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tv   C-SPAN Weekend  CSPAN  July 9, 2011 10:00am-2:00pm EDT

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we will let our guest address this. guest: automobiles are a key part of this deal. auto companies oppose the this agreement when it came forward. they were able to negotiate a series of changes, including those taxes that the caller raised, that are supposed to make sure there are more opportunities to sell. they are only selling at 80,000 per year. host: ian swanson is our guest, part of a three- day series. we took a look at south korea. we will look at the agreement for monday, for the u.s. and panama. thank you. guest: thanks for having me. host: we will look at what is going on as far as current
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negotiations and what that might do going into the 2012 elections. bruce cohen has come up with what he calls -- bruce cooke has come up with what he called the 1% solution. we will talk with him about his findings. we will talk with vicki needham about the pending free-trade agreement between the u.s. and colombia. we will see you at 7:00 tomorrow morning. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]
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>> we will return to our regular programming at about 25 minutes, but we wanted to spend some time talking about betty ford. her efforts did when her the presidential award of freedom. she was a powerful advocate of women's rights and helped reduce the social stigma surrounding addiction. back in 1997, mrs. ford spoke at the richard nixon library in california about her time in the white house. here is a look. >> it certainly is an honor for
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me today to be here at the richard nixon library and birthplace. my has been an -- my husband and i enjoyed a longstanding relationship with dick and pat nixon that goes as far back as 1949. being here today in this magnificent building that pays tribute to our wonderful group of friends is a very special honor, but it is also a very touching moment for me because we have been here for on many occasions other occasions that were not quite so happy. on january 3 of that year in 1949, my husband took his first oath of office in the well of the house of representatives. we were newly married and that
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time, very proud, as he raised his hand and swore to serve his country and uphold the constitution. interestingly enough, and i have commented on this many times, what i remember so vividly that day is watching another young man, young congressman approach gerry to congratulate and welcome him as a new member of congress. i have heard that young man was richard nixon. that moment began a friendship that has been treasured for these many long years by all four of us. as i think about the years that were so politically active, i realize that the event that had the biggest impact on my life was the day my husband took the oath of office as president of the united states. nothing can compare to that
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moment i wrote about that -- nothing can compare to that moment. i wrote about in my book is the saddest day of my life. it is a day i'll never forget, but today has provided me an opportunity to reflect on our many years in washington and all the wonderful times we experienced, which led to the privilege of our serving in the white house. before my husband and i started our journey to that wonderfully historic house, everything was quite different. in congress had always been to be speaker of the house of the representatives, but a democratic majority seemed to be distancing him about that goal. in 1973, gerry, who had been serving nine years as minority
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leader, began talking about serving just one term and then retiring. that sound is like the most wonderful idea to me. [laughter] as we began our planning, it never dawned on us that outside influence might rearrange our plans and not just slightly. when president nixon was considering his selection for a new vice president following mr. agnew's resignation, i was aware that my husband's name was included on the list of 10 men who were rumored to be under consideration. i did not give it any serious thought. i was sure that gerry's position as republican leader was much too valuable to president nixon for him to be a contender. so the ford family, under my direction and tutelage, went about business as usual. that is everybody but our
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daughter susan. once the news was out that her father's name had been included on the list, she was totally convinced that he was going to be picked. we humored her by agreeing that her father was certainly the best man for the job, all the while being very sure she was wrong. in fact, we had some bets on a. president nixon had announced he would make a selection in the evening of october 12. both houses of congress were to meet their to hear the announcement. we had the usual quiet family dinner planned so that gerry could get through early in be in place with his white house colleagues at the appointed time, but during dinner, the phone rang, and it was president
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nixon, just as susan knew it would be. unfortunately, the call came in on our private childproof line, which had no extension. [laughter] by "childproof," i mean that it came with a kind of death threat to any child who dared to use it. [laughter] under the circumstances, susan naturally sprinted upstairs to the phone and called her father, and then things began to get really confused. president nixon told gerry he wanted to speak to both of us and asked my husband to pick up the extension. that is the nonexistent childproof extension. [laughter] in an attempt to remain cool and controlled, gerry attended to explain the problem and ask him to call back, giving him our
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phone number. [laughter] and then he hung up. [laughter] he came back downstairs and said, "president nixon is going to call back because he wants to also have you on the phone when he speaks to me." we waited what seemed an eternity. to this day, i wonder what we could have done if the phone had gone wrong another few minutes later. i often wonder what we would have done or what would have happened. that call not only changed my life from being typical suburban wife of a member of congress into the vice-president's y designee -- wife designee, and i, within a half hour was supposed to be ready to be at the white house to appear on
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national television within my -- with my husband. [laughter] well, guess what? i had nothing to wear. [laughter] with susan's help, i went upstairs, and we went through my closet and i threw on a dress that i thought was probably suitable for television because it was a solid color, and i knew that was better -- at least i knew that much -- but the dress happened to be green. i did make it to the white house in time to slip quietly into my chair next to pat. actually, it was half a chair with pat because it seemed someone forgot i was coming. [laughter] everyone had to slide over a little bit. i remember julie and tricia and their husbands were there. in my excitement, i hardly
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noticed. i was so excited to be there. after weeks, and investigations and hearings before the senate and house committee, gerry was finally confirmed as vice president. once he was sworn in, i started to work at fixing up admiralty house, which has just recently been designated as a new official residence of the vice president. the vice-president had never had an official residence of to that point. they had talked about it many times, but they had never been able to come up with something. admiralty house had been the residence of the chief of naval operations, and believe me, it needed everything. from new wiring to a leaky roof and linens and china and silver and towels -- everything. as usual, that involved a great deal of detail, but it was truly a lot of fun to do, and i had a
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lot of guidance from people from the state department and, of course, my dear friend, had the rockefeller, whose husband eventually then became vice president, appreciated all my efforts. things did move so quickly that i never got to live in admiralty house. before it was ever ready for occupancy, we were living at 1600 transylvania avenue in a very lovely historic old home. as incoming first lady, i was quite fortunate. i was not a stranger in town, and i had many good friends on both sides of the political aisle, and i knew most of the members of the press corps. the only change -- i had become fairly accustomed to my new job,
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and i had a new mailing address. that was pretty exciting. suddenly, i had graduated to the highest notch on the washington totem pole. i have always felt that the white house is truly the house of the american people. the professional staff -- many have been their most of their adult lives, serve from one administration to the next, giving each president and each first family their total and immediate dedication. the part they play in the orderly transfer of power is very important. most people think of the transfer of power as involving the state department and cabinet posts. true, that is a very important transfer as far as policies are
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concerned, but without support of the white house staff and their loyalty to their responsibilities and that marvelous old house and the transition from the outgoing first family and the ingoing could easily be a moving day nightmare. for me, just the thought of being first lady can be very challenging, and it was. it was a demanding job, but it comes with no job description. i was tentatively worried that i was going to hate every minute of it. fortunately, i was wrong. it also can be a lot of fun. i worked so actively on women's rights and got such national exposure, or entertained robert redford at tea, or carry grant had dinner -- cary grant at
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dinner or had bob hope and marine corps band come to my house to entertain at my parties? [laughter] the residents of the white house during the bicentennial year -- being a resident of the white house during the bicentennial year was certainly an additional honor. it seemed everybody wanted to come to washington to take an official part. we entertained and entertained by heads of government. sometimes, it was like a revolving door with one head of state departing just before a new rival. this was -- a new our arrival.
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this was a very privileged experience for gerry and me. what other job that i have had the opportunity to meet and learn a few basketball tricks with the harlem globetrotters. i will admit that it was very short-lived. seems like someone higher up in the oval office, who will remain unnamed, called an emergency cabinet meeting, and he became a little testy and became a bit too lively and somewhat noisy to the point of disrupting his meeting. you would be surprised at how quickly and 8 with a message from the president can put an end to a thicket game -- how quickly an aide to the president with a message can put
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an end to a pick-up game. i was -- my skill was a result of my many years of dance training. while i treasured my time dedicated to the dance company who i was with 42 and a half years in new york, my dance with the wonderful fred astaire is the one i will always remember fondly. my story just proves that plans do not always go smoothly, even if you are a first lady. fred astaire was a guest at a state dinner, and like every other american woman who has ever seen and astaire/rogers movie, i was dying to dance with him. [laughter] as a trained dancer, i knew i
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could keep up. so after dinner, guests were dancing to the music of the marine corps band. i got up my nerve and marched over to mr. astaire using my prerogative as first lady, and i asked him to join me on the dance floor. he was very charming, but he explained he really was not much of a ballroom dancer, and that he only danced to carefully choreographed numbers. [laughter] i think he was trying to tell me, "i will dance. me -- "i won't don't ask me." [laughter] i would not take the hint. finally, a guided him on to the dance floor, and we started gliding around to the music. never missing a step, and my ego was busting at the seams. my husband approached, tapped
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mr. astaire on the shoulder and explained that our guest of honor was leading. i know my husband has seen all the same fred astaire/ginger rogers movies that i have, but apparently he did not understand the full impact of the latest astaire/ ford duo. anyway, reluctantly, i excused myself, and my husband let me off for us to say our goodbyes. when i rushed back to claim my partner, fred had been swept up by a member of the press corps. i never got close to him again that evening, proving, you know, once again, first lady does not always guarantee everything goes your way. perhaps the most rewarding time, the real peak of my experience in the white house occurred in that wonderful july evening when
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we entertain her majesty, the queen of england. in what other job could i have had the chance to sit down with this very special lady and talk mother to mother about our children. queen elizabeth and prince philip were our guests at the official bicentennial dinner at the white house. it was very close to the time of the fourth of july celebration. at that time, our second son jack, who had been at yellowstone park as a ranger -- he had come home to attend dinner with us. in his usual form, he could not find his address shirt. he still swears that they were never delivered with his dress suit, but at the time, and as his mother i know him quite well, i suspected he had just casually misplaced them. whatever the cause, there he
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was, racing through the white house with his, very disagreeable about not finding it year after much desperation on my part, he borrowed one from his father, and we proceed downstairs to the front to greet our royal company and escort them upstairs to our private quarters for a brief, informal visit before the official activities in the east room. jack and his shirt problems quickly slipped my mind as i began concentrating on addressing the queen as "your majesty" and the prince, who you call "your highness." my mind was terribly activated they're trying to do the right thing. we were riding the elevator to our private quarters with the royal couple. the doors opened, and in bounded
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jack ford, startled and jack it -- jacketless. still trying to put his shirt together. i will never forget it. jacks said there in total disbelief and embarrassment. queen elizabeth just looked at me and smiled and said, "don't worry, my dear, i have one just like it at home." [laughter] [applause] well, immediately, i felt very comfortable, much more comfortable with here that i had up to that point, so we started back off on the right foot and had a great time talking about
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our family. i have always fell that somehow things happen to me that never happened to any other first lady, and i guess all of us in that role have had our waterloos in one way or the other. certainly i said and did things that no other first lady had done, but i had to address each episode in my life in my own way. after all, i had never planned on such a role. and thank goodness after a few gasps from the press and the public, they decided they liked my openness -- after a few gaps with the press and the public. some of you may remember that shortly after we moved into the white house, i entered the hospital for a mastectomy. it was only just six weeks after gerry had been sworn into
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office. i was terribly frightened about having breast cancer, of course, but i also knew that the only way i could handle it was -- this illness -- was to be totally open and honest with the public. women did not usually talk about mastectomies or breast cancer at the time. it was kind of a -- kind of behind the closed door, as far as discussion, but by speaking to the public about it, it not only eliminated speculation about why i was going to be laid out in hospital for some time, but it had a much greater impact, and that benefit was it got hundreds and thousands of women to their doctors and two clinics for breast exams. suddenly, there was this awareness, and women felt that if the breast -- is the first lady could have breast cancer,
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any of them could. i have always been proud that that frank discussion of breast cancer help save the lives of women who received treatment before it was too late. i still work with my daughter, susan, in the field of trying to inform people about prevention for breast cancer, such as the importance of monthly self exams and mammograms once a year and physical exams with your own professional physician, but now, i spend even more time with my work at the betty ford center where we have treated more than 30,000 individuals. women have represented at least 50% of our population, and i think that is probably because of the betty ford center has a woman's name on the door. this october, we will celebrate
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our 15th anniversary. it was true when i went public about the news of my breast cancer, my forthrightness, about my addiction to prescription drugs and alcohol -- i'm so glad it had the same miraculous effect on countless individuals and families. it is very gratifying for me and our staff to know there are many recovering people out there living fuller, happier lives, in joining meaningful family relationships. and carolyn, i have had the same line i have often said -- i was an ordinary woman called on stage at an extraordinary time. i still feel that way. but to me, those times were extraordinary, and i felt very honored. and of course, i loved them all. i want to thank you for being
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patient and listening to my memoirs. thank you. [applause] >> in speaking about betty ford, former first lady nancy reagan said, but " she has been an inspiration to so many for her efforts to educate women about breast cancer and her wonderful work at the betty ford center. former president jimmy carter and his wife, the former first lady rosalynn, said that ms. ford was a remarkable political spouse who improved mental health and substance-abuse care and spoke remind. betty ford died at age 93 out in california. that happened yesterday.
