism that it hasn't had before. it has a collateral review mechanism. and the only question is whether it's going to comply with federal constitutional law in that collateral review mechanism. >> and the other question is whether that issue of retroactivity is itself a federal constitutional issue. if it is, obviously there is jurisdiction. if it is not, i would submit there is not jurisdiction and that the proper remedy is federal habeas. if i may reserve the remainder of my time. >> thank you, counsel. mr. plaisance.
>> mr. chief justice and may it please the court. miller versus alabama established a new substantive rule prohibiting mandatory life without parole for juveniles which should be applied retroactively. this court has jurisdiction to hear henry montgomery's claim because the louisiana supreme court relied exclusively on federal juris prudence. in miller, this court held that mandatory life in prison was unconstitutional. it also held that life in prison would be an uncommon, rash sentence even today. >> isn't it just like a state saying, we have a fourth amendment, and the federal constitution has a fourth amendment. we are going to apply our own constitution, but in applying it, we will follow the federal precedent. i think we would say, in that case, the case has been decided
on the state constitutional ground, even though the state court, in interpreting that ground, is looking to federal decisions. >> in this case, your honor, the louisiana supreme court did not state that it was exercising any independent grounds at all. under michigan v long -- >> i thought that the case is cited said that. the case -- i thought it cited an earlier louisiana supreme court case, which made it very clear that it was following the federal rule as a matter of discretion and not because -- not because it had to and it could, in a later opinion, decide not to follow federal law. >> it is my interpretation of the earlier case that the louisiana supreme court said, we have a choice. and they made the choice to apply teague. in fact, they said in that opinion, we are dictated by the
teague analysis. and that's what was done in this case. under michigan -- >> did they not say in taylor that they were not bound to follow teague? didn't they say we're going to follow teague but we want to make it clear we're not bound to do that? >> they did say that. >> they've never retracted that. >> correct. >> the choice itself is not necessarily a matter of state law. while the supreme court had the authority to make that decision, it said, we believe by choosing teague we believe that is the better law and therefore we will follow the federal guidelines from teague, the federal juris prudence in doing so. i believe that under michigan v long, unless they state a clear and independent ground, this court can conclusively presume that they applied federal law as they believe this court would apply. >> i thought it's unless they
clearly state otherwise, we will assume that they're applying federal law. and here they did clearly state otherwise. they said we don't have to follow federal law, but we're going to model our state law on federal law. it seems to me that satisfies the exception requirement of michigan. >> it is my opinion that michigan v long indicates the reverse, your honor, that the state must say we are following state law in making this decision. we are applying state law rather than federal law. >> they did say that here. they said that. this is a matter of state law. we don't have to follow teague, but we choose to, as a matter of state law. i thought that's what they said. >> and i believe that that's sufficient to indicate to have court that it is applying
federal law. it is not applying state law. >> mr. plaisance, i think what people are saying to you is that this is different from your standard michigan v long question. i mean, this is a different question. it's a state that says, we're not bound to follow teague. we know we can do something different. but we want to follow teague. that's what we want to do. and then -- in all its particulars, all right. then the question is, if the state commits to following teague, it's not -- it doesn't think anybody else has committed it, it self-commits to following teague and to following federal law, then what happens? is there enough of a federal question to decide this case. that's not a michigan v. long question. it's more like a merrill-dow question or something like that where federal law -- the state has chosen it but it's part and parcel of the clam because the state is so committed to following federal law in all its
particulars. >> i agree with your honor. even in danforth this court said that the question of retroactivity is a pure question of federal law. >> i'm sorry. why don't you finish. >> that's the answer to your explanation or hypothetical, that you said if the state decided that they were choosing federal law, then what's the next step. and the next step, the question is retroactivity, which both the majority and the dissent in danforth said the question of retroactivity is a pure question of federal law. >> federal statutory law. right? i thought that was the point of danforth. that the reason the states can go beyond the federal interpretation is because we're a talking about the federal habeas statute. >> even in yates this court said on state habeas if the state considers the merits of the federal claim and the merits of this claim are, is mr. montgomery serving an unconstitutional sentence.
