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tv   Key Capitol Hill Hearings  CSPAN  September 16, 2016 10:00pm-12:01am EDT

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christian worldview. i'm careful not to demonize my own politics. the driving motivation is the same as that for the rest of my life. to put the lord first in my heart and actions. i was ready to support any of the other 16 republican candidates for president but there was one i could not support and he won. this is uncomfortable for me, on many levels not the least of , which to be divided from so many allies inside my party. i cannot wait until the season is over and we can recover unity, that is my hope. >> amen. bill: i want to analyze the reason i heard for why evangelicals are supporting him. as best as i can tell, they boil down to three justifications. one, he is the lesser of two evils. two, god uses bad people for good purposes.
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three, trump is a good man. the first argument, trump is the lesser of two evils, is the most compelling of the three to me. in fact it is an argument i have , used many times, trying to convince my friends not to vote for a third-party candidate because the republican was not sufficiently pure. i respect my friends who concluded they must vote for drunk cop -- for trump, however reluctantly. they believe the supreme court hangs in the balance and he is more likely to support conservative justices and i think they are right. as one who worked on judicial nominations in the bush white house, i care deeply about the court. yet, i've concluded this justification is insufficient. first, trump may be a threat to our democratic republic. this is a serious charge. unfortunately, trump's statements have given me ample reason to be concerned.
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i care about the supreme court because i care deeply about the government handed down to was by -- handed down to us by the founders. the founders knew how difficult it would be to sustain the democratic republic. benjamin franklin, as we have given you a we have republic if you can keep it. just because we have preserved popular sovereignty for more than two centuries does not mean it will go on forever. i love the constitution because it reflects the framers' fundamentally christian views that we are fallen creatures and god made us for liberty. trump, on the other hand, has often demonstrated contempt for the rule of law. he's sounded more like a strong man impatient with traditional -- with constitutional constraints. he advocates death to the innocent family members of terrorists. he said you have to take out their families. he advocates torture, not as a
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means of extracting important intelligence, but as a means of retribution. he said he would do a hell of a lot more than waterboarding. he said military rulers would do unlawful orders. if i say do it, they will do it. he has repeatedly praised dictators like vladimir putin. applauding him as a strong leader. gary kasparov a russian opponent deplored trump's praise saying putin is a strong , leader in the same way that arsenic is a strong drink. why would trump praise putin again and again unless he actually admires him? maybe it is safer to assume this time he is not lying. trump also said when the students poured into tiananmen square, the chinese government almost blew it. they were vicious they were , horrible, but they put it down
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with strength. that shows you the power of strength. our country is right now perceived as weak, spit on by the rest of the world. trump's encouragement of violence against peaceful protesters should have no place in our republic, much less on the republican party. among his many statements are these -- "i would like to punch him in the face." "try not to hurt him. if you do, i will defend you in court. don't worry about it." trump admires strength, whatever form. not aligned with the gospel. this leads to the second and most compelling reason why i believe the lesser of two evils argument does not stand. trump corrupts us. some people argue the never trump crowd focuses on his weaknesses and ignores clinton. not so.
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we know who clinton ends, and we are not supporting her. yet, it is true we have a higher standard for a republican nominee. trump corrupts what it means to be a republican. if we support him, we become complicit on his behavior. trump mocks disabled people, brags about how many married women he slept with says , prisoners of war are not heroes if they were captured. he accuses a nativeborn american judge of mexican heritage of being unable to rule on a case against trump, which speaker ryan called a textbook racist comment. he insists a fallen soldier has no right to question him. he accuses my old boss, president george w. bush as the , reason for the 9/11 terrorist attack. he advocates religion for who is
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-- he advocates a religious test for who is allowed to enter the country. he charges the father of senator cruz as an accomplice in the murder of president john f. kennedy. many people who will not vote for clinton because they believe she is a liar are voting for donald trump because they hope he is a liar and does not mean what he says. as an aside, some evangelicals did not vote for romney because he was not conservative enough. trump is far to the left of romney. he supports government run health care, he opposes entitlement reform. in fact he says he wants to , expand them. he opposes free trade and has a long history of supporting liberal causes. when we line up behind this man, we underline our credibility. more than that, we do violence to our movement, saying the ends justify the means. another argument supporting donald trump is god uses that
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bad people for good purposes. -- uses this is certainly true. but where in scripture does it peopleus to support that -- support bad people? god's ways are beyond us but our job is to support good candidate. i have heard some evangelical leaders say we need and that man to stand up to the bullying from the left. the implication is a good man or woman who plays by the rules is not up to the task. it is like we are hiring a hit man to play dirty for the sake of good government. this has nothing to do with our faith. it reflects a lack of faith in the power of virtue to do what needs to be done. we don't need to do bad to do good. in fact, that is impossible. ends and means both count in god's moral accounting. the final argument mystifies me.
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namely, donald trump is not bad. in fact, he is a truth teller and humble. another reagan. trump has implied judicial nominees should be assassinated. he has played with fire by suggesting, without proof that rigged setting up , the possibility of serious civil strife if he loses. he is a man that never admits he is wrong and really asks god for forgiveness because he believes he rarely does anything wrong. if trump is a good man, and i have got an entirely different definition of what good is, i will stand against trump and clinton. instead, i will vote for evan mcmullen, a good man who is on the ballot in about half the states. he can be a write-in candidate in almost every state. if nobody wins all 270 electoral votes, the house of representatives will decide the outcome and mcmullen will be
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elected. improbable, yes. impossible, no. no, especially because trump does not deserve our vote. it is an honorable path for those of us who want to be able to vote for an honorable conservatives. i hate the thought of hillary clinton being elected president and she will never get my vote, but i will not compromise core principles for the sake of party allegiance. if trump becomes what it means to be a republican, then i will not be republican. hopefully, his nomination is a case of temporary insanity, but i will not allow trump to be the face of the nation for the world. not with my vote. --ill not allow full gary allow full guarantee to stand in the place of virtue, not with my vote. i will not stand idly by while the national character is polluted, not with my vote. as christians, we are called to do god's bidding. this means doing what we should and entrusting in the results.
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>> thank you, bill. bishop harry, your response. five minutes. harry: first, bill, thank you for your comments. i know that you have a sincere faith. and i think what i'm looking at is an individual who has run the campaign from a media perspective, almost like a shock jock. saying things that get attention. and then coming from a kind of , construction manager kind of perspective in new york -- i am looking at that as this candidate is growing, he is making some strides.
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his approach to having the one-liners, other things, serves -- served him well in the primary. i will go back to this idea that america, and in the 11 or 12 years i have been working on speaking out on social issues, engaging as a conservative because of my christian background i think it is time , for us to face race issues with practical solutions and face class issues with practical solutions. i think that unfortunately i am looking at the choices. unfortunately, the democratic party has had somewhat of an adulterous relationship with the black community and the hispanic community. it is like they show up at
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midnight and want what they want the way they want it. after they have gotten what they want, the vote, we don't get no flowers, no dinner, no romance. i think this is going to have to stop. i think the trump candidacy is a manifestation of the fact that principled conservatives and republicans have failed to carry the water for us. we have talked a lot about high principles. they've done nothing. because of that, folks are looking for options. i am willing to take my vote and take a risk, to make a judgment and assessment that one definition of insanity, if we do the same old thing and expect different results, then we are insane.
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i do believe that the thought behind the character comments you made, lesser of two evils, makes a lot of sense. i especially agree that there has to be a higher standard as we go forward for a republican nominee. that, in used debating about mr. trump in the wrong way, we're not addressing the fact that most liberals see all of us on this side as uncle toms or racists. that bag of deplorables. i don't think we are going to change that by fighting among ourselves.
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i do think we will have to finally stop saying that big government is bad, all of these things, and start doing something about changing the way big government works in the world. we have to also show some compassion. again, i think trump started off wrong. his about-face and going into the black and hispanic communities is a sign that he may be a changed individual. -- may be a change agent. i'm praying. i wish we were not at this point , but this is where we are. for the reasons i have stated, i believe that pragmatically addressing and looking at class and race issues with an eye towards fixing them is the only way forward for america in a practical sense. thank you.