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now, to the rest of our programming day here on c-span. of next, a discussion with julian assange on the history and impact of wikileaks. then we hear from legal experts on the key decisions of the supreme court term that just ended. after that, it forum looks at ways to make u.s. courts accessible. and here is the even now with wikileaks founder julian assange and editor julian. also, we hear from slovenian philosopher slavoj zizek. -- wikileaks founder and editor in chief, julian assange. >> good afternoon. i am the founder of the front line club. the co-founder, actually. co-founded with my wife, who is
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hidden amongst you somewhere. we are very excited to be doing this today. this is the last event we have done with the front line club, and i would like to thank you for coming to this fantastic place. i would like to thank dan, our branding man, because i am standing in front of 100 logos, which are all new. thanks for our new look. we are not shy of our new look. i would like to thank the front line club staff, who worked extremely hard to put this on, particularly flora and millie. so thank you all. i am extremely proud of you all. the front line club exists to promote what is best in journalism and to put on debates and discussions like this. we are an official enterprise, and if you wish to support us, come if you have not already
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been, where we can feed and entertain you. we do 200 events a year. the money you spent nine and any money spent at the frontline club helps us do this work, so we are very grateful for it. if you want to help julienne or -- julian, you can make their nations. it is julian's birthday tomorrow, so if you want to help with those exorbitant legal fees, give generously at the end. all that remains is to welcome amy goodman of "democracy now." she is a multiple award winning journalist, and is the main presenter for the show and has come all the way from america to be here. she is a pretty fine person, and i'm extremely glad to have her now. thank you very much. [applause]
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>> and good afternoon. it is a great honor to be with you this afternoon. and a shout out to all of the people who are watching this broadcast rivals all over the world. we are live streaming this at by the way, how many of you watch or listen to or read "and marcel"? we have given out about 1000
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fliers of where we have broadcast and written. also, where you can watch, read, and listen to the broadcast. we are also live streaming -- we have offered the event for anyone to take to put on their website. i hope people tweet and facebook and let us know what you are doing with this broadcast. it is extremely important because information is power. information is a matter of life and death. we have learned that through these remarkable trove of documents that have been released in the last year. the iraq war logs, the afghanistan war logs, and what has been called cablegate, as
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the u.s. state department documents that are continuing to be released. why does it matter so much? we will talk about that this afternoon, but let's just take one example that came out in the iraq war logs. february 2007. the war log show that to give you zero men were standing, iraqis under an apache helicopter. the men have their hands up. they clearly are attempting to surrender. the apache helicopter can see this. so they are not wrote. the soldiers called back to the base and asked what they should do. the lawyer in the bass says you cannot surrender to a helicopter, and they blow the man attempting to surrender away. that was february 2007. now, we will fast forward to
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july 12, 2007. video that has been released by wikileaks. this devastating video of an area of baghdad where a group of men were showing around two reuters journalists. one was an up-and-coming videographer, and one was this driver. he was 40 years old, father of four. they were showing them around. the same apache helicopter unit hovering above. they opened fire. the video is chilling. i'm sure many of you have seen it. if you watch or listen to open a " democracy now," we played it repeatedly, discussing it with various people from julian assange to soldiers who were there on the ground.
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over time, we dissected it. the soldiers opened fire. you have video of the target and the audio of the sounds of the soldiers cursing, laughing, but not road. always going up the chain of command, asking permission to open fire. you can see the attempt to crawl away. then a van pulls up from the neighborhood, and they are attempting to pick up the wounded -- their children in the van. the apache helicopter opens fire again. those in the van are killed. two little children are critically injured inside. i dare say that if we had seen what came out in the iraq war logs in february 2007, if we have learned the story at the time after it happened of the
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men with their hands of trying to surrender, there would have been an outcry. people are good. people care. people are compassionate. they would have called for an investigation. perhaps one would have a gun. but it might well have saved the lives of so many. certainly months later, perhaps that same apache helicopter unit under investigation would not have done what it did. and maybe the young reuters videographer and his driver, not to mention the other men who were killed and the kids critically injured -- none of that would have happened to them. that is why information matters. it is important we know what is done in our name. today, we are going to talk about this new age of information. we are joined by two people many of you know well.
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earlier, asked a young man who had come to the gathering why he had traveled so far. he said, "are you kidding? to be with two of the most dangerous people." the national review call slavoj zizek the most dangerous political philosopher in the west. says he is the elvis of cultural theory. [laughter] slavoj zizek has written over 50 books on philosophy, psychoanalysis, theology, and political theory. his latest book, "living in the end times." we will talk about what he thinks and talks about around the world. we are joined by another man who has published perhaps more than anyone in the world. in fact, he wrote a book on the
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underground computer information page called "underground." with the iraq war logs, the afghanistan war logs, now the u.s. government cables that have yet to be fully released, i would say that julian assange is perhaps the most widely published person on earth. today, we are going to have a conversation about information. i would like to ask julian to begin by going back to that moment in 2007 as we talk about the iraq war logs. talk about the significance of them for you and why you have chosen to release this information. >> amy, i suspect under the criteria, perhaps rupert murdoch is the most widely published person on earth.
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in some ways, things are very easy for us and very easy for me. we made a promise to sources that if they give of material that is of a certain type that is significant -- diplomatic, ethical, or historical significance, not published or under some sort of threat, we will publish it. that actually is enough. of course, we have a goal with publishing material in general. it has been my long-term believe that obverse what advances us as a civilization -- it has been my long-term believe that what advances us as a civilization is our understanding about what
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we're going through, what human institutions are actually like and how they actually behave, and if we are to make rational policy decisions insofar as any decision can be rational, then we have to have information drawn from the real world and a description of the real world. at the moment, we are severely lacking in the information from the interior of the secretive organizations that have such a role in shaping how civilization evolves and how we all live. and getting down into iraq -- that was 400,000 documents. each one written in the military speech. on the other hand, each one having a geographic coordinates down often to 10 meters, a discount of billions.
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u.s. military troops, iraqi troops, and suspected insurgents. so it was the first -- rather the largest history of war, most detailed, significant history of a war to have ever been published probably at all. but definitely during the course of a war. so it provided a picture of the everyday squalor of war, from children being killed at roadside blocks to over 1000 people being handed over to the iraqi police for torture, to the reality of how modern military combat is done, linking up with other information, such as the video we discovered of the
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minister rendering, being attacked. as an archive of human history, this is a beautiful and horrifying thing, both at the same time. it is the history of the nation of iraq in most significant recording, during its most significant development in the past 20 years. while we always see newspaper stories revealing and personalizing, if we are lucky, some individual family dying, this provides the broad scope of the entire war and all the individual stories. with the details of over 104,000 deaths, and we work together to statistically analyzed this with
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various groups of around the world, such as iraq body count, who became a specialist in this area, and lawyers in the u.k., who represented refugees, to pull out the stories of 15,000 iraqi civilians -- labeled as civilians by the u.s. military -- who were never before reported in the iraqi press, never before reported in the u.s. press for the world press, even in aggregates. even saying today, "1000 people died." not reported in any manner whatsoever. think about that. 15,000 people whose deaths were recorded by the u.s. military but were completely unknown to the rest of the world. that is a very significant thing. compare that to the 3000 people who died in 9/11. imagine the significance for
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iraqi troops. that is something that we specialize in and that i like to do and i have always tried to do. to go from the small to the large. not just by abstraction or analogy, but actually by encompassing all of this together and trying to look at us and extract through mathematics or statistics, to try to push both of these things at the same time. the individual relationship as well as the state relationship. the relationship that has to do with civilization as a whole. >> i would like to discuss the importance of wikileaks today in the world. >> we will try to convince it. first, let me say how proud i am to be here, and let me mention
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something with -- which may be most of you do not know -- how difficult it was to organize this event. it had to be moved two times out and more out from central london and so on. again, let me begin with the significance of what you started with, this shocks -- not shooting, but video shots of those of apache helicopter shootings. you know why this is important? the way ideology functions today, it is not so much that let's not be naive, that people did not know about it, but i think the way those in power manipulated it, yes, we all know dirty things are being done, but you are being informed about this obliquely in such a way that basically, you are able to ignore it.
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can i make a terrible they be sexually offensive -- but not 30, don't be afraid -- remark? -- but not dirty. a husband made no abstractly that his wife is cheating on him. but when you get a photograph of your wife doing things, it is quite a different thing. i would say with all respect, it is similar. it is very important. the same thing i remember happened about two years ago in serbia. people rationally accept that we did horrible things, but it was just abstract knowledge. then, by chance, they got photographs of people effectively showing a group of
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serbs shooting a couple of bosnians, and the effect was total national shock. although, again, nobody learned anything new. so here, so that i do not get lost, we should heed the significance of wikileaks. many of my friends who are skeptical about it ask what we really learn. is it clear that every hour, in order to function, you have collateral damage? you have to have a certain discretion. what you say, what you do not say. but to conclude, propose a formula of what wikileaks is doing, and it is extremely important. i am not a utopian. neither of us believes in radical openness, everything should be clear and so on, but what are we dealing with here?
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another example from cinema, there's a wonderful joke where a hero enters a cafeteria and says, "can i get some coffee with cream, please?" the waiter answers, "sorry, we ran out of cream. we only have milked. so can i serve you coffee without milk?" that is the trick here. when we learn something from the media, they behave as if they are serving coffee with cream. that is to say, of course we all know that they are not telling the entire truth, but that is the trick of ideology. even if they do not like it, the implications, you bring this out. you are not so much catching
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them with their pants down lying, but precisely on behalf of what they are implying, and i think this is an actual mechanism in ideology. it does not only a matter what you say. it matters what you imply to say and so on. just to make the last point, are we aware at what important moment we are living today? on the one hand, as you said, information and so on -- we all know that it is crucial even economically. i think one of the main reasons capitalism will get into crisis is intellectual property. in the long term, it cannot deal with it. just take a phenomenon that media are trying to get us. computers getting smaller and
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smaller and all it has done for you in a cloud. the problem is that clouds are not in clouds. they are controlled and so on. for example, you rely on -- maybe you have an iphone. do you know -- it is good to know if you rely on your use through iphone or whatever that apple signed an exclusive agreement with murdoch. murdoch's corp. is again the exclusive provider of news and so on. this is the danger today. it is no longer the clear distinction between private and public space. the public's face gets privatized in a series of and visible words, like the model of it being clouds. again, this involves new lows of censorship. that is why you should not be
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quick when you ask what we learned something new. maybe we did not learn anything new, but it is the same in that beautiful old study. the moment somebody publicly says the emperor is naked, everything changes. we did learn many new things. but the forum matters. do not confuse julian and his gang -- in a good sense -- do not confuse them with the usual bushwa -- bougious. you're doing so show -- something much more radical. that allows such an explosion of resentment. you are not only violating the rules of explosions and secrets
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and so on. let me call it in the old marxist way, the boys walk -- the bourgeouis. you are not only violating the rules, you are changing the very rules, how we are allowed to violate them. this is maybe the most important thing you can do. [applause] >> and yet, even as you were releasing information in all different ways, you then turn to the very gatekeepers in some cases who held back this information, and you worked with mainstream media throughout the world in releasing various documents. talk about that experience and that level of cooperation and what has happened after that. >> [inaudible]
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>> i will aim for the balcony. [laughter] >> if you see these idiots in kyushu, you see, he is the authoritarian. i am saying this is not true. this is the only way to really keep things going. [laughter] >> if you want to have an impact and you are an organization which is very small or actually, you have to co-op or leverage the rest of the mainstream press, our model of how you make the impact and how you get people to do things that you would not have been otherwise able to do, unless you have an army that can physically go someplace and divisions that can roll over, the only way you can easily make an impact is push information about the world to many, many people
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across the world. so the press has developed expertise on how to do that. it is competition also for people's attention. if we had had several billion dollars to spend on advertising across the world or even if we could get our place, we would not easily be able to have made the same impact that we did. and we do not have that kind of money. if you entered into relationships with now over 80 media organizations across the world, including some very good ones that i would not want to disparage -- to increase the impact and translate and pushed our material into now over 50 different countries in directly, that has been yes,
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subverting the filters of the mainstream press, but an interesting phenomenon has developed amongst the journalists who work in these large organizations that are close to power and negotiate with our at the highest level, which is journalists having read our material and having been forced to go through it to pull out stories have themselves become educated. that is an ideological penetration of the truth of these mainstream organizations and that, to some degree, may be one of the lasting legacies over the last year. also by, you know, even fox news, which is much disparaged, is an organization that wants viewers. they cannot do anything else without viewers. so it will try to push news
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content. for example, cnn showed only the first few seconds and blanked out all the bullets, completely blank and out, and said they did so out of respect for the families of people killed. there was no gore, and they cut out the most politically salient points, and the families came forward and said it was very important for us to know that they had already seen it. but fox actually displayed the first killing seen in full. quite interesting. so fox, not proceeding itself to be amenable to this threat of it is not acting in a moral way, actually gave people more of the truth than cnn did. so fox, also motivated to grab a
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greater audience share, took the content and gave it to more people. afterwards, they put in their commentators to talk against it, but i think the truth that we got out of fox was often stronger than the truth we got out of cnn and similarly, for many institutions in the media that we think of as liberal and, perhaps slavoj would like to speak about that. >> that you not as an idiot out of politeness, but it means that you really are not an idiot. sorry, but it happens. seriously, what you said now is extremely important. with all the respect i have for -- i do not mean this in any way ironically -- honest liberals who really believe people should be informed and so on -- but there are limits.
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as you point out the difference between cnn and fox, we should use every window of opportunity here. an example from a totally different domain reproduces the same duality. all this to raise our spirit. it may appear very critical. you are like the president himself is corrupt. why do you exit the movie theater in such high spirits
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after seeing -- i don't know -- "all the president's men" and so on? an ordinary guy can topple the mightiest men in the world and so on and so on. on the other hand, let me take the equivalent in tv program of fox news. please do not take me for being crazy. "24." [laughter] the last season, is for me, my god, again, if you approach it the way you approach those shots, it is for me much more consequential in criticism. you get jack bauer. what he tried to do in previous seasons of playing this role of somebody should do the dirty job, tortured prisoners. he says that it has to become public. his liberal counterpart, the
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president, also steps down. you know what is the true message? the message is simply within the existing ethical political coordinates, you are just step into a deadlock. it is a very pessimistic message. much more than the marxism of the great country we are and so on. all leftist tradition no-space. marks said that we can often learn more from honest conservatives than from liberals, because what honest conservatives do is they do not try to send you some uplifting bullish it. they are ready to confront a deadlock.
