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tv   Key Capitol Hill Hearings  CSPAN  April 7, 2016 4:00am-6:01am EDT

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lifting him up and celebrating him. it is worth highlights key facets james madison who followed jefferson as the fourth president of the united states owns over 100 slaves while he occupied the white house. he exposes expanding the 3/5 compromise, which guaranteed the south held a disproportionate influence on congress to preserve and uphold slave-owning interest. >> tyler perry, african-american studies professor at california state university fullerton on the 12 american presidents who were slavee in office. >> defense secretary ashton carter unveiled the defense
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department's plan to reform its command structure. the changes are aimed at updating language of the 1986 goldwater/nichols act to meet the demands of modern warfare and to add cyberinto the command structure. this is 50 minutes. >> welcome. we're delighted to have you here. it shouldn't be this cold in april. i came down from new york this morning and it was snowing in wilmington. what the ll? but we're going to warm it up this afternoon. we're going to have an excellent opportunity to talk with secretary carter. thank you all for coming. a brief security announcement. he has a security detail. they're going to watch out for him. i'm going to watch out for all
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of you. if we have a problem, i would ask you to follow my instructions. our exits are right here behind us. this is the door that's closest to the steps that go down to the street. if there's a problem out in front we're going to go in the back and go over to the national geographic society. we have an arrangement with them. if there's's a problem in the back we're going to go up front and go to st. matthews cathedral, count heads and say grace. anyway, we're going to be fine, but please follow my instructions. ash carter had the privilege of working with for almost 30 years. he interviewed me and decided i really wasn't up to what it took to be a successive p.a. i do not resent that. since that time we've had the privilege of working closely together for many years.
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i'm honored h he's here. he's doing a spectacular job. please welcome ash carter and thank him for coming today. >> thanks very much, john, for that warm introduction. but more importantly, for many, many years of friendship, of guidance and wonderful service to our country over so many years. not to mention your leadership of this institution. i'm glad to be here. since this institution was founded over 50 years ago, the center if strategic and international studies has become to be considered one of the preimminent security-focused think tanks here in the nation's capital. you provide important ideas on
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pressing issues from defense strategy and budget to america's strategic future in the asia pacific, to the growing threats we face in the domain of cyberspace, to reviewing the goldwater/nichols act that makes up much of dod's institutional organization. and it's because of that last piece of scholarship that i wanted to come here today. as many of you know, i recently issued my posture statement for the defense department for fiscal year 2017. the first to describe how we're approaching five strategic challenges -- russia, china, north korea, iran and terrorism. it is in context that i want to speak to you today about key long-term strategic management questions. the dod will be detailing and discussing with congressional defense committees in the very next coming weeks.
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>> the u.s. military has a long history of striving to reform our command structures and improve how our strategies and policies are form lated, integrated and implemented. indeed, even while world war ii was still being fought, and before the defense department was even established, military leaders and policy-making officials were discussing how the military services could be unified and exploring ways to develop stronger policy processes and advice. the result was the national securities act of 1947 and its amendments, which among other historic changes established the position of the secretary of defense, the joint chiefs of staff, and the national security council. later reforms helped strengthen the offices of the defense secretary and gave new authorities to the chairmans of the joint chiefs. but it was the goldwater/nichols act enacted 30 years ago this
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fall that's most responsible for today's mill tar and defense institutional organization. with the vietnam and the raids still fresh, officials and policymakers again considered reform. and after nearly four years of work, not to mention sfrong opinions by my former boss, then defense secretary casper weinberger, the resulting transformation is what we now refer to as goldwater/nichols. it solidified the chain of command from the president to the secretary of defense to the combatant commanders. it affirms civilian control of the military by codifying in law the chairman of the joint chiefs of star is outside the chain of command. in order for him to provide vital, objective, independent military advice to the defense secretary and the president.
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and at the same time, it also strengthened the chairman's role, created the position of the vice chairman of the joint chiefs and centralized the role and voice of the come bah tant commands. and reasserted the concept of jointness, especially with respect to the career of senior officer, by requiring them to gain professional experience outside of their service in order to advance further in their careers. all senior officers know these policies today. they reflect the reality of how we fight every day as a joint force. right around this time, albeit unrelated to goldwater/nichols itself, important changes were made to reform defense acquisition. these were based on the packard commission, led by former deputy secretary of defense dave packard. as it happens, implementing the
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packard's remit remd dagss was another one of my first challenges i worked on early in my own career. as a whole, all of these changes were overwhelmingly beneficial, a credit to the work of not only the members of congress who passed the legislation, but also their staffs john henry being among one of them, i must say. what they put into law has given us generations of soldier, sailors, airmen and marines who have joined accustomed to operating as a joint force. overcoming friction of decades before, and has led us to draw benefits from many chairman. from colin powell during operation desert storm to general joe dunford today. this year, as goldwater/nichols turns 30, we can see the world has changed since then. instead of coldwar and one clear
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threat, we face an environment that's dramatically different. it's time we consider practical updates while still preserving its spirit and intent. for example, we can see in some areas how the pendulum between service aek bytys and jointness may have swung too far. as in not novembering the service chiefs enough and acquisition decision making and accountability. or where subsequent world events suggest nudging the pendulum further. as in taking more steps to strengthen the capability of the chairman and the joint chiefs to support force management, planning and execution across the combatant commands. particularly in the face of threats that cut across regional and functional combatant command areas of responsibility, as many increasingly do. last fall, i asked peter levine
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and lieutenant general tom walthauser of the joint chiefs of staff to lead a comprehensive review of these issues. spanning the secretary of defense, the joint staffs, combat tabt kmaenders and the military department, to identify redundancies, inefficiencies or other areas of possible improvement. and i would like to discuss that review's preliminary recommendations with you today. >> over the coming weeks, with ewill execute some of these decisions under our own existing authority. where legislation is needed, we will work with the house as they consider this year's national defense authorization act. of course, both committees have their own important reviews of this issue under way as well. making this area ripe for working together, something i'm pleased to worth we've been doing effectively and will continue to do on this topic.
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i applaud chairman mccain, senator reid, chairman thornbury, each of whom i was able to speak to earlier this morning. and also congressman smith. and i look forward to continuing to work closely with all of them in their committees. and it comes to these fundamental matters, that's what we have to do -- work together. let me begin with transregional and transfunctional integration and advice. imperative considering the challenges we face today areless likely than ever before to confine themselves to neat, regional or functional boundaries. our campaign to deliver isil a lasting defeat is one example. as we and our coalition partners have taken the fight to isil, both in its parent tumor in iraq and syria, and where it's metastasizing, our combata commanders from central european
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command, africa command have had to coordinate efforts more than ever before. increasingly, i've also brought strategic command and cybercommand into these operations as well. to leverage their unique capabilities in space and cyber to contribute to the defeat of isil. and beyond terrorism, we also face potential future nation state adversaries with widening geographic reach, but also widen, exposure. something we may want to take into account in order to deescalate a crisis and deter aggression. and in other cases, we may have to respond to multiple threats across the globe in overlapping time frames. an increasingly complex security environment like this, and with the decision chain that cuts across the combatant commands only at the level of secretary defense. we're not postured to be as agile as we could be.
