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tv   Key Capitol Hill Hearings  CSPAN  October 23, 2013 4:00pm-6:01pm EDT

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best permanent place for them, yet, we then, when they run we just don't look. that's -- it's shameful. >> doctor, were you going add a comment? >> yeah. i just think, that, again, we know resources are tight it's always going that way. there are administrative things we can do to make the system work better for the young people. attractive person in child welfare cannot have access a transitional living program funded by hod or the runway homeless youth networking. they are under the jurisdiction even though they don't work. those kinds of things to prevent young people from getting access to the care they need, if you're a foster care you have a person aging out of foster care, instead of being able to go directly to a transitional living program, funded by hud you're not eligible.
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.. that all of you are doing good work to address and i appreciate that. i was struck by your systematic approach to address to address sexual trafficking in the state of washington and i think we
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need to do more part analysis of the data and i know that you and your team of stakeholders in the state have been doing that and developed a per call. i would like to die of a little bit deeper into that with you with several brief questions if you will indulge me. you were able to learn as the understand about the best practices or generally accepted practices and other states. how is at all did that inform development of washington state's protocols and how did you define these best practices from other states? >> well that might be easier. the process for developing a pravachol involved as i said over 200 people. what that meant is focused interviews come individual interviews with survivors as well as community focusing on the communities on the ground,
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but also a what we called small summits that brought together enforcement including the judges, detention workers, juvenile probation officers, school people, community activists, community advocates, social service providers and the department of social services and child welfare administrators all trying to come together as i said briefly to share their experience on the ground but also sharing best practices from the perspectives of the various disciplines. in addition, before we went out into the field as it were, we also did independent research with a nationally known expert on practices relating to commercially sexually exploited children so we developed a set of recommendations that are included in that pravachol about
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best practices. >> it sounds like you did a lot of field work and focus groups so to speak and that's oftentimes all this sort of information is gathered. perhaps we should follow up with somebody else with respect to some of the homework that occurred in the data analysis and so forth going into those meetings. but i do wonder as with so many other areas of public policy with a there's something lacking in terms of robust information related to this population. >> without a doubt. >> and do you see opportunities for us to improve that nationally or do you think instead it should be state-by-state data bases so to speak of the information collected from case files as i know you are in the process of doing in washington state or other things maybe you could speak to that.
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>> certainly the answer is yes and when i mentioned at the very end about not just moving this issue or this population from one county in the neighborhood to the next or one state to the next is where federal leadership comes in. we are trying to figure out what data is being collected. we know it's very little. there should be consistent definitions about what this -- with this sex trafficking means, what child sex trafficking means and that leadership needs to come from the federal government. and windel law enforcement for example or the courts are collecting data, how are they collecting it so it means the same thing and that should be in the federal database. >> one final point here in consulting with dr. loterno for the prevention of child sexual abuse at johns hopkins university, she indicated that she thinks much of the emphasis to be placed not just on
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treatment or punishment, but also intervention to prevent the occurrence of sexual trafficking. and i think that sounds spot on to the extent you have thoughts about investments, public investments we need to be making that will not only save money but will help protect persons in the longer run. i would be open to that testimony. either written after the fact or if you have any idea right now you can put forth that would be great. >> some quick thoughts we tried to do when washington's state safe place that is on the metro buses in king county and a coalition of the homeless youth providers we respond to any young person in the king county library or community centers that looks like the need help. so it will be over 3,000 sites right now. the bus driver says hour you doing and she says do you need help? he calls us and we meet the bus
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and one of the largest counties in the nation within 45 minutes and help recover that young person who may have stepped foot out of their house just mad because of curfew and end up on a bus with someone looking to put them in the most terrific situation. the natural safe place model is an interesting and easy low-cost way to get the community involved. i think there's lots of early intervention with families who end up with shelter programs to do some family reconciliation, not just let the kid go home but to actually try to duck tape that kid together for a long time with some smaller interventions versus letting them become systematized and part of our long-term services we deal mostly with people that come in during the lessons that there is a lot i think we could do with foster families in identifying and treating them on the expertise of what it looks like when a child is beginning to get into this are beginning to perform survival in our community so i think that there is a lot of training and
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actually not very expensive intervention to create a safety net. >> i want to thank you for holding this hearing on preventing and addressing sex trafficking and foster care. i'm very interested in working with the members of the previous panel in regards to -- and any of the members from both sides of the aisle on how federal laws and policies might be better improved to ensure the safety and well-being of the youth at risk of abuse and neglect. in ohio on average 12,000 shoulder are living in foster care each month. last year more than 1500 foster children aged out of care when they turned 18. when i hear these statistics, not only worried whether or not these individuals had life after foster care but the system was able to provide for them the sense of family and protection they deserve our job as
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representatives is to ensure the foster system protect them and prepares them for success in life. i think you for your dedication to really helping others in foster youth. you mentioned in your testimony at least once about red flags that go unnoticed by child welfare agencies. can you tell us some of what these red flags are? >> i think some of them are very much mentioned within the panel. particularly from the age of 13i was still in and out of the education system so i want to go back to the absences and the egyptian system in regards to identifying and educating them about this population i think that is very much important because i know if you would have
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asked me at 13 what was going on, i would have told you this is my life because i didn't know anything separate but through the education of others just like through the education system i seek to find a different me so definitely the education system. i definitely think that's very important and very crucial and if a young child has two or three cell phones you have to take that in and say what is that? what does that look like? not even at the context of the language and oftentimes you see young people using different language for different things. there's certain terminology referring to one another as the be word or things like that or that's my wife, that actually means that the other girl that has been victimized by the same exploiter. so identify and not only the terminology being used but the