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[applause] >> i do not want to look distracted to looking down, but i wanted to get this accurate, so i have these on my phone. >> nothing threatening. [laughter] >> newt gingrich, the former speaker of the house said julian assange is engaged in warfare, information terrorism. he should be treated as an enemy combat and, and wikileaks should be closed down permanently and decisively. bill keller of "the new york times" said it is a thin- skinned directorial. there was messes' -- weapons of mass destruction alleged without
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sources, and said julian assange is not a good journalist, and not caring at all about their find the information he was putting out. joe biden, the vice president of the united states said julian assange is a high-tech terrorist. congress member peter king of new york called for the assange to be charged under the espionage act, and asked whether wikileaks could be designated a terrorist organization. tom flanagan, a former aide to the canadian prime minister has called for assange's assassination, and former alaska governor sarah palin -- [applause] [laughter] >> such an interesting person. >> called you and anti-american operatives, with blood on your
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hands. can you respond to these charges? [laughter] >> well, after bill keller said i was thin-skinned, it does not leave much ground for a reply, does it? sarah palin wants also on twitter complaint about my grammar. [laughter] that is really the biggest insult for me. calling for a drama attack is understandable, but correcting my grammar from sarah taylor and is really insulting. -- sarah palin is really insulting. obviously, it has uncalled wrong and outrageous, but the social and political -- it has been called from an outrageous, and so on, but the social and political events in which they happened was amazing. within a few months, we saw a
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new mccarthyism hysteria a rise in the united states last year. that is quite worrying. a new mccarthyism can come up so quickly. on the other hand, yes, there are a lot of optimistic politicians playing to their base, their pals in the military-industrial complex. on the other hand, power that is completely unaccountable is viable. when you walk across a group of ants on the streets, and crush of you, you do not turn to the others and say stop complaining or i will put a drone strike on your head. if you completely ignore them. that is what happens to power in a dominant position. it does not bother to respond, or flange for an instant.
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yet, we saw all these figures in the united states coming out and speaking very aggressively. bill teller, in a recent talk, as a way of sort of perhaps legitimizing why he was speaking about me said that if you have a dealing with julian assange, your your fate is to set on panels for the rest of your life. actually, it is a choice by bill keller to go around and try and twist history, and adjust history on a constant basis. why? why expand the energy doing that? why not just knockoff another front page of "the new york times?' because, these people are afraid of the true part of history coming forth. i see this as a positive sign. we should always see censorship,
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actually, as a very positive sign, and the attempt to sensor as a sign that society is not yet completely this allies, but still has some political intention to let light and what people believe, think, and feel, and the words that they listen to actually matter because, in some areas, it does not matter. in some -- in the united states, actually most of the time, it does not matter what you say. we managed to speak and give information that such volume, and as such intensity that people were actually forced to respond. it is rare they are forced to respond. so, i think this is one of the positive symptoms i have seen from the united states in a while. if you speak at this level, the
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cage can be rattled a bit, and people can be forced to respond. in censorship -- in china, such a ship is much more aggressive, which is a hopeful symptom, but it is still a political society, even though it is physicalizing into banking relationships, at the moment, the chinese government and security bureau are actually scared of what people think. >> can i read something? i hate myself what is that movie called? "there will be blood there, there will not be blood among us -- claude." there will not be blood among us, unfortunately. two or three months ago the chinese government passed a law
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that formally prohibits in public meteor -- press, books, comics, television, movies -- horror stories that deal with time travel or ultimate realities, literally. i checked with my friends in china. the official justification is that history should not be let [unintelligible] it is clear to what they are afraid of -- for people to a mention of alternate possibilities -- again, i think it is a good sign. they at least the april edition. with us, we do not need prohibition -- a pro edition most of the time -- who they need prohibition. with us, we do not need prohibition.
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it would mean loss of competition and so on. i totally agree with you. in the persons that you mentioned, newt gingrich is for me, sorry to use this strong word, kind of a storm of the earth. [laughter] [applause] >> i do not have any great sympathy for bill clinton, but i remember when there was this campaign with monica lewinsky, newt gingrich was making all of these moral attacks, and then it was confirmed in media, i listened to interviews with him where he confirmed that when his wife was dying in cancer, newt gingrich visited her in the hospital, forcing her to sign, not even having the decency for letting her die, forcing her to
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sign a divorce agreement so he could marry another woman. he was, at the exact time of the monaco was the affair, who already -- monica lewinsky affair, already -- [unintelligible] i did come here, a moral conservative. there should be an ethical committee debt claims these people should be prohibited from appearing in public. [applause] >> let me make it clear. i am not crazy. and a sense it is -- on the was a terrorist. it is not something that can be swallowed whole care at this is happening. ing ladyizek is bating ladydat
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gaga then here, wikileaks -- >> we have a dial on that? >> absolute denial on everything. i did not even listen to one of her songs. >> her representative was not that defined. >> my friends said you should have said no comment, and you will enjoy much more glory. what does this mean? in what sense was gondi a terrorist? he died to interrupt the normal functioning of the british state
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in india, and, of course, you are trying to interrupt dop functioning of the information's circulation and so on. i repeat an endless paraphrase of the wonderful line from "and beggar's opera." what is robbing the bank in comparison to opening a new bank? what is terrorism the week except so that things go on day by day to remain in the way they are. that is ideological. we always think about? switch interrupt the normal run of things. -- we always think about cac ts that always interrupt the
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normal run of things. we should use the term terrorism as strictly a reaction to a much stronger terrorism. again, instead of engaging in this moralistic things like he is a good guy, likes dahlin said about 11, you like small children, you play with tests, you are, in this formal sense, a terrorist, but if you are a terrorist, my god, what are they, who accuse you of terrorism? [laughter] [applause] >> you know, they try to give us a good news, like all of the news you are giving us. the good news that those and, it's -- and power are asking giving us.
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a guy kissed his wife at her operation, and the doctor tells him listen, first the good news, your wife has survived, and will live longer than you. the doctor says the bad news is you know there are problems, like as a result of the operation she will not be able to control muscles, so axman's will be driven all the time, so there will be strange slogans escaping all the time. >> of course, the guy gets more in more into a panic. then, and the doctor taps the guy on the shoulder and says and do not worry, this was just a joke, absolute -- everything is ok, she died during the operation. that is the good news there and giving us at the end. [laughter] no dirty words. you noticed this.
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because amy is always telling me when she was kind enough to receive me, do not use even the "s" where. -- word. >> i wanted to ask you, julian, about bradley manning. mike huckabee says that the person who leaked the information to julian assange city tried for treason and executed. anything less than execution is to find a penalty. -- to kind of a penalty. bradley manning has been held for more than a year, much of that time in solitary confinement in quantico, virginia.
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it was exposed that his treatment was tantamount to torture. p. j. crowley, the state department spokesperson spoke to a group of loggers and said his treatment is stupid. for that, he was forced out of the state department. bradley manning was then moved to fort leavenworth because of the outcry, but he remains in prison. he remains not tried. what are your comments on him? >> first of all, thank you for asking this question. it is difficult for me to speak in detail about that case, but i can speak about why it is difficult for me to speak about it.
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so, bradley manning is an alleged source of wikileaks who was detained in baghdad, and then, although there was very little coverage of this, at the time, but he was shipped off to kuwait, and held in a similar manner to which detainees are held at guantanamo bay. eventually, through some legal -- creative legal methods, he was brought back to the united states, and as been in prison now for a year. he was being kept in quantico for eight months under extremely hazardous conditions. it is not meant for long-term prisoners. maximumrisoners'
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duration has been three months people that have been visiting bradley manning, and we have our sources that say that they were applying those conditions to him because they wanted him to confess that he was involved in a conspiracy to commit espionage against the united states with me. that pressure on bradley manning appears to have backfired. by all reports, this is a young man of high moral character. when people of high moral character are pressured in a way that is illegitimate, to become stronger, not weaker -- they become stronger, not weaker, and that seems to be the case with bradley manning, and he has told
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u.s. authorities, as far as we know, nothing about his involvement. now, there has concurrently been a secret grand jury taking place for -- 6 kilometers from the center of washington that involves 23 people selected from that area. why was it in alexandra, virginia, that that grand jury was placed and those people draw on? it has the highest density of government employees anywhere in the united states. the u.s. government was free to select the place, and they selected the place to buy as the jury from the very beginning. this is in fact wrong to call a journey the jury. this is a medieval star chamber. there are these 19, to 23 individuals that have been sworn
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to secrecy. but there is now a judge, defense counsel, and there are four prosecutors. -- there is no judge, a defense counsel, and for prosecutors. a grand jury would not only indict a ham sandwich, but the ham and the sandwich. -- this combines the executive and the judiciary. so, this common lot notion of the separation of branches of power is removed in the grand jury. the u.s. government argues that these captive 19, to 23 individuals, are the branch of the and fiduciary because they perform a judicial function,
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where, of course, there are actually just captive for the justice, and the fbi. the have coercive powers terror they can force people to testify, and they have been put -- powers. they can force people to testify and have been pulling in people. they have recently -- a number of individuals have been brought to the grand jury, and they understand what is going on, and they have refused to testify, and have pleaded the first amendment, third amendment, and fifth amendment pair of all i did not know the purpose, from the outset -- amendment. although, i do not know the purpose, it is used to magnify the political witch hunt against us in the united states. in response, the grand jury has
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been instructed to send out immunity certificates. these are certificates that go to subpoenaed individuals that say if you come to the grand jury to testify, that testimony cannot be used against you, therefore you have no right to plead the fifth. what this means in practice is coerced, compulsive interrogation and secrets with no defense counsel. there are not even lawyers for the subpoenaed witnesses. it is just the prosecutors and these people from 6 kilometers away from the center of washington. another grand jury that have sprung up in the united states and is investigating anti-war activists engaged in the same sort of witchhunt. this is a classical the device
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that was looked at very critically in the u.k. 400 years ago, and the result in the u.k. was this concept that if justice was to be done, it must be done publicly. it is interesting why or how it has been waylaid. on the surface, it is divided. they want to conduct an investigation. we get people from the community, and they monitor the investigation. actually, this is being turned on its head, and used as a way to subvert the judicial system. >> your comments on bradley manning? >> first, i would like to say that crucial things you mentioned are but a muffled combat and, and so on, -- on
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unlawful come back since, and so the paradox is we should read these terms as strictly connected to universal human rights. i've nothing against universal human rights. what i am opposed to is how the referenced is divine in the ideological structure. in order to sustain support, universal human rights have to be constructed in a space which is no longer the space of the enemy in this sense, to whom the rules apply in this sense, either the geneva convention and so on, in but you'll have to create what the great american politician and thinker dick cheney referred to as the gray zone. here i would say things are even more complex than they appear.
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what i find really terrifying it is that concepts like on lawful comeback since are becoming legal categories. i will shock some of your -- some of you. i can't imagine a situation where -- i can imagine a situation in -- while, i cannot promise i would not torture someone lets a imagine a situation where a bad guy has my young daughter. i have in my hands a guy who knows where my daughter is. under despair, i may have tortured him, or whatever. when i am opposed to is to legalize this. if, out of this there, i do something like this, it should remain something unacceptable that i did out of despair.
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what i am afraid of is that this system gets institutionalized, as it were. at the end of the road, i saw an exchange with one side wants in the legalization of torture. this is an example to scary. amy and me are the torturous. you have to be tortured. let's say -- >> speak for yourself. >> sorry. >> we call for a doctor and determines that he can't torture and to so on. what is more obscene to meet is
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this normalization of torture -- to me is the normalization of torture paree. you have a certain moment of glory and so on this poor guy, who, for me, did something extraordinary -- you know how difficult these decisions are, at that simple, morality prevails over legal considerations. i hope i am not a utopian. do we not have any of these will propose for noble peace prize is? >> if there is a person who deserves a nobel peace prize today, it is manning, or people like this. ordinary people. i'm not even idealizing him. there are many examples i know of of people who are not
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anything special, but all of a sudden, they do something. something pushes them more. this is so precious state. it also goes today, the idea of ideology. i prefer her to play a little bit of a simple moral some -- moral was impaired from time to time, there are ethical miracles. there are people that still care. this is very important air -- important. let's not leave this domain for simple, ethical agencies for the catholic church and so on.
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who are they to talk about them. we, the left should rehabilitate this. it does not sound post-modern. the idea that there are ordinary guys, -- the left, nothing special, but all the sudden, they do something wonderful. that is our only hope today. [applause] >> one of the difficulties -- we have another one in prison which has received very little recognition. he has been imprisoned for allegedly revealing [inaudible] it was traced to us. if they put up their hands and say, it was me, it makes it
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very easy to defend them in a moral way. it makes it easy to shower them with awards until they do that, the defense is that they did not do it. it is very hard to for us to start praising people because and your team that praise, we would be guilty of the offense. >> you mentioned a while ago that you had a good deal of documents. they have not been released. are you planning to release them? >> there is a complication with those documents and another group of documents. we are under a type of blackmail in relation to the documents. it will be dealt with over
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time, but it is quite difficult to deal with it at the moment. i do not want to specify what kind of blackmail is. it makes it difficult to address the situation. it is perhaps something like people would guess. [laughter] there are a range of possibilities. >> let's talk about the beginning of wikileaks. tell us about how you founded it, and named it, and if you have been disappointed with what you have been able to accomplish.
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or amazed? >> i am amazed by it, of course. it is an extraordinary time. i think we are half of the way there. solidified the historical record. once we start getting that sort of volume and concrete ties and protect the rights of everyone to communicate with each other,
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and that is the basic ingredient of civilized life. it does not mean anything. someone's right to know, someone tried to communicate, and that is the ground of structure for all of that -- all that we treasure about civilized life. i do not mean industrialized, i mean people collaborating to learn from previous experiences and from each other.