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accordingly, we need to clarify the role and authority of the chairman, the joint chiefs and staff in three ways. one, to help synchronize sources globally, for daily operations around the world. enhancing our flexibility and my ability to move forces rapidly across the scenes between our combatant commands. two, to provide objective military advice for ongoing operations. not just future planning. and three, to advise the secretary of defense on military strategy and operational plans. for example, helping ensure that our plans take into account in a deliberate fashion the possibility of overlapping contingencies. these changes recognize that in today's complex world, we need someone in uniform who could look across the services and combatant commands. and make objective recomme
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recommendations about where to allocate portions around the world and abortion risk for maximum benefit for our nation. and the person best postured to do that is the chairman of the joint chiefs of staff. we will pursue these changes in line with goldwater/nichols original intent. to enable the military to better operate in a seamless way while still preserving both civilian control and the chairman's independence to provide professional military advice outside of the chain of command. some have recommended the opposite course, to put the chairman in the chain of command, but both chairman dunford and i agree that would erode the chairman's objectivity as the principal military adviser to the president and the secretary of defense. and we appreciate the csis reached the same confusion in its own review of goldwater nichols. secondary, where we need to make
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updates is our combatant demands, adapting new functions and continuing to aggressively streamline headquarters. adapting to new functions will include changes in how we manage ourselves in cyberspace in accordance with the emphasis i placed and the president made in his fiscal year 2017 budget. there i made clear in each of the five challenges facing dod, we must deal with him across all domains. not just the traditional air, land, sea and space, but also cyberspace. there your reliance on technology has given us great strengths and great opportunities, but also some vulnerabilities that adversaries are eager to exploit. that's why our budget increases cyberinvestments to a total of $35 billion over the next five years and why we should consider changes to cyber's role in dod's unified command plan. some of you may know, dod is
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currently in the process of reducing our management headquarters by 25%, a needed step. we're on the road to accomplishing that goal, thanks to the partnership of the congressional defense committees, which once again we deeply appreciate. we can make these targets without combining northern command and southern command, or combining european command and africa command. actions that would run contrary to why we made them separate. because of their distinct areas of emphasis and increasing demands on our fourss in them. and indeed, those demands have only further increased in recent years with each command growing busier. so instead of combining these commands to the detriment of our friends, our allies and our own command and control capabilities, we intend to be more efficient by integrating functions, like logistics and intelligence and plans across
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the joint staff, the combatant commands and subordinate demands, eliminating redundancies while not eliminating capability. and much can be done here. additionally in the coming weeks, the defense department will look to simplify and improve command and control where the number of four-star positions have made headquarters either top heavy or less efficient than they could be. the military is based on rank hierk i can, where juniors are supportive and rank to their seniors. this is true from the platoon to the corps level. but it gets complicated at some of our combatant and component command headquarters, where we have a deep bench of extremely talented senior leaders. so where we see potential to be more efficient and effective, billets currently filled with by four-star general and admirals will be filled by three stars in the future. the next area i want to discuss today is acquisition. 30 years after the packard
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commission's recommendation led to the establishment of an undersecretary of defense for acquisition, serviacquisition executives and program managers, it's clear we still can and must do more with military capability while making better use of american tax dollars. six years ago when i was secretary of defense, dod began what i would call better buying power, an initiative to improve our acquisition system. and under the current undersecretary, frank kinnal, we're now on our third it ration, better buying power 3.0. while we're seeing compelling indications of positive improvements including reduced cost growth and reduced cycle time, there's still a constant need for improvement. particularly as technology, industry, and our own commissions continue to change. one way we're improving is by involving the service chiefs
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more in acquisition decision making and accountability, consistent with legislation congress passed last year. including giving them a seat on the defense acquisition board and giving them greater authority at what's known as milestone b, where engineering and manufacturing development begins. that is, where programs are first defined and a commitment to fund them is made. as i discussed with the service chiefs, with greater responsibility comes greater accountability. they need to sharpen their skill set to be successful inform discharging their new acquisition responsibilities. many of them in war where speed
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and agilenity are critical. the other way is we streamline the acquisition system itself, evaluating and where appropriate reducing other members of the defense acquisition board. it's currently composed of about 35 principipals and advisers, eh of whom is likely to feel empowered as a gatekeeper for acquisition. >> these layers will free up staff time on overcoming real obstacles to program success rather than bureaucratic hurdles. we also intend to reduce burdensome acquisition documentation. in case where is the defense t acquisiti acquisition, 14 separate documents be coordinated within the department.
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reducing this paperwork requirements in a meaningful way and pushing approval authority lower down when a program is on the right track will eliminate redundant reviews and shorten review time lines, ultimately getting capabilities fielded to our troops sooner, which our service chiefs and our combatant commanders desire and deserve. the last major area where we need to update goldwater/nichols is making changes to joint personnel management as part of what i call the force of the future. a endeavor began to make sure our volunteer force is just as fine as the one i have the privilege of leading today. even as generations change and job markets change. we've taken several steps there are, building onramps and offramps so technical talent can more easily flow between dod and america's great innovative
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communities. opening combat positions to women who meet standards. aechb opening access to 100% of our population for all the all-volunteer force. and to do more to support military families to improve the tension, like extending maternity and paternity leave and giving families is the foblt of some geographic flexibility in return for addition commitments. within of the hallmarks of goldwater/nichols is it made giant duty required. in so doing, it led to great advances in jointness across the military services. such that almost all our people know why and how we operate as a joint team. and it's also significantly
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strengthened the ability of our chairman, our joint chiefs and our combat at that particular time commanders to accomplish their joint responsibilities. as we've learned over the years what it takes to operate jointly, it's become clear we need to change the requirements for joint duty assignment, which are more narrow and rigid than they need to be. accordingly, we're proposing to broaden the definition for positions in which an officer can receive joint duty credit. going beyond planning and command and control, to include joint experience and other operational functions, such as intelligence, fires, transportation and maneuver, protection and sustainment, including joint acquisitions. for example, a staff officer in a combatant and command will get joint duty credit. an officer in a combined air operation center accordingly service members in all different uniforms call on air strike against isil might not.
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in the other case, cyberairmen work at a combatant command when cyberplans and gets joint credit, the other does cybertargeting and doesn't. what we're proposing will fix these discrepancies and fulfill the true purpose of goldwater/nichols which was to ensure meaningful joint experience. additionally, we're also proposing to shorten the amount of time required to accumulate joint duty. from three years to two year, so top personnel have more flexibility to take on command assignments and other opportunities to broaden and deepen their careers. now, going forward, it's
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important to make all these updates under the guiding principle of do no harm. goldwater nichols took four years to write. and it's been incredibly successful over three decades to the credit of the reforms it put in place. which are not driven today by a signal failure, like desert one. on the contrary, i'm deeply proud of how our people operated in iraq and afghanistan over 15 years. the updates we make now should not outdo the positive benefits goldwater/nichols had for the dod. instead it must build on them. let me close today on why we're doing this. why it's important that we deal with all the prezzing challenges
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and threats we have to deal with every day and as we do that, we take a moment to address the topic of our own organizational structure. we do this because our service members and the nation they protect deserve the best defense department and military we can give them, because they're giving their best day in and day out all around the globe. both sides of the aisle need to come together and give our men and women in uniform what they need to succeed from the right experience to the right capabilities to the right leadership structures to the right strategic thinking. is as long as we do, i'm confident they will continue to excel in defending our great country and making a better future for our children. thank you.
