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tv   Politics and Public Policy Today  CSPAN  September 15, 2016 5:00pm-7:01pm EDT

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cognitive status more accurately, get a pick which you shall for what the environmental safety issues and real needs are and you also induce a supportive therapeutic relationship, which is unique, really. i've worked in pretty much every environment and that doctor patient relationship in the home is completely different. in order to do this well, i found out after a couple of years of doing it by myself, you have to have a team. so you have to, i'm not going to show you a lot of evidence to tell you about the team. i'm going to say that you have a team working with you. social worker, triage nurse, other people to support the effort and now, as we move forward into an era, you need somebody toize and track data to make sure you're deliveringing the goods. so, there's a core team here at the center which includes a patient in the family and then all of the other usual cast of characters around the edge. we've talked about the 500 calculation and targeting the sickest, most needy population.
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in the world where i live, there are 2 million for care at home -- to get out of the house. they should probably receive most care in their residential setting and there are some others who are short-term in this situation. we've been working with this to trid to do it for fee r for service is. we worked hard to get it raised as much we could and still found that the team was not supported. we were looking for a way to construct a mechanism using shared savings as way of paying for the team based approach we felt was most appropriate for these patients. so we said it's going to be voluntarily participation. not going take away people's health insurance. this would make it popular for people to sign up. they would have to agree to have
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their data analyzed and then we were going to target very sick people. so, the criteria for that were hospitalization within the last 12 months, subsequent use of mediciare services, which would give us functional measures. two or more serious health problems and our patients are more like five or six serious health problems. two or more deficits and in the dem o, 60% are 5 to 680. use of electronic health record and a program size of at least 200 capacity. at each local site. those were the criteria and then we wanted to make sure that the pen fi beneficiaries would be protected so, we put in requirements for measures and minimum savings, which was important to getting the bill past through congress and finally, the ineffective programs would be remediated or drops, so we wouldn't have people in this business who didn't belong.
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we had strong congressional support, so ed markey and ron wide within the original introducers of the bill as you can see here and we passed legislation that was concurrent with the aca to modify medicare to start this demo in 19 sites around the country. the demo involved sites of a variety of different types. you can see here, listed, the variety as well. we put together a clollaborativ so we started working together to standardize the process of care and to learn from each other as we went along since not everybody was at the same level from the beginning and here are the results from the first year. as published by cms, showing it was very popular last summer. $25 million saved, 8400 high cost beneficiaries r that were enrolled, 3,000 per beneficiary was the estimate t. most of the programs par miss tating had enough savings to r
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participate in the shared savings come poen and all of the components improved on six of the four quality measures. we're talking at least in the program i'm working in, around $1,000 per month for patient in term os medicare savings. this led to extension of the demo by two years. bill introduced into congress by representative burgess. and then this summer, second year savings were announced, the order of 10 million. a total of 35 million over two years. by providing better care to patients who were very function limited, very seriously chronically ill, expensive and sort of disenfranchised from health care without this model of care. work is ongoing now on the very important aspect of this, such as to calculaibrate the shared savings model. it's critically important to
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provide incentive for these programs to grow and thrive in an environment which is rapidly changing. and i will tell you from having looked around that most of the other organizations that are doing health care for chronically ill beneficiaries have not incorporated the house calls concept as much as i would think logically they would do, given the extent of the need and what we've demonstrated i think at this point as the effectiveness of the model. i'll stop there. >> great, thank you, so we're going to turn to the q and a section of our program and again, so feel free to come to the mix. you have a green card in your folder. if you prefer to write a question, our staff will be circulating around the room and will bring your questions up to us. if you are watching live on cspan or following on twitter, you can tweet your questions to
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us at hnhc. so, we have a question up here at the mike. if you would kindly introduce yourself. >> one of the issues that i encountered was the lack of arrangements across the post acute care settings. when a patient was release frd the hospital, there was no coordination between the nursing home, rehab center, home health and other forms o f post acute care. there's nobody making a decision as to where the place should be for the patient, where to integration of the services coordination between the different programs and that struck me as a great deal of fragmentation. i know there's some of the pod models that you talked about
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today address that to some extent. that's a major issue that i don't know it's been adequately addressed. >> you've touched on a major issue and care that involves having information flow across the settings that you've identified. it involves working with the patients. dr. boling talked about having a follow up appointment with primary care physician within a certain period of time. that's important. other models that have been tried are using personnel from the hospital setting in whether it's nurses, nurse practitioners or specialists. i think we've got a long way to go to really improve those transitions and care and i would say also importantly, are having quality metrics that look at
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things like sniff rehospitalization rates or discharges to home or a state nursing facility. so, important problem. a lot of pieces to make that work well. >> thank you. >> let's move to this microphone. i'm dr. caroline kaufman, primary care physician. also an attorney. i've spent time representing whistleblowers. you haven't talked about non-profit versus profit. i'm assuming everything is for profit and out in the field, you see a big difference say between the visiting nurse association, which is non-profit and the way health care is delivered by private for profit organizations. the home care is directed towards the people who need anytime the category. the people who need it least.
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it's more profitable to treat people who are sick. you haven't said anything about developing non-profit community services which will be able to people on dichbt plans. some medicare, medicaid, day programs that are not profit. >> when i say what inn about our recommendations, we're looking at contracts between the states, federal governments, neither mans or providers. there's no expectation on our part they would be for profit. in fact i think one of the largest providers are non-profit plans and non-profit providers when you think about the community health centers, when you think about a lot of the non-profit hospital systems throughout that are central to
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care for low income populations and in the way we're trying to restructure reimbursement, we are hoping this will encourapros to contract to these populations. if i could add, it's one u thing to share in savings or giving plans, a financial insentive to take accountability, but how well do they perform. we know there is a difference by non-profit for profit ownership. we don't seem to have a policy that moves in that direction and even non-profit status doesn't mean they really perform as opposed to just being a subsidiary of a four profit entity. so i think the important thing are the right quality metrics and public performance and that goes beyond the source of things we've looked at to really getting family experiences with
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care. with having and having that information broadly available. >> it also changeded the treatment of the providers at the front end. the home health aids. for profit. pa pays minimum wage, gives them no possibilities for advancement or tranging and when they become disabled by lifting patients from one place to another, they fire them and get something new. a non-profit is less likely to do that. thank you. there is, we have a number of questions for dr. bowling about the independence at home. i'm going to group them together and give them to you in a package. a lot of them are asking about the savings. first, what factors are
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accounting for most of the savings in the model and regarding the savings, the evidence you have for the savings, are you concerned that savings in year one is 10 million versus year two, 25 million. let's start there and i'll follow up with the rest. >> thank you. so the evidence in savings is predominantly being driven by unnecessary hospitalizations. so hospitalizations that were occurring for ambulatory conditions, diabetes, congestive heart failure, where an easy action early on in the course of post hospital care would result in patient remaining safely at home and the same with the emergency department visits.
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the difference in savings between year one which is reported at 25 million in year two. which is reported at 10 million, is the subject of ongoing discussion about the best way to measure the expected costs, which is a complicated matter. involving health policy. actuaries may have a better understand of this, but it is very challenging. to figure out what the rieferene standings should be. we think we have learned a lot from the demo at the this point that should envoibl. >> so, regarding information you have in your evidence so far regarding severity, functional status, et cetera.