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enable everyone to be a contributor to the historical record is something that i had been involved with for about 20 years. protecting people who contribute to our shares. it also means protecting publishers and encouraging distribution to everyone who needs to know about it. that long term vision is something that i developed in various ways. in 2006, i saw there was a way of achieving justice through this process.
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it could be realized using an intellectual and social capital but i had available. it was quite a complex plan. it was a difficult thing to do. to master the resources and to build not only reality that people could support and were encouraged by, but that people would defend. it is one of the -- it is extremely interesting that although this venue was canceled, including the institute for education at the university of london on the
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basis that it would be too controversial, at that point, we ended up at that venue. despite that, we have managed to pack out 2000 people and london on a saturday at 25 pounds a seat. i see that as extremely encouraging. on the one hand, we have the every day institutional censorship of saying something is too controversial. institute of education braid on the other hand, -- institute of education. on the other end, all of you came. i am not sure about what had happened five years ago. i am pretty sure that it would not have happened five years ago.
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when i said before that censorship is always an opportunity, it reveals something very positive about a society. society would no censorship would be in a very bad state. the censorship of not giving up this venue so easily is also related to why you are all here. it is the other side of the coin. people are worried the change is possible. you are here because you think the change is possible. you are probably right. that has been a very interesting experience to see that. i thought i was pretty cynical five years ago. of course, i was simply a very young and naive fool in retrospect.
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learning how to -- being inside the center of the storm, i have learned not as about the structure, not just about how powerful but many governments are that we have dealt with. but how history is shaped and distorted by the media. i think the distortion by the media of history, of all the things that we should note, is the worst thing. it is our single greatest impediment to advancement. it is changing. we are -- it is not a foregone conclusion, which is what makes
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this time so interesting. it has been educated outside of that mainstream media distortion. all those young people are becoming important within institutions. maybe it is something that i will speak about with you later, amy. but i do want to talk about what it means when institutions, the most powerful institutions are all organized using computer programs, using
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technical young people. what does that mean when all those technical young people adopt a certain value system? or when they are in an institution that does not agree with the value system? there have been moments in the past like that. it is those technical young people who are the most internets educated and have the greatest ability to receive the new values that are being spread and the new information about reality that are being spread outside the mainstream media distortions. [applause] >> the leader has spoken. i would really like to begin
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with what you said is extremely important. when you move from right to speak, right to communicate, i think that in the history of modern thought, in his distinction between private use of reason. i gather with my friends in the kitchen of my apartment. it is legal faculty, where what you are thinking, developing, it sets up an event by a power structure.
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establishing power structure, we are the public use of reason. why is this so important? what i see wikileaks is part of a global struggle, this domain of a right to know, right to information. even education, this is all one conservative attack on the public use of reason. the goal is very clear. make universities more
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responsive to social problems. we should all become experts. we need psychologist who will tell us how to control the crowd. we should be here at as kind of an ideological to resolve problems formulated by others. this is the end of intellectual life as we know it. when they are talking about -- sorry, i use the word that i should not.
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when we hear about immigrants -- sorry, the greatest asset is precisely this independent space of public reason. if there is something to defend of the judeo-christian legacy, this democracy, not only is this the right to cast a vote totally isolated. public of the communications, this would be our answer to the
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politicians. not this -- you are defending the judeo-christian legacy. all the bad things in the world are the result of european imperialism. maybe. who argued to even speak about judaeo-christian legacy? -- who argued to even speak about the judeo-christian legacy? this is the greatest threat to the legacy, and so on. that is the end of europe, for me, in the sense of what is progressive in europe. this is part of the much larger story. especially with the problems to date, ecological problems.
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let me give you an example. i would like to ask you -- wikileaks and china. the chinese people pay such a price before public space of reason. in china, the catastrophic consequences -- it is the greatest artificial lake and the world. -- in the world. that lake is just about some subterranean faults. they admitted that -- it was
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rendered much stronger because of this. this is not a long boat lines -- along the lines, after the battle, everybody can be the wise general. no. my friends there told me that geologists were already warning the government about this. because of this collection of water there, the effects are much stronger felt. the river is the main transportation in china. -- line in china. just to conclude, one more thing. this is not a critical point. what wikileaks can do, we should not -- we live in times
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of incredible kid alogical investments -- is the logical investments. -- ideological investments. let me tell you a story from israel. five or six years ago, one of their is dorians -- one of their historians wrote a more truthful account. a more balanced view. the critics had an intellectual. then they got a shock of a lifetime. we have -- we should have thrown all the palestinians in the west bank and we would not
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have any problems today. i disagree not with you, but with another person for whom i have respect. a friend of mine told me that chomsky told him that we do not need any critique of ideology. we just need to tell people the truth. truth must be contextualized. t really conclude, -- to willing to conclude, this is my point about wikileaks great you are not simply telling the truth. you are telling the truth in a very precise way of confronting
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-- the public discourse, it is not is about telling the truth. this is very important. if you listen to -- [laughter] he was a stupid bad manager. ok. the point? basically, there was a line about iraq when it was discovered there was no weapon of mass destruction. we were lying, but we were lying in a truthful way.
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this was part of a larger strategy. this is maybe the most effective defense of a liar. i am lying, but so what? i openly confessed that i was lying, so i am truthful. this guide looks as an idiot and it? as an idiot. we should not deceive you, this guy is an idiot. you act as a liar, your a cheater and a liar. but this will not deceive us. we should not allow them to the space of selling their lives in a cynical way it as a people of truth. [applause]
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>> i want to ask you about the arab spring. what you see as wikileaks role. what role did wikileaks play? >> it is hard to disentangle the story that we have from people who were in egypt and from the newspaper, one of the great newspapers publishing in the middle east. >> you lived in egypt for a time? >> i lived in egypt in 2007. i was staying, i was staying at
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miss egypt possible house -- miss egypt's house. there was a van outside filled with 24 soldiers at my front door. for this sort of work that we were doing. it was the ultimate cover. egypt is a very interesting place. at that time, you did not feel in most areas of cairo the presence of the dictatorship. in fact, people go to work,
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they go to cafes, the economic basis and the technological basis in cairo seemed pretty much the same as london. if you compare it to -- to my mind, actually, if we say that it is a democracy that ruled and manages the united states, this is completely ridiculous. when we look at countries that are dictatorships, or soft dictatorships, the technological activities and the behavior, for most people, are
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exactly the same. it is when you straight into those areas of egypt and areas of cairo where the interior ministry, level of paranoia and fear increases. at that time, there was around 20,000 political prisoners of different types in egypt. egypt has a population of about 80 million. this is always something that i am aware of. when you have an intelligent c.e.o. that -- this is a mirror image of the problem we have with the mainstream press.
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they always write to their own favor. a country which goes from a position of not treating writers well to treating writers well and not treating everyone else well, by writers i mean people who have the ability to project a voice. for those 20,000 political prisoners in egypt, they could gain no attraction in the western press. -- and they could gain no traction in the western press. egypt was perceived to be a strong ally of israel and the united states. all of the human rights abuses and political of pieces that were occurring every day in egypt simply did not get traction.
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there was one moment where these 20,000 prisoners started a strike demanding conjugal rights, and demanding that otherwise be permitted to visit them. look, it is bad enough that these people are political agitators, let alone sexual political agitators. that was something that was picked up by the western press. that was some of my experiences with egypt when i lived there.
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later on, when we worked on cable-gate, we chose french partner. cables were published in early december. material that was published in egypt back in december was pretty soft because of the threats that the newspaper was under. there was a number of critical cables that came out about the uneasy and -- tunisian regime. the argument that has often been used, if you just tell the
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people what is going on, they will be angry about it and they will oppose it. the real situation was much more rich and interesting than that. the population starts to know and they start to note in a way that is undeniable. they also start to know that the united statesand they cannot deny what is going on inside tunisia. the elite within the country also know what is going on. and they cannot deny it. this situation develops where it is possible for the united states to support the regime. and intervene in the way that
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was not possible to france. also, and our strategy in dealing and our survival strategy was to overwhelm. we have saudia arabia invading bahrain to do this. win these states have problems with their own to deal with, and they turn inward. . .
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was banned by the government. a hacker attacks was launched. many were launched that we had come to defend against them. their whole newspaper was redirected to a saudi sect. believe it or not there is a thing such as a saudi site lt and they rested it back to the prime ministry in lebanon and then what i believe to be
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state-based hackers to the degree of sophistication came in and wiped out all of the cable publishing efforts. the cable about tunisia were then spread around on line in other forums, translated by a little internet group called tunisha leaks and so presented a number of different facets as sort of that everyone could see and no one could deny that the regime was fundamentally corrupt. the people they didn't know it before but it became undeniable to everyone including the united states. and then that this united states or at least the state department, could be read that if it came down to supporting the army or bin ali they would probably support the military
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class rather than the political. so that gave activists and the army a belief that they could possibly pull this off. but this wasn't enough. all of that was intellectual. and it was making a difference and was stirring things up in tunisia and then you have this action by a 26-year-old computer technician who self-emulated on in december 16 last year. and was hospitalized and died january 4. and taking the hunger for change and undeniability to an emotional physical act on the streets is then what changed the equation. there's other things that sort of a more systemic issue that
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was gradually raising up, which is you had aging rulers in the middle east that whose regimes to that extent were becoming weaker. and the intellectual management of them was decreasing. you also had the rise of satellite tv and the decision by al-jazeera's staff to film and broadcast protest scenes in the street. so most revolutions kick off in a crowd situation like this one where everyone -- all the time the regime is saying this voice is an outcast voice. this is a minority. this is not popular opinion. and what the media does is sends those voices and pre vegetables people from understanding -- prevents people from understanding.
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and once people realize that their view is in the majority, then they understand they physically have the numbers and there's no better way to do that than in some kind of public scare. which is why the square in egypt was so important because everyone could see that they had the numbers. and that's -- i often perceive that there are moments like that politically. yes, the middle east was one that we might be going through. you saw just before the berlin wall fell everyone thought that it was impossible. why? i mean, it's not that people suddenly received a lot of new information. rather the information they received is that everyone, a large majority of people had the same belief that they had. and people became sure of that. and then you have a sudden switch and then you have a
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revolution. so i often feel that where we are on the edge of that and that alternative ways of people becoming aware of what their beliefs are, what each other's briffs are is something that introduces that truly democratic shift. i have often lambasted bloggers as people who just want to demonstrate key value conformity and don't do original work when we release original documentation on many things. although situation is very interestingly improving. often we find that all these left-wing bloggers do not desquend on a fresh cable from panama revealing as it did today that the united states has declared the right to board one third of all ships in the world without any justification. they do not descend on that.
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rather, they read the front page of the "new york times" and go, i disagree or i agree, or i agree in my categories. and that is something that is hypocracy of saying that you care about a situation but not ocketly doing the work is something that has angered me. but it does serve an important function. the function that it serves is the function of the square. it is to show the number of voices that are lining up on one side or the other. >> since you talked about what you released today, you also have just sued mastercard and visa. can you explain why you did that? when they released the papers, i spoke to him last night. did you know the "new york
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times" had a thousand pages of the pentagon papers one month before daniel elseberg gave the pentagon papetorse the "new york times"? fresh news. amazing stuff. -- what was the question? sorry. when daniel ellsberg released the pentagon papers, did they suddenly change things? actually, nixon was reelected after daniel ellsberg released the pentagon papers. the vietnam war didn't stop. the information was very important in all sorts of ways and it's important over time. the most important thing to come out of the pentagon papers was the reaction to the pentagon papers because the pentagon papers described a situation in the past. what the past was like. but the reaction to the pentagon papers described what was going on right now.
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and it showed a tremendous overreach by the nixon administration's various attempts to cover things up and actually the "new york times" really probably wouldn't have published the pentagon papers unless they thought they were going to be published anyway which they did. it was scheduled to be published in four month's time. it was very interesting. so on december 6 last year, visa, mastercard, the bank of america, western union, all ganged up together to engage in an economic blockade of wikileaks and that has continued since that point. so it is over six months now we have been suffering from an extra judicial economic blockade that has occurred without any protests whatsoever. in fact, the only two formal
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investigations into this one was on january 13 last year by timentsy geithner, the secretary of the treasury, who found that there was no lawful excuse to conduct an economic blockade against wikileaks. and the other was by visa subsidiary who is handling european payments who found that we were not in breach of any of visa's bilines or regulations. those are the only two formal inquiries, and yet the blockade continues. it's an extraordinary thing that we have seen that visa, master card, western union and so on are instruments of u.s. foreign policy but not u.s. as in a state operating under foreign policy but instruments of washington's pate ronnage
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network policy. so there was no due process at all. and so over the past few months we have a number of cases so we have been a bit distracted but over the last few months we have built up a case against visa and master card under european law and visa and master card together earn about 95% of the credit card payments industry in europe and therefore they have sort of market dominance and that means under european law they cannot engage in certain actions that to unfairly remove people from the market. >> speaking of other legal cases, i just wanted to ask you about what you face next week, the extradition case on july 12. the nation magazine has done two pieces.