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>> thank you, harry. bill, your response. five minutes. bill: thank you. i completely agree with mr. jackson that we could do a lot more to care for the poor. i have been deeply involved with the poor nationally and internationally. people say to me, how can you be a conservative and think about the poor? i'm a conservative because i care about the poor. i think there is a segment that has been working on this for a long time and another that say s, those people don't vote for us we don't have to worry about , them. inimical to the gospel. the fact you say he is a shock jock, i'm concerned about that for two reasons. first of all, let's assume he does not mean it. that concerns me because he is saying things to get elected
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that he does not mean that are profoundly destructive for our society. the other possibility is he doesn't mean it. i come back to where are the recurrent themes? that notion of strength. in patients with democratic constraints. his admiration of people who -- why would be admire a guy like putin or the tiananmen square butchers? why would he say this? and not just once but again and , again. i think that is what he appreciates and we should take that seriously. one of the most profound statements he has made that concerns me is when he said in the debate that military leaders will obey. he walked it back this much the next day. how about the judicial nominations, when he suggested
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on his, i would call it a dog whistle on the second amendment, that maybe they would be taken out. he walks back. i'm kidding, kind of. what does that mean? is that the kind of society we want, where we are killing one another over disagreements? we have worked within the rule of law for a long time and rightly so. we don't advocate killing abortionists or punishing women. we want to work appropriately within the rule of law. the rule of law is a precious thing. look around the world. see how many places that are punitive democracies. in many parts of the world if , you see the police coming, you run the other way. not because you are corrupt, because they are. to think that the rule of law is in violent here. it is profoundly reckless. it makes my blood boil when he
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calls for extrajudicial things like beating up people knocking , the crap out of them. that is not appealing to the best angels of our nature. i think he appeals to people that are so mad and so angry at the bigotry and intolerance of the other side that they want their own guy to be the hitman. we have to trust god. please have to do things god's way. we cannot take shortcuts. my concern is trump is an attempt to take a shortcut. >> thank you, bill. we are off to a good start. let's do some follow-up. i want to push back from your position for each one of you. i will start with janet. you know trump was a democrat. you know he donated to democrats he donated to pro-choice causes. you know he has, at best a
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, mixed record on planned parenthood. he has supported a lot of pro-abortion candidates, and abortion seems to be the most important question for a lot of evangelical christians. how do you reconcile that with a vote for donald trump? can you trust him now? janet: absolutely, i can trust him. my mind goes to the coat of dali -- to a quote, money is like the newer, you spread it around and things grow. he has given to pro-life, democrats, conservatives. he is a businessman. that is quite honestly the art of the deal. let me go back to what you said before. he said this is basically a family discussion, and in truth, this is what we will call a ecclesiastical conversation. in truth, it'd probably conducted on the hollowed halls
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of our churches, not c-span. but as long as you are watching, we will have this discussion. why didn't we have this discussion four years ago? we had a man from massachusetts that was pro-abortion before he was pro-life supporting , obamacare before he said he was opposed to it. but far more importantly, because this is an evangelical conversation, i love my friends who are members of church of the jesus christ latter day saints. this is an ecclesiastical conversation. that candidate wore underwear that he thought would protect them from harm, believe that jesus had returned to the earth but only to the southern hemisphere. yet we have a member of our panel that is advocating another mormon. if we're going to have an ecclesiastical conversation about evangelicals, let's put doctrine on the table. >> thank you, janet. eric, eric, trump has been accused of denigrating minorities.
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he has been accused of undercutting the christian view of the sanctity of human life, the image of god by the way he talks about them. i think this all started on june 16 when he came down the escalator and game that opening speech about what he felt, concerning mexico and the people coming across. i want to read the direct quote. "people that have lots of problems, they are bringing those problems. they are bringing drugs, they are bringing crime. they are rapists. and some, i assume, are good people. i speak to border guards and they are telling us what we are getting." that is the quote. i want to emphasize the phrase "and some are good people."
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, can you deny that statement is true? or at least unclear, because of that caveat, "some are good people." if that statement does not show he is denigrating minorities, there is another quote or action you would use to justify he is a racist or undercuts the human dignity of immigrants? >> i think the hyperbole of the statement overshadows the point he was trying to get at. i do take him that he was not drawing a blanket statement. unfortunately, it was not heard that way by a lot of people. a lot of times, perception is more reality. i think the bigger issue was his treatment of the judge from indiana who, because of his heritage, could not be fair in the case because he was mexican.
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he was a nativeborn american. my heritage is swedish but i'm an american. his heritage is mexican but he is an american. i think that, in and of itself, was extremely problematic. i have to tell you, you and i may not be hearing some of these things, but there is this group right, and they are. these people believe in tribalism such as, particularly, the white race as a tribe in this country. you engage them and they believe the policies that benefit white nativeborn americans are the policies trump advocates. they have gotten that impression from his statements. i first came into contact with these people because of their hostility -- because of their hostility towards adoption in evangelical circles because christians have the greatest propensity of any group in this country to adopt outside of their race.
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they would very like laws that prohibit that, and i am troubled by the way that they hear donald and thinks he is one of them. i don't think he is. but, they certainly hear it and , i think the campaign made a very bad mistake in fostering those dog whistles for that group. >> thank you, eric. bishop jackson, trump has put forth a list of prospects of -- prospects for the supreme court. said, but i might add to it. at one point, i think he alluded , to his sister making a good judge in some context. here's the question, given the donor record, given the past support of democrats record,
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past unevenness, at least, on the planned parenthood issue, why do you think he would keep the promise, why do you think he would go with that list of people like the ones on that list? is this part of the art of the deal? is this a bait and switch? is he playing us? what do you think? harry: i don't think he is playing us. i think he understands, at this point, i'm not sure he understood it at the very beginning, that he has really got to ingratiate himself with a certain demographic. i think he selected the christian community and the conservative christian community to be the folks he really wants to receive support from. i think he will keep the promise as much as any politician will keep a promise, because they
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believe it is in their best interest for reelection and that kind of thing. what i see is a man who has been shaped in the debates and process, who is starting to understand these different groups are the groups that i have to have with me over the long haul. i think that is why the list was offered, in order to be specific, to tell conservatives and evangelical christians, i will do some things that are helpful for you. >> thank you. ok, bill, trump has been accused of mocking the disabled and i believe he used that phrase. there is a clip where he is quoting a reporter that seems to be antagonistic or questioning way, hebe in an unfair
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thought. he flails his arm. this reporter is disabled. a group called catholics for trump put together a video analyzing this claim. the same arm flailing, the same slurred speech pattern, trump uses in the speech to talk about a general he does not like. in the catholics for trump clip, there is another video of trump using the same flailing and slurred speech pattern for ted cruz. he is mocking ted cruz, more or less. ted cruz is not physically disabled. the general is not physically disabled. what do you think of this analysis by catholics for trump? and, if it matters, do you know of any other case -- who and when -- that he has mock somebody that is disabled? bill: let's give him the benefit of the doubt and say for a
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minute he was not mocking the disability of this reporter. i think a lot of times politicians get an unfair rap because there is something that happens out of context and that becomes the rat on them -- becomes the wrap on them. have we ever seen donald trump make fun of any other people on how they look or how they act? let me think. just about every day. fat people, yes. carly fiorina, yes. hillary clinton, yes. rand paul, yes. he regularly makes fun of it. ask yourself, i don't know about you, how many people in your life who were above seventh-grade make fun of people of how other people look? that, to me, is like middle school, elementary school childish behavior. he is doing it on the national stage.
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that is corrosive to our national character and it says something deeply wrong about the man's character. >> thank you. i'm going to allow eric or bill to answer this question, whoever wants to shoot for it. most christians throughout church history have not been able to vote at all. probably most christians today still do not have a vote, places like china and so forth. those who have been able to vote in most of church history and even today don't get to vote for god and country candidates, candidates that make a good advertisement for the church or christianity. they are voting between a candidate that is controlled by an oligarch or voting for a candidate controlled by a drug lord, or choosing between that and a candidate chosen by the military. christians and where they are,
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living there, and they do cast a vote. we've been privileged to vote in -- they are sort of heroes.have we thought they were god and country candidates. do you see a distinction between this idea -- voting and supporting a candidate embarrasses the republican party or embarrasses the church or is a bad testimony and just this decision you have to make, as most christians throughout church history have had to make and in other countries have had to make, between just two choices, and you've just got to do the best you can do, and it betterhat trump is the of those two main choices? >> i've been asked this question a lot in various forms. i always go back to the apostle romansho did write in that government is an instrument of god.