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what information do you have and this questioner wants to know how you will find eligible participants for your program. do you have any issues finding participan participants? >> so, the matter of finding them is a matter of looking around the community and seeing who's having difficulty accessing health care as a result of being functionally impaired. i think many were listening may have had experiences within your own families of individuals whose need to access health care was not easy to meet. you may have to take a day off. or find something to go with them. how do we find these people in real life? some people who are discharged from nursing homes are oftentimes in a recuperative face. may not bet gak get back to a f status. there are lot of people like
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this in the community. it's merely a matter of putting systems in place to identify them. home health agencies know who they are. patients and families know who they are. they keep turninging up back in the ed and wonder why are they here again. we just saw them last month for the same thing. so, it's not actual, a mat rer of difficulty finding these people. it's a matter of aligning the care design with their needs and referring them to programs which need to be created. that will ultimately meet those needs. mention that -- 31-30 now. to a national program. >> okay, let's move to this microphone. thank you. kaitlyn conley with the national
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employment law project. thanks, this has been fantastic and it's very enlightening and hopeful to see such great reforms and proposed delivery models, but i wonder if any of you have looked at what i would say would be the greatest barrier to their success, which is workforce shortages and vacancy. specifically with home care workforce. you know, we could -- someone who sees five time as week is going to be the best champion and person -- how is that in any of these models. >> in addition to the project we're working on now, high cost individuals, bipartisan policy
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center is also looking at long-term services and support, financing. long-term services and spoths, one and one aspect is finding care givers. the leaders for that project are senators daschle and frish and form rer governor and secretary, tommy thompson. when we've had discussions about these issues, it's so difficult. we're trying to find ways to support family members. could you allow a plan to provide support for a family care giver. there is the issue of as you know, i'm sure the labor laws that have come out with respect to reimbursement. there seems to be so few easy
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answers out there. at the same time, the issue of buying out exist iing care whic is so difficult. so much of the long-term supports are provided out of pocket by family members, the consequence of trying pay for that seems overwhelming to policymakers. so, if you have some great suggestions, we would love to hear them. >> i think the you suggested this in your question, but what we find when we look across the country as some of the successful evidence baseded models is that it requires a different kind of team that it isn't dr. boling talked about members of the team, often required more social work sometimes like the mind at home sometimes require bringing a handyman into the house and
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lifting up rugs and putting our bathroom bars, tub bars. when we think about workforce, we need to broaden our perspective. not that you are suggesting this, but thinking beyond just doctors and nurses to the complex care managers and the social workers and you know, community health workers. i think we're still learning and in transition b about not so much the functions, but exactly like what kind of licensing and accreditation and how does that work across states. and do we need better training programs. certainly, but maybe what we need more of is not necessarily at the fi sags lefl level as much training of physicians and nurses and pas to work in these teams that are much bigger and broader that include community firms an complex care managers.
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and there's a lot of intensive ta to get to that new paradigm, pfotenhauer both of care, but also of delivery and training. >> just going to follow up u on that because it raises another question. you're talking that was the question about workforce. but the kinds of care you're talking about raises the question about nonmedical services, which a number of our panelists raised today. we have a need for nonmedical services and i'd like to ask our panelists to dig into that deeper. we talked about housing, nutrition, i'm sure there are others. how much of the current movement toward new delivery systems models is helping to find new ways to find ways to pay for
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those. how away are we from getting there sfl. >> all of those services are important. i tend to focus first and foremost on personal care services. that's the number one issue and maintaining their independence. one of the models i'm very excited about is is the medicaid community first choice program. which for people who meet the qualification can qualify for personal care services in the home. that can even be family members. other than the legally responsible guardian for an individual and kind of relevant to one of the points made earlier.
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that the people providing the personal care services are trained, qualified and to perform at that role providing the labor requirements. community first choice. using an agency model. to assist individuals who otherwise would qualify for nursing home care. >> you have a number of materials on the left side of your packets that list various models we're referring to today, so if you'd like more information b about some of these model, you can refer to those materials. if you're not in the room with us today, you can find them on our website.
5:23 pm also, we try to pull some of them together. with the urls and if you find it online, you'll get the hyper links. so you'll see some of this and there are other documents in your packet that also list some of these models. >> i think a lot of the clinical services, this is one of the reasons we started with dual eligible individuals, so many of these are covered under the medicaid program. helps get through a lot of these issues, in addition, states have the ability to provide home and community based services under the medicaid program. one of the things we look at was
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a means of streamlining those waivers and state options to make it easier to encourage more state to offer home and community baseded services. that is through the medicaid program, that addressed low income population, but a small percentage of individual who is need these types of services are receiving them and this is a time in which states are being asked to expand acute care and to expect them to reach out and provide additional home and community based services. it's really a tough thing to do right now. >> i'm a registered nurse and data analysts for one of the district nco ds. my question is for dr. bolen. is it a, two questions.
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is it a closed program meaning that no more new participants can be enrolled. also, is it a local program and if not, do you have plans to have some sites locally in the district and dmv? >> fantastic question. thank you. so, the patients into the dem o is still ongoing. there are 15 sites operating around the country. we would think of ourselves as open and most of the programs have been involved in seeking contractual relationships with ncos and acos and other entities trying to provide this kind of model. we think what we're providinging is valuable, not only fee tr service medicare, but also other kinds of finance models.
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i can put you in touch with colleagues and friends. >> yes. >> i'm joanne lynn. center for oelderly care. this kind of meeting is just so exciting. it has been so long since we took these issues seriously and now, there's demos and exciting ideas bubbling up everywhere. i think i'm at four today already. so this is a really very positive set of developments. when we look at the horizon, i want to throw out three very important ideas that haven't quite made center teenage. if we live long enough, seriously disabled, almost none of us are protected against the costs we will run up. one of the first patients i p
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picked up was a woman who had her disabling stroke in her 40s and the whole time i was growing up, going to medical school, getting ready to be her doctor, she was living the nursing home. no one here has insurance that covers that. and how your state deals with medicaid, so we need to have those medicare only reports that catherine's planning to bring out soon. biggest political force, the one we desperately need is those very frustrated care givers. it's really unlikely that pharmaceuticals is going to step up to lobby for a cheaper medical care system. or that hospitals and health
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plans we haven't even thought to make them a political force. it would be a biggest levels force and if it stays as bad as it is now, it just cries out for organizing. the third thing peter is that so much of what people need is really community based. melinda was mentioning this a mink ago. if you've had housing for a decade, you've got places people come in. if they haven't, you've only got nursinging homes, so, so much of what makes i possible to live well is is in the housing food nutrition work development and so forth that's geographically
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anchor aed. what could we do if we freed up a dozen communities to move ahead and show us how good it could be and how inexpensive. i'm sure if we took the savings from the medicare waist and put it into the social services and any community in the country, we would come out much bert and i'll bet some of your iah teams are running into this because they are geographically anchored. they're not doing telehealth, they're going into people's homes. i bet some are starting to show up on meals on wheels allocations and things like that. some degree needs to go into a community priority setting and some fund thag the communities can use to meet these needs. we can build the care system that will be adequate to serve the boomers in the 20 30s when
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we all get sick and frail together. it seems we have about ten years to do our exper menation then if we don't, we will enhance ability to tawalk away. nifs detroit. they have 800 people on the wait list for home delivered meals. most of them will die or go to nursing homes before they ever get a meal delivered. why isn't that shocking is this is 800 people on a wait list for r cardiac valve surgery, we'd all be up in arms. there isn't a lobbying group for hungry old people. so, work with those a little and tell us if some of those things are start tog come up in your work. >> there are lot of things like what you're talking about. intended for another reason in a
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previous era, repurposed to provide shelter for older individuals at an affordable price. part of the workforce issue is about money. people need to get paid well and have an opportunity, but r part of it is about being part of a collective effort where you feel like you're making a valuable contribution. it's not just a job ft it's a mission for a lot to have best people who work in the field and they do better when they're in the game with someone else who cares about it and who also is engage nd the kind of thing like jo ann discussed where you're looking to find the right place for a person to reside safely in a community. people don't necessarily like to go in nursing homes. i've met people who clam mored to get into a nursing home. i've been in almost all the nursing homes in richmond, so i have a good feel nor that.
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people would much rather stay in the community. we're better off if we em bour people to stay in the community. we're going to have to do some changing of the way we've got things organized. you go to where the action is, the community itself. >> so, i wanted to say when we designed this panel, but do those who have been asking well to the exe tent of what is their
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applicability or transferrablety, certainly. the integration of care is equally important when dealing with children again both for the physical health, the behave yol health antd also on the social surface side. but you start turning to the policy solutions, it's very dimpblt from the conversation. we had intended for this to be a conversation in terms of policy solutions folking more on medicare, complex patients covered by the medicare and medicaid program together.