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one is forth coming. and they quote your new lawyer who is very well known for representing prisoners at guantanamo, a renowned human rights attorney. and tom hayden who writes a piece interviewed many people in sweden and the united states and sort of talks about a feeling in sweden of an attack, very much represented by your lawyers on the swedish justice system, and on the integrity of the women in sweden. and he wrotes -- >> our lawyers never attack any integrity of women. >> well, he quotes garees pierce saying the history of this case is as unfortunate as it is possible to imagine. each of the human beings involved deserves respect and conversation. and i just wanted to ask if you are seeing this as a change of approach with your legal team
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in dealing with your possible extradition to sweden. >> possibly. i mean, the situation -- what has happened in europe and what has happened to sweden is fascinating. it is something that i have come to learn because i've been embroiled in it. but it is intellectually extraordinary. so we see, for example, that the european union introduced an arrest warrant system and that arrest warrant system to extra dite from one state toft e. u.s. to another state of the e.u. was put in place in response to 9/11 to have fast contradiction of trashtses. and it introduced this concept or rather recycled a european union concept of mutual recognition. this is sort of a very feel
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good phrase that one state in the eu mutually recognizes another state and that sunk down into mute tl recognition between the -- one court in the e.u. to another court in the e.u. but actually what it seems to be talking about if you think about it given the reality that three people a day are extradicted from this country to the rest of europe is a mutual recognition of the elite in each country in the eu. it is a method of being at peace so the elites in each country in the e.u. has if you like made literally a treaty with each other to recognize each other and to not complain about the behavior.
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now, you might say that well, ok, we have justice systems in the eu in various countries. yes they vary in all sorts of ways. some are better, some are worse depending on your value system. but we have sunk so low that it is not even like that any more. the european arrest warrant talks about the mutual recognition of judicial authorities. but it has permitted each country to define what they call a judicial authority. and sweden has chosen to call policemen and prosecutors judicial authorities. the whole basis of this term being used in the original introduction of the european arrest warrant was that you would keep the executive separated from the judicial system that it was meant to be a natural and neutral party who
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would request contradiction and it is not. -- ex tradition. so there are many things like this that are going on in that case. i haven't been charged. so is it right to ex tradite someone to a state where they do not speak the language, where they do not have family, they do not know the lawyers, they do not know the legal system if you don't even have enough evidence to charge them? you won't even come over as we have offered many times to speak to the people concerned? so previous complaints about these sort of problems have led to some inquiries in sweden. for instance, the biggest swedish law magazine had a
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survey on this and one third of the lawyers responding said that yes, that these complaints about swedish judicial system, they truly are a problem. on the other hand, it is also engendered a situation where the swedish prime minister and the swedish justice minister have personally attacked me. and said, the swedish prime minister said that i had been charged to the swedish public when i hadn't been. so it is a delicate situation. sweden, the sweden we have now is not the sweden of the 1970s. sweden recently sent troops, recently passed a bill to send marines into libya. it was the fifth country out to send pilot jets into libya. this is a different dynamic that has happened now. and we have to be careful
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dealing with it. so it's one thing to sort of being krt of differences in the way various justice systems are administered but it is another to tolerate any difference. and i don't think any difference should be tolerated in the e.u. you know, what is it that prevents the justice systems of eu states from fundamentally collapsing and decaying? we say there's mutual recognition. mutual recognition between the u.k. and romania and what if the romanian justice system collapses more and more and more, who is going to account for that? who is going to scrutinize that? is it going to be some bureaucrats in the ec that is going to scrutinize the remaining justice system? no. the only sustainable approach to scrutinizing the justice systems of the e.u. is the
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extra digs process. so it is extra dition lawyers and defendants who have the highest motivation to scrutinize the quality of justice in the states that they are being extradicted to. and that's a healthy system that permits outside scrutiny and so can stop european states from decaying. but the european arrest warrant system removes that possibility. it is not open to us to look at any of the facts in the case in the extra digs at all. that is completely removed. all we're arguing about is where the two page request that was filled out that literally has a box kicked, rape, is a valid document. >> first, i am so sad we don't
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have time to go into this because i found this yet another, this strange mutual recognition and this absolutely, think about it, what you have heard, this paradox of being extradicted without even being charged. i mean, are we aware where we are? but let's not take that path first. ically not but restrain from making an obscene remark of how when you said you were staying with the egypt. i hope there will be some american fundament list who will say now everything is clear. there, you were seduced by that miss who was really an al qaeda agent and then you were turned into a terrorist agent now things are clear now. so let's go on. >> we have one minute to go. >> but one minute in this broader christian sense for time is eternity and so very
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briefly. first, also those palestinian papers that kind of you triggered the movement. i wonder if you agree. i read them. what made me so depressed is that my liberal israeli friends are telling me all the time listen we admit it we are doing a bad thing on the west bank but you cannot negotiate if they bomb you like. and let's just, if you of course examined the gaza on the west bank there was practically total peace the last five six even more years. the image you get from these papers is that there was an incredible compromising spirit from the palestinian side offering them practically entire jerusalem and so on and it was absolutely clear that it is israel which is not interested in peace. the second, just a couple of points. the second point, i think it is
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so important the exact words you used which made my point which confirmed my point. namely how undeniable they could no no longer deny it and so on. that's important. in ways i know you know, i know you know that i know. but we can still play this cynical game, let's act as if we don't know. the function of wikileaks even more important i claim in complete ideological political situation then learning through wikileaks is to push us to this point where you cannot pretend not to know. which is why let me give you another example. again, i'm not a total fan of obama although i still have certain respect for him. but sinicism at its purest. remember this outcry where obama made the simple point that not even exact front tiers
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that the basis of peace should be the 67 borders. my god, the political reaction was as if obama said something i don't know following orders from al qaeda or whatever. but this was the official u.s. policy, accept it. only the obscent of the situation was that although this was officially the u.s. policy it was part of the unwritten deal not to talk about it, to ignore it. that's our situation here. step further. egypt. i know. you know what's for me and you have hear a lot the truth about egypt. we western europeans have this normal spontaneous racist attitude? no. we would love to see a secular democratic movement in arab countries. unfortunately all they can do is some stupid fundament list, national list, whatever outburst. now, officially we got exactly
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what we wanted. a purely secular uprising and so on. and you know how we behaved? an example. did you see it day and night where a guy wants to sleep with a girl tries to convince her for a long time. then finally they are alone and again he starts please let's do it quickly we are alone here and the girl says ok let's do it and starts to unbutton. and the guy says but just like that? like he is shocked. we are a little bit like that. officially we want secular democracy. they say ok. you get secular democracy. and you cannot get it fast like that. it was sitch a clear example of hypocracy. now really, to finish maybe the most important thing what you already said, i think this is part of the ways that we are
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approaching the end to conclude it. even if you ignore wikileaks, it changed the entire fete. it's again, even at the level of publishing, spreading information, you boost things in the a very formal way to a point of undeniability. nobody can pretend that wikileaks didn't happen. and it would be very interesting to classify all reactions to wikileaks. you know, as different forums of terms repression, denial, whatever, some people say formally yeah, yeah, but try to neutralize it like oh, and another chapter in freedom of the press, investigative journalism. others say directly terrorism. i wonder, the approach i would have followed if i were to be on the other side would have been something like it's
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basically a good thing. it's just misused by some extremists you know. and then you kind of say precisely to save the good core of wikileaks. so what i'm saying is again to conclude, this is the moment of truth. wikileaks is an event not only because of what it is in itself but because nobody can ignore it. it changed the entire field. the point is not to allow to be renormalized, to remain faithful to it. >> just a note -- [applause] we'll be out signing books in the left in the lobby right afterwards and we would love to talk to you. and i want to end with this question. tomorrow july 3 you turn 40
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years old. what are your hopes for the future? >> there's a big future. there's a deep future. the one that want for. so that is the future where we are all able to freely communicate our hearts and dreams, share information about the world with each other and the historical record is an item that is completely sack sacrosanct. it would never be changed, never be modified, never be deleted, and that we will steer of course away from the victim of he who controls the purses present controls the past. so that is something that is my life long quest to do. and from that, justice flows
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because most of us have an instinct for justice and most of us are reasonably intelligent. and if we can communicate with each other, organize and not be op pressed and not know what's going on pretty much the rest falls out. in the short term, it is that my staff stop hasling me to tell me to go. >> >> i wish you all the bevs another even more beautiful mission. [applause]
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>> here is a look at our schedule for this afternoon. next, a discussion with legal scholars on the 2010-2011 supreme court term and what's ahead for the high court when it reconvenes in october. after that, the u.s. institute of peace looks at police training programs in foreign countries run by different u.s. government agencies. then a hearing on proposed changes to social security and the impact those changes could have on the program. and tomorrow night on "newsmakers," congressman jim jordan, chair of the republican study committee. he talks about the budget and debt ceiling negotiations. the republican study committee is a group of more than 175 house republicans organized to advance a conservative social and economic agenda. you can watch "newsmakers" sunday at 10:00 and 6:00 p.m. eastern here obc-span.
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>> who is really going to get fired. they are proxies or short hands for the incredibly narrow range of choice that we actually have in political, in elected officials. >> reason tv and nick gilles pi takes on the problems of today's two-party system sunday on c-span's "q&a." >> next, a discussion with legal scholars on the recent supreme court term. they talked about some of the major cases from the past year including the wal-mart case and the impact justice kagen has made. the supreme court is currently in recess. the next term will begin in october. held by the heritage foundation, this is two hours.
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>> i would like to welcome you all and thank you for making it out for our 12th annual event where we have invited some of the leading experts and top journalists to discuss the supreme court cases from this past term as well as look forward to the court's next term. i would like to offer one final reminder. please turn off or silence all cell phones and then for folks viewing on line, if you're interested in asking questions if you could just speaker at and to begin, we will have moderating our first panel mr. abniece who is chairman of heritage's center for legal and judicial studies and the 75
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dsth attorney general of the united states. mr. mees. [applause] >> thank you. i join with rachel in welcoming you on behalf of hertage at specifically our center for legal and judicial studies and communications department. we are jointly presenting this program today on our annual scholars and scribes review of the supreme court term. of course, the most looked for event at the end of every supreme court term didn't take place this year. that is, nobody retired. at least so far as we have learned up to the present. but looking back over the term, it has been an interesting term. you are going to hear about it from the experts bodes from the legal community and the journalist community. but it is interesting to note that we have continued one tradition and that is that the most overturned circuit was of course the ninth circuit, our friends from the western part
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of the united states with 84% reversal record. now, they would have been the had the highest percentage except for the second circuit. they only had two cases and they were both reversed. so technically they outdid the ninth circuit but in actual terms of numbers, the ninth circuit is still ahead. there were 67 opinions obwhich they decide it had merits of the cases and so you will be hearing about those today from our experts from the legal and journalistic communities and they are starting off ron, who is the henly chair and professor of juris prudence at chap man university school of law in california. he has also been on the faculty at george mason university school of law here. he is a graduate of harvard college and harvard law school, has clerked for the court of appeals for the second circuit. he has co-authored the most widely used book course book on
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legal ethics. he also has written a number of other treatices on that and other subjects. he was the constitutional law advise tore the supreme national council of cambodia and assisted in writing that country's first democratic constitution. he has also consulted with democracies throughout the world in the after the complosion of the soviet union as more and more countries around the world were able to write democratic constitutions and develop democratic governments. he has been active in american bar association in regard to professional responsibility. he has also served as a special counsel in the department of defense along with many other contributions to the legal profession and to the country. he has been selected as the best lawyer in washington, d.c. in 2009 in ethics and professional responsibility. and right now he in california he is a commissioner of the fair political practices
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commission which is that state's political watch dog. so to kick off our scholars, let me introduce to you ron. [applause] >> thank you very much. i wish my mother in-law were here to hear this. anyway, i remember chief justice rehnquist was asked by a reporter once, you have all these big cases at the end of the term. true story. why don't you spread them out more evenly so we could cover them. and he said why don't you spread out your reporting more evenly? we have an opportunity now that we have all had a chance to read the cases for both the press and the professors to comment. i want to start ah with a bankruptcy case. marshall is pierce marshall, the son of the old mr.
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marshall, 90 years old who married vicky lynn mar shall also known as ana nicole smith. and what i find is kind of the chief justice roberts starts off the case by referring to it and i had actually written an article about the case also referring to bleakhouse and the chief had a chan to cite me but sadly he did not. the reason this is really a very important civil liberties case is even though it was a bankruptcy case it has to do with jurisdiction. the pierce sued vicki for defamation. ana nicole smith sued in probait tort said you interfered because your late father was going to give me another gift and he didn't because of your fraud. she then filed for bankruptcy in california.
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she loses the probait case before the state court before a jury and she files it in the bankruptcy court. the probait case still going on and pierce files a claim in bankruptcy saying it should not be dischargeable in bankruptcy. and that brings in the case on tortious interference. and the supreme court says bankruptcy judges, they are not article 3 judges. they have no lifetime tenure, they don't have salary protection they are not confirmed by the u.s. senate. they don't have all the protections that we would expect of federal judges so they cannot decide these basic article 3 cases. this 5-4 opinion. this is one case i think where the president's appointments affected certainly the vote would have been 6-3 had it been justice stevens instead of justice kagen. the case that an earlier case
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called northern pipeline, an earlier case had said some years ago in 1982 that there are limits to giving article 3 power to nonfederal -- we call them judges. they're bankruptcy judges. we could call them hearing officers. we could call them clerks of the court. they are not judges. we give them a fansier title. it helps with their restaurant reservations to say this is judge so and so. but they're in no way article 3 judges. and if we could give them article 3 business where would it stop? there was a plurality opinion in the northern pipeline case that said it shouldn't go this far but it wasn't a majority. and in the plurality were judicial titans, justice brennan, justice marshall, justice blackman, justice stevens. they ought thought you shouldn't do this. we now have a majority of the
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supreme court coming to the same conclusion. and that i think is very significant. the structural changes served to protect us. we think of them as little fights between the branches but they're more than that. it limits congressional power to give nonjudicial business noncourt article 3 business to people who aren't judges. we only have i think sen minutes. i'm going to be brief. i'll talk a little too fast. apt the end i'll just stop even though i may not quite be done. another case i want to briefly mention also has to do with standing. and i think neil could talk about this more because this is a case where justice stevens for the majority was channeling the acting solicitor general. really quite literally. we have a federal income tax. to some extent a federal income tax is inconsistent with the federal system because there are lots of thing it is
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government can do about taxing you or giving you a deduction to encourage you to do certain things. so the supreme court decided a long time ago you cannot challenge federal action simply because it uses tax money because everything uses tax money in some sense. but they realize that we wouldn't want the federal government to tax all of us in order to get money to build a national church. so they staid there's a special exception in a case you cannot tax me even one farthering, they were quoting an old james madison but they talked like that. not even one pence in order to build a church. the establishment clause limits the taxing power in that way. but the supreme court has limited the possible extent of that opinion because the court has said for many decades that
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we don't want everybody and his brother to be able to challenge any constitutional -- any act on constitutionality. they've got to be personally hurt, personal standing. and we realize that if the government does tax me it doesn't affect my tax bill. that is the government taxes, the government spends. we know there's no relationship between the two. after all, we are in deficit some trillion or multitrillions. but let's say this instant all of our debt was gone. it wouldn't change our taxes at all. because congress would have to pass a special bill for that. the courts limited this. they said for example that congress can give property or to the -- this case it was the executive branch giving property to a religious organization some protestant church because that was distributed pursuant to the property clause not the taxing and spending clause. well, in the christian school
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case the court said that credits don't count. that is, credit, we have always allowed tax deductions these are credits and credits are just like deductions only difference is that they help poor people more. that is credits help rich people because of our progressive income tax. the court is -- my time is about up. i will make a brief reference to the another case in california. by the way, in which the california court was also reversed. that one was one of the few cases that the ninth circuit was affirmed and that had to do with video cases that have lots of violence. and basically the court said all kinds of things have lots of violence. watch the tv news. watch the live coverage of the war in the gulf and we only can restrict speech because it's obscene.