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as peter said, we are to pray for the emperor. we are to pray for president obama and his cabinet. but paul was a roman citizen who by right of his citizenship that we know from the history was -- historic record outside the bible was allowed to vote in the assemblies and forums in sis andand -- tar jerusalem. we knew that paul could exercise his vote if he wanted to as a roman citizen but he never wrote about it. if you want to vote between the lesser of two evils, do it. i don't think we should be compelling each other to violate our consciences to vote or not vote. that is why i am not going to tell anyone don't vote. but we don't have to. yes, voting is a right as an american citizen, but i have a higher obligation to advance the kingdom of god, and when the two come in conflict, i've got to go with advancing the kingdom of god.
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>> janet or harry, either one of you could take this. picking up on what he said about the lesser of two evils, sometimes there is this view that a candidate is good or a candidate is evil. a decision is good or a decision is evil. if you study ethics, there is a whole field about this and various schools of thoughts about this. we heard a list of candidates earlier. people like j.f.k. and roosevelt and jefferson, some of the people that we say these are good, these are heroes, these are founding fathers, we have statues here in the city. but they weren't just good. they were also good and evil. and some candidates are mostly good with some evil, some are mostly evil with some good. it is always a mix. we are in a fallen world. i'm thinking about the difference between the greater good, deciding what is the greater good, and what is the lesser of two evils?
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either one of you want to speak to that? does that make sense? harry: i will say this as this -- at this juncture. i think the checks and balances in our system we know come from a biblical perspective and understanding. and because we've got people with mixed motives and issues that they themselves may not even understand, we do have a system of balancing out the different powers of the three branches of government. i would say we will never have a 100% pure candidate. but in this system i think it would be terrible if we don't exercise our right to vote and commit to doing our best to grapple with these kinds of decisions. that is my answer. >> bill, i think you heard this.
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i was in a meeting, and a congressman said, "i do not trust donald trump to always do the right thing on all of our issues all time." then he said, "i do trust hillary clinton to do the wrong thing on our issues all the time." how do you process that statement? bill: and that is where i come back to the lesser of two evil arguments being inadequate in this case. i want to bring in again, there is another candidate. evan macmullen. i don't vote based on faith. i vote based on virtue and character. i know many non-christians who have good character and many christians who have deplorable character. i care a lot about the virtue of the person. i am not looking for a pastor in in chief.
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i'm looking for a commander in chief so the character issue is , hugely important to me. ultimately i do have another choice. i live in virginia, and i will be voting for evan macmullen. let's just say i didn't. let's say that really there were only two and there is no such thing as write-in. even then, there comes a time where i'm being put into an impossible choice, and it's one which i think there is a more virtuous decision in that situation. and it's because i do have a much higher standard for a republican nominee than i do for a liberal nominee. i care more about who we put forward and support. that is why i don't go by that reasoning. jerry: this is a different kind of a question. i want everyone to answer. i want to start with janet here. assuming your candidate wins in november, what is the one likely consequence or result that most concerns you? janet: that most concerns me?
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jerry: if trump wins what, is the nagging doubt you may have? janet: that christians won't be praying and fasting for him on a regular basis. going back to the book of romans, paul did say we are to honor the king. that would be something i would encourage my listeners to do. we are to pray for those in authority because we are the beneficiaries when that happens. so i would be doing that on a regular basis. but i have to tell you i am struggling with the math. i'm so good at math, i went into broadcasting, but this one i can figure out. if you vote for evan or you don't vote at all, you have voted hillary clinton. it is math, absolutely math. so you may have the momentary i feel good and i feel righteous and i have advanced the kingdom of god, when you have done none of that. you haven't been pragmatic or practical. and you haven't done what was right by seeking the welfare of the city. so, i would have a problem with that. there is a name that is in
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absentia. mike pence. he represents everything we evangelicals love and support. my husband worked diligently with him to make sure the airwaves were kept open to be able to proclaim the gospel of jesus christ. the character and the deportment. the record on capitol hill. he is, in a sense, one heartbeat away. i don't know what the future holds, but i know who holds the future. half of that ticket is absolutely, undeniably a person that proclaims his relationship with jesus christ. that needs to be discussed. jerry: erick or bill, there are those who say we can't trust trump with the list. he is making a lot of promses. -- promises. this could be bait and switch. he has made one executive decision, and only one, which is the vice president. you cannot really imagine any of the other 17 or 16 candidates picking someone better than pence.
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i mean, he is not perfect. there was one big flaw that people criticize him for up in indiana, but it is at least remarkable. then i would say secondly, this isn't just about the candidates. it's about the party platforms. the republican platform has never been more conservative. the democrat platform has never been more liberal. what do you think about those two facts? either one of you want to take that? >> on mike pence, i worked in the white house. the vice president has precisely as much power as the president allows him or her to have. otherwise it has been likened to a position with -- essentially, you just attend funerals around the world. so, i have no confidence in that. does donald trump have a reputation as a man who likes to surround himself with people who challenge his authority and
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likes to hear from dissenting opinions? no. quite the opposite. i don't have any confidence that mike pence, a good man, would be able to have any influence on donald trump. jerry: that is good. we only have about five minutes, but if you have a closing comment, we will start down with erick and work our way down here. closing thought, maybe a minute or minute and a half. erick: two thoughts. one, like janet, i went to law school. god help me in math. but if there are a million voters and one decides not to vote for hillary clinton or donald trump, there are now 999,999 voters. 500,001ead of needing to get a majority, they only need 500,000 to get a majority. if i'm not voting for trump,
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therefore i'm voting for hillary, well, i'm not voting for hillary, therefore i'm supporting trump. i would disagree that the math argument works. it just takes one voter out of the vote pool. i will be voting for peyton manning, someone i can be proud of to become president of the united states. my greatest fear if he were to get elected would be that he would have a back ache. let me say this. if we take trump at his word that he gave donations to all sides because he is a businessman, if we take him at his word that he is going to appoint these judges, if we take him at his word that he is going to do all these things, then we need to take him at his word that he was quite happy to have these affairs with married women and not ask for forgiveness, and we need to take him at his word that he would like to have sex with his daughter if he was someone else's daughter and he didn't ask for forgiveness, we need to take him at his word that he was ok filing for bankruptcy and letting others carry the debt for him and he got off scott free and didn't ask for forgiveness. if you want to go in and vote for him, fine, but i think as christians we harm our witness to advocate for him.
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janet: if peyton manning gets elected, the secret service name -- codename for him will be omaha. just for the record. i have two issues on this. number one, the process. the process said there were 17 candidates. the people spoke. not the people in washington, no the pundits, the people spoke. and when the people spoke, there was one man standing, and his name was donald trump. if we truly believe in the republic and we believe in the process, whether we like the outcome or not, i think we are convicted to support the process. but i am far more concerned about the church. i have never seen such infighting in my life. it is an embarrassment to the cause of christ. i am very concerned that once the election is now dust in the annals of history, we are going to wonder whether or not we are going to be able to unite arms and move forward again for the advancement of the kingdom of jesus christ. we are going to hold aught against other brother because they didn't vote the way we thought they should vote. so we have extrapolated something out of scripture that in no way, shape, or form is
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there. so i would end with this. it is an old saying. we are not quite sure to whom it can be prescribed but still , profound. in essentials, unity. in non-essentials, liberty, in all things, charity. jerry: very good. bill? bill: i don't want to give into the self-fulfilling prophecy that it is just a binary choice. the framers never assumed as such. they didn't have janet's confidence in the majority, which is why they had so many checks on the will of the majority, including something called the electoral college. in terms of the process, i am working well within the constitutional framework put out by the founders when i am voting for evan macmullen. the math can work if we make it work. i think we need to take seriously trump's words, and we need to stop hoping that he is just a huckster and a charlatan and just lying all the time. i think there are words we need look for -- we need to look for
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and listen to what he says them again and again and believe them. harry: well, i am excited about this election for this reason. i believe that the only healing balm possible for america is going to come forth from the church if she rises up and stands in the gap, prays, votes and exercises her liberties. i believe that there is a redefinition going on. it is a time of tremendous change. and, ultimately, god is allowing us to see some of our biggest cultural flaws through the flaws of these candidates. so, i am hopeful that god is not through with america yet. i believe the church needs to be more unified, and i am anxious to see who ultimately wins, and the gospel will be preached no
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matter who is elected. i'm excited about the future and what it holds for us. jerry: let's thank erick erickson, janet parshall, bishop harry jackson, and bill wichterman. [applause] i am jerry johnson. we want to thank you for watching on c-span 2. i want to remind you that christians vote. it is just one of the things we do. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute]
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>> now we checked in on a congressional race in southern california. how a congressional race in santa barbara, california, became one of the most expensive in the country. panzar,rting of javier who is covering politics for "the l.a. times." thank you for being with us.