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in particular, one person asked the nine month of, 112 billion savings for nine month medicaid, if we could keep them off for those nine months. >> two points. i think i mentioned the fist choice program. medicaid has a lot of experience dealing with children with dwomal disabilities. to expand that up to povererty
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level to help more families. we picked nine months because we're involved with the health care innovation award for mind at home, maximizing independence for people with di mementia and early care coordinators doing home visits and providing trained specific support to family members caring for people there is an innovating model
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that has achieved that. let me just go over the numbers again. 112 billion in fursing home savings. over 14 years. with the stage, the split financing between -- >> great. since some of the work done by karen and her colleagues has pointed out the importance of because of lack of homing community based services. one of the questions is really
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the bipartisan policy centers. work and long-term care insurance. does it present an opportunity to address at risk ben yars from becoming -- >> yes, we're looking at a number of different proposals. i think when your leaders began looking at opgs for covering long-term care, they realized quickly that in the current political and fiscal environment, it's going to be b a very difficult thing to do. for those who can afford long-term health insurance. personal savings has been b a main provide, a main financer of
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for those with high costs, those that need care in excess of two to three year, i think there's a recommendation first of all. that people can't save that much money. it's not possible. if you look at the private long-term care industry, you'll see they're writing policies. they wrote policies that were lifetime for a long time and many of those communities have had to drop out of the market because they didn't have the return on investments because the economy we had a stagnation in the economy. they weren't getting the interest rates they expected and they didn't have the reserves to cover those costs. our leaders recognize at some point, there has to be a roll for picking up costs of some sort of public system because people can't take care of it.
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through these three programs in the short-term, whether it's medicaid, private lopg term or personal savings, those are no easy, there aren't easy answers, but over the long-term, once someone needs catastrophic care, we're going to have to come wup a solution to address. >> i'd like each panelist so get practical for a moment. if you could have a direct line to congress and the administration, what three things would you like to ask or what do you think are three things ta congress and the administration could do to improve the care for the high need, high cost population? what could and would you like to
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see them do? the most pressing thing i see is what is going on with care for dual eligible individuals. i didn't realize this. i've worked on medicaid and duals issues for two decades. i saw how uncoordinated care is for low income populations. and how difficult it is. you have dual eligibles who are in medicare fee for service, in medicaid r for medicaid covered clinical services. in one managed care plan. in a separate managed care plan for behavioral health services yet a third for long-term services and support, so you could have a medicare beneficiary, who remains in fee
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for service, but they're still enrolled in three managed care plans. that's three cost sharing arrangements. three membership card, three enrollment periods, so we really, really need to get serious about integrating care for medicare and medicare beneficiaries. it is unconscionable that we are asking people to navigate this system today. congress needs to give cms the authority. to unify the grievance and appeals process and fully integrated duals plans. there are so many things. i should stop at that. >> three wish, right? the first passion, making thes a national program.
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the model thag encourage growth. this will have wide reaching benefits. i will go along with the duals. i've been involved in duals demo in virginia. i'm involved in planning. exposed to -- evolution, which is going to be the next stage of that andly endorse the notion that's enormously corp. kated work that needs to be resolved. the stunned family members who realize -- for people who are not el for medicaid. as jo abby says we're all potentially destined to do.
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that will ail lou them to spend out their money to remain in the medicare fee for service program without other benefits. they're really in a very precare situation. there are a lot of people in the medicare near poor world who are having an extremely traumatic ek appearance and their family rs sharing that. it's embarrassing how far we are behind all other striled nations. i don't have the answers. but i talk to my patients and families about this all the time. they're beset, so i think we need to fix it. >> if i had three things i might wish list, i would say cms up the demonstrate the integrated care organization concept.
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i think we got where we are in part from the physician group practice model that was tested for five years and became a four runner of the aco and i think we need that kind of sustained testing of integrated care organizations to really work through how you structure the standards for participation, how you structure the recording, the kind of how you go about developing individualized care plans, what's the reporting on quality. what's the performance and what do we know about about the effectiveness of the different models of care. also stress others like hospital at home. linda mentioned capable, handyman services. maximizing independence.
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for this population, with physical and cognitive impairment and we immediate the track record of the performance of that. the current cmmi is not structured well to do those kinds of demonstrations, partly the assurance on the reduced cost where is as it may cost additional money, even with some off setting save to cover long-term services and supports. so that's the first thipg. a dedicated, at least five year demonstration effort on the part of cms. the second, i agree with dr. boling. we need to focus on the near port. this is not a problem of just the duals and therefore, turning to medicare to offer at least a targeted home care benefit under the medicare program, so it
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would provide financial relief to those who are hardest hit f. you've seen the striking numbers and out of pocket costs and the burdens on those families and how much that puts them at risk for spending down to the medicaid program. then the third thing. i've mentioned the first choice program, for those who aren't familiar with it. there's an additional six percentage point federal matching for states that do that. about eight states have now adopted that model. it's these spread. across all states. it needs to have the eligibility level raised to at least 200% if we're really going to provide these times of community based services. to those most at risk. thank you. >> i was remiss in mentioning we have two task forces that have been work ng this issue.
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both ltc and health and housing. the leaders have supported extension and expansion of the independent demonstration. so, my three. can i go? my three with, i think one, i'm going to be at a higher level around promoting and redesigning and further spreading value based payment models because i think part of the reason joanne, if you're still here, the reason we're able to have this conversation with so much success and you are yensy was because of the shift in the payment models. we need to improve them as i said before also not just the organizational level, but also trickle it down to the teams and front line providers.
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so that would be one. the second which we've talked a lot about today, but i, it's really increasing the flexib flexibility of organizations and payers to cover nonmedical services. there's been work done to show which services which are most effective. some that have been discussed, some that will be coming on ways that it would really help to improve outcomes, allow people to stay at home. and also reduce overall cost of care. so to me, it just, it seems like it's incredibly important for delivering person centered care as well as helping to lower overall expenditures. the shird is high level. as i mentioned, with ccmi, i do
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think that there's a lot of what, there's we know a fair bit about we have some models that work. we're still running into problems in terms of sustainability spread and scale. we just need to kind of continue, we need to continue to invest and experiment and learn from the spread and scale and more multisight demonstrations. >> you have a question at the mike. >> thank you. to the alliance and the commonwealth fund and all of your participation. it's exciting, the models we're experimenting with, but the one thing i really feel is really critical to address and particularly with these really high touch difficult situation where an educational kind of background may not exist at the level necessary. for them to have guidance
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assistance when there is really that end of life reality. so, it's very important i think that we have to encollude those strategies to address that need that many times there may not be a family member, a real advocate there that can really help that individual understand where they're headed to. the real high cost of this really exists in those lasts days or weeks of that individual's life. >> thank you. >> that's an important point. we haven't talked enough about palliative care and the fact again that medicare does not cover palliative care in the home unless you are in a hospice situation of being six months from, prognosis. so improving palliative care
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understand medicare i think is very much a part of this. and then if there is not a family member that can take this role, at least to freeway services information and support through a structured palliative care program. >> if i may, i would support that notion as well. i would say that my crew have been doing palliative care before palliative care was named as a field. and that as testimony to that, compared to the 25% of dying people in america who end their lives in the home where they prefer as opposed to in the hospital is something like 60% in patients served by an in-home medical care design. so i think when people have come to greps with those issues of the impermanence that we all share on this planet and have accepted that their health is not going to allow them to continue living, clues to die in
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a way that's more peaceful and more consistent with their prior values and their preferences in life. that is something that is best sorted out with a trusted professional team and family environment where you can discuss those matters privately and with people that you know well. i think that's how those conversations go best. we force those conversations in very awkward ways that lead the results different from what most people would want. so i think there's a great opportunity there. and we do know from our work that as you know, the costs tend to increase at the end of life. but patients dying in an at home managed design tend to have relatively lower costs compared to people dying in the usual care mode where they land in the hospital, pressed with an emergency decision, live or die right now.