is miller retroactive to address the fact that he is serving an unconstitutional sentence. >> how do you deal with mr. bernstein's point that your client would be worse off if you are correct, that is, if the question comes up on federal habeas, then the federal court decides it without any ed ka problem. if the state court goes first then the federal review is truncated. >> that would be my understanding, your honor, that, while mr. -- while henry -- while jurisdiction in this court does not depend on what has occurred so far, it depends on what this court does decide. again, whether he can go to federal court or this court doesn't affect the jurisdiction that i believe this court has today. and the question is -- >> but in -- how do you answer
the argument -- all right. suppose you're right. but your victory is going to leave your client in a worse position because, when he gets to the federal court, he will be saddled with edba. >> not if this court rules it has jurisdiction and it would be retroactive. the question is is mr. montgomery being held unconstitutional. in miller the court said a mandatory life in prison sentence is unconstitutional because it fails to address the fact of the matter that this court believes kids are different. >> mr. plaisance, on the jurisdictional point, let me see if i understand what you're arguing. a lot of state rules of procedure are modeled after federal rules of procedure, and a lot of state courts simply follow the federal rules but
they follow it as a matter of choice. and not because they think they're bound by the federal rules. so let's say that there is a disagreement in federal court about what federal rule of evidence 403 means. the state court says, well, you know, we're going to follow the federal rule, and we think that the right course as between these two divergent federal courts of appeals is the second circuit. so we're going to follow the second circuit's interpretation of federal rule 403. would we have jurisdiction to review that decision as a decision on a question of federal law? >> if it was clear to this court that the state court made a conscious choice and sent enough of a signal to this court that it was adopting federal law to use as state law but in this case there is no indication that
the state of supreme court of louisiana was making that decision. they said that we are -- our analysis is dictated by teague. and in doing so, they found that mr. -- they would not apply miller retroactive. that's the real issue of this case. >> suppose we hold that we can review the -- we have jurisdiction because the state court said it was going to follow teague and then we go on and we say that, under teague miller can be applied on collateral review. then the case goes back to the louisiana supreme court and they say, well, we said previously in taylor we were going to follow teague, but that was based on our understanding of teague at that time. but now that we see what it's been interpreted to mean by the u.s. supreme court we're not going to follow teague. then what would happen?
>> i think louisiana would be bound to follow this court's ruling, as you set forth. >> why? because it said that we would voluntarily follow it in taylor? that bound them? >> i think they made the conscious choice to follow this court's laws, this court's juris prudence. in doing so, it must follow this court's juris prudence. as i said before -- >> they changed their mind. they have now chosen the course not to follow our juris prudence. what forces them to stay where they were? it's a matter of state law. they decided to change state law. >> they didn't do that in this case, your honor. >> not yet. if we agree with you and send it back and they look at it and they say, oh, if that's what teague means, we're not going to follow teague. what stops them from doing that? and doesn't that make us look foolish? >> no, it doesn't, your honor. >> render decisions that could be overruled by somebody else? >> if a state considers the merits of a federal claim, it must grant the relief the
federal court -- >> but the question is what's the federal claim. why didn't you cite standard oil versus johnson in your response to questions from justice scalia and justice alito? >> i believe my friend the solicitor general -- >> the name of the case. standard oil versus johnson. >> that was a case cited by the solicitor general. i believe my friend from the solicitor general's office can answer that question a little bit better. >> are you asking us to decide the question of -- left open in danforth? danforth said that it was a minimum -- there could be a constitutional minimum but it wasn't answering that question. are you asking us to answer that question? >> i am saying, your honor, you don't need to get to that question. >> let's assume -- >> under michigan v. long this court has jurisdiction. i reserve the balance of my time. >> thank you, counsel.
>> mr. dreeben. >> thank you, mr. chief justice, and may it please the court, this court does have jurisdiction to decide the question of miller's retroactivity because louisiana has voluntarily incorporated into its law a holy federal standard. in this court's decisions in standard oil, merrill-dow, three affiliated tribes and most recently ohio versus reiner the court recognized that when a state chooses to adopt federal law to guide its decisions and binds itself to federal law there is a federal question. >> they can change their mind, right? you said voluntarily chose to follow it. they can voluntarily choose not to follow it any more. >> the same is true in any michigan versus long case. what michigan versus long said is this court has jurisdiction under section 1257 to resolve
state court resolutions of federal law and it will presume that a state constitutional decision of a mirror image say of the fourth amendment will be binding but recognized that the only circumstance in which the court will not treat federal law as governing both questions is when the state makes clear that it would reach the same result under state constitutional law as it did under federal law. it did not preclude the option of the state going back and reaching a different decision once enlightened by this court as to the content of federal law. standard oil is completely clear on this. it says the state chose to use federal law to determine whether a federal post exchange was a federal instrumentality. we're going to correct its understanding of federal law. on reman, the state now freed from its misapprehensions of federal law decide what it thinks state law requires.