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the democrat is retiring in california's 24th congressional district. tell us about the two candidates. democrat salud carbajal is a supervisor in the county. he was a chief of staff for a supervisor before that. he has been making his way up through local santa barbara politics for about 20 years now. and he has the backing of lois capps as well as nancy pelosi and pretty much the whole democratic establishment. .ustin fareed is a 28-year-old his parents own a medical devices company in santa barbara. he, after graduate from ucla, work for congressman ed whitfield of kentucky for a year before moving back to the district, working for his parents' company. now he's making his second run for congress. he ran in 2014 but did not make it out of the primary. >> as you said an expensive race. when all is said and done, how much will be spent by the
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candidates and outside money? >> right now it is $5.5 million. $1.5 million in outside spending. i expect that to go up. i don't know how much it will go up by, but i would expect because santa barbara is a cheap media market compared to los angeles and the bay area that, easily, you can see another $1 million coming in in outside money alone before election day is over. both campaigns are sitting on andnd $200,000 for fareed $500,000 for carbajal. it is going to get more expensive. >> here are some of the ads now on the air. we will begin with salud carbajal and then follow that with republican justin fareed. agree onongress can't a budget, they shut down the government and keep their salaries. salud carbajal sees things differently. when the great recession hit and hundreds of county workers were furloughed, carbajal stood with them and gave up part of his salary as county supervisor.
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>> everybody was trying to make ends meet. i was thought it was important if we are asking our employees to sacrifice that we do the same thing. i believe that's what leadership is all about. i'm salud carbajal, and i approve this message. >> justin fareed a , ranger -- a third-generation rancher, born and raised right here on the central coast. at santa barbara high, he was unstoppable running back. building a small family business, he would never take no for an answer. justin went to washington long enough to realize the place desperately needs fresh ideas. someone unstoppable. choose fresh, choose fareed. >> on justin fareed and i approve, this message. nowust two of the many ads on the air in california's 24th congressional district that includes santa barbara. "ining us on the phone from
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the l.a. times" newsroom is javier panzar, who is following the story for "the l.a. times." a generational approach between the younger republican candidate and the older more seasoned democratic nominee. >> you couldn't really get two more different candidates in that area. justin fareed is only 28 years old. in politics, he was a staffer for congressman ed whitfield out of kentucky or a year -- for a year. salud carbajal has spent 20 years in local politics. he is fairly well-known for his fundraising apparatus. he raises a lot of money, not only for this race, but he was running for county supervisor -- but when he was running for county supervisor. he has most -- the backing of most of the powerful democrats in california. nancy pelosi, lois capps, lois capps' daughter, who for a period of time was thought to
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want to run for her mother's seat, is backing him. he's been hit with a lot of attacks from fareed for being a career politician. whereas justin fareed doesn't really have much of a career in politics, so he gets to come at it from the angle of "i'm young, i'm a new kind of republican" and really run against the dysfunction in congress. >> let's talk about the demographics of this district. santa barbara and san luis obispo, the two largest cities in california 24. who doesn't favor? -- who does it favor? >> it's an interesting district. for a long time, because of gerrymandering, it was known as the district of shame. now it goes further inland. you start off on the coast, with liberal cities like santa barbara, and you go more inland
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and you get into more of the old country club republican crowd. you get some more farmers, more ranchers, and there is a significant agricultural economy in santa maria, california, which is actually the largest city in santa barbara. that is a city that has produced more republicans. abel maldonado came out of santa maria. he was a republican. it's an interesting area in that sense. the democrats do have the advantage among the registered voters. they have a 6-point lead over republicans. it being a presidential year, that alone should favor the more -- favor salud carbajal. >> a race that's becoming one of the most expensive in the country. javier panzar, joining us from "the los angeles times." his work is available online at thank you for being with us. >> thanks for having me. >> president obama will give his
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seventh and final keynote address at the congressional budget office foundation dinner -- black caucus foundation dinner on saturday. hillary clinton will receive the inaugural trailblazer award as the first woman presidential nominee of a major party in the u.s. live coverage at 7:30 eastern, here on c-span. >> c-span's "washington j ournal," live every day. radnofsky willse join us to discuss the exit of major carriers from the affordable care act health insurance exchange. and president obama's plans to meet with insurers next week over the future of the health care program. then, a reporter for the investigative run on his investigation uncovering health care problems with federal prisoners who are housed in private prison facilities.
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admiral ofed rear the council for a strong america will be on to talk about their report titled, "america unprepared," which warns the nation's youth is unprepared for military service and many have criminal records. be sure to watch c-span's "washington journal," live beginning at 7:00 a.m. eastern on saturday morning. >> the associated press and 15 other media organizations are asking the vc circuit court of appeals -- d.c. circuit court of appeals to order the release of graphic videos showing a former guantanamo bay inmate being force fed during a hunger strike. the videos show former guantanamo bay prisoner jihad dhiab being forcibly removed from his cell, strapped to a restraining chair, and force fed meals through a tube. the three-judge panel heard oral argument last week.
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it is just under an hour. >> good afternoon. >> good afternoon, your honors. may it please the court, catherine dorsey, on behalf of the respondent appellants'. the district court are -- ordered 10 classified videos evicting the forced-cell extraction and interval feedings of mr. dhiab in this case without any determination that those videos were not properly classified. the court did so finding that it toidged intervenors right free speech under the first amendment to deny them access to those classified videos. that was an error. it is well-established the first amendment is not a freeman of it -- freedom of information act. it requires a qualified right of access to traditionally public, unclassified judicial records. here at the district court -- here, the district court relied
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on the press enterprise case, which is an exception to that access. >> you would agree that is an open question? whether --stion >> a number of circuits have disagreed with your statement. >> i'm sorry, your honor. i'm not sure which statement you are referring to, whether that press enterprise doesn't apply? >> whether the first amendment right of access is limited, as you suggest. i think -- your honor, i'm not sure what cases you are referring to, because i think this court has certainly indicated the number of times that the first amendment is a qualified right of access, not the freedom of information act. >> no question. >> i don't think, on that point, there is any question. it is a qualified right of
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access, your honor. >> i said no question. >> ok, sorry, your honor. in this case here the district court, relied on press enterprise, which we don't think applies in this case. press enterprise was a limitation on the judiciary right to seal unclassified records, judicial records that were presumptively public because they were unclassified. that exception does not confer on the judiciary authority to seal -- unseal properly classified information and, in fact, press enterprise did not deal with classified information and it did not address that separation of powers problem that indoors in this case -- that endures in this case where there is a first amendment right and also the executive,'s prerogative to decide who gets access to classified information. >> is there much daylight between the test for proper
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classification and the press enterprise test? >> yes, your honor, there is. the proper classification entered that has traditionally been applied -- standard that has traditionally been applied, in prepublication review cases like mcgehee, is typically affor ding a substantial weight to the executive's statements about why something is classified and the press enterprise test requires a compelling interest and a substantial probability of harm. so, it's a much more demanding standard than has typically been applied to determine whether something is properly classified. can you pin down the exact meaning of substantial probability? it gets above all that. >> your honor, the way the district court applied press enterprise here certainly was a different standard because the
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district court concluded that the fact of classification was, irrelevant to press enterprise thealso stated that standard for proper classification was too living in . -- too lenient. it's clear the district court applied higher standard in determining a substantial probability of harm. the district court did not review to determine whether the information was properly classified and said that would be relevant. so, i think there is a distinction here between those two. in this case, we don't think the first amendment is an appropriate vehicle, even to seek access to classified information. the intervenors here could have filed a foia to get access to the videos. that would have been the proper way to challenge whether the videos were properly classified.