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often get intubated, have the surgery. i think we have opportunities there. >> i would be remiss in not mentioning this is an issue also very important to senators daschle and frist. we are not addressing in it this proposal or the long term proposal because we are focusing on cost of care and we're trying very deliberately to keep end of life and palliative care issues separate from the issues of cost. so we will be addressing that down the road but not a part of this. >> okay. so we've come to the end of our time. we've heard a lot of important discussion today. we've heard there are promising models. that there are challenges when it comes to scaleability, work force, electronic medical records and other areas. we've heard about the importance of included nonmedical services.
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so i would like the thank our panelists for a very interesting discussion today. and i would like to also thank the commonwealth fund for its partnership in bringing us this discussion today. and i would like the thank you for being here as well. and we'll see you next time. thank you. this evening president obama jones hillary clinton at the largest latino gala in the country. the congressional hispanic caucus institutes 39th annual awards in washington, d.c.
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c-span will have live coverage at 7:00 eastern. >> this weekend on american history tv on c-span3, saturday evening at 6:00 p.m. eastern -- >> in any war in any time, weapons dictate tactics. you've probably heard that the civil war was fought with modern weapons and antiquated tactics. that's not quite true. the civil war is actually an evolutionary war, as both womens and the men who employ those weapons learn different methods to fight with. >> author david powell talks about military theories, battle tactics and formations during the civil war. then at 9:00, the military historian talks about his book, pots does dam about the meeting of harry truman, winston churchill and they stallin
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regarding world war ii and the reconstruction of europe. >> they were not cooperative enough. the power became a zero sum game. the way to solve the problem under this viewpoint was to merge europe together. create a european union, the phrase is already out there. so that france, germany, russia, poland, don't see events on the continent as a zero sum game. >> the idea that americans have always gotten the very west health care available in whatever era they lived. well, i want to tell you that this is a charming myth and problems began almost immediate when i george washington. >> parkway central librarian on myths surrounding health care. he talked about how it sometimes contributed from a president's death or saved them from dying without public knowledge. for our complete american tv history schedule, to go
5:57 pm now colonel and form he military officials on cooperation inside the government toward strengthening homeland security. it is part of the annual american bar association homeland security law institute to cuss the legal profession's role in the country's security. this panel is an hour. >> thank you and welcome to this panel. this should be a lot of fun. the top sic timely and really urgent in many respects. it is the role of the military and homeland defense. you know if a crisis requires american troops to deploy on our soil we depend on a legal framework for those operations to carry forward and everyone in this room knows the importance of a sound, effective,
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comprehensive legal framework to govern the use of american troops on domestic soil. such frameworks exist but it's evolving it's changed since the 9/11 attacks even though that's a small segment of our history, the pace has quickened tremendously over this period of years. we have the a-team here on the panel to engage on the subject with you today. very briefly i'll introduce them, make a few comments, spin out a scenario and turn it loose. we will save time for questions and discussions with you. so first let me introduce the panel, john greski is the senior attorney with the office of the general counsel at dhs in the operations and enforcement
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division. john's portfolio includes domestic and foreign disaster assistance, air and ground domains, the dhs joint task forces, the d.o.d. and national guard issues. he's principal strategic and operational plans attorney for the headquarters. second lieutenant commander tim cronin to my immediate left is assigned as the advanced law fellow in charlottesville. in that capacity he manages and teaches the domestic operations portfolio. third, jeff greene who's now the director of government affairs for north mechanic and senior policy council at sigh man tick. before joining sigh man tick, jeff was joining the senior council with the senate homeland security and government affairs committee. we have worked on the house committee on homeland security and was counselled to the senate's hurricane sandy
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investigation. batting clean up, my colleague and friend paul rosenzweig, who's the founder of red branch consulting, a homeland security consulting company, he's also senior advisor to the chertoff group. in paul's former life, one of his, he was deputy assistant secretary for policy at dhs. he has various other types. here are the things that we hope to touch on in the next hour. first, what are the drivers, what have been the main drivers in the development of homeland defense, particularly in the years since 9/11? second, what's the rule set? we could talk for hours, perhaps days and put you all to sleep very promptly but we'll try to summarize and be very succinct. then beyond the rule set, how does it really work? inside that question, i suppose, of how it really works is what
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are the hard parts? where does the rubber meet the slowed in where are the tension points? there are some and they're really quite apparent. and then finally thinking particularly about the law here, how do old chestnut principles in our law like the posse comitatus act and the insurrection act play. and finally are there circumstances that we might imagine where the military might actually be in charge in a domestic operation? you're going to see the premise, as you all know, is that the military serves in support of civilian leadership. that's our default position. now bear with me for a moment and imagine it's next january. the election has occurred, the president is about to be inaugurated and several u.s. cities have been hit by
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isis-inspired terrorist attacks. using conventional weapons and truck bomb, jihadists have killed dozens of people, injured many more, intelligence and police say they've thwarted other attacks and detained a number of suspects but many others remain at large. americans everywhere are on edge. now imagine that news bulletins begin to appear reporting power blackouts on the west coast, terrorists have blown up transformers and power lines and they've mounted a cyber attack on the electric grid. as the blackout rolls eastward, major elements of the nation's infrastructure, including the internet, public water supplies and the banking system begin to fail. widespread panic ensues. now, this is not a far-fetched scenario. many experts believe it's not a matter of whether but when so
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the point of departure for us now is how would the united states government respond? would the military be involved and if so how? john, let's start with you. >> thank you. my name is john gereski. a little bit of background to tell you the prisms i look at these issues through. i was a national guardsman and retired from the connecticut national guard after 20 years of service. i performed ten years of active duty service before i joined the guard. i was also at united states northern command and -- norad during the standup of north comm immediately after 9/11. so i look at the prism of homeland defense and where does it work through those different entities. the first experience i had
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personally with regard to support to civil authorities and insurrection act came at a young age is during the yale riots so, of course, i'm old but i'm not that old. but my dad was old enough, my dad was a career guardsman, he was a captain of a company in new haven, connecticut. he was responsible for going out and being in charge of one of the companies that responded to the riots in new haven, connecticut. what i remember of that event was that when i woke up the next morning there was a cool jeep sitting in my front yard that i was able to climb through. so all of you that are out there for admin law and ethics, don't tell me about the home to work stuff, i got it, i was just too young to explain what it was to my father. my mother would tell you she was incredibly worried. that one, my dad brought home his side arm and she didn't like guns in the house so she had to find a way to hide it through a series of boxes inside boxes inside of closets even though none of us would see it and also she was worried about the health of my father and what was going to happen to the national guardsmen that were in that particular area trying to keep the protests -- still to be protest bud to keep everybody safe in that situation. my father is a different and
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more interesting situation because he was commander of a company that actually came from new haven so he was worried about his soldiers that were working with him on those different lines and he was worried about the people that were maybe on the other side of the line who may want to harm or impair his soldiers who were also from new haven, connecticut. so when we think of support of military forces to perform domestic operations in the united states, i'd say it's a very -- it's an important decision and it's a difficult decision. it's a difficult decision with regard to a governor's perspective as far as his 10th amendment authorities, as far as his general policing authorities, with regard to his ability to command and control
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his national guard so there is that piece that's available. you also have within the d.o.d., the d.o.d. is wanting to perform the missions that the secretary of defense or the president advises him to -- advises them to perform. so you have that position as well. then third, my third position that i'll talk about more specifically has to do with homeland security and the secretary of homeland security and the authorities and what the homeland -- secretary of homeland security would do in this day in age to look at that. so when i was at national guard bureau, national guard bureau is a title 10 organization, it's a federal organization, it provides a -- it's the conduit of communication between state national guards with the secretary of the army, secretary of the air force and the secretary of defense. there is no command and control relationship so they can't tell the guard bureau cannot tell the state what is to do. but they can provide money