if it does that, there may be a federal constitutional question. >> how does it work. should be pretty elementary. i mean, i looked at the indian case. that seems a little far out. the -- definitely gives you support on your statement here. suppose you took justice scalia's example. we have iowa state rule 56. we interpret iowa state rule 56 the same way as the federal rules of civil procedure. that's our rule. now this is what it means in that case. they say but we're doing it under iowa state rule. you say we can review that because they said that iowa state rule is the same as the federal. is that right? how do you fit that in the words of 1257? >> i doubt that that would satisfy the court. there is a theoretical answer and a practical answer. let me give the practical answer first.
the states that govern the federal rules of evidence and civil procedure uniformly say we will treat federal precedent as guidance in our decisions as for its persuasive value. they recognize that there are . they recognize that there are state rules of procedure and state rules of evidence that will belong to the states. >> they say in a particular case, it's guidance. it's great guidance. we agree. our interpretation is the federal interpretation. >> well, i think -- >> how can we review that because, in fact, it wasn't the federal interpretation? but can we review it? yes or no? >> there is a distinction between this case and that that may suggest that this case the court has jurisdiction over and that one the court does not. >> you say the court does not in the example of the federal rules of civil procedure that justice scalia -- >> i think this is a stronger case. i'm doubtful that the court would have jurisdiction or choose to exercise it because i accept for premises of the
argument in your honor's hypothetical, but in the real world it doesn't happen. >> when you says that a doubtful case, you are implicitly acknowledging that, if we adopt your argument we are going to get that case and lots of similar cases. and we are going to have to parse the words that -- the words that were used by the state supreme court. well, we're following -- we're going to be guided by it, we're going to be strongly guided by it. we're going to adopt it. we're going to get all of those cases. why should we go down that road? when there is more perfectly available and possible superior remedy available to the petitioner by filing a federal habeas petition? >> so there are several reason, justice alito. first of all, i don't think that it is going to come up in that way to this court because that's not the way states treat their own rules of procedure. i don't think it will be very difficult. there is a principle in the courts' cases that when federal law has been adopted as federal
law, the court will review it even if the state could have chosen a different path. >> mr. dreeben, what's the problem -- >> did you misspeak? when federal law is adopted as state law, the federal courts can review it. isn't that what you meant to say? i mean, you're very careful. you don't make mistakes, but i -- >> i think, justice kennedy -- >> you said -- >> this is -- >> when state law adopts federal law as federal law then there is review. okay. >> the state has adopted teague for a reason that does not exist in any of these civil procedure cases, and that is that the state knows that that federal law will be applied to the very case in a habeas case. so the state has decided consciously to synchronize its law with the law that it knows will be applied. this actually serves a very important federalism purpose. the state says if we have to rectify in a constitutional error in our case that's become
final, we would like the opportunity to do it. if the federal habeas court is going to treat the decision as retroactive, we would like the first crack at it. >> you're saying hooray that the federal habeas court will thereafter be bound by it? >> no. there's an elementary reason that's not so. this answers justice ginsburg's answer earlier. 2254 d applies to state determinations on the merits. that's the only time that the deference provision kicks in. a determination under teague is a threshold determination that comes before the decision on the merits. this court has said that in any number of cases. it's not a merits resolution of the case. so deference to a state determination on retroactivity would never occur. >> i was going to suggest maybe to hear a little bit more on the merits. >> certainly, mr. chief justice. the rule in miller versus alabama, in our view, is a
substantive rule because it goes far beyond merely regulating the procedure by which youths are sentenced for homicide crimes. i compelled the state to adopt new substantive sentencing options. an option that is less severe than life without parole. the only other time that this court has ever invalidated a mandatory sentencing provision was woodson versus north carolina in 1976. so we went something like 36 years before we had another decision that concluded that the law must change to accommodate the compelling interests in having the characteristics of youth that mitigate culpability considered in the sentencing process. >> would it be enough -- is it enough that the states simply say, okay, with respect to people who have been man da torialy sentenced to life without parole, we're going to provide parole? >> yes, i believe that it would