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here, there is no first amendment right of access to these kinds of classified videos and no case has recognized that the press-enterprise applies to classified videos in order to disclose over the government's injection. -- objection. even if the court were to determine that press-enterprise is applicable, which we don't think it is, the result would be the same, in that there is still no first amendment right of access. we think it is clear under the experience and logic test of press-enterprise that there is no history of the right of access to the classified information in the guantánamo hideous proceedings -- habeas proceedings. >> i find that test totally mysterious. how could there be a history, if guantanamo only started to use, relatively recently, for detention of prisoners? habeasguantánamo case --
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cases have been going on for 10 years now, your honor, and in the context of those proceedings, it is certainly clear that there has not routinely been an access to classified information. there is no -- this court has recognized -- thatrequest and in denial gelleda denial that have into some sort of precedent. i'm not sure how it could gel into a president. >> there have been a number of challenges in the context of the guantánamo cases, where the government has sought to keep under seal unclassified information and the court has made it clear -- this court has made it clear that that is this court's responsibility and the government would need to some information that would justify such protections. it has not apply the same standard to classified information.
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>> what about history and tradition? and you mentioned this. the kbs -- habeas proceedings in guantánamo aren rather extraordinary. the supreme court went to great lengths to canvass the history of the rate -- writ as it existed in 1789 in england and then came up with the decision that -- came up with, the only substantive, procedural opinion in the -- statement in the opinion is that the hideous to to be -- the habeas has be, quote, "meaningful." the national tradition to documents with the way that habeas was conducted in 1789 in
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england -- if you do, there is history with respect to access to documents under the ancient writ, and that was, unless you had a proprietary interest in the document, you didn't get access. the english case, i can't remember, cited in the supreme court opinion, which i haven't up, but it'sedged an old opinion. i think that would support our opinion here that. >> -- >> i think that would support our opinion here that, even if you are looking back to the writ of 1786, i would suggest also there is no right of access to information in haveas proceedings, -- habeas proceedings, much less classified information. they also said that classified information in the national security interest involved would be adequately protected in these
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habeas proceedings. there is every indication the supreme court did not expect that classified information filed in the habeas proceedings would, all of a sudden, be publicly available. >> i've heard it said it was not marked classified. no document is ever marked classified, right? it's either top secret, secret, or confidential, eyes only. what's the other one? >> correct. for official use only or special access. >> special access, yet. i've seen a lot of classified documents, but i've never seen one that says classified across it. >> when we say marked "classified," we mean marked with the appropriate header of secret, confidential, special access, but in terms of how we -- what we've talked about, the foia has the role in the
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context to determine proper classification. it is not just that the government submits the document with the classification stamp on it. >> as i understand it, the defense attorneys who are representing individuals that are detained at guantánamo have to go through a security clearance. is that clear -- correct? >> that's correct. he received secret clearance -- they receive security clearance and are cleared to receive classified information. >> did the intervenors get security clearance? >> they did not get security clearance. >> the intervenors' attorneys, i mean. >> correct, your honor. they do not have security clearances. when the outcomes of this district court decision is that if this release is -- classified information will be released to the other, to the intervenors, to the petitioner himself, theoretically, even those -- though those
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individuals have not been granted security clearance or have been determined to have access to classified information. the supreme court testified that who gets access to the classified information is the prerogative of the executive branch. >> what you say to the -- that there was no objection by the government to the cheney -- the counsel, to the motion of the detainee counsel to file the videos as court records? >> the government did object to the discovery, but the government did not object -- >> when the district court denied that motion and granted it in part as to redaction. i'm talking about the motion to make these videos part of the court record. there was no objection by the government. >> and the reason the government didn't object is, pursuant to the expectation of --, that
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classified information would be litigated in these cases, but that that information would only be given out to counsel who were granted a security clearance and cleared for access to classified information. the sophistication of government litigators. the district court had argument pretty clear that its approach was looking at this case somewhat differently and that it viewed the decision it had to make -- was not necessarily predetermined by the government's classification decision. so, if there was ever fair notice that the nature of these documents might be changing, why wouldn't the government have interposed an objection? >> i disagree, your honor. >> you disagree with what? >> i disagree that the
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government was unreadable notice -- was on reasonable notice. >> there was a motion filed. >> but there was a protective order that prevented the release of classified information in these cases. >> the district court had already made clear it was going to make the decision. >> i don't think at that time, your honor, there was anything that was clear that the district court, was not going -- that it was going to be a decision the court -- >> it's a different court. it would have ended the matter and denied the motion for intervention as futile, basically. i think, at the time, when the government did not object to the finding of the videos after they were ordered discovered, there was -- the government had every reasonable expectation that the videos would only be provided to detainees' counsel and to the court. there was a protective order in place, and nobody else had a
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security clearance in the case. and egan and other established law, the court routinely -- the district court routinely protects pacified information ectsd in court -- prot classified information filed in court. >> so you're saying there was a reasonable reliance by the government, and that explains its failure to object? >> absolutely. and the government was doing its part to give what information could be given to cleared , as directed in these cases. the government has made a real effort in the guantánamo cases to provide what information it can to cleared counsel. consistent with that, the government did that, but it certainly had no expectation that the record could later be publicly disclosed. so, the guantánamo cases have been going on for 10 years, and there is a vast amount of pacified information that has been filed, pursuant to
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protective orders -- classified information that has been filed, pursuant to protective orders, with the expectation that information will only be shared with the court and cleared counsel. if the court has no other questions, i see that i'm out of time. >> i guess i do have a couple questions. you have an alternative argument? >> yes. >> even under the district court's approach, you win. >> yes, your honor. we think, even if you were to apply press-enterprise, as we start to discuss, under the experience and logic test, we don't think there would be a first amendment right of access here. >> i'm beyond that. your third alternative? >> we think the government's declarations here did show a compelling interest to protect national security. the declarations that are set forth for national security concerns, they explain in detail how the videos could be used by detainees to develop countermeasures. ourn that third argument,
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standard of review is abuse of discretion. >> i think that -- well -- yes, your honor, although, again, we think that the legal question here about whether it would be correctly applied - -- >> we are on the third option. the third option is, even assuming the district court properly proceeded -- >> yes, then i agree, i think you would be of use of discretion, your honor -- i think it would be use of discretion -- i think it would be abuse of discretion, your honor. we do not believe the district court applied the correct deference to the substantial harms and the executive's weighing of the harms and the concerns.
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the executives and the military officials who wrote these decorations are the ones with expertise to judge the seriousness of the concerns, and they relied on both the countermeasures, direct insight, the fact thta more -- that more forced-cell extractions might be necessary and, the concern that if these videos were released, it might dilute the protections afforded to u.s. citizens. >> you haven't argued the case, have you? >> not this case, no. >> how do you distinguish a situation where an intervener comes in and there is a andovery that is pending the case gets settled? the actual case. the discovery request is still outstanding. is that discovery request not moved? >> i guess it would depend. it might be one of the situations where it is capable of repetition and occurring, so
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the question might be -- of repetition thing only applies to capable of repetition between the same parties with the same issue. so, i don't think that would apply. how do you distinguish that situation? that's essentially what we have here. >> but it's -- >> i'm entitled to discovery because its first amendment -- first amendment. if the case is moved, then they still have a remedy. it is the freedom of information act. certainly, your honor. we agree that the remedy is under the freedom of information act. >> the case that i mentioned is nixon vs. warner communications, 1978, citing an 1829 english decision, habeas, i think. >> ok. if the court has no further
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questions, we would ask the court to reverse its disclosure order. >> thank you. intervenors? >> but afternoon, judge. david schulz for the intervenors, who are news organizations who are asking for public right of access to evidence admitted into the record in a civil proceeding. great outset, there is a deal the government argues in its position that the intervenors have no quarrel with. national disagree the security and protecting national security is a compelling interest. we do not disagree that a court should give substantial deference to the executive's determination of the national security. but the government, in this case , is asking this court to do what no other court has ever done, it's asking this court to accept the premise that the executive and the executive alone can determine when court records are sealed and when court proceedings will be closed
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. that would be a fundamental change -- >> the government asks a whole series of things be done as alternatives. is that it isken proper for us to turn whether or not the classification was proper, right? [inaudible] caset does not resolve the standing alone. >> sure. i really do think that the fundamental dispute, probably, between intervenors and the government is what the proper standard is. just to back up, our position is that what the district court did here was to apply precedent that there is a first amendment right of access to this proceeding. >> who owns that first amendment right? >> i'm sorry. >> who owns that first amendment right? >> the public. >> so, that means that in any habeas proceeding from
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guantánamo, anyone in the united states can intervene in that proceeding to get classified information? >> well --this >> -- it's not just the press. is everybody? -- it's everybody? >> if you look at the richmond newspaper case and again at case -- and the gannett case, they said there is no personal right to access. it's an enforceable, affirmative right. it was a watershed case. it was the first time the supreme court said that the public could come in and enforce this right of access. that's one of the fundamental mistakes, misperceptions in the government's positions. when they quote this statement saying that it is not a freedom of information act case -- those cases deal with information in the hands of the government. the supreme court has never said the public can compel the executive branch to turn over information in its possession.