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through funding, et cetera. they can provide standards of which they need to train to in order to be able to maintain their federal status. so one of the questions that came up during 9/11 when i was there was the issue of what can we do in order to protect after 9/11 to protect the airports? and the issue that came up was that the national guard would perform that mission of providing support and security within the airports. in order to peel that back, no part of the air force can be used in support of or as an arm of law enforcement. law enforcement requirements. lieutenant commander cronin will get into that a little bit more specifically. the question is does the national guard fall within that prism. that the answer would be no. statutorily the guard doesn't fall within that. either under command and control
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of the governor, state entity, not a federal entity and would not fall in that situation. the second question came if the feds were going to pay for them to do that operation, does that now cross the divide to make them susceptible? and the answer was no. the force and help and assistance in various situations informed and they're called the national guard. the national guard would not be subject to the rules and there is that method that is available. so then from there i go to the united states north com. 2011, working there in 2004, just before attaining operation ability. so the mission statement, to explain the dod and the feds understand that there is a did i tings between what is homeland defense and what is civil
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support. their mission was certain. the first part said, conduct operations to deter, prevent, and defend threats and aggression aimed at the united states territories and interests within the assigned area of responsibility. your classic homeland defense mission statement. and then the second mission, which was separated by a semicolon said, as directed by the president or secretary of defense provide military assistance to civil authorities including consequence, management, and operations. so thereby understanding and underscoring the fact when dod forces were going to be used in the homeland, they were conducting a homeland defense mission, that was one piece, one set of analysis you use to address your authority that would address your rules for use of force or r.o.e. that would address what capabilities you use. you look at one set of options in that side and own the other side if you're performing what we called defense support of civil authorities if you provide that circumstance you had to
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have a request. you had to be directed by the president or the secretary to be able to perform that mission and you actually were serving in support of civilian agencies, entities, governors, et. cetera. so that's kind of the premise. to kind of look at from the federal eye of what was happening. the other thing i want to tell you about is when you go there, when i went to united states northern command, it was early. most of the folks and the commanders coming there had worked with title 10 forces only and had only done operations that were overseas. the fact of the matter is, conducting operations in the homeland are very, very difficult. they're different. you don't use the same authorities. your ability of what you can do and how you can do it is different from what you're doing in a war theater versus what you're able to do in homeland. you have to go through and train and explain to understand for these commanders and these soldiers and airmen and marines and coasties that were coast guard members that were there,
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you have to be able to explain so they can make that distinction and make the logical jump between what am i doing? in theater of war and what am i doing in the homeland. there's an analysis. i would suggest at that point during the stand up of united states northern command d.o.d. has a reg and instruction about everything. probably down to the correct way to tie your shoe lace. the direct way to change a lightbulb. so there are plenty of instructions. the instruction area for conducting operations in the homeland was fairly small. it was basically what the army had put together as their added duty. so there really wasn't a doctrine out there for people to be able to follow. i would suggest that changed a great deal since then. now we have the national sponsor framework. now we have supporting functions. we have different things and responsibilities that are able to explain where different people are supposed to fit in.
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where do different organizations fit in? where does the strategic, where does the federal fit in? prosecute does the state fit in? where do the state and locals fit in? with that capability and the doctrine, i think the use of federal forces and some of the concerns about using federal forces in the homeland should be diminished just a bit. and then, finally, as i go into my last point. i work now at the department of homeland security. so i would say the secretary here is responsible for coordinating the federal preparedness activities and operations within the united states to respond to and recover from terrorist attacks, major disasters, and other emergencies. so that's his general requirement in general authority. there are great and terrific assets that we have at the department of homeland security
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that would be able to address. you've heard many of the different folks talk about them already earlier today and yesterday as well. capabilities that we can bring, if you will, to this terrorist fight. and whether it's the folks over at nppd, whether it's the folks that are at tsa, or transportation security administration. there are great authorities that can be used in order to be able to, for the secretary to be able to use the requirements. but in addition, because you have the situation where there are multiple federal organizations they're going to have responsibilities, the secretary also has an hspd 5 responsibility. his responsibility to serve as the vocal point for crisis and emergency planning and domestic incident management. it doesn't mean he's in charge of everything that happens. it doesn't mean he has the ability to tell different agencies and departments what to do or how to do it. but it says he's trying to coordinate all of this incredible capability that truly
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has been built since 9/11 and try to make sure it's focussed, identify where there are gaps, where there are seams, what are things we need to do collectively in order to make our response more full and complete. that's what his responsibilities in the way he would exercise those abilities. that's what i have for starts. >> great. tim, what does d.o.d. have to do with this? >> i think professor banks mentioned, there's a historical weariness of the d.o.d. participating in domestic operations, and we see that weariness reflected in law and policy. i can tell you from the schoolhouse perspective that military commanders are definitely cognizant of that weariness. but there's a tension, i think, between the weariness and the undenial fact that within the united states the d.o.d. possesses a huge amount of capability that can be brought to bear on a situation like
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this. intelligence capacity, robust, you know, amounts of personnel in every state, logistical capabilities, communication systems, and a fine-tuned chain of command. the role of the military attorney, such as the one professor banks made, how do we navigate that tension between the historical weariness and that raw capability dod can bring to bear? and i think i'm going to walk through how the d.o.d. would approach this. in terms of navigating, i think, one thing you should take away is i think even in terms of this scenario the default rule is that the d.o.d. is going to play a supporting role to civilian authorities and to the department of homeland security. typically, d.o.d. will not play any role, generally, unless state resources have been expended and state governor is looking for help. i think the d.o.d. is going to play -- generally play a default role. that's how the system is designed, that's how we teach it at the school, that's how military commanders are thinking about it. the understanding of the weariness. i say generally because the military still has the lead in matters of homeland defense. so when i say homeland defense,i mean that of the united states
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has suffered an armed attack, such that article 51 of the u.n. charter would permit action in self-defense, d.o.d. has the lead role in that situation. the president as commander in chief, he alone will probably make that decision of when and where and how to respond to an armed attack. if we look at this scenario in terms of, you know, is it an armed attack. is it homeland defense? i don't know. again, way above my pay grade. i think the difficult questions here are the facts specific situations. you know, is this cyber attack this rolling black out, is it having a direct effect on people limited to an immediate area? is there going to be another attack? are subway cars smashing into each other because of it? is it limited to private infrastructure? are public utilities being knocked down because of it? and that goes into that analysis of where exactly we are on that
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threshold. but the -- as i said the general approach of the d.o.d. and where i'm going to spend the most amount of time is as a support role when we're needed by civil authorities. so i think the d.o.d. is going to look at this type of situation in a very authority-driven way. so what is needed from the d.o.d. in that support role? what authorities do we possess to assist, and what are the legal restrictions that guide our use of that authority? and i think the big restrictions if we start with those, are going to be, i think, three. the first will be the basic principle of federalism, at what point is the d.o.d. impeding on the state's general police power? sort of high level notion. second, the big one, is the posse comitatus act. mr. gereski mentioned.
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prevent unless authorized by statute. a few tests we talk about, the pca, and whether it's been violated. most of those come down to, has the military slipped into the law enforcement role? is the military exercising prescriptive regulatory authority in areas they're not supposed to? third, i think, obviously any domestic operations will be guided by general constitutional principles. any time a d.o.d. force steps off a base to support civilian operation they're going to be thinking fourth amendment all actions done under general principles of reasonableness. i think those are sort of the three general areas of restrictions that attorneys and commanders are going to be thinking about any time we use one of the authorities that i'm going to walk through now. so the first, and biggest,
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probably most likely time that the military will be used domestically is after a stafford act declaration. we're seeing it down in baton rouge now. the stafford act declaration when a state governor calls the president, the call is the most important thing and says, mr. president, or mrs. president, we have expended our state resources. we've -- and we're overwhelmed by the situation and we need your help. at that point, the president can declare an emergency or major disaster and federal assistance can follow suit. we saw that, i think, in katrina. most interestingly, maybe most related to this when members of the 82nd airborne deployed to louisiana after katrina hit. and the interesting thing in a stafford act response, the pca is going to apply. members of the military are still not allowed to enforce the law.