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>> i don't want people to think we don't pay our bill and that's why the lights went out. someone leaned up against them in the back. you were very gracious about my being on the armed services committee, but we have john warner over here, and he was one of the architects. we should say thank you to john warner. i'm going to ask you to stay here as we get the secretary out. very substantive speech. so much we could zrau on. we don't need speeches which is
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what we get when we ask people to ask from the floor. write down your questions and i'll come get them. you talked about a new cybercommand. and this is a complicated thing. probably any future war we fight will probably begin in the cyberspace, really. how do you see we integrate the physical fight that's kind of led and planned and coordinated by regional combatant commanders with a cybercommand? we have a cybercommand today. and i've given cybercommand in the counter-isil fight really its first wartime assignment. and we're seeing how that works out. and what that means is to bring the fight to isil in syria and in iraq. and what does that mean? it means interrupting their ability to command and control their forces.
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their ability to pay their people, dominate the population in the territories they have tried to establish this nasty ideology. all that we can approach in cyber. now you ask what does that have to do with cent com. indeed, what it means is cybercome is in the service of that geographic commander. but it's more complicated than that, as you well know, john. we're increasingly finding the problem, not just of interregional integration, but
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of regional functional integration. you have to divide up the pie somehow. that's what i'm looking to the chairman for. the reality is i'm looking to joe dunford for that every day any way. so as a practical matter i've got to have that. i depend on his professional military advice and his being in constant contact integrating across them, but that's the role i want to make sure i clarify and strengthen. i don't think that was as apparent to people back in the day but the world has gotten more integrated and we need to get more integrated, too. >> nobody questions the primacy
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of the secretary. but then there's the question of how important and how powerful is the chairman. how important and how powerful are the service kwheefs. how important and powerful are the combatant commanders. what is your view of the right balance of this geometry? >> i look to each of them. i don't personality -- and we look at -- they have different principipaiplipal responsibilit. let me give you an example. this afternoon, i'll be going with the whole gang, all the service chiefs, service secretaries, seen yrs, civilians, over to meet with the president. spend the afternoon with him, have dinner with him. tomorrow we'll spend all day together, talking about everything from budget and programs through the wars and
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contingency planning and the whole deal. i'll just take each of the ones you name. the service chiefs, i look at to be multidimensional. and they are. these are fantastic people. i've had a whole bunch of compliments, by the way -- this is an asigh but it's worth saying. i've had to name almost all joint chiefs. people seau wow, you have really great guys. i said you're right. they're amazing. but if i gave you my second choice, you would say the same thing to me. these are incredibly difficulted people. they didn't get there for no reason. and so i look at the chiefs to operate as the joint chiefs, helping the charmt provide professional military advice on operations. i looked at them to help manage what their service secretaries,
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their individual services. i look at them to take care of our people is because that makes our military the greatest. they play a role that probably wasn't as apparent early on in what we buy and how we organize, train and equip. i ask the senior people to do it all. most of them, without exception, they're capable of doing that. i aults say, look around the room, gang, it's just us. when you look at it that way, it doesn't seem like a large group
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of people. you're happy to have all the help you can go. we get a radical jihadist element waging a conventional fight in syria, iraq. that's in a different command, african command. it's attacking our allies in paris and brussels? it's suggests that you're going to have to put a greater focus on a chairman. could you amply fie that? >> i'll give you a few examples.
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we try to move things from one day to another. i desperately need it all. it's human nature and that's what you want. they want to do everything they can to accomplish the mission. it's made clear he's the military adviser to the president. that advice on how things ought to be used.
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as a practical matter, everyone knows i look to joe dunford to do that. there will be others who come alock later, and it's important to clarify that is a requirement. the secretary of defense will make the chief of staff in today's world. is there a battle here against isil. there have been some very encouraging press reports. yet also it's a metastasizing threat. would you share with us how you're currently looking at this? >> yeah. we've got to get these guys beaten. as soon as possible. we're looking for every opportunity we can take to do
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that. you have to look ahead to the w with local forces. where they can be made capable and motivated and that's difficult in someplaces, but that is necessary, it's a necessary part of the strategy. but we are doing more every day and john, we are looking for opportunities to do yet more. because we need to get this over with. so i'm confident we will defeat isil, no question in my mind about us. but the sooner the better. and what that has us looking at is every conceivable way that we can do that. that's why i mentioned cyber for example, that years ago, even a very few years ago, would not have occurred to a secretary of defense, hey, let's get cyber in
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the game, these guys are using the tool and we need to take it away. from them. that in addition to everything that we do in the air, and on the ground, and so forth. and yes -- you know, we are accelerating it, we are gathering momentum, but i want to see it over with, first of all in syria and iraq. >> yep. >> and then, everywhere around the world. >> secretary, i'm not going to drag you in to american politics, it's startling to hear the candidates talk about how nato is no longer relevant. i know you met yesterday with the secretary general. how important is nato now for our future? you described a very challenging world. and where does nato fit in at? >> i will tell you that, in one minute, since you raised the former subject. let me say, once again i said on a number of occasions and i really mean this both on my own
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behalf and everyone in my department. i know it's an election year. we have a tradition in the country, we in the defense department stand aparted from that. and so, i'm going to be very careful about addressing anything as part of the political debate. still less do i want any of our uniformed personnel put in that position. i need to preface anything that i say on that basis. i did meet with secretary general stoltenburg yesterday, he was in town and he met with the president also and last night, i had dinner with him and secretary kerry, and national security adviser rice, and we were talking about the things that nato is doing, and do, going forward. and if you think about nato, john, as you know, and you and i did this, nato waged and i would say was successful in ending the
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cold war in a peaceful and principaled way and there's a lot of question at that time what will be next and then the balkans came and nato turned out to be instrumental in that, and afghanistan and they are still that way in that. and in many other ways around the world, and today, we are looking to it for two particular things. which are very necessary. one, is to stand tall against the russian -- the possibility of russian aggression in europe, which i'm sorry to say that has become again something that we need to be concerned about that we weren't for a while. and i regret it, but it is what it is. and also the possibility of so-called hybrid warfare, little
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green men, phenomina, and then helping our friends in the counter-isil coalition. so you say, what difference does it make having nato as nato in the counter-isil fight, to add value, for a lot of the smaller countries, it's hard for them to do anything on their own and to join something ad hoc, if they get in a nato structure, it's easier for them to make a contribution. and we are looking for all the contributions we can get. we will lead the way, but as always we want others contributing and nato is a mechanism for doing that. it turns out that even after the founding mission was so to speak accomplished that there's proven to be lots of ways where and europe have found it not only possible, but necessary to come together and i guess one last