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fundamentally different when information is brought to the court where there is a constitutional right. it goes back centuries. jeremy bentham in the 18th century -- corpus, at least according to nixon versus warner communications, the only party -- person who could come in and get access to documents is someone who had a proprietary interest in those documents. what do you do with that? >> i think you may be overeating that a bit. in the next part, the 1866 case, the- habeas court is very clear that the records were available on a public record. asi'm talking about the writ it existed in 1789. >> i would submit that's not the -- that's notto the right way to look at the first amendment right of access. --press-enterprise ii
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trials have been conducted publicly forever. >> criminal trials. >> does it apply to pretrial proceedings? the court had a problem there, because there were no centuries of access to pretrial proceedings. most of the proceedings at issue in that case were things that developed in the last 20 or 30 years because of rulings by the supreme court about procedural rights that criminals have. need this whole history because we can look at the experience. every state that has adopted these pretrial proceedings has done them openly. >> to borrow from the last case, the supreme court said that the pretrial proceedings in a criminal case where the functional equivalent of a criminal trial -- were the functional equivalent of a criminal trial. >> sure. what we're talking about here is a civil proceeding. we are talking about evidence admitted into the record as a civil proceeding. this report has only addressed this in a criminal context. every circuit has addressed --
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the supreme court has only addressed this in a criminal context. every circuit that has addressed this said that it only -- >> we had a case today where part of the record was sealed, as it is here. that means that somebody can -- anybody can come in and demand, this is my first amendment right, i want to see all the sealed stuff. >> there certainly is that potential. i do agree, judge, that there are certain ending requirements -- certain standing requirements the government has imposed. there might be circumstances where there would be a standing issue, do you really have a unique harm? i don't think that's an issue in this case. >> if we take foia as an analogy, everybody has standing. >> it is a public right. it's a substantially different right then foia. foia is a statutory right. congress said in this area you can only get things that are not properly classified.
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to go back to judge williams' question, that's the standard in foia. >> that's a different question. you're talking about standard best standing. everybody has standing under foia. you don't have to show the i need this document or it's going to help me or anything. just i want the document, period. >> i was going back to judge williams' question. >i'm having a little trouble hearing you. >> if something is awry in the public, as you point out -- is a right in the public, as you point out the supreme court said, then it is hard to see how there is any more standing requirement than to be a member of the public. >> is not an issue in this case. there is no question of standing. the government hasn't raised it. it has been discussed in some of the court cases, but there is no issue here. i want to go back -- >> the questions of the hazards of a broad reading. it raises a question about the hazards of a broad reading of press-enterprise.
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>> i think press-enterprise is very clear in what the reading is, what the holding in that case is. a very specific holding of that that ahich is --was state statute in california that said the pretrial proceeding could be closed on a reasonable likelihood that open proceedings would violate the defendant's fair trial rights or jeopardize the fair trial rights failed to satisfy the fed first amendment -- the first amendment. that was the specific holding. it's a reasonable likelihood is not sufficiently protective of the constitutional practice -- access right because of the criticality of the public's access to -- >> florida has a statue that protects the identity of a rape victim in a criminal case. this is a great -- there is a supreme court case where, despite negligence -- just by
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negligence, the police in the press room later piece of paper down and some court reporter got it and published the name of a rape victim. that's neither here nor there. but under your theory, if there is a red case and the florida law is applied -- a rape case and the florida law is applied to protect the victim, the press or any individual can come in and force that identity to be disclosed to the public. >> absolutely not. that is absolutely not our position. our position is that the first amendment right of access applies as a qualified right. there is a standard that have to be met -- a compelling interest. the government fundamentally -- victimidentity of a rape is a compelling interest, but the national security is not? >> national security is very often. we do not disagree with that proposition. we need to understand. it's very important that the proper standards get applied. what the government has argued is that classified information -- well, we are not going to apply
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the first amendment here. it does not make sense in the rights the supreme court has said the public has. a corporation's trade secrets had gas can -- can be sealed. the identity of a police informant can be sealed. there are interests to do that. what the supreme court has said is a judge must decide on a case-by-case basis if the interest exists. we need this field. the judge must say, is it a trade secret -- this sealed. the judge must say, is it a trade secret? all they did was apply the same standard to whether something needed to be classified because it applied to national security. >> just a moment. a a hypothetical, if program classified by the government and, in this type of proceeding,
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that occur -- occurred here, there is evidence that program a availablet been made public,overnment to the that classification may have occurred in year one. it is now here 20 -- year 20. and i'm thinking of the reynolds case as sort of an analogy here, where time passes and the government class interests may change -- the government's interests may change. is other scenario, program a classified. program a has been released to the public. the government's position is that program a still should remain classified. i need to understand what your understanding is of, what is the
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standard a district court is to apply in that circumstance, assuming, for purposes of this hypothetical, that we are in the third alternative presented by the government brief? >> where something is still classified. the standard to be supplied -- applied is the press-enterprise standard. as the government shown that there is a compelling interest that requires secrecy? that's the standard. >> that's the standard, but what i'm trying to get at is this whole notion of egan, national security, expertise -- >> absolutely. and what the district court did hear, -- here, which we think is entirely appropriate, number one, national security can be a compelling interest. i need to apply the first amendment standard, not whether it is properly classified, but the first amendment compelling interest standard, and i must give rougher difference to the
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executive -- i must give proper different -- deference to the executive. when the government is making national security -- all a judge may properly ask for is that the government has given us a logical and plausible basis to believe it is properly classified. said, lesser -- kessler has the government given me a logical and plausible basis to believe it is a threat to national security? paula has been known, videos -- based on all that has been known, videos on the internet, they haven't shown any grounds to meet the first amendment standard. >> i can think of a number of responses to the point i'm about to ask you. but in the correctional context, the supreme court and the lower courts have deferred very heavily to the opinion of the correctional official as to what
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is likely to cause a problem. all right. chief justice rehnquist writing, these people are responsible for maintaining the discipline, the conduct within the facility. approach applyt in this context? i understand this is national security, so there is a much greater governmental interest and interest to all of us at stake, but i just want to understand that aspect of the case and why that isn't relevant. >> i think it is relevant. i think that's really consistent with what the district court judge did hear -- here. of course you give deference to the statements of those experts. the question she asked, have they given me a logical and plausible reason, is the same thing this court has done in other cases. it was a camel case under foia,
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where the affidavit did not properly establish why something was classified. what the district court judge here did, and set on the factual record, was it doesn't make sense. i want to go back to judge williams' question. why is it the press-enterprise standard? shouldn't we just say it is properly classified? the standard for classification at the lowest level, basically just says -- if there is a reasonable expectation that some harm could happen. butge to national security, just some reasonable expectation of some sort of harm. it's almost an invitation to speculate. what the first amendment requires is more than that. that's what the teaching of resin apprise -- of press-enterprise ii was. >> i'm glad you raised this. the press-enterprise ii findings
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demonstrated that the interest in question would be prejudiced. a, prejudiced itself is variable term. it could be prejudiced extremely or prejudiced at the margin. and substantial probability is an elastic term. substantial probability could mean more than 50%. it could mean less than 50%. and if the interest to be prejudiced is particularly valuable, you might expect the substantial probability might be at the lower end of that probability. so, i guess -- the question i first ask government counsel, is there that big of a golf between the fwo standards -- of a gul between the two standards, i would like your position on that. >> there needs to be a
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demonstration that is logical and plausible. it does not have to be one the district court agrees with, but there has to be a logical basis in the affidavits that are presented to believe there is a substantial probability of harm. >> mcgeehee -- >> that argument was made. it applied that test in the that it wasaying logical that it was properly classified. it was different. that was the proper standard there because maybe he had signed a contract -- because contracthad signed a that he wouldn't publish anything that was classified. it was not an first amendment question. it was a classification question. >> the court went out of its way to find a classification toerest at stake, operating review this issue? isn't that true? a lot of talk in that case about the first amendment. >> the first amendment right is
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at stake because he wanted to speak. the ultimate standard was applied, whether it is properly classified, was appropriate because of his contractual commitment to the cia that he would not publish classified information. have they properly classified? it was the issue that was presented to the fourth circuit in -- this is the exact holding. in the circumstances where there is a claim of classification, the district court is obligated to apply the first amendment standard. it was implied in the district of maryland, where the government wanted to apply classified information only to the jury, and the press said, we are going to be watching this trial, we can't hear it. the judge said, i'm going to let them hear it in the first instance, then we will do a
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redacted instance. if the proper approach. if the government were right, if all they had to show was that something was properly classified in order to seal a transcript or close proceedings, then congress did not need to do all that he did in identifying what would happen in a criminal trial when classified information is there. it was a very detailed look at .his information by congress it has provisions that very specifically deal with what should a court do if a judge determines that classified information is material and necessary at a criminal trial. it says there are three options. the government can declassify it, and we avoid the issue. it can be introduced without the government's objection, in which ase it comes in unclassified. or if the government objects, the government has an obligation to come up with alternatives or it gets sanctioned.