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we have members of the 82nd airborne walking down the streets of new orleans, but they're still guided by the pca. what happens if one of those soldiers who are action-oriented individuals sees looting going on, sees a crime being committed that's supposed to be handled by the local populace. do they respond? the answer is no. it's a criminal violation, but how does the military teach that to that young action-oriented soldier that is used to taking action? i think the second major -- if we talk statutorily is going to be the insurrection act. the insurrection act is a group of statutes that allows the president to deploy federal forces in the case of a wide spread insurrection. we saw it used in 1992. the los angeles riots, the marines were deployed to los angeles to help. that's an exception to the pca and raises questions of brings
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out that tension and weariness. are we comfortable as a populace in allowing the u.s. military to do that? are we going to rely on that response? in general, would the president ever, you know, rely on the insurrection act in response in i think generally if the president were to rely on the insurrection act it's going to be a support role to dhs. it's probably going to be the appointment of federal forces will come after the coordination, of course, of state governor with the dhs and sort of that whole government approach. and then the last two authorities are some that have been delegated down to the military commander. these are the most difficult to teach because there's no real clear boundaries on where they lie. we teach the military commanders have an emergency response authority. so this is supposed to be used in the most extraordinary of
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circumstances, and only when there's no -- it's absolutely impossible for them to call the president to ask for assistance. and that's only to be utilized when military intervention is needed to prevent, you know, wide spread destruction and quell large unexpected disturbances. this scenario brings up the situation depending on where it happened. is there a possibility this happens near a military base where a military commander might believe that action is required? does the military commander have time to go to the president or -- for approval or does he take action under that emergency authority? i think those are the big three. there's an immediate response authority, which is another authority delegated down to the military commander. that type of response is only permissible after the local authority requests it. so something is going on outside of a military base and a local authority requests support from a military commander and that military commander can't get approval from his chain of command. in exceptional circumstances that commander might be able to respond. i think those are the big sort
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of four authorities that the situation suggests. i think it would be very fact specific as to when and where those authorities might be relied upon to use the d.o.d. inside the united states. i would say the default position and i think most likely in the scenario is the d.o.d. is going to play the support role it trains and the doctrine speaks to. that's used to fulfilling incoordination with the department of homeland security. >> tim, let me ask you a point of clarification. i think the audience here would be generally familiar with the authorities you mentioned with the possible exception of the last two. the emergency response and the immediate -- or emergency response and immediate response. what is the source of those authorities? >> so the -- >> d.o.d. regs? >> correct. i think the emergency authority i think goes to -- the authority
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is the d.o.d. reg. i'm not sure what the ultimate -- it's not statutorily based. there's nothing in statute that says here is the emergency authority. it's likely based on the inherit power of the president as commander in chief to ensure the protection of sovereignty and to maintain the peace of the united states. >> that's my understanding as well. it's important to have that out there because that authority, as we know, if it's inherent or implicit, it's not out there in text. it's a little more open. >> yes, sir. >> all right. jeff, the portions of the scenario that had to do with cyber, do they present different challenges for the question of the potential d.o.d. role? >> absolutely. i would start by splitting the response into two pieces. the scenario spun out has disaster, elements of it, and
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you have the stafford response, whether it's providing ice, food, water, shelter whatever it supports, i put that in a separate box. whether that is caused by a cyber event or otherwise doesn't matter. i think the fact that the cyber nature isn't going to impact that. where i think there's going to be a break is in responding to understanding what happened, how, why, and who does it. i think the general public and probably a a lot of politicians will expect that the military and the intel community is being very capable in this area are going to be heavily involved. the question whether the law and policy allows that is very different.
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cyber puts itself in a different box. so much is shrouded in secrecy. if you look at what the authorities are right now, just this past -- two or three weeks ago, the president issued ppd 41 which titled "cyber incident coordination." it talks about three different streams in response too a cyber event. threat response, asset response, and intelligence support and related activities. so you break it down in terms of where the military realistically is going to be playing. ppd talks about who has the lead there. a threat response is fbi and the national cyber investigative joint task force. pretty much more law enforcement aspect there. asset response is dhs. intel support, dni has the lead. there you may have involvement from cyber command, from nsa, obviously, but there you're getting into a different element of what is traditionally thought of as disaster type support. so if the military is involved in trying to figure out what happens, step back and think about how the cyber attack is likely to unfold. this is one it might be put in a different box. we're not talking a bombing
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where you have group or groups claiming responsibility. you have forensic evidence. you can track back who it was. air strike,you can track it back to the source. the cyber event may not be a sudden event. it could be a slow burn over days or weeks leading up to something catastrophic. it may not be clear if it's a cyber event. if they did it well, it probably won't be clear. the work prepping for that event will have gone back a long time. that's the hard part now,digging through and figuring out what happened. the other point is the jumping off point for the actual final trigger of the attack is going to come from. most likely it's not going to be coming from a server sitting in an enemy nation we can directly track back. extraordinarily unlikely. more likely, if they do it smartly, it will be a computer in the u.s. that triggers an event on
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systems grid whatever in the u.s. it could be a company, it could be an individual, it could be, you know, your kids' computer playing video games on. they download an extension and little do they know it's a bot being controlled overseas. the forensic piece of this is going to involve heavy domestic and traditionally thought of as law enforcement element. the problem you're going to have, though, in the aftermath of a major catastrophic event is very few people are going to want to step back and care about who it is that is going to do this. they're going to assume it'll be done. i'm talking about individuals and politicians to the highest level.
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that's where you get problem law and policy in the cyber context is not developed yet because you have these questions. let's wrap this up. let's step forward and say whoever is involved, if it starts with whether a company's computer, your kids' computer, your personal computer. you get a lot of data off the computer in order to do the forensic work necessary. so now you're implicating privacy, fourth amendment, constitutional issues in a military support to civilian authorities area that are whole new layer to the onion. you know, if you're taking the data of a computer, of a company, you're probably taking customer, employee, personally identifiable information. all of that stuff will be vacuumed up to do the forensic work. the next layer of the onion is, is that going to be secure when the government gets it. i don't think i'm alone i got a letter from opm that my data wasn't that secure. you have a new piece of concern that is going to go into figuring out how do you handle the element of dropping the government into this situation after the fact. so a lot of tough questions here. pieces of it, i think, are very different. we all like to think what we do is different. but the problem with cyber, so much of this is still happening
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behind closed doors, it makes it hard to develop the policies. it makes it hard to develop the law and the scenarios will transition to a more traditional type of event if you get to the physical result. if having a two pieces separating the traditional stafford from what has now become whether law enforcement, whether it's intel, whether it's a military response are going to make it even more complicated. >> jeff, before we move on to paul. let me ask you to compare the scenario like this one with the hurricane katrina. you spent a lot of time after the fact looking at the katrina response from your perspective as a staffer on the committee. how is that different? it's a natural disaster where we're more than a decade down the road in terms of our preparedness. >> so as a threshold matter, i would say the progress that d.o.d., the guard bureau, governors have made is extraordinary in the years since katrina. the coordination level is much better.
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but that is the response piece of it. the hard part that makes cyber different is that the response, i think, will be the same. when you have the physical result. the hard part is how are you investigating it? what people expect with a major cyber attack, when it's over, first, stop it, second, fix it. third, go get the people who did it. and you have a mess of conflicting authorities and you have a potentially, you know, it's on the domestic side but you're bringing in title 10, title 50, a lot more titles. i used to know better than i do now. >> paul, the scenario that is on the floor here, you recall blends together traditional sort of physical assault ongoing terrorist attacks, unresolved, perpetrators still out there, americans in peril with this cyber scenario that appears to be itself blended with the physical assaults on power
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stations and the like. what do you make of all this? >> first, thanks for, you know, inviting me. i really do appreciate it. let me start my timer so i don't go too long. i really do appreciate it. though i do not appreciate jeff being reminded of the opm breech and the fact my fingerprints are now in china. very dismaying. but to answer your question, the way i would approach this is to offer hypothesis and support it. which is that much of the law and policy that we have for both sides of this house, the physical and the domestic, especially the role of military is not well enough developed to actually give us good answers. and what i mean by that is that we tend to rely on laws like posse comitatus.