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and violence is naughty but not obscene. thank you very much. [applause] >> our next sweeker is neil, professor at georgetown university law school. he has been the principle deputy solicitor general and was acting solicitor general of the united states. he has clerked for supreme court justice steve brier and as well as geedo cal breezee on the second circuit. he attended dartmouth college and yale law school. he also has been named lawyer of the year in 2006. he is one of the 90 greatest washington lawyers over the last 30 years by the legal times, one of the 30 best advocates for the u.s. supreme court. his credits go on for many pages here. his academic interests as a professor are in constitutional law, criminal law, and
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education law. so please join me in welcoming neil ketyal. [applause] >> thank you very much general mees. it's a delight to be here again with all of you. i happen to be a bit more constrained? what i can say having just left the government a couple of days ago so i'm not going to talk in depth about cases that we were involved in the government. i'm not going to talk about health care. but i am happy to give you an overview of the term more generally and to kind of give you some of the, my kind of public reactions to some cases. >> so i thought i would start, unquantitative with some data so kind of an overview what did the supreme court term look like? what did 2010 look like? well, they took 84 cases, p 5 of them led to signed opinions. two were affirmed by an equally divided court, five were reversed and two were dismissed as granted for other reasons.
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the court took them off the docket. the court reversed in 57 of the cases it reviewed roughly 70% that's on historical par. the number of cases was roughly the same with the exceptions of the 2006 and 2007 term when they had a somewhat lighter docket. now, obviously the biggest change in the court this year was the replacement of justice kagen for juss cities stevens and one question that might be asked is how much of a difference did it make? a bunch of people at the beginning of the term thought she would be recused from a number of cases and thought that would be an impact and we now know that at least numeically it's hard to make that case. she did recuse from roughly one-third. but they didn't really, according to the numbers, matter. 15 of those came in cases in which the justices were unanimous.
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11 came in cases where the decision was either 6-2 or 5-3. so the two cases in which it made a difference were the ones in which the court affirmed the judgment below by an a qually divided vote. one was the cost cocase involving the first sale and copyright law. and the other which considered the constitutionality of a statute of about citizenship and whether out-of-wedlock mothers and fathers had different standards. so justice kagen wrote seven opinions, seven majority opinions. that's on par with what she did. she agreed most with justice myor roughly 90% of the time. she disagreed with the most justice thomas their agreement rate was only about 62%. one of the things the numbers don't capture and those have been to the court this year and if you have the opportunity in the next year or two to go i would strongly urge doing it
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now the new court have made these oral arguments available. it is a remarkable thing to hear the chief justice alito and kagen at oral argument i don't mean to take away from the others who are fan tassic as well but these three have all been in the solicitor general office. they know painfully well what it is like to argue and they are really good asking the question that you don't want asked. it is a really interesting dynamic on the court right now. mimics oral argument tremendously thrilling and terrifying for the applicant. one maybe perhaps slight corrective to what general meed said and it's odd for me defending the ninth circuit. but this year at least the ninth circuit numbers look roughly similar to those in the other circuits. they were -- my numbers were a little different than general mees.
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i have 69% reversal rate for the ninth circuit compared to a 72% reversal rate overall for all circuits. so but it's close. it's close to the other circuits. what's different i think is the number of cases, the absolute number from the ninth circuit. the ninth circuit was reversed 19 times this term which is more than triple the number of reversals from the other circuits. the sixth circuit came in second. but it's the number of cases that are coming from the ninth circuit that is really quite remarkable. they took 26 cases over the last term compared to only 15 from the ninth circuit in the preceding term and 16 in the term before that. and then in the term to come, the 2011 term, they have already granted 16 cases from the ninth circuit and their docket is only roughly half full at this point. one other interesting fact oid for those of you, i've been
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preaching the importance of the federal sisht and patent law for years and i think this year the numbers that, the number of case that is came from the federal circuit are quite remarkable. they contributed 9% of the cases to this year's docket and i think we're seeing that trend going to continue in the future as an intellectual property becomes a driver, a major driver of the nation's economy. another way people can look at the term is how ideologically divided the court was, how many -- and there's different metrics. one could say what was the rate of unanimity in the court. this was quite striking, 48% of the cases. you can look at the number of 5-4 votes. 20% were decided by a 5-4 or 5-23 vote. which is roughly similar to the previous five terms. that average is 22%. so roughly the same. those stat tissticks will not
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tell the whole story. some of the cases look really deeply contested but turn out to be unanimous. at&t versus s.e.c. is a good example. when the case was granted people said it was going to be the next citizens unite. it involved the privacy rights of corporations. and the statute, the freedom of information act, grants rights for personal privacy and what the corporation at&t said was we have rights to priesy here because person is defined to mean corporation under the federal code. and that argument didn't work too well because the chief justice pointed out at oral argument the word is personal privacy and there are often situations in which words have very different meanings from their roots. the chief pointed out craft and scraftee, squirrel and squirrelie. and the chief justice said at&t did not have the right to
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personal privacy and he concluded his opinion with we trust that at&t will not take it personally. so there was a high rate of so-called ideological division for the term and in terms of 5-4, 5-3 decisions that lined up with a conservative or liberal sult result. my time is up but i would be delighted to talk about those cases particularly in the question and answer period. thank you. >> thank you. our next and final initial speaker is victor schwartz who is kind of the dean of the tort law advocates. he is a partner in the washington, d.c. office of the kansas city based law firm where he chairs its public policy group. and that group is quoted to public policy issues that will help improve our civil justice
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system. he also has an active practice. he serves on the board of directors of the civil justice institute at george mason school of law. he also has served as a professor and acting dean at the university of cincinnati college of law. he is chair of the federal interagency task force on product liability at the department of commerce or he has been in the past. he is a life member of the american law institute restatement of torts and he also has been named by national law journal as one of the 100 most influential lawyers in the united states. so it's great to have him with us. please join me in welcoming victor schwartz. [applause] >> well, thank you, general mees. when i was asked here, i thought, hmm, because i'm schwartz on torts not green on the supreme. but they have me here anyway. so let's talk about civil
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justice and what the court did. all of you know about the wal-mart case. that was given a lot of publicity. and the court in their majority adhered to what class actions are all about. class action occur when things are in common. and here, you had a million william i am who claimed that they were discriminated against, that they had lower pay, that they didn't get raises, and yet justice scalia said there was no glue that held the class action together. it was different people, different areas, decisions were made locally, the decision was correct. and i hope the cry goes out to every court in america not to certify these huge class actions because once they do, it is for a defendant like custers last stand. the checkbook has to come out because you certify a class and you're going to be in for a real problem. i would expect that the plaintiffs' bar will go to congress to try to overrule that case. they did that with led bether
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but i don't think they'll be successful here. the individuals can bring smaller and their own cases if they wish. and if they've been discriminated against there's enough there for an individual case. then the puzzle, i was thinking about this this morning because the tv is filled with this casey anthony case and probably every american can give you an opinion on it. but to 70% of americans who take drugs know that they will no longer be able to bring a lawsuit if they take a generic. and the supreme court held that preempletion applies with generic drugs. why is that true? well, two years ago they said if you take a brand name drug you can bring a tort suit. the tort law is the engine for safety and there's no preempletion. well, with brand drug company can change the warnings without going to the f.d.a. they have to ask forgiveness
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not permission. with a generic drug, huffer, they cannot change the warnings by themselves. they have to get permission first. so america, if you take a generic, you're not going to be able to sue for duty to warn. if you take a branded name, you can. if you have a medical device, you can. so america figure that out. the plaintiffs bar will be in congress, believe me, to try to have preempletion for everything. then they hit jurisdiction. company sells stuff in the united states when can they be sued? because of time limits i can't go into detail so i will just get into to the bottom line. theories that say if you know a product is going to be used in the stream of commerce is not enough to allow somebody to bring a lawsuit against you. you have to target, you have to target a particular state. in the case that was probably the most extreme from point of
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view of those who think we should be able to sue foreign companies more easily, there was a distributor who was ordrd by the company, made machine tools so sell as much products as possible. but they never, the defendant ever said to sell anything in new jersey. and they made no purposeful act to sell in new jersey. and it was a machine tool and a person lost fingers but the court held that there wasn't enough targeting. i know here the foreign manufacturers liability act will bring the plaintiffs' bar into congress to try to modify the law. they've got a little bit of a problem here because all the other cases involved statutes. this involves the constitution of the united states. but i would expect reaction in congress on that one. at&t and conception was mandatory arbitration and california said with mandatory arbitration you have to have the ability to form a class
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action. the supreme court 5-4 said no. that interfears with the purpose of the federal arbitration act. you can't glue on a mandatory class action on to that act. if you read the opinion you will see it follows the spirit and letter of the law. i expect once again our friends in the plaintiffs bar to be back and more so. frank lynn has a real hith to try to get rid of mandatory arbitration altogether not merely to allow class actions and congress will be probably the final ooshter of whether we have mandatory oshtration and what the scope of it is is. at&t i thought was maybe the most interesting case from my point of view. it involved the tort of nuisance. there, eight attorney generals sued five power companies saying that they committed suseance by emitting greenhouse
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gases and they should reduce them by 3% a year over the next 10 years. a court, not an agency. the court used a theory called displacement in questions i will answer or answering questions of what's that all about. they said that e.p.a. had displaced the courts in making decisions of this kind. they said even if e.p.a. does not act on its responsibilities, no tort suits will be allowed by attorney generals. and there are lawyers i have heard who narrow this case, you know how lawyers are, to very tiny things. but the spirit of the case was set on page 14, where justice ginsberg really told the difference between what courts can do and what the executive branch and congress can do. courts can call witnesses, they can hold public hearings, they can have notice and comment. and those words are right in the opinion. so i think in other cases this is meaningful to say no. the greenhouse gas problem is
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to be solved by congress and agencies and not the courts. the final case law mentioned is probely the most obscure for some of you. i don't know how many would know what the flea is. doesn't have to do with federal employers. it has to do with railroads. and they have this historic anacronysm. there's no worker comp. so if you're working on a railroad and you're injured, you sue the railroad company and that's what you do. and they came in when the great grand fathsdzers of the current people who operate rail roads decided to keep tort law not worker coverage. and tort law is very strong against the railroads. you only have to prove a skin tilla of intelligence. and for this decision, remember in law school, approximate cause and the issue was whether prosm matt cause was required. a majority of the courts, so they're not always for
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defendants, said probable cause is not required. use your imagination. just think about it for a moment about what the ramerood might be responsible for. there's no brakes. there's brakes on the railroad but not on tort law. and if you want some amusement just look at the hype thetkls that justice roberts uses. and it's the only time i was cited of course in the dissent. of course that's where i belong. thank you very much. [applause] . .
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maybe that is right at the margins, but a global greenhouse gas problem, and whether people think there is a problem, or it is the most pressing in the world, either way, the idea that a federal judge will decide this strikes me as ridiculous. that is what the court said. these are decisions committed to the political branches, be accountable regis. i think it is a useful
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corrective. it is a dangerous mine said to think courts can solve all problems. -- mind-set to think the courts can solve all problems. >> in a previous term, the court allow the epa to get into this field. this is consistent. >> in 2007, there was a case with massachusetts against epa. it allowed the epa under the auspices of the clean air act to regulate in the area. >> go ahead >> in the epa case a couple of years ago, i guess you would say the liberals thought this is great, the government will get involved. conservatives said this was a bad decision. it led to the present decision. the supreme court decided to overturn the second circuit, so we do not 7 federal judges and decide about global warming, --
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federal judges decide about global warming, and i think justice ginsburg wrote a brief opinion because it saves trees. [laughter] >> what would you like to comment on? >> i remember learning to read the footnotes first. in footnote two, justice ginsburg says the court has no official opinion on global warming. most people read epa, and it is often cited as the supreme court seeking judicial notice of that fact. so, footnote two is very important to some people. it has had little publicity. the impact of the cases involving pre-emption is going to be very interesting. probably, in this room, in the next three months, somebody will go to a pharmacy, pickup a drug that they have already, and have been taking, and it will not be the same drug.