be. that would be the same remedy that the court ordered in a graham versus florida case which is the case that held that youths who do not committee homicide but are convicted to other crimes cannot be sentence to life without parole at all. the court's remedy for that problem could either be a sentence of a term of years or also converting the life without parole sentence to a life with parole sentence. >> mr. dreeben, how do you explain how your articulation of your test wouldn't apply to the guideline changes in booker that we made? >> i think, justice sotomayor, the key difference is that, with respect to the guidelines there was always a minimum and a maximum set by statute, and the guidelines, even when they were mandatory, did not preclude judges from sentencing outside the guidelines depending upon the presence of aggravating or mitigating factors that weren't
taken into account. and as justice alito's opinion for the court in united states versus rodriguez recognized, even the top of a mandatory guidelines range was not truly mandatory. so even under the mandatory guidelines which for sixth amendment purposes were treated as if they established elements of the offense, for the purposes that we're looking at here, they are not mandatory in the same way. so that booker brought about a procedural change. >> what is the substantive difference to pardon the use of that word, between your formulation and petitioner's formulation, that says this is substantive because it did away with mandatory life imprisonment? you're articulating it slightly different. tell me what you see as the difference and why your articulation. >> justice sotomayor, i don't think there's any substantive, to use the word, daylight between petitioner's petition and ours. the description of the crime at issue as punishable by mandatory
life imprisonment and treating that as a category i think sums up the reality of what is happening. we broke it out into its component parts because i think it facilitates the analysis of it to understand that miller does have a procedural component. sentencing courts must now consider the mitigating characteristics of age. but it also and more fundamentally, in our view, contains a substantive component that required a change in the law. now, the change here was expanding the range of outcomes. previously when this court has analyzed substantive changes in the law there have been changes that restricted the form of outcomes, say, for example, in justice breyer's hypothetical forbidding punishment at all. but i think that if you trace back the origins of the substantive category to justice harlan's opinion in mackie, this is still faithful to what justice harlan had in mind. justice harlan said the clearest case of an injustice in not
applying a rule retroactively is when it puts off limits altogether criminal punishment. he did not say that it was the only case. and i think that if you consider what is going on in miller and the reasons for the rule, the court made very clear that it believed that, of the 2,000 people that were in prison and under mandatory life for juvenile homicide, the court believed that that penalty was frequently disproportionate, that it would be uncommonly imposed in the future and that it was not a sentence that was consistent, in most cases, with the mitigating characteristics of youth that had been recognized in roper and in graham and in miller. >> would it be accurate to say that a rule is substantive if it makes a particular outcome less likely or much less likely or much, much less likely than was previously the case? >> probably the last, justice alito. when the court characterized substantive rules most
recently -- >> is there's a different between much less likely and much, much less likely? >> i would put it in the words that the court has used previously. the court has said that a substantive rule creates a significant risk that the person is serving a sentence that's not appropriate for that person, maybe not even legally available for that person. did not say absolutely conclusively proves it. it said, significant risk. in contrast, when the court has talked about procedural rules, rules that govern the manner in which a case is adjudicated, it has said that the likelihood or potential for a different outcome is speculative. i think, if you put this case on the speculative significant risk axis, this case falls in the significant risk domain precisely because of the reasons why the court said it was deciding miller. the reasons why the court decided miller had to do with the reduced culpability of youth and the capacity of youth to
mature, change and achieve a degree of rehabilitation that is consistent with something less than the most harsh sentence available for youths who commit murder -- terrible crime -- but still the harshest sentence the court thought would be reserved for the worst of the worst. which is in fact what louisiana said when it amended its statutes substantively to conform them to miller. it said life without parole should be reserved for the worst offenders who commit the worst crimes. so when you combine the fact that this is not a rule that only governs procedure, it doesn't just govern evidence, it also mandates changes in outcomes as an available option with the very genesis of the miller rule in a conclusion that, for the people in this class, the appropriateness of the punishment of the harshest degree, life without parole, will be relatively uncommon, it seems clear that the miller rule falls on the substantive side of the axis rather than on the