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for the actions of the military, in an environment in the terrorist context, that's changing. i want to ask -- i almost wanted to ask tim you know what if he's patrolling and he thinks it's a terrorist incident? how does he tell? this action oriented young soldier. how does he tell it's looters versus potential follow on jihadi activity? that's a judgment most people can't make with 25 minutes to assess and then call to the lawyers. much less our corporal-led patrol in the middle of a city. the same is true in the cyber domain. what i think this reflects at a bigger level is that the nature of homeland defense is actually changing before our very eyes. and the nature of homeland
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security is changing before our eyes in ways that are different from just ten years ago in immediate 9/11. in the immediate aftermath of 9/11,our model for homeland defense is the threat was overseas and much of our effort was interdiction effort. and, frankly, the military's contribution to homeland defense was probably going into afghanistan and iraq and trying to cut out the source before it got here. today the homeland security homeland defense threat has morphed. it is domesticsized in two ways we haven't come to understand. the first is much of the threat is now home grown, you know, countering violent extremism here that is being radicalized by communication means we can't control because of first amendment concerns. the second aspect is the one jeff talked about, cyber place, which allows standoff attacks from places that we can't attack to.
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so what does that mean for me? well, one part of my answer, bill, is i think it means we need to expand the definition of homeland defense in ways that include much more vigorously the prevent and deter pieces of the north com mission that john was talking about in ways we haven't conceptualized before. i'll give you a concrete example. we're in the middle of a debate in the united states about what the military, the nsa principally, should do when it discovers cyber vulnerabilities in products. should it save them to use them up against the chinese and the russians or should it tell the american public so that our companies like google and apple and mozilla can fix it and make us safer and thus deterring cyber attacks in the next month down the road in the next month and making that attack harder. today the white house has a
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vulnerability equities process that, as jeff said, shrouded in classified obscurity. it has been discussed publicly in a couple of blogs by the white house. i imagine, though i don't know, i'm not on the inside anymore, there may be classified executive orders or procedures or directions that give more substance to the process and more substance to the equities that have to be weighed. there is absolutely no law governing that. to say there's no law ha mandates disclosure. and, you know, no law that mandates confidentiality. there's plenty of law that authorizes either of those. you can find the authorizations for disclosure and dhs is founding documents. can find the authorization for confidentiality in the ic authority. all the decision-making power is
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happening under a preexisting authorities but where -- when i talk to my classes, i talk about we're pouring new wine into old bottles. the bottles of law exist and which bottle we choose to pour it into is fundamentally a choice. for me that's an example of defense poured to civilian authorities that predates the attack that has yet to be a definitively determined. that falls out from the changing nature of the cyber of the domestic threat which now has the cyber component. i'll give you another example. also from the cyber realm. though i can give you some which is one of the questions that falls out of your attack is when and how does the president authorize cyber command to burn out the attackers? right? go after them full bore with whatever cyber tools we have. and more, particularly, again to address one the points that jeff addressed, what's the degree of
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certainty of the attribution that is required. we're all lawyers here. so we all know the differences between, you know, reasonable suspicion and probable cause and clear and convincing evidence and proof beyond a reasonable doubt. we often talk about how they are mathematically 90% certainty versus 70%. we have a comprehensive sense of that. it's very realistic. proof beyond a reasonable doubt means something more than reasonable suspicious. what is the standard of proof that the president must employ before he will authorize offensive action by the military? not -- again, the authority is there. if he feels as though he's conclusively identified a certain group or community of actors as the source he's fully authorized to, you know, push the button on a cyber response.
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but what is the degree of certainty in an uncertain world? that, too, is uncertain. then let me throw out one last kind of chestnut again in the cyber realm. does the president have authority to essentially nationalize the network for the defense of the nation? we're under cyber assault. can he say to the telecom people out there, verizon, sprint, let me on your systems. we're going to put the nsa there. we're going put cyber command there. we're going to let you join us, but we're going to take it over for now. and, again, it's the same old wine -- new wine old bottles. the communications act of 1934 section 7066, gives the president authority over the old telecom systems to take control of it during an emergency.
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does that apply here? let's assume that we agree this is an emergency, which probably given how bad it was, i can justify that declaration. does the president have the ability to use a law that predated the internet by 50 years to essentially take control of the network. the official position i read last time in testimony before congress was that section 706 gives sufficient authority to do that. there are some who would say, okay, that's a bit of a stretch and would at least advocate for let's formalize that. let's update the law and at least change the definition to include telecom network activity. my broad answer to you is that our laws have not caught up with the changing reality of what homeland defense is today. there's not a lack of law. there's not a lack of policy. there's a lack of connection
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between the two. at least in the cyber realm. i'll say a lack of a good public robust discussion of it often for very good reasons. right. i'm not doubting that there's a value to keeping confidential some of our network intrusion techniques or how the simulator works or what it is we can do in response to the attack. i'm not doubting that, but at the same time there's a particular deficit in transparency and democratic accountability in this realm that requires work by us and here in the room by the executive branch and particularly the legislative branch for not having gotten off the sidelines enough. so that's my answer. >> thank you. >> can i make -- >> please do.
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i just like to caution against this idea that a capability renders an authority. so we talked a little bit about, i think tim talked about the fact that the d.o.d. has all these different capabilities, and the paul indicated talked about maybe there should be an expansion of what homeland defense is. we want to look at why it is it we need the expansion of homeland defense. simply because a capability is resident within a particular department does not mean it render it, in this case, d.o.d., does not render it should be in charge and it should be a homeland defense type mission. i think these type of operations could be done under defensive support of civil authorities. i think there's no reason to necessarily open the bandwidth. i think there's a concern within the united states, within the governors, et. cetera about how
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far are we willing to open the bandwidth of what is a defense operation here in the homeland. i think if you look at it through different areas of law, i would say that, you know, within the air we have a lot more ability to render homeland defense where we're protecting against type of intruders that come there. upon the maritime, i think we have an equal ability to be able to render homeland defense depending upon where it is and where our law enforcement zones are and where the action is conducted. i think within the land and on the land border, i think it's more restrictive in its application. i guess i just counsel against it. i don't know that necessarily the way to fix the problem is to open the aperture of homeland defense. if the issue is capability, the capability can't be shared in other areas. other departments can pick up the capabilities to be able to perform those missions under a law enforcement theory as opposed to a homeland defense theory.
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>> that's a great follow on, john. thank you to paul's comments and leads me to ask you and tim, i think, related question. taking off again from paul's observations. is it new law we need or a matter of phasing the authorities and plans that we have? there's sometimes in the literature prophesy to disconnect between homeland security and homeland defense. the twains never meet. tim made reference in the beginning to the appropriate weariness of d.o.d. to be involved in domestic roles and missions because of the historic tradition in the united states that we -- that civilians take care of affairs inside the united states. is there a place where homeland defense and homeland security meet that we can talk about in an unclassified forum? are there plans that take into
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account the possibility that a response may morph, if you will, from homeland security to homeland defense? >> so i guess i don't see necessarily in today's world an area where there would be a definitive homeland defense-only mission. i think there are circumstances we have evolved since 9/11 and katrina where every different department and agency has an enormous amount of authority and capability that hit, it has built, and collectively creates this whole government that really is greater than -- some of it is really greater than its individual parts. i think that with regard to should we look at other statutes, should we look at other means of authorizing dod to do other missions?