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it didn't say, well, if it's properly classified, we are going to seal the proceeding. >> i hate to say this, but is it not possible that the interest in not convicting people who are innocent is ranked above the press-enterprise right? >> i think they are both constitutional rights. .> it covers a wide range >> we could go around on that. the importance of public access to trials cannot be overstated. it's what gives courts legitimacy in our country. to sacrifice that, to say any time there is classified information we have closed proceedings, without an independent determination by the judge that there is a need for closure, that's all the judge kessler required. a low level differential saying by the government -- low level d eferential showing by the
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government that classification was needed. that was the fourth circuit. this court has recognized, too, that the classification standard isn't appropriate in circumstances we back in the 1970's, in a case called halperin versus kissinger. it dealt with issues that had to do with illegal wiretapping. court, that, as a we cannot automatically accept that the public disclosure of information that is mark "top-secret -- marked "top -secret" wi necessarilyll -- will necessarily automatically cause a problem. if i could briefly turn -- i'm over my time -- to the abuse of description -- discretion. i want to address briefly the hecklers veto.
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once again, the government, in advancing this potential for propaganda, is asking this court the courtdoor that has not gone down before, even in foia cases. >> it is certainly one of the interests that the government asserts. >> i apologize. >> whatever the strength of your point there, it relates to only one of the interests the national security -- one of the interest, the national security interest that the government speaks of. >> the propaganda? >> yes. >> because of the generalized concern that people abroad might we should deny, the american people the right to see this information. there's a number of problems. one, it has no limiting principle. it's open-ended. it invites the ceiling of information. rationale,overnment the more objectionable governments conduct, the more
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outraged people are likely to be, the more likely it is to be secret. that can't be right. even in foia cases, this court has not accepted that as a proper grounds to keep information out. that --pecifically said where first amendment rights are at issue, we need to consider other things. this is not just a slippery slope. this is like the roller coaster they are asking you to go down, in terms of how it would change courts -- change the way courts operate. think about the civil litigation against the los angeles police arising out of the beating of rodney king. imagine a scenario where that videotape hadn't already been made public. the court was presented with a request to seal because it could say to a high degree of probability that if you release that videotape there would be riots in los angeles. are we going to seal that? are we going to go to secretive proceedings on that type of speculation? we don't allow that. >> the classification system is
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far different than that, and it's talking about national security, and it has a long pedigree. as a matter of fact, the first instance of the refusal to turn over documents was george washington's refusal to give congress the notes that led to the jay treaty, which started the executive privilege. i don't see the rodney king has much of anything to do with that. >> my only point is, if we are going to say, as the government argues, that information that could cause harm outside of the courtroom is grounds to seal it, that is a very risky road to take. think about the nature of the affidavits here, which i think judge kessler probably -- properly took into account, compared to the affidavits recently in the aclu case against the government involving drones, they had affidavits that very specifically said, i looked at every single photograph that is a subject of this request.
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it made specific explanations about why the release of those photographs could cause harm, that it could reveal the type of fornology reduce -- we use facial recognition, that it could allow people to identify the specific groups in this operation. east on that specific concern, the court said under foia it could not be disclosed. the district said, by the same approach, applying this deferential standard, that there was no logical basis presented in the materials submitted by the court why -- and if there ever was a case where the public should be entitled to see this sort of record evidence, it's here. the is a case involving treatment in the judicial system of detainees being held at guantánamo. as the judge said, it is of utmost importance that the public understand these proceedings are being done for -- fairly.
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she turned down the preliminary injunction. she said this is not illegal. she turned around and said that the american people have the right to know the decision on which this basis has been made and they have the right to know what has been happening here. this is a case where the decision is clearly appropriate. i think the government is concerned that it didn't meet the standard. they are asking this course -- court to throw out the standard because they didn't meet it, and that would be fundamentally improper. thank you. >> all right. counsel for appellant? did not reviewr determinationtion for whether it was logical and plausible. the decision maker she was reviewing it whether there was a substantial credibility of harm, which requires more than the classification standard under the executive order, which requires a reasonable expectation of serious damage for secret items. casenk, in terms of the
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that's more applicable here than press-enterprise, is the mcge hee case that judge williams cited. that case specifically dealt with the separation of powers problem between the first amendment and classified information. in that case, the court still applied the determination of whether the information had been properly classified. that was a case where the individual -- it was a prepublication review case. the court recognized they had even greater amendment rights, but still recognized -- greater first amendment writes, but still recognized it should be reviewed for proper classification. if press-enterprise -- >> is it true that, because the attorneys for the intervenors did not have security clearances, they have never seen these videos?