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note on that, you know, you can't take for granted that, you know, one of the reasons that i think we do so well as a military, and i'm just going to brag on the institution here a bit is. you know, as i said, first and foremost, it's people and second that it lives in the world's e pre-eminant society, and the other thing is what we stand for. and i don't just say that and -- my evidence of that is that we have a lot of friends and allies, and why is that? it's because they like what we stand for. they like our people. they love working with american service members. they think they conduct themselves well. they are not only competent, but conduct themselves well. and i think it's a great credit to the young men and women, how
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much liked they are to work with. you know, you can look around the globe and you say, where is it that we deeply share views to which we are very committed and europe is a place like that. so, something that brings us together, protecting something we share, is pretty important. so for all of those reasons we had a lot to talk about yesterday. >> secretary, you have -- you are testifying these days on your budget. you have a bit of a reprieve this year, because there was a two-year agreement, but the program of record is larger than the budget caps. >> hm-mm. >> that are in law. >> yeah. >> you know, your success or is going to have to wrestle with a very difficult problem. we don't have enough money to do the things we have to do. what do you say to the american people? >> that we need to come together as we did in the two year way
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for the bipartisan budget agreement. it's the only way, and i can't do much about that as secretary of defense, but as a citizen, and if you have your eyes open, you know that -- well secretary of defense, what i do know is our biggest strategic risk is the collapse of a bipartisan budget agreement. >> yes. >> going forward, the restoration of the equekwe sequ caps. we have to avoid that. we have a reprieve i'm grateful for people coming together. very grateful that people came together. we can do the math, john, you can't balance the books on the backs of the discretionary spending. >> right, right, right. >> so you have to get in the other parts of the budget. now, that is much bigger than a -- somebody who has an
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executive branch responsibility, even a vital one like mine, can influence. but that is the way it has to be. and if we get back to sequester, we are in real trouble. so for me, and the rest of the department, our biggest strategic risk resides in the possibility of the collapse of bipartisanship and a restoration of the sequester caps. we are in real trouble if that happens, as you know. >> there's a personal comment, i'm disappointed this presidential debate is not more about our national security obligations. it's a very, very big thing. secretary, i know you are going to asia a couple of times this summer. we have got continued island building in the south china sea. a lot of questioning about people in the region, where is america as the pivot reel, can you share your thinking here?
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>> well, we have a new phase of the rebalance. it's in a posture statement. so we are doubling down on some of our investments, both qualitative and quantity. it's essential. and it's important there as everywhere else that there be a system of peace and stability. now america has been and american military power has been a criticedi critical ingredient for 70 years. we want to keep it going, but it has to be different, because the dynamics are different. we have been instrumental to an environment. if you think about it, john, first, japan rose, there was a japanese miracle and a south
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korean miracle, and then a taiwan miracle, and now a indian miracle. which is great, but you cannot take for granted that every environment that people were able to rise and fulfill themselves in their own way. this is a region with no nato, where the wounds of world war ii are not healed. you cannot take it for granted. and the south china sea is one example of that. that's a number of countries that have claims in the south china sea and some of them are pursuing military activities. china is not the only one, by far and a way, particularly over the last year, china has been the most aggressive in that regard. now, our president and president were talking about this a couple of days ago, and we will see if
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china keeps the word that it made last time the president was here about military activities. but we, for our part are reacting. and we are reacting as part of the rebalance unilaterally, but the most important thing is countries in the region are reacting. that is why we are being asked so much more to do so much more. you are right, i will be traveling out in the region, what will i be doing? i will be working with countries that want to do more with the united states, particularly in the area of maritime security. they are wanting the do it to keep a good thing going. and we are committed to do that and we will do it. >> you mentioned india and they have been an awkward partner in the years and increasingly getting close. i know you devoted a lot of time thinking about it. your thoughts? >> well, i do spend a lot of time on it, the word i used with
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respect to the united states and india are destiny. here are two great nations, that share a lot. a democratic form of government. a commitment to individual freedom. and so forth. so i talked about values earlier on, and india is a place where -- sure, it's a different culture, it's actually many cultures. like us, it's a multi-cultural melting pot determined to work together. so we have a lot of things in c common in spirit. and one of them is to keep a good thing going. and so we are looking to do more with india. indians are like many others, also proud.
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so they want to do things independently and they want to do things their own way. they don't want to do anything just with us. and that's fine, but we are looking for a closer and stronger relationship as we can, because it's geo-political ly grounded. we are doing two things. one is the rebalance, so to speak, westward from the united states and they have act east. which is their approach eastward, these are like two hands grasping one another and that's a good thing. and a second, our defense technology and trade initiative, john, which is an effort to work with india to do something they want to do. which is they want to improve the technical capabilities of their own defense industry and their own defense capabilities. but they don't want to be just a buyer. they want to be a co-developer and co-producer. they want that kind of
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relationship. that very much and that's what we are working with them on and that matches very much up with the prime minister initiative. and so, in -- we are very much aligned in terms of what the government there is trying do strategically and economically and what we want to do with the defense. we have a lot of stuff to do, when i go over there, we have a bunch of things that we will be announcing at that time, that are new milestones in the relationship. >> we are coming to the hour, secretary. let me shift very different to say, a lot of concern about our dep dependence on space and the depending on space assets. how do you think of it? >> it is a great strength, but it's a vulnerability. when you have them in your military system and it works like that, a satellite is a
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fixed target. in essence, right? it's a fixed target. you know where it will be at all times. and there's no terrain to hide in. you can't dig a hole or anything up in space. so there you are. and so, it's an inherently vulnerable situation. that said, there are things you can do. electronically and in terms of orbital maneuvers and so forth to make it difficult for somebody to interfere with yourself function and we are doing that. but, at the same time, you have to ask yourself, if, what if it's disrupted or destroyed, what do we do then? to make sure that we can accomplish something like the same function in some other way. operate through. so, we are looking both at defense, if you like, and operate through, and one thing i will note for you, john, that you are probably aware of but
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others don't. but because you know so much about what is going onin the department. we set up an operation center if first time we have have one. i will be there in a couple of weeks in colorado springss to see how they are doing. whose job is specifically to do that. i mean, the phrase is fight the constellation, if you know what that means, it means, protect it insofar as that is possible from disruption or destruction and then think through what you will do if despite anything, the enemy has success against that constellation, what do you do next and make sure we have a good operational answer to that. >> i had the privilege of watching this remarkable intellect for 30, 35 years. thank you, and we are at the hour that we have to let you go. would you all please join me with your thanks and say thank
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you. [ cheers and applause ]
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coming up thursday morning, olivia golden, talking about workman dates and may cause as many as one million americans to lose their food stamps. then patrick mclaughlin, senior research fellow, on their report that ranks 50 states and the district of columbia by the effect of federal regulations on a state's economy. and brian lyman, state reporter for the montgomery advertiser, following reports of an inappropriate relationship a former staffer. be sure to watch c-span's washington journal, beginning live at 7:00 a.m. eastern thursday morning. join the discussion. coming up thursday, a hearing on the u.s. army force posture and readiness level.