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that's possible. last i looked, i think there were 15 or 16 different statutory exceptions out there for posse comitatus to provide support to department of justice or to hhs in the event of some type of des that was running rampant throughout the country, if there was a need or requirement to put different people into different enclosures. so there are several different authorities,and i think that there is a means to be able to address that. do i think that we are looking at a different perspective or different spectrum, so to speak, with regard to cyber? i do. but i also think there are capabilities that are out there that could be shared with civilian authorities to take those measures as opposed to
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making them dod requirements. >> i agree. i think we don't say d.o.d. plays a supporting role to civilian authorities merely because that's the way it's always been. it's because the combatant commander and highest levels of our government say that and have seriously considered the risk to our country and say that is the most appropriate way to handle this type of situation. so i think i would agree with mr. gereski. >> so i'm going to defend my premise a little here. 25 years ago, the distinct line between law enforcement and military was perfectly sensible and could be defended and there were almost no edge cases during disaster response or incident response, certainly not enough to make it worthwhile to fight about the distinction. i do not see that anymore. i think that it's now a spectrum, that there are clearly incidents in which it's 99.9%
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law enforcement. clearly others where it's going to be a military thing. but the reality of terrorism both in the physical world and in the cyber realm is that there's a whole gray area here and that the line drawing that we've done in the past which serves a valuable function is now also a significant barrier to effective response. a perfect example is ppd 41. the cyber incident response. it's a traditional response which says, you know, threat response is going to be a law enforcement, fbi response, right, and dhs is going to have the civilian responsibility for protecting assets, response and recover through fema if we need to and bring in od&i to bring us intel on what is happening. the reality of cyber that i know
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is that the most effective response to cyber is counter-fire back at the original source. it's not firewalls and defenses anymore. it's -- it's something and the greatest capability that we have right now to do that does not reside in dhs or in the fbi who are the leads for threat response and asset protection. it resides, whether we like it or not, in our military capability. so the idea that that document doesn't even mention -- i mean, there is no mention. i understand that there's some discussion of adding a d.o.d. functionality and role. that would be good, i think. but there is none, a reflection of traditional, an announcement to the world that if it's the iranians right behind this group, isis inspired, that we don't have a formal mechanism in
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place for telling admiral rogers, go get them please, stop that. it was reported in the press, banks, our national banks were under systematic denial. they went running to the military for assistance. they did not have the capability. that's a rational response on there. they say can you help us here? nsa, at that time, according to the press reports. i wasn't there. none of this is anything i know from the classified. they said we can't do it. we are not authorized. that's -- i mean maybe that's the right answer from a policy standpoint. from the bank standpoint, it was unfortunate. >> kind of real world example of the difference in when you make a decision, you figure out ahead of time you can do certain
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things under existing policy. during katrina, the general population evacuation was really good. the special needs evacuation was horrible. part of it was confusion of dhs, can we get the military to assist? the belief was three weeks africa tree that, we saw what happened on television. hurricane rita was approaching houston. a very special needs evacuation. there was no legal change between katrina and rita. in that time period, there had been a political decision of we are going to find a way to do this whether the law is there or not. so, to try to bring that forward, there was some type of cyber attack that took down part of the grid. there was a discussion as it was unfolding. the attacks, can we bring in the military to help? the answer is well, we are not sure. in the middle of the conversation, the banking system. three weeks later, major public
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disrupti disruption. three weeks later, the decision would be made, we are going to do something to stop it. we are saying, let's figure out some of that now. >> yes. >> you know, i have taken a whole page of notes here. i could ask questions until 5:00 this afternoon. we are down to one or two minutes. if one or two of you have a brief question, the panel would be happy to respond. i know we are the last things between you and lunch, it may be a factor in lunch's favor. coming for a question? good. >> the concern with this comes when you say there's a capability and growing in certain areas, it's clear coming from our perspective, i worked there five and a half years. the army is not a forced structure to have the training capabilities when it's designing it to deal with the crisis and
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problems. we raised it to a more senior position. his involvement are not nearly there. how do we ensure that through senate or the house, the accusations are taken account for in the decisions? >> so, i think there is a discussion or at least there was a discussion in my old life about what capabilities are resident in the guard and what their availability would be for disaster or response. i think, in fact, there was legislation that was passed that made it available for reserve component or reserve units, not national guard units to be able to be called forward to be able to respond to some type of event or requirement identified by the secretary to respond to something that came from the
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stafford act. a lot of the support structure we use during hurricanes and to respond to, if you will, right of event type of things, recovery type of events and response events, they are greatly within the reserve and the national guard component. i also know that when general grass was preparing for different testimony and when i knew him out from north con, he focused to identify with his general what capabilities do they have within the states, what capabilities do they want and need. but, they are also careful to identify that those components are still a reserve component of a fighting force. you can't take all of the infantry aspects, artillery assets and put them all and leave them in the active co compone component. they need to spread the issues
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out. there's going to be a balance you have to have. one thing that i saw as well is that there has to be a careful issue that civilian organizations don't have an overreliance on what d.o.d. can bring. d.o.d. can bring whatever it has at the time. we did an exercise where it was the xeer citizen of exercises with things blowing up and nuclear explosions, et cetera. people were there that were part of the exercise who were upset because they couldn't get their helicopters because they asked for them. when, in fact, the helicopters were used for d.o.d.-type missions to provide support response, et cetera. they were not there. we found when we were having these types of exercises, there was reliance on a capability that might not be there, you know, during an actual event. you have to be able to balance out what that guard capability is or what that reserve force
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capability and is it going to be here? all possibility, it could be in a rotation overseas and may not be there. my understanding is there is a conversation going on and there is a review of those issues. >> thank you, john. please join me in thanking these four gentlemen for a very enlightning discussion. [ applause ] this evening, president obama joins hillary clinton at the largest latino gala in the country. a congressional hispanic caucus institute 39th awards in washington, d.c. c-span will have live coverage at 7:50 eastern. this weekend on american history tv on c-span 3, saturday evening at 6:00 p.m. eastern -- >> in any war, in anytime, weapons dictate tactics.
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you have probably heard that the civil war was fought with modern weapons and antiquated tactics. that's not quite true. the civil war is actually an evolutionary war as both weapons and the men who employ those weapons learn different methods to fight with. >> david powell talks about military theories, battle tactics and formations during the civil war. at 9:00, his torn michael talks about his book "pots dam" the meeting of truman, churchill to negotiate the end of world war ii and reconstruction of europe. >> the states of europe didn't interact enough. they weren't cooperative enough. the way to solve the problem under this viewpoint was to merge europe together, create a european union. the phrase is already out there
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so france, germgermany, russia poland don't see the event. sunday night at 8:00 eastern -- >> the idea american presidents always got the very best health care available in whatever era they lived. well, i want to tell you this is a charming myth and problems began almost immediately with george washington. >> parkway central librarian richard levinsonon myths will presidents and their health. how it contributed to a president's death or saved them from dying without public knowledge. for the complete american history tv schedule, go to boston globe reporter, jonathan satisfyman now. she peek at the national sexual violence resource center conference in washington, d.c. and was joined by steven starr.
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this is an hour. [ inaudible ] >> i'm kristen houser, the chief public affairs officer for the sexual violence and pennsylvania coalition against rape. they are firm believers media can be a mighty force when influencing the cultural norms in a given community. coverage can shape idea people have about preventing sexual assault, how the community should respond to sexual assault and what we believe about victims and offenders. we make it a priority to work with reporters to be sure the public is getting accurate information. so, it is my privilege to both introduce to you and later
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interview john than saltzman and steven starr. he has worked at the globe since 2002 and joined the investigative unit in 2011. this year, he was part of a team that reported on sexual abuse at private schools in new england perpetrated by educators and the cover ups that protected the institutions and the people who caused the harm instead of the students. jonathan saltzman met steven starr working on it. he insists you all get a chance to meet him as well. john is a smart man. steven starr is a father, a film maker, excuse me, a media activist. he got a start with bob marley and the whalers. he's the co-founder of


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