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>> that's correct, your honor. if the press-enterprise standard would apply, it would turn a lot of this court's precedents on its head and would frankly not make a lot of sense. it would mean the public had a right to access classified information that the court has can that the government rightfully withhold from parties in a case. >> you have to file a motion to intervene, first of all. the court would have to grant it. describe theve to nature of the interest. i mean, i don't see this necessarily the way you describe it in your brief as sort of an open seasame type situation. >> i think, your honor, those filing a motion to intervene and , likesing an interest what goes in the terrorism designation cases, where this court has held that classified information doesn't need to be
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shared with the parties to the case -- >> when i read your brief or read the government's brief, this reminds me where we were with guantánamo and the department of justice's position that there was no role for the court to play, and the supreme court had to say, no, there is a role for the court to play and set out what it was. and then we had this dialogue between this court and the supreme court over the years in this area. and that's why i wanted to focus ,ou on your third alternative to understand what the concern is in that context. trustlmost that you don't judges, not you personally, but you don't trust the judicial branch. of course, congress has already decided that question by passing
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statutes that give jurisdiction to the court to decide certain questions. so, that is water over the dam and, presumably, the right of appeal, the right to seek stays, the right to challenge, etc., three-branchn our system was viewed as circumstances where courts can effectively protect national security and the notion that the courts are just going to open the floodgates -- mean, i don't think we have to decide that issue here, but i appreciate the questions about how broadly -- your first argument is a very broad pol -- holding of this court. that took me back to -- that's where the government was on an article i commander in
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chief argument initially, prior to guantánamo and the detainees. a lot of water over the dam. so, we are a lot further down the road. so, then i looked at the second argument you made. this is an open question. the supreme court has never decided whether press-enterprise applies in this context, whether that's the right standard to apply, nor does -- has this court. and then you say, but even so, even given all the mistakes that we think are here, we still prevail. and i thought, well, that's the narrowest holding, isn't it? >> yes, your honor, that is. and i think it's clear from the declarations here that the government has laid out its national security concerns and, whether that's reviewed by this court for kind of a logical, plausible, or properly classified information, the government here has met that standard and the video should not be disclosed. but even i think we've met a
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substantial probability of harm, even if that were the standard to be applied. a fume more points. -- a few more points. intervenors raised -- that only applies in criminal proceedings. their knowledge they can order the --they acknowledged they can order the executive to release. on the propaganda concern, the national security concern, it is not just propaganda. it is that these videos can directly be used to incite violence. >> the government can dismiss the case or the government can decide to proceed without the evidence? >> it has both choices, your honor. >> it has to have the court's permission to dismiss. at any rate, move on. >> but there is a choice there. >> no choice here is your point. >> exactly, your honor. and on the concern that these
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videos could be used to directly incite violence, this court accepted that risk of harm in the judicial watch case, -- watt s case, also in the second circuit center for constitutional rights case. that is not a novel proposition. it is a concern that our troops would be directly endanger abroad, a valid national security harm that the government can rely on. if there are no further questions. >> thank you. we will take the case under advisement. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> book tv brings you 48 hours of nonfiction books and authors every weekend. here are some of our programs this weekend. saturday at 8:00 p.m. eastern, book tv talks with the new librarian of congress, carla hayden, the first woman and african-american to hold the position. then, new york times president and ceo mark thompson looks at what he calls the erosion of
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public language in his book "enough said: what's gone wrong with the language of politics," which examines the change in lynnwood from fdr and churchill to donald trump. he is interviewed by gary on huffington, founder of the huffington post -- by arianna huffington, founder of the huffington post. >> the kind of natural shape of politics, based on class and very clear ideology, has become more disruptive. all over the western world, you can feel the big, traditional political parties, the mainstream parties under pressure. >> sunday at 10 of eastern, the tv is live -- at 10:00 a.m. eastern, the tv -- book tv is live from the brooklyn book andival, featuring authors discussions on economics. politics with sarah jaffe. --
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ralph nader looks at political parties and the election. military and war with molly crabapple. ed young takes a look at viruses. -- for the complete weekend schedule. hisresident obama will give seventh and final keynote address at the congressional black caucus foundation dinner. hillary clinton will receive the inaugural trailblazer award as the first woman presidential nominee of a major party in the u.s. live coverage at 7:30 eastern here on c-span. >> defense secretary ash carter hosted the national pow/mia recognition day ceremony at the pentagon yesterday. he was joined by texas senator john cornyn, whose father was a prisoner of war, and retired
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u.s. navy captain jerry coffey, a prisoner of war at the hanoi hilton in vietnam for seven years. this is just under an hour. for then standing playing of the national anthem and indication given by the colonel -- invocation given by the colonel. ♪ ♪
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♪ the official party for today's ceremony, the honorable ashton carter, the 25th secretary of defense, and general policy over -- paula silva, senator john cornyn, and captain gerald coffee, retired navy captain, held prisoner for over seven years in the infamous hanoi hilton prison -- communist prison.
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♪ "the star-spangled banner"] ♪ ♪
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♪ ♪ ♪ >> let's pray. almighty god, we are honored to be here today. on this beautiful morning, to pause and remember special heroes in our history who gave so much to their country. areause and give thanks more than 140,000 men and women who were held against their wills in germany, camp o'donnell in the philippines, the horrors of the north korean prison camp,
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and the hanoi hilton. we promise to reflect that, of the 140,000 that were held in prison camps, over 17,000 never return home to their families. made his event of today once event of todayis once again seal our hearts to remember these -- may we remember -- his extraordinary courage, faith, and leadership inspired thousands of prisoners to survive hellish conditions, resist enemy indoctrination, and retain their faith in god and country, yet it ultimately cost him his life. may we feel nine feet tall and we could go bear hunt, like robbie did, who swelled with pride when he heard his fellow prisoners encourage him with the national anthem and "god bless america." our minds are with the thousands
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who are listed as missing in action. may we continue to sit through the forest in germany and never rest until william applington, a n airman shot down over germany, is brought home and buried with his family. patience,who had the technology, and funding -- home to his family in the great state of michigan. may we never surrender this sacred quest into we bring home -- we ask for the divine favor in locating lester, lost in the pacific area of operation in world war ii. may bring him home to his native american ancestral lands in south dakota to be with his family. lord, we serve a great nation who cares enough to recognize those who have never come home and to honor those who have suffered by the hands of their captives.
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i would ask again for your favorite in locating these citizens of our nation so that their sacred chapter in our history, of our nations history can be completed. finally, protect all our cameras -- comrades in arms tattered around the globe in harm's way. made a complete their missions soon so they can return home to their families. we ask -- may they complete their missions soon so they can return home to their families. we ask all this in your holy name. amen. >> please be seated.
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>> ladies and gentlemen, secretary carter. >> good morning, everyone. chairman,rnyn, vice captain coffee, distinguished guests, families, friends, thanks for joining us here today. we gather here together today to recognize our nation's former prisoners of war and those still missing and to recommit ourselves to fulfilling our solemn pledge, to make every effort to bring all -- all our men and women home to their
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families. we're honored to be joined today pows,er pows -- former individuals who endured captivity courageously and honorably during world war ii, the korean war, and vietnam, people like captain gerald coffee, who never gave up during seven long years as a pow in vietnam. thanks, captain coffee. and thank you to all of you here who have served and endured captivity as you have. and we are also privileged to be joined by family members of those still missing and former pows. senator john cornyn will speak in a moment. his father, then second n was shot t.j. corny down and captured as a pow in world war ii before being liberated. senator, thank you for being here and thank you also for your
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commitment to those who served today, not only in the past, but right up until today, including, very recently when you visited our troops in iraq and afghanistan. it means a great deal, senator. thank you. and all the families here today that -- and around the world, whether you have been reunited or are still waiting for your loved one, thank you for your patriotism and courage in the face of uncertainty. forthnak y -- thank you all you've given for this country. as we came together last year on pow/mia day, -- recognition day, we have accounted for 135 missing servicemembers. served on the uss oklahoma at pearl harbor that fateful december day 75 years ago. for decades, the lieutenants remains were among the many, too many listed as nonrecoverable.
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but a renewed defense department effort to identify unknowns in 2015 led to the successful identification of his remains and his burial with full military honors in washington state just last month. story,e lieutenant's every soldier, sailor, airman, civilian accounted for is a promise that -- met. and we won't stop, i won't stop until we achieve the fullest possible accounting for all our missing. and right now, far too many families have to wonder about the fates of their fathers, grandfathers, their husbands and daughters, their brothers and sisters. we work hard to meet our commitment to yesterday's personnel, to honor their service and their families, but there is another reason we do
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so. we know what it means to the men and women serving today, those who will serve in the future and their families, as they see everything we are doing to provide the fullest possible accounting of those who served before. they know we will do the same for them. one of the reasons our service members will stop at nothing to accomplish their missions, whether they are standing with our allies and standing up to russia's aggression in europe, making -- managing change in the vital asia-pacific, deterring north korea's propagation -- provocations, countering iran's malign activities, or helping accelerate isil's lasting defeat, which we will surely achieve, is that they know we will stop at nothing and make every effort to bring them home to their families. not's a promise we make only to our force of the past,
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but also our force today and of the future. that's why this amendment is so important -- this commitment is so important. and that's why we're fortunate to have a lot of help keeping it. and other nongovernmental groups support our work. friends and allies around the world serve as critical partners in helping us reach, account for infra, our fallen. aa work and women of dp day in and day out in remote field sites and high-tech laboratories alike across the united states and around the world to meet that promised, and to give hope and solace to our families. today, we can meet our sacred commitment to the force of yesterday, tomorrow. thank you for your partnership. thank you cap and coffee, senator cornyn


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