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acting army secretary patrick murphy and general mark millie testified before the senate armed services committee, you can see it here on c-span 3. thursday, president obama returns to the university of chicago law school, where he once taught, for a townhall meeting on the supreme court and judicial system. we will bring it to you live at 3:30 eastern on our companion network, c-span. this is everything that i have . my family. i got to see my dad die on national tv. they don't know what they took from us. people are dying. we need a president that is going to talk about it. i believe bernie sanders is a protester. he is not scared to go up against the criminal justice system. he is not scared.
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that's why i'm for bernie. >> i'm bernie sanders and i approved this message. one of the newest campaigns now on air two weeks before the primary in that state in the new york media markets. and joining us is nick corasaniti, thank you for being with us. >> thanks for having me. >> what is the message in this ad? >> it's one that was run by the sanders campaign at a longer length, it's a 2:00 ad in south carolina. he is the daughter of the man that died after being placed in a whochoke hold. they talks about her life as an activist, and after she said that, the ad switches to pictures of bernie sanders as a young man in the chicago civil rights protests in 1963.
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and she said something like, i believe bernie sanders is a protester. it's a message that he is one of us. it's a message that the clinton and sanders campaign has been doing when they are campaigning to african-american communities. so, the underlying message of the ad is when eric garner said, i believe bernie sanders is a protester. that is her way of saying, he is with us in the fight. >> it sets the stage for a primary in new york that will get a lot of attention, a lot of media attention, in light of the front page story with the meeting that took place with bernie sanders, guns becoming a personal issue to new york voters. >> it will be an issue that will come up in the new york primary. and it will be interesting to just see how the candidates goes great navigating the wisconsin
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media market to the new york media market. secretary clinton being a senator here, is familiar with the state, she knows how to navigate both the tabloids and the major newspapers and the networks. has deep connections to up state, where as senator sanders, while he was a resident of new york city for 18 years in brooklyn, he is not as familiar, both to the voters and also with the current state of new york politics and the new york media. so, i think you will see from that interview with the daily news, and a few other ways that he has been reintroducing himself to new york, he is coming a a disadvantage. not being the former senator of new york and not having an office in harlem until 2011. that will be part of the initial stages of the new york primary between the two. >> clearly the candidates want to win. as we saw in wisconsin yesterday, even though hilary clinton lost the state, she
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picked up some delegates. for the sanders campaign, they want to win new york, but is it more about the delegate math? >> it's about the delegate math the not just as much or more so than the momentum that comes off of a win. they are both looking at a place to pick up delegates and protect the lead and keep the race where it is. a clinton loss in new york would be humiliating and frustrating for the campaign. create new worry about her strength as a candidate in the democratic party. and her campaign has been saying, not directly but hinting, senator sanders would need a significant delegate win to close the gap. if it's like wisconsin or anything, the delegate math is still heavily in the clinton campaign's favor. while sanders would love a win in new york, and get that
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momentum or big multipomentum t going, a lot of it is picking up the delegates. >> so based on all of that, you have been looking at the latest polling in new york, what did the polls tell you and how different is it between the new york city area and up state? >> well, it's certainly very different and you still see the clinton home state advantage in terms of her being a former senator here and being very familiar to the people of new york as a resident recently. she still has a pretty commanding double digit lead in most of the polls and she also has a good network built in the state. when she was senator, she was certainly known to new york city and kicked off the campaign doing a up state listening tour. she has made a lot of the campaign platforms off of her experience as a senator. her agriculture experience comes from dealing with new york state farms. she talked about on the camp
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obtain trail that she learned there's nmore than 1 cow in new york. now, she will obviously do well in new york city with her reputation among the african-american and other minority communities. she will be strong in some of the up state cities like buffalo and rochester as well, because of her tenure as senator, she has a strong base among some of the more rural areas. that is not to say that senator sanders does not have strong ho holds. he does well in college towns, there's a lot of young people that moved in to new york city. it will be interesting to see how it plays out. how he is able to cut in to secretary clinton's long established roots in new york and new york city. ? we will look for your reporting online, nick corasaniti, who is
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following the story for the "new york times" thank you for being with us. we appreciate it. >> thank you for having me. >> book tv has 48 hours of nonfiction, books and authors every weekend. here are some of the programs to watch for. starting saturday, 1:30 p.m. eastern, book tv is live at the 21st annual los angeles times festival of books. then at 10:00 p.m., afterwords with jc watts. he talks about his latest book. dig deep. seven truths to finding the strength within. which outlines the guiding principals he has followed throughout his life. you are going to have to over come adversity and you will have to have humility. i have learned to try to run my race and maybe, maybe i was you
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know, in athletics, i was so focused. really wasn't -- i told that reporter, i said, if my skin color was an issue, that was everybody else's issue. that wasn't mine. >> on sunday, at 10:00 p.m. eastern, gillian thomas talks about her book, called "because of sex," which talks about the civil rights act that made it illegal to discriminate based on sex and working women. go to the website for the complete working schedule. the sixth amendment clause guaranteeing the right of a speedy trial is the subject of the oral argument of betterman versus montana. they heard betterman's plea and he then spent 14 months in a montana jail waiting punishment. this oral argument is about an
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hour. i will hear argument next in case 14-1457. bett betterman versus montana. mr. rowley. >> the speedy trial clause applies to a criminal prosecution through the culmination and sentencing. it's not cut off when the defendant pleads or is found not guilty. the clause guarantees a early and proper disposition of a criminal charge and that applies to the guilt stage of a prosecution when most defendants plead guilty and to the sentencing stage, which may be the only place in a criminal prosecution today, when a defendant mounts a defense. >> does the federal speedy trial act, does it cover sentencing or limited to trial?
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>> your honor, my understanding is that it's limited to trial. the court has recognized specific interests that are protected by the speedy trial clause and those interests apply not to presumptively innocent defendants, as the state and government suggest, but also to guilty defendants. one of the interests that is protected by the clause is the interest in rehabilitation and that a pro longed period of detention in jail can affect a defendant's rehabilitation. well, that is specific to a guilty defendant. and in smith v huey. the court noted that even though the defendant had been incarcerated in federal prison that defendant could still be prejudiced by a pro longed delay in the state prosecution that followed because it could affect his ability to seek a concur ant
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sentence. that interest also is specific to a guilty defendant. the sharp line between the guilt stage of the prosecution and the sentencing stage of a prosecution is not supported by this court's speedy trial precedence. >> what do you do with -- all of the speedy trial decisions say that's one remedy. and that is, case over. dismissal is the only appropriate remedy. but you are -- you are not arguing that, i understand, with respect to sentencing. >> he is why, your honyes, your. >> you are arguing that? >> no, we are not arguing that. >> it's different, the speedy trial clause, if you do not comply with the speedy trial, dismissal. you are saying sentencing is not the same to that extent t remedy is different. >> at the guilty stage of the prosecution, the outcomes are
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binary so the defendant is either guilty or innocent. so there's two possible outcomes. sentencing the situation is different. there's greater opportunity for taylors which is what the court requires per morrison. and there may be a greater need for tayloring, because the defendant has been adjudicated guilty. in the sentencing context where the courts have a range of possible sentences and outcomes tallering -- there's a greater opportunity for tayloring. >> would the remedy be in a case like this? >> we submit the proper remedy would be to reduce mr. betterman's sentence by the period of delay. and the montana supreme court clk concluded the unjustified delay was 14 months.