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they will not know about it until they bring it home. in many states, that's which can be made and you know nothing about it -- that switch can be made and you know nothing about it until you open that little paper bag. should you know that if there is a failure of a warning you may not be able to sue any more? should you know that generics are not exactly the same as branded drugs, although they are deemed to be similar? there might be some movement in disclosure laws in states as a result of that decision. i do not know. certainly, it does provide a factor for the state's rethinking how much information you should have you might decide you do not want to pay -- have. he might decide you do not want to pay the price. i am sure they will go there and
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say there is one thing where the minority and majority agree -- they both said the system does not make any sense, that there should be protection for manufacturers of medical devices, branded drugs -- excuse me, medical devices and generic drugs, and not branded drugs. we will see fights in congress over that. it is interesting to watch because it effects every american, maybe more than any of the decisions that i mentioned. >> one other case that i wanted to get on the table for folks to discuss was the case you were involved in, edwin meese. i think it is important. an individual was detained at dulles airport, as he was about to fly to saudi arabia. he was ultimately let go and no charges were brought against him. he brought suit saying his
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fourth amendment rights were violated, and the ninth circuit permitted the lawsuit to go forward -- a money damages claimed against an attorney general of the united states. the supreme court, again, even though you could think this as a contested, they unanimously reversed the ninth circuit, and said it qualified immunity existed to protect attorney general's in that situation. i think it is important. i think the former attorney generals, this attorney general, were worried about a ruling that would cause them to be personally on the book for decisions they made to try to protect the nation, those security. for people like me who have been on different sides, i think one thing we should agree on is that personal monetary liability should be off of the table when there is good faith by
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government officials in carrying out the duty to protect us. >> any comments from the panel? >> it is a nice point it is not only very important, but you might looked and say it is against civil liberty. it was unanimous there were of -- unanimous. there were a lot of civil liberty cases talk about as geologically different, but they were not really. there was a case in kentucky where a police -- the police followed a suspected drug dealer. they smelled something, and broke in. the court said they did not need a search warrant. only justice ginsburg dissented. i thought that was interesting. was fairly clear. they reversed the lower court --
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. the number of cases -- that tells you something. the judges in the lower court do not care that much about the supreme court. the view of the ninth circuit, judge reinhardt, is they cannot take them off. i will do what i want, they cannot take them all. in another case, it had to do with securities law. no dissent. the question was there was -- weather was there was loss causation and transaction causation. that means you're fraud caused it to end into the trends that -- entry into the transaction. i would not have sold you insurance if you tell me honestly you're a heavy smoker, but then you get hit by a boss.
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loss causation shows about the fraud caused the loss. you're smoking did not cause you to get hit by the boss. b -- bus. i realize there are these emotional cases out there. in general, i think the court looks at the law, which is why you get cases that are seven- one, seven-two, nine-zero, and once and awhile, it breaks down to ideological grounds. pre-emption cases -- chamber of commerce clause, the business case in arizona where the court tells us it is constitutional for arizona to take away the licenses of a business that knowingly hired any illegal
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alien. i think that was 5-4. the majority said the statute says that if we are not -- we are not pre-empting business licenses. that is how they came to that decision. that explains the generic drug issue. they are not for or against plaintiff attorneys. they are looking at the statute. the view of a lot of the justices, specifically justice scalia, is if the statute is wrong, congress ought to fix it. >> just one possible disagreement -- about whether or not we can look at the turn and say judges do not care about what the supreme court cares about or believes, the number of cases is a lot lower than 20 or 30 years ago where they were taking 160 and reversing them at roughly the same number. one thing that is happening is there are judges that do not
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care about the court, but there are also judges that really do care, and our dissenting on bond cases. i'm thinking of the judge in the ninth circuit running opinion after opinion criticizing colleagues when they are defying the supreme court. that becomes an important template for the solicitor general's office, and the court more generally, on how to think about a case. a brilliant opinion was written, and it is decided ultimately in what the supreme court said. >> i agree. i do not mean to paint with too broad of a brush, but there is a brush their. >> it was -- it would be interesting to have them both in the same corporate >> they would never show each other. [laughter] -- same court.
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>> they would never show to each other. >> [laughter] >> i think they would like to. we invite the audience to raise your hand and ask a question. please would for the microphone. we will start with roger in the front row here. >> thank you. i want to pick up on the pre- emption duty to warn issue. the example you used, victor, if i understand you correctly, is if the pharmacy is switching drugs -- that strikes me as akin to the case you alluded to in your formal remarks. the wrong is that the local level. it was the clinic where the nurse administered a double dose, and ignored the six, clear, bold warnings.
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as justice and legal said, -- justice alito said, what good would a seventh warning have? this is not a duty to warn issue. in the vermont case, as it was said, this is a medical malpractice case that was bootstrapped into a frontal assault on the fda's regulatory responsibilities. it seems that is exactly what we would have there, too. again, i cannot remember which of you said that what we have today is essential the complaints about the state of the law that are properly directed to the fda for the errors in their duty to warn regulations. >> while, i disagreed with that case, a principal -- well, i
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disagreed with that case, principally, because of what you said -- the majority turned it into a case against the drug company, which was a deep pocket. the plant won the case against the doctor, but there was not enough money. i agree, one more warning would not have made a difference, but that is where they were. it is interesting to me that when i look at the two cases, the public policy engine bedrolls stevens in the case was how -- that drove stevens in the case stated that somehow you needed for law to guarantee the safety of the american public. various advocates said he put that language in the opinion. i guess he was sitting there. maybe he did when you come to this term, -- maybe he did.
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when you come to this term, regarding the generics, those words are not there. there is an extent where you need tort law to protect the american public. the american public should be protected by the fda, not having juries around the country second guess what the done.has there are problems with the fda, fix them. to have juries speculate about warnings were they have no background is not sound. to say what the others feel, not only dislike, but they hate preemptions. it is almost like talking about saddam hussein it just does not work. -- saddam hussein. it does not work.
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there are many ways they will try to change it. the wise case, to sum it up, was a bad case. pharmacies are just following the law when they do not give information about what the implications are of the generics as opposed to branded names. they do not have that responsibility. in some states you do have that responsibility that information before you make the purchase. -- you do have that information before you make the purchase. the tort cases effect the way we live. that is why i like the subject so much. some of the other opinions are very lofty and important, but they do not effect how you live day-by-day, and a lot of those court cases do. >> on the aisle, over here. >> i am general mcknight. i spent the last 60 years in telecommunications. you mentioned that the drivers
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in the future would be the intellectual property. it seems that the changes that the court and the patent office's make would lend itself. the small guy never been able to win a case -- lend itself to the small guy never been able to win a case. the larger firms have the ability to break the small guy as he tries to protect his intellectual property patents, and go forward on impinging on that. i am chairman of the information in the learning channel, which is a non-profit, and we had information -- information and learning center, which is a non-profit, and we have information we wanted to protect. i would like you to tell me how we will have this driving the community is the innovators have
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to fight the big companies all of the time. thank you. >> well, i think that is much more a question that congress is debating them the court. the court is getting in at the margins, but that is a deep and important policy question. people think the small guys will have money on their sides with the hedge funds, but whether that is true, i do not want to get into. i agree that if we want a vibrant future, we have to strike the right balance. >> anybody else want to comment? victor? >> lawyers are expensive. that is a fact of life. we have an unfortunate circumstance that the people who could really afford to profit from these cases are either big corporations, big entities like unions, or at a very low level, a legal aid. for the average person, it is
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very hard. a partner in a major d.c. law firm told me some years ago i hope i never get into trouble because i cannot afford myself. [laughter] >> ok. aisle.ere, on the isl >> a question for neal katyal, this is a quiet turn. the expect the next term to be more interesting? >> it could be the turn of the century. as some people call it. there are a bunch of cases that are in the lower courts that are going to be served petitions. whether the court takes them or not remains to be seen. there is obviously be affordable care effort -- president obama's health-care initiative, and whether that will be heard. we have had won a court decision so far, and several others to come in the weeks ahead.
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there is the defense of marriage act, a case pending in the first circuit right now, and whether or not that will be heard by the court. there is a case out of texas involving the university of texas' affirmative action policy. so, those are three big ones. i'm sure i'm leaving lots of others off. whether or not there all going to get their the they are all going to get there, there is the possibility this could be a traumatic -- they are all going to get there, there is a possibility this term could be a very traumatic one. >> more questions? yes. >> picking up on world and -- ronald rotunda, and neal katyal,
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where the lower courts tend to ignore the supreme court precedents, how much of that, and i realize there is no perfect answer -- how much of that has to do with a willful desire to ignore the court, as ron hinted at -- you cannot take them all -- and how much more could deal with the fact that the high court has units its series of precedents that are relevant stopped short of a bright line? that is to say -- i'm thinking particularly of an oregon case, williamson v. phillip morris, where punitive damages the issue. the higher court has offered several opinions that dealt with the limiting of punitive damages, yet this oregon high court seems to seemingly defied
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the supreme court. i would be interested in your opinions about how much is willfully ignoring the high court, and how much of it is mixed signals from the high court? thank you. >> there are a lot of cases. stern v. marshall -- the difference of the court and justice scalia, who joined the opinion, is that the court gave us several factors to way and he thought there should be a bright line rule. a few years ago, the supreme court decided 5-3 that the federal courts can have hideous jurisdiction in a gittin it -- habeas jurisdiction from a detainee -- for a detainee in guantanamo, but does it cover a raft and afghanistan?
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-- iraq and afghanistan? i think they should make it mandatory, because it would not come up with let's wait 15 different choices and decide what is best to the extent possible, -- past. to the extent possible, it is better to draw a bright line, and they do not do that because that -- they are not sure what it should be. we have judges in good faith of giving an opening and going for it, and sometimes, as judge reinhardt says, i will do what i think is best, and there is nothing written about you adding my opinions. i write what i want. >> apparently, judge reinhardt has left out the constitutional provision where the tenure is on good behavior. [laughter] >> i generally believe, and i
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cannot prove this, but judges are by and large trying to follow the constitution and the laws of the united states, and i think the numbers suggest that we have more of that in the modern day than 20 or 30 years ago. why is that? a couple of things might be going on. one is the rise of electronic data bases, which makes it easier to find out what other courts are doing, and also the rise of a supreme court bar that is looking for every opportunity of a disagreement in the lower court, because the moment a court stepped out of line there are 10 calls to the losing party that says the supreme court might be interested in this, and i will do your case for free. so, those kinds of cases are -- things are disincentives. very few judges want to get reimbursed by the supreme court,
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regardless of what they might say in terms of bravado and so on. at the end of the day, there are cases that are and should be deeply contest -- untested. due process was enshrined in to the document. that is difficult to interpret. there are different ways to do it. judges will come with different results. i think the spirit of your question is right -- there are should not havedebthat room for disagreement. >> in the chemical weapons case, there was confessed error. that was significant. the federal government admitted its error, and they told the court. the court of appeals still have this rule in bond against the united states where this woman is prosecuted against -- under the chemical weapons treaty because she was a disgruntled
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woman who had been called by her friend. her husband impregnated her friend, so she put toxic chemicals and a mailbox, or something like that, and not just a mailbox, but things not connected with the u.s. mail. that is a federal offense. she said it was not constitutional to do that, treating the treaty power that far. that might be right or wrong. probably, she is wrong, but she is correct that you ought to be able to raise the issue. the court of appeals said you do not have standing to raise that. this was the state's interest. the court reversed that. i think the lower court read a dictum in a set -- the supreme court differently. i do not think that was in bad faith. between the trial court and the
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court of appeals, there is a judge -- if a judge gets reversed, she rolls that the employer gets reversed two- thirds of the time on appeal. think of the cases that are not brought on appeal. it costs money to appeal. she ought to be worried about her batting average, not in the sense that she will go down in statistics, but in the sense of "what am i doing wrong?" . >> let me pick up on the chemical weapons case. this is a remarkable thing that the solicitor general counsel office does in almost every turn since 1870. they look at cases and say we should not have won that one below to read in this case, we looked at it, -- below. in this case, we looked at it, and bond wanted to say it
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violated by her rights. she should be able to make that claim, so we told the supreme court to take this case even though we lost. they took the case, and then appointed a private lawyer to argue what the government would have argued in terms of for not having a legal standing and the right to bring the case. after hearing oral argument, they wrote an opinion that said the private lawyer was not right, and we think the lawyer for their service, but at the end of the day, they said no. >> think about the possibility prosecutor in the "perry mason" series. if they confessed error, there would be no series. [laughter] >> one of my favorites was in a pro-plaintiff court in texas, in
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the panhandle, there are some good places if you are a plaintiff's lawyer to make a living, and the court said the highlight line for punitive damages it is $9 of punitive for actually -- for every $1 of actual or compensatory damages. so, a person that never earned more than $8,000 a year got a $100 million compensatory award, and a $900 million punitive award, so well, we follow the supreme court. they do not d five. the figure out how to comply, and get the reasoning behind the opinion. >> we have, approximately to the end of the hour, and we will turn it over to our journalist friends. i would like to sink our legal experts to of rendered their decisions, and please join me in expressing our appreciation to
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the panel. [applause] [captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute] >> while everyone continues to get situated, i want to briefly introduce our moderator. it is todd gaziano, the director of the heritage center for legal and judicial studies. he served in all three branches of government as a chief counsel for the u.s. house of representatives subcommittee on national economic growth, natural resources, and
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regulatory affairs in the office of legal counsel in the department of justice, and was a law clerk for the honorable judge in the fifth circuit. he also serves as the commissioner on the u.s. commission for civil rights. [applause] >> thank you. i want to thank all of the communications department. they help us in the legal department. although we are co-sponsors, we certainly could not do them a -- do that without them. it is my honor to introduce this panel of scholars who also happens to be scribes. i will not take their time by telling you how distinguished they are, but protocol requires that i do so briefly.