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>> he wias serving a sentence fr another crime. >> yes, he got time served the other sentence, that period of delay, the 14 months was not credited to his sentence on the bail jumping sentence, which is the sentence that is at issue here. and we submit that a proportionate or appropriate remedy would be to reduce that sentence for the period he was denied access to rehabilitation programs and suffered the anxiety that is detailed in his affidavit, and that would be a way to go. the lower courts have applied that sort of remedy to sentencing delays. and another possible outcome and another case would be a simply to vacate the remaining portion of the defendant's sentence. but here we submit that a taylored remedy would be just reducing his sentence. >> what do you make of the fact that the sixth amendment said the accused shall enjoy the
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right to a speedy trial by an impartial jury. >> we no that does not limit trial, the public trial right might apply at a suh presentati -- at a su. -- if you go back to the purpose of the impartial jury clause, which was to prevent jurors from offering evidence against the defendant, it makes sense that it applies to the stages to a criminal prosecution where a jury is convened. >> if we were to disagree with you and say there's no sixth amendment right and there was only a due process right. have you waived any argument
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that you meet the due process standard? >> we did not include that in the question presented, in the montana supreme court, rejected that challenge. it applied a due process test and concluded that under a due process analysis, mr. betterman would not be entitled to relief. and that gets to an important point. >> i understand that, you are admitting that you are giving up, that the analysis under the due process clause may have been wrong. >> your honor, we are not advancing that claim here. and so, there's the significant difference we submit between the due process analysis and the barker test that this court has applied under the sixth amendment speedy trial right. and that is, under a barker analysis -- criminal prosecution, the test that is applied under a due process
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analysis does not address -- >> i agree, why do you think lavaskco applies at all, that is preinindictment where we were creating an exception and saying, generally the state has the period of a statute of limitations to bring in action. if you want to cut them off from having that right, you need to show actual prejudice. >> that's the test that the montana supreme court applied below. it is the test that other courts that have rejected the sixth amendment speedy trial right to application at sentencing, they have pivoted to the due process test in lavasco, and that creates a significant burden. >> just to continue in this line of questioning, there's another case that we had that dealt with civil forfeitures.
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where it said, we will do a due process analysis, but we are going to take the barker factors as our test for that due process analysis. so i think one of the questions that the justice is asking, why wouldn't that be equally appropriate here. in other words, even if and i'm not saying this is right, but even if, there's, this is falling within the due process box, rather than the sixth amendment box, that there's still a further question as to whether the lavasco approach is right, or whether this u.s. currency approach is right. >> your honor, that is what the montana supreme court attempted to do it. it modified the lavasco test and tried to draw a barker principals in applying it. if you compare the result in the case, to the result in the burquette case, where the court
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analyzed the specific forms of prejudice that are at issue in a pretrial. and if you don't, if you presume prejudice or require the state prosecution to rebutt. the court from found a violation and the court here, despite modifying lavasco, did not find a violation. so, the test is still inadequately protective. >> i'm not sure what you mean by this. in the other case, the civil forfeiture case, we just said, we are going to apply the four factors of barker and if that were the result of the due process approach -- i mean, it would not make any difference which box it was in. >> that is true, your honor, but that is not what the montana supreme court did. they did not apply all the factors in barker. they did not apply barker in a
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straight board fashion. they approached it the same way that lavasco did, it required that the showing be substantial. and that is different from the barker test and we submit also that given the specificity of this right, that it's eenumerated in the sixth amendment that it would not be appropriate to put that in the due process test. the better process is to do what the lower frame works have done. apply it in straight forward fashion to a delay at sentencing. >> but you are not asking us to do it in a straight forward fashion. that is what justice ginsburg asked you. you are giving up the barker remedy. great your honor, the lower courts in alying barker to the sentencing contest have fixed, more taylored remedies. in recognition of a fact that there may be a difference between a delay at the guilty stage and a delay at sentencing because now the defendant has
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been convicted. so the lower courts in applying barker have done this. they have taylored remedies they have applied remedies that leaf the convictions standing and it will try to fix a proportionate remedy for the delay. >> so why don't you think they have done the same thing under the due process clause? recognizing that it is unfair to undo a conviction merely for sentencing delay, because you are no longer presumed innocent. you are now guilty. >> the key -- >> um, why isn't the due process test that is being applied, that modification? your honor, the reason why the due process test as it has been applied by the lower courts does not do the job, is because they continue to require an affirmative showing of prejudice. so they don't presume prejudice, which may be significant.
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washington, the case out of the fifth circuit illustrates this, the court there did not presume prejudice. it may be important to presume prejudice, because it's hard to show the effect of the delay on the defendant's defense or other forms of prejudice. and so, even the courts that have alapplied it, and modified it, still don't presume prejudice or require the prosecution to make a showing in response to articulated prejudice. so, even this modified version that you see in the montana supreme court opinion below, we submit is inadequate. >> when you say prejudice should be presumed, do you mean it should be presumed conclusively, could it be rebutted? >> yes, it could be rebutted and
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indeed in a case like this, where the defendant has articulated specific forms of access. the state should be able to come in and rebutt those claims. the state did not offer that evidence in the case. the first evidence that we saw was in the briefing on the merits in the court. so, the state did have the opportunity to make a showing, and it didn't do that. >> when you say that the remedy should be taylored, taylored to what? what is the court supposed to do in your view, select a punishment that is appropriate to deter the state from doing this again? or select a remedy that in some way undoes the damage of the prejudice that has been done to the defendant? >> your honor, morrison speaks
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to this. and it requires that the court fix a remedy that is taylored to the injury suffered from the constitutional violation. >> okay, in that situation, i don't know why reducing the sentence by the length of the unconstitutional delay that is supposedly unconstitutional delay, undoes the damage that has been done by the delay. >> your honor, it's a proportionate remedy because the defendant was denied. mr. betterman was denied access to the rehabilitation programs. that were not only good for themselves, but bears on his case for parole or early release. the fact that he was denied access to them bares on his ability to win early he release and this court recognizes that any amount of time that is
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spent -- we say it is proportionately taylored. >> when justice begins asked you about the federal speedy trial act, and you said that does not cover sentencing. but there's provisions of montana law that do cover sentencing. why didn't you seek relief under those? >> your honor, there's montana statutes that require that sentencing be placed within a reasonable amount of time and for close on reasonable delay. we have been unable to find a case, where the defendant was able to win some kind of relief on the basis of those statutes. on the montana supreme court decision below reflects. the court's view, that they had due process principals. so it was due process principals that provided the relief. and we have not found a case that gives free standing, independent, relief on the basis of the statutes. if you look at the rule 32 cases -- >> did you bring a claim under
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those statute ss? >> we did not, we did not. >> would it be appropriate if i'm made to respond, yes, there's -- but he had advantages too from being in jail, he was encloseser to his family. he was closer to his council to confer more easily with council. when we have to consider, we have to consider the plus as well as the disadvantages. >> certainly, your honor, if the prosecution offered that kind of evidence, it would weigh in the balance. and barker discussed that, notes that the speedy trial clause is unusual in that delay in some instances may benefit the defendant. but here, where mr. betterman has submitted an affidavit and also in the initial motion detailed the prejudice that he suffered. from this delay. in ability to access the programs that he was ordered to
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complete and that under montana regulation would bear directly on his case for parole. the prejudice is palpable and resonates with other cases. where the court noted that even if you are inkacarcerated on a prior charge, you may have this problem. back to justice sodamayor's question. if you compare the outcome here and compare the outcome in verkette, verkette advanced a theory. it was that he was denied rehabilitation programs and he suffered anxiety. the defendant testified to that affect and the third circuit concreted that in the absence of contrariy evidence that was enough to state or show a sixth amendment violation. whereas in the decision below,
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the montana supreme court placed the burden squarely on mr. betterman to make an affirmative showing of substantial prejudice. even though he submitted the affidavit that detailed the prejudice. the montana supreme court deemed it speculative. >> my problem is with the use of language. prejudice is prejudice. and i -- they seem to be arguing that substantial prejudice means something like actual damages. that you can point to something that i have actually been damaged by either having served longer than the sentence that is imposed or something else like that. why you are taking on the substantial damage definition? why aren't you arguing that prejudice is prejudice? >> well, it is, your honor, but lavasco uses the word actual, so the test that was applied --
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>> you are still in the lavasco test. >> that's the court that the due process test that the court has alie aapplied, now if the court said that the barker test including the way that barker approaches prejudice could be actionable under the due process clause, that would be a different story. but simply not the way that lower courts have companion hav that would give a defendant sixth amendment relief under the due process clause. but that is not what the montana supreme court did it. >> and that's not the way you are arguing the case. >> we did not preserve a due process challenge. it's solely under the sixth amendment and set forward in the question presented and indeed, in the lower courts we pressed the sixth amendment right. but, to your honor's question, if the court were to take that sixth amendment analysis and drop it in the due process context, the defendant would get
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the same relief. but we submit that just given that the right is eenumerated in the sixth amendment. that the relief ought be granted under that clause and not shunted in to due process. >> there are no further questions, i would like to reserve the balance of my time. >> thank you, council. mr. schowengerdt we are trying protect a innocent defendant from a criminal charge. it's consistent with the text and history of the clause. and it's consistent with the remedy that must be applied. it leaves them with other
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ability -- if the government, unjustify ably delays and forfeits the right. which is why a dismissal is the remedy. sentencing delay does impact the validity with trial. and after conviction, none of the interests that are supported by this speedy trial clause apply. for example, there can be no anxiety over public accusation, because the accusation has been confirmed, at the moment of conviction, the defendant's liberty is justly deprived that is why bail is not available at that point. >> when in your view, let's say, we agree with you that speedy
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trial is not the right ruberik, when would a delay in sentencing be a problem? >> if a defendant was not able present mitigating evidence. that could be an example. if he is serving a -- awaiteding sentencing for a time longer than the maximum sentence for the charge. that would be another example. good but you would not count factors of the time that were raised here, that is, i could have gotten in to a drug treatment program in the penitentiary that is not available in the jail? you would not include that? >> that is right, it's too speculative a basis. it's speculative, whether
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rehabilita rehabilitateive programs were available. and whether they would take them. the defendant was offered parole conditioned that he would fill -- fulfill rehabilitation program. he started the rehabilitation program and 16 days later he quit it. so, his pa roll was rescinded. that is the part of speculative basis, it's too speculative to give a remedy. but the defendant is always able to file a claim if the sentence is harming him. he can first ask to be sentenced, the defendant in the case, didn't mention it until nine months in to the process. >> there may be some real differences between the pretrial context and the presentencing context. but one which seems quite similar is the potential of
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delay to impair the defense. so, i guess i would like you to address that because, you know a the petitioners point out, in most cases these days. most of the adjudication goes on in sentencing rather than at the trial stage given that we don't have many trials anymore. and they made it clear that it was an important interest in thinking of the speedy trial right. >> a few points. first of all, i would say that you know, had that danger is equally at issue in preinindictment delay, delay involving appeal, which is not included in the speedy trial analysis. second, so that can be remedied by due process, even if it's a similar interest. second --
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>> well doesn't it talk about a whole different set of considerations in the pretrial context, that does not apply once the accusation has been made? >> perhaps not, i think it will apply in the appeal context and even apply at the retrial order in a remanded case. that is interests that the due process clause can remedy. the other point is sentencing is different. i mean, the same rules do not apply and usually the same facts are not at issue. i mean, given plea agreements, that the real action is in the plea bargaining anyway. and the prosecutors and the deficit agree on a sentence or a range of sentences and that is implemented by the judge. >> sometimes, but there may be real factual disputes, it could
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be about the amount of loss or prior bad acts or a range of things that are the kinds of of things that we typically think of as contested issues at trial. >> that is true. i would argue that the due process provides adequate remedy in the situation. there's a different standard too. the rules of evidence doesn't apply. the confrontation clause does not apply. there's no burden to prove facts beyond a reasonable doubt and the argument is that due process can remedy any -- >> that's the problem, how do you prove, i mean, let's take a sentence like this one where you have the possibility of a sentence between zero and ten years. how does the judge know whether if the defendant is brought before him at year eight, 8-1/2,
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9. how does the judge know that if the defendant was brought to him in year five, you would have given him a six-year sentence rather than an eight? don't you think there's a lot of pressure on the judge if the defendant's hearing is delayed for eight years to say, time served? that really -- don't you think there's prejudice in the fact that an unexplained delay caused by the state, more likely than not had some sort of affect on the sentence? >> i think in that case, the defendant should. if it's that length ofy of a de, he can file a petition in that context. >> well, this defendant asked to be sentenced faster. he was told there was other issues that the court was dealing with. so a couple of the months were not his fault clearly not his
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fault. it was an administrative fault. >> that is true. there was not all the delay was his fault. but he didn't mention anything about wanting to be sentenced until nine months in to the process. >> well, that may go to the issue of whether under a barker analysis or any analysis he should be heard to complain about the delay. but, i still, not quite sure why your definition of substantial prejudice or actual prejudice should be the controlling one. >> i think, the courts have, even the lower cuts that have applied the speedy trial clause to sentencing delay, the tenth circuit for example in prez bisullivan, they assume that it applies on the one hand based on the decision in pollard and on the other one, they recognize that the interests don't apply. in order to fashion a remedy, a
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defendant has to show prejudice. and in addition, it takes in to account that the balance has shifted. that the person is no longer accused but convicted and his presumption of innocence has vanished. >> assume there's a prompt trial and a substantial delay thin sentencing and then there's an appeal. and the appeal results in a new trial. does the speedy trial act then apply when the defendant says, that my second trial was delayed? fr are there case on that? >> i don't think so, generally when the lower courts are applying delay, they apply due process. i cannot think -- >> if that delay were attributable to the state, it seems to me that there would be a speedy trial act violation in that connection. >> there may be, and lower courts when they are looking a delay or delay in sentencing,
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it's a similar test as far as the speedy trial clause is concerned when they are applying it presentencing because it needs a showing of prejudice. >> you are not aware of any cases of the kind i've indicated that the speedy trial act clicks in under the second trial? >> under montana law, how do they get relief if they have inordinate sentencing? >> there's specific procedures that are put in place. >> but mr. rowley indicated there are rules there and no defendants have had the benefit of getting their sentences shortened because of those. >> well, i'm not aware of any defendants pressing claims any reported decisions on those claims one way or the other. but a defendant has that option.