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jess bravin is currently the senior special writer for "the wall street journal." is a returning panelist. he has written or contributed to several legally related books, and is currently finishing one on the military commissions relating to terror suspects. he has won several awards for is legally-related reporting. both he and attorney general edwin meese graduated from uc- berkeley law school, but i suggest -- suspect it was maybe a few years apart. he currently teaches a course at the university of california washington's center car and i will introduce the other panelists, and we will introduce them. michael doyle is the supreme court correspondent for "the mcclatchy newspapers. i have not read his book on the
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19th century conspiracy along the black river canal, but i know it must be excellent given his very clear, and sometimes entertaining reporting on the supreme court of the more obscure decisions. to decree -- to continue the degree of separation to edwin meese, he received his master's from edwin meese patel and undergraduate university of study, the university of yell. he also teaches at the george washington university. stuart taylor will be our last, but not least in any way on this panel. he is currently a contributing editor to "national journal" and "newsweek." is also a senior fellow at the brookings institute, and was previously a supreme court
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correspondent for "the new york times." he graduated from harvard law school, but despite that handicap has done quite well for himself, including his outstanding book on the shameful injustice of the duke law cross case, which she co-wrote with professor casey johnson. insight from that book might be relevant today regarding the failed criminal charges for dominique strauss-kahn, where casey antony, but hopefully today we will urge him to stick to the supreme court's term. with that, let me welcome jess bravin to begin our program. [applause] >> thank you, todd gaziano. well, as scribes, our job is to make the supreme court interesting, and it was a year where i think that michael, stuart, and die, it is came
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closer to earning -- and i, at least came closer to earning our pay. it began with the chance for something new and exciting coming out of this old building on first street, but it turned out to be business as usual, which many of the major cases being offered instead of reversed and given us new constitutional law, and many of the patterns we have seen on the supreme court since 2005 and six continue pretty much not changed. i want to follow what professor ronald rotunda said when he began and with the smith case, which is actually my favorite case of the term as well. it is really because of what it says about the supreme court today. first of all, with all respect to the bankruptcy bar, i think this is not a case that really is that the lives of many, many
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americans, except those of us that find ourselves in the position of mr. marshall or and nicole smith. to answer a question that was really on it and no one's mind, and addressed a form of injustice that would be quite low on the particulars. it did serve to eliminate, i think, some of the continuing stereotypes the supreme court respectively falls into in this 5-4 decision. you have the chief justice, in addition to chavez's on exceeded literary knowledge, he also managed to -- in addition to showing us his literary knowledge, he also managed to show what a judge is, and the concept of a judicial power of the united states, that fantastic abstract conception that it may be.
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you had justice briar, in the dissent, speaking for the thumb to analyst view of the court, that the purpose see -- purpose of bankruptcy law is to get rid of bankruptcy. going beyond that, we also had the fact that if you look at how it just happens to coincidently line up, you have thus -- conservative bloc voting for the silver spoon section, and the liberals voting for the gold digger. you had the conservative siding with -- they are all dead, so i could say this, with the oil man tycoon who consulted with the coke brothers, who happened to find a sympathetic chord in taxes -- court in texas to rule on his side. you have the liberals supported a playboy model, up from
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nothing in the entertainment industry, that the star. there are many dimensions to that case that i think have not been explored. getting down to the case that we actually look forward to when the supreme court term began, two of the big ones were the first amendment case, the funeral protest case, and the video game case, which was brown against the attendants software association. both of those brought with them a chance to explore first amendment issues in the internet era, and ended up not really doing that at all. the federal case had a component to it and balding and the online screen to the parents of corporal snyder, which the court declined to address at all. the video game case, again, had
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the potential of looking at whether this new medium has something different about it than all of the other new medium's better rose over the centuries, but instead decided that it did not at all. in both decisions, there were unanimous or near-unanimous holdings getting to that result. we have as well -- i suppose we should be grateful for california contribution with a clean election as case, and the immigration case. i would sit a clean elections case was the most predictable outcome. then, we had the continuing outsized role of justice kennedy, and the perhaps interesting business of finding out what it is that could lead him to these varying results.
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for instance, in the california prison case, he was greatly concerned to the assault of the dignity of inmates that were held to the conditions in california prisons, and joined the majority upholding the decision requiring a reduction of the prison population. at the same time, in the case in louisiana, he apparently did not find it significant assault on the dignity of mr. thompson who was sent to death row because prosecutors withheld information. so, finding what the principle is that could lead justice kennedy to these different outcomes would be worthwhile for those that might have a case coming up before the court. there are lots of other things we tried to make stories out of this year, but i will try to end was looking at some of the
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unconventional alliances we saw on the court, beyond the traditional left/right. one that did not get -- well, we noted in the wal-mart v. dukes case, all three women judges sided with the plaintiff and justice ginsburg's opinion, which took much more seriously the claims of an old boys' club atmosphere that pervaded the that company. but, in the california prison case, we had all the california members of the court finding that the california and government was not capable of addressing the unconstitutional conditions in the presence on its own, and required court action to make that happen. finally, of course, in the video game case, all four justices from new york took a blase attitude to the idea that violence would somehow what the mind of young people. i think if you go beyond the
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traditional, stereotypical divisions on the court, you could find patterns if you have to come up with something at the last minute to tell your editor. [laughter] [applause] >> i will be spending my entire seven minutes talking about the child rearing practices of the founding fathers. ashley, i will be talking about when i consider to be the most compelling case of the term. i wanted to make an observation about a case that might be on appreciated in the next term, and one about the role of media. the most telling case was the arizona election case, not because of the substance of the case, or its significance, although it is significant, and its president will be felt, but because of what it reveals about what i think is the most
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important relationship for the next 25 years on the supreme court, and that is the relationship between chief justice roberts and elena kagan. the opinion says as follows -- "the dissent asserts that we have never, not once, understood neutral subtlety to give to one speaker to counsel to first amendment burden. not want involved subsidy given direct response to political speech." hi mike over interpret this, but it seemed to me that -- i might be over-interpreted this, but i think elena kagan got under his skin. it is a beautiful relationship between these terrible well- matched opponents. -- these two well-matched
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opponents. elena kagan is an absolutely superb rider poured from the arizona election case she says -- the difficulty, then, is in fighting a golden -- goldilocks solution, not too large, not too small, just right. she says except in a world gone topsy-turvy, additional campaign speech is not terminal. she says suppose states decides to reward jews for religious devotion. she says now really and goes on to make a point. she says one we interpret a statute we cannot allow the perfect to be the enemy of the merely excellent. she writes in hollywood litigation concludes with a dramatic verdict that leaves one party triumphant.
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the court has to award fees, even if that scene is left on the cutting room floor. this meets my standards. i am a journalist, looking for a touch of humor, personality, and is self confident. in my book, there is only one other better writer, and that is justice roberts. if there was a blind taste test, i would be hard pressed to tell the difference between the table. two other points by justice elena kagan, and why i think she will be the match for justice roberts -- concurring opinions, she road non-, and only one other justices did not write a concurring opinion, and that was justice roberts. i do not know the reason, and it is probably much more complicated than i will make it out to be, but you could read that tactically.
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she is not taking her own jurisprudence out for a little spin. she is not quibbling. justice sonia sotomayor wrote nine contrary opinions. one of them was simply meant to underscore her agreement with the majority opinion. i would question the merits of those sorts of opinions. might just as elena kagan be engaged in judicial modesty, holding herself back? finding her role in oral argument -- as neal katyal said, she is a superb questioner. it was determined that she, except for justice thomas, who is completely checked out of the whole deal, she is the least common questioner, having asked half as many questions as justice sonia sotomayor, but listen to the questions. "i do not understand the premise of your argument.
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in the halliburton case, "mr. sterling, i was not sure what are you you were making in your brief turcott." when justice elena kagan said she does not understand your argument, it is time to panic, because she understands you all too well and is about to destroy you. [laughter] >> while looking at the number of questions is important, i wanted to drive that how penetrating those questions are, so -- what i wanted to look at is how penetrating those questions are. i call this the provocative question right, and i will offer the algorithm for sell to the highest bidder. what we found in looking at the 20 cases ultimately decided 5-4 or 6-3, and justice sonia
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sotomayor has twice as many questions as justice elena kagan, and justice elena kagan was far more often to be referred to in the course of answering the questions, or asking another question. to me, that is a proxy for the excellency of her question. looking in the coming term, an under-appreciated case is three consolidated cases out of california which tests whether private parties can challenge the state's reduction of the medicare reimbursement. it least 20 states have fired an amicus brief on california's behalf. i am sure the court will overturn the ninth circuit and enable states to save billions of dollars. finally, the power of america. on june 23, there were six -- six decisions one was anna nicole smith.
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i wrote the story for one purpose of the, and that was to drive traffic to our web site, and it worked. . i am better than editors took out my phrase local -- "heroically proportioned." [laughter] i am writing for a general audience, a case that cares a great deal about sexist gold diggers marion aged, and in tears, and less about probate. [applause] >> good morning. thank you for the opportunity to be here. it is nice to be with you all. i am tempted to yield my seven minutes to michael to asked to elaborate on his views of justice sonia sotomayor, but that would be wrong. i have been looking at some of
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the 5-4's, and i have been trying to discern a threat of neutral principle in the decisions adopted by the majority, and those adopted by the four dissenters. it is a tricky business. speaking of arizona, why the same five-four split in one arizona decision upholding the first amendment to override states' rights, and in another doing the opposite, rejecting a first amendment claim to uphold state's rights? compared arizona free enterprise against bennett, with arizona tuition -- christian school. why the same 5-4 ruling against the business lobby in yet another arizona case, while ruling for the business lobby wal-mart stores against conception, and several other cases we have read about lately?
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why the same split in rejecting the claim in the waiting case, while upholding the claim in another? same 5-4 in every case. in characterize -- characterizing these decisions, they focused on the state rights and federal pre-emption. a mainstream media and capitalization might be easier to follow. white conservative politicians, the conservative justices 8 -- like conservative politicians, the conservative justices hate more -- want to help generic drug companies used technicalities to about state law, streaking -- seeking justice for victims. the fox news characterization
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might be different. the conservative justices respect of freedom of political speech, oppose legal harassment, are trying to save the country from illegal aliens, oppose shakedowns of great american companies, and not one business whipsawed by contradictory state and federal laws. the same case. where you stand the plants and where you sit. as it was reported in "the new ," the mathematical odds of splitting into the same to configurations with kennedy as the swing vote in a dozen out of a total of 145-4 decisions, that is what happened this term care and by suggesting it is a political game but democratic
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appointees pushing liberal policies and republican appointees pushing conservative policies? not quite. beneath the alliances, the court's conservatives and the liberals, too, have divergent philosophies which they take seriously, which often cause them to disagree, and to a vote what -- to vote against what you might suspect to be their political preference. the tendency to split along partisan lines, and that is new these days, the tendency is to split and they are striking, not to mention bush against gore, where each of the nine found reasons to vote for the presidential candidate they appear likely to have voted for. i would like to catch up with a
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mathematical chance of that happening. it is a subjective enterprise in which policy and political objectives play a big part. this is especially true of the supreme court, which can overrule its own precedents. even a rigorous political justice would find no clear law to apply. conservatives, and some liberal original lists are correct in saying that the justices that invoked a living constitution to override the text and original meeting had nothing to guide them but their own policy preferences, but the policy- making -- subject policy-making cannot be avoided. the policy makers often disagreed, and a consensus that may have once existed has been erased by time and social change, even when the original
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meaning is clear, it is sometimes so unpalatable that almost everyone rejected -- for example, nothing in the constitution or its amendments was understood to bar racial discrimination by the federal government, but it would not be thinkable for any justice to follow that meeting to its logical conclusion. four -- it forces justices to choosing case after case between defining original meaning and mangling precedent. if your concern with a powerful legal argument about sides of every big case, how would you break the tie? by flipping coins, or perhaps by persuading yourself that the interpretations that suit your policy preferences are the better ones? so, all nine find in the constitution a mirror image of their own political and policy views, on issues as diverse as abortion, race, religion, campaign finance, the death
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penalty, and national security. this is not to suggest a judicial review is insignificant. the country needs the checks, but the only way to prevent it from the generating is for the justice system have a healthy sense of their own infallibility and to defer far more often selected branches. among the current justices, such modesty seems to me jettisoned after the confirmation hearing. on this, this seems to be unanimous. thank you cre. [applause] >> we will allow our panel to extend or revise their remarks, but i will mention the one we turn to the audience, as is our tradition, we will see if any of
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the first panelist said a question to pose. since our panelists can comment on their remarks, we think turnabout is fair play. jess bravin? >> i wanted to second the observations about justice elena kagan. if you look at her background and that of the chief justice, is almost as if they were scientifically-designed to " -- oppose each other current they are almost mirror images of each other, not on the both going to harvard law school and take the same communications law class from the same professor, but they both went down to a clerk at the supreme court, both the political positions in the white house, both were nominated for a circuit judgeship, and head nominations effectively killed by the opposition party out of fear that they might end up sunday on the supreme court.
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both of them got fantastic consolation prizes with the chief justice making a fortune in private litigation, and elena kagan getting the most prestigious job in rego academy, and at the same time avoid compiling appellant decisions that could be used against them. both were leaders of the solicitors general's office. so, in terms of personality, both were considered extremely bright people who found generous mentors to cling to, quickly surpass, and managed to avoid leaving bad feelings in the wake. in terms of personality and their career paths, they seem suited to play the role that michael has laid out for them to read .
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>> one other extremely sharp questioner that is being ignored it is alito. what is the ratio you would sell to the highest bidder? >> i will fill you in later. this is how a reporter like me works. i concocted a scheme and began going through each of the nine justices, and it was exhausting car i thought this was ridiculous -- exhausting. i thought this was ridiculous. i agree that justice alito is an excellent questioner, a very pointed, not hypothetical, and is not snarky. he does not seem the key is going to be the smartest guy in the room. stewart asked about sonia stewart asked about sonia


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