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i think, fashioning a remedy just for delay is difficult. my friend, mentioned 14 months, but the delay was not 14 months of unjustified delay. like i said he does not make his claim until nine months. but before that there will be delay in sentencing. >> the court did say that it -- the delay was principally caused by the courts institutional problems. >> there was, a court took a while to decide post conviction motions and then it was institutional delay. i don't disa agree with that. my point is, there will always be delay in the process. to figure out what the remedy would be, simply by including the entire 14 months, i think would be a wind fall. especially in the case, where he was receiving credit on his
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sentence. >> that typical? is that typical for a sentencing court to give credit for time served? >> yes, in fact, it's statutory. >> can they do it with a indetermined range of sentence 0-10. could they do it and say it should be 0-9 in the case because of the delay? >> i think a judge could do that. in his -- in the petitioner's first conviction on domestic assault. he was given time and it was applied against his sentence. >> you think the courts, the judges are incapable of making determinations of a remedy? >> certainly not. no, i think, and i think under due process, you know, that's the, that's the advantage of due process. if courts can fashion a remedy to target the specific prejudice and i think they are well equipped to do that.
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>> where did it come from the barker versus wengott, where prejudice is supposed to be assumed. they don't say that, they analyze prejudice. >> that's right, the court only assumed prejudice in one case. >> we held it? >> you did, and it was two things, extraordinary delay, it was an 8-1/2 year period where they were indicted and brought to trial. and there was no justifiable reason for that delay. >> no, no, my question is, your council says that barker versus winggo, if it applied would be presuming prejudice. i have been looking at that, in the casist, it does not presume prejudice. i want to know where it comes
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from. the first factor in barker is -- >> i know the four factors, i have them in front of me. >> that is the presumptive prejudice factor gets you to the test. it triggers the test. my friend is citing doi ining d >> it's a 20-year delay, the person will not remember who he was going to call and all the witnesses will be gone and so forth. so, i think it's fair to say that there was prejudice in such a case if that is what it's about. if it's not presumed all the time, do you have any objection as he apparently does not have an objection to us saying you are right, it's the due process clause. now, in applying due process
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clauses to cases where the sentencing has been undoily delayed or that was the claim. the court should apply the factors that are set out in barker versus wengo. >> there's a couple of problems with that, barker was designed to take in to account the pretrial interest. so it fit in that context. so, applying barker, courts have done it -- >> i'm sorry, that was a forfeiture case and that was a penalty after adjudication. the forfeiture does not start until someone has been found -- >> i'm sorry, it was a pre -- basically, property was taken before -- >> whatever the case is, i would like to get an answer to my question. it says that the court should balfour factors, length of delay, the reason for delay, the defendants assertion of its right and prejudice to the defendant.
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now, if i quote that sentence, and say those are the factors that should be taken in to account under the due process clause, do you have any objection to that? >> prejudice needs to take the forefront in that analysis. >> i should reverse it? >> the problem with barker is that none of the factors are necessary. so, prejudice does not necessarily have to be shown in barker. lower courts have modified that and said, in the post conviction setting a defendant has to show prejudice in the test that lower courts use, the modified barker test looks a lot like lavasco and i would say, it's not distinguishable because of prejudice. and prejudice is the key to the answer to your question, that in the post conviction setting, had that is what is necessary. >> it also, my friends point that the petitioner made a claim
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of prejudice in the space of a couple of paragraphs and this sort of illustrates the problem the state has in rebutting claims of prejudice that are not s substantiated, he did not file it until three months after he filed the motion and it was denied. the motion to reconsider. defendants have to come forward with some showing of prejudice. >> that might prevent some challenges, but there are challenges on the other side. it's often hard to show that people have forgotten things. that's the -- they have forgotten them. so, unless there's something like a witness dying, it's very difficult to make the kind of showing that you are suggesting. and that's why barker, you know, left things flexible. and said, you know, in most cases, we really are going to look at prejudice and see what you have to say for yourself.
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in some extreme cases we are not going to do that. i am back with justice briars question, saying yes, it's a different context, why don't all the same considerations apply. >> the court has never presumed prejudice. >> i was not subjecting presumed prejudice, because barker does not suggest presumed prejudice. as you say the difference that barker has, with respect to your test is simply that barker said it's not always necessary to show prejudice. that there's extreme circumstances in which we will just take it for granted. >> i don't think that takes it in to consideration the change that happens at conviction. there's a substantial change. the interest of the society takes the forefront. and i think it gives the defendant a windfall, if he can come to court and say, this delay is prejudiced to me -- >> if you think that a very significant part of this rule has to do with impairment of the
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ability to defense yourself. and if you think that kind of consideration applied just as well at the sentencing stage as it does in the conviction phase. given that the action takes place in the sentencing phase. i would not see why there's any need for a different rule. especially given the level of flexibility that barker gives. it's not like barker is saying we are presuming innocence in all circumstances, he is saying that prejudice is one of the four factors and it's an important one, and usually we will expect people to come in with a showing. >> i think it comes down to remedy. the remedy is dismissal. ? that's what we said in barker. a remedy in the case would be different. if a defendant does not have to show prejudice. i'm not sure what the court
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would remedy. and that is one of the reasons that prejudice should be required. because there has to be something that the court is actually remedying. even in the speedy trial cases. when it comes to the deferm nation of facts that are relevant at sentencing. and that does not take place exclusively and probably even does not take place primarily at the time when the sentence is pronounced. correct? it takes place during the preparation of the presentence report. at least in the federal system, is that true in montana as well? >> yes, yes, that is exactly right. most of the facts are analyzed through the presentence report and sentencing hearings are drab affairs because most of the facts were resolved. thank you, council.
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>> mr. had chief justice, and may it please the court to go right to justice kane's concern that a possibility of the defendant's defense at sentencing could be impaired we think the due process analysis is adequate to address it. although the defendant has to show prejudice, the standard should be the same one that applies in violations of constitutional rights. the defendant should have to show a reasonable probability that the outcome would be different. it's the same standard in cases of brady violations, it's one that does not require the defendant to show by a prepo prepondrence, when you take it all in to account it puts the outcome -- >> how do you see it as different from what goes on under the barker analysis? >> under barker the court a
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blues prejudice to be presumed so the defendant does not have to make a concrete or particularized showing of prejudice. in the case of sentencing, prejudice at sentencing a defendant should have to show some concrete, you know affect. >> i take it that we said that's the case
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