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education and incorporating the education system in hopes to make progress in identifying and helping these victims but also paying attention to changes of personality with people being more isolated and things of that sort. one thing that is important for people to understand that it if he were to ask me at 13i wouldn't see anything wrong because i was the place i am to speak the way that i do and to see this, but i do and if i was 13 and i didn't
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have the ability to speak and i didn't have the opportunity but all of the accountability that i hold and my story is a conduit of many others and my hope is that we can make these changes so that other people can come to the table and showed their accountabilities. >> one other follow-up you mentioned the foster system hinders these. what type of decisions are in more control? >> even with regards to a young person going over to sleep at a friend's house that is then produced a decision or of the care giver. oftentimes you have to get approval from the social worker or the judge in the case, things like that. i also want to say that in addition to that they should be more aware of their rights because oftentimes there are disruptions in the home deutsch to foster parents saying you don't have the right to call this person or that person that goes against the state rights that only a judge can make that
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decision. so in that regard i feel that, you know, -- does that answer your question? >> yes. quickly and running out of time that you mentioned only illinois and florida report to your organization. why aren't other states during this? >> in discussion with states including ohio and we are getting a great feedback i think there is a momentum now have led to the finding of the children before they have been exploited so i think that is encouraging. this year that me has been prevalent with the welfare agencies this is a partnership. we all have a role to play. as she said earlier in her comments many times nobody is even looking for these children. and you mentioned at the age of
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18 when the age out that means nobody will ever have a love for them and they are probably forever lost and will continue in with better environment they've been man. so unless we can get the reports and law enforcement gets the reports in stopping the cycle that they are bound is almost hopeless. so but states are listening, but i think that the federal level if we want to uniform consistent approach, that is the best model and i know there is some proposed legislation to address that. that's what we support. every child in every state should be afforded the same level of protection. i want to thank all the witnesses and yelled back. >> i ask unanimous consent to insert in the record an excellent article about today's hearing topic titled protect foster children from sex trafficking. it was written by the president of the policy institute for children and includes a number
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of specific policy recommendations for us to consider. if you haven't read that article today, you all might want to take a look at that usa today article. mr. reidy you are recognized. >> thank you mr. chair and the panel for the testimony. it's getting kind of lonely of here but we are almost done. i appreciate this topic. we are talking about something that crosses across party lines, unites us as a nation and as a people to say that this type of abuse needs to be addressed and something that we stand united against so i appreciate everything you are doing. what i found very fascinating about your testimony and i read your testimony and i will review a statement here that you provided it says last week while i was in care my social workers were aware that i was being exploited and did nothing about
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its. i would like to know how that happens. what do you mean by that? what i mean by that is even as an immense appeal to youth, when trying to get some of the documents of my upbringing of course when i went back to get some of my files it was stated in the documents that she has, due to years of exploitation on the streets and it's the fact that they were made aware but in my county there were not resources, there were not ways to help i think that even though i am only 24 and we've made so many strides within the past couple of years since i've aged out and so i mean literally we have to -- sorry. >> that's okay you're doing fine. >> we have to pay attention and listen and stay focused on the
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vulnerability of the youth. >> that really concerns me with the people that are in the system that their mission -- i met so many of them and they are outstanding people that have dedicated their lives not for the paycheck but for the mission. when i hear something like that it tells me that something in the system is failing. what i would like to do from the other panelists is how that happens and how that is not discovered in the system and how was a worker whose mission who fails to do anything about it even though the record shows they are aware. can anyone explain that? >> as a former caseworker i can speak to that. i will admit that it may not -- and i would say more often it's not as explicit and in fact it
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was in the case records. i am now reflecting on some of the young woman that i worked with on thinking they were victims and i just did not have the skills and the training to be able to identify that. but when it is explosively documented in the case record i think of those given the high turnover rates that you have with the case workers that information may not be shared with the new case worker or have the history of understanding the child's behavior is to determine this is something a child does and how can we make sure they are not victimized so that has a lot to do with it and i think that to get at that point is additional training and a skill set that many workers are not receiving when they are new at the job. they are out of college and never had experience working with a vulnerable children and families so they don't automatically have the knowledge to be able to understand what this problem looks like and then
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how to respond to it appropriately. i think access to resources is another issue. i know in texas there are limited resources for victims of trafficking and those resources are not available in all areas of texas said that is a huge part but when it comes to those times when you know a child is being victimized, the system has to provide that caseworker the ability to respond appropriately and the skill set to be able to identify that. >> i think this happens way more than it is acknowledged and i think that is because no one has jurisdiction over this issue of child welfare so in very few states is the purview of child welfare to intervene in these particular cases. i've been shocked day after day at the young people that come into our care at youth care when we called to report from the drop-in center that a young person is being trafficked child
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welfare says call the police and this is a 12 for 13-year-old so this is an issue of no one takes ownership over these people and adopt them as their concern and it might resolve some of that that it might be accountable but i think we need to have a policy that says where does the jurisdiction lie and there is a lot of notion about teaching young people. they are not green monsters from the blue lagoon. we know what makes people feel self continent and maybe they can do reporting on their own things. they are not afforded the opportunity to learn to drive the you take a ride from somebody. there's a vulnerability.
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you can't go on an overnight so you figure out a way to have an overnight you're not afforded the opportunity in a regular home and that is one of the biggest this services we do out of fear of liability and that goes again with who is responsible for creating this person as a young adult and fostering that kind of growth and development. >> i know i'm out of time -- we will let the judge talked. >> i want to say that there is somebody who was responsible at all for these cases and it's the judge and that is a failure on the judicial system's part in huge magnitude because that stems back to the part of training and the lack of ability
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again to ask the right questions to be alert to the cases that are presented and in fact to approach the case worker to summon a case worker even into court and say we have had this child on our caseload. where is she. >> i appreciate that input. when i started my practice of law i dealt with caseworkers and was a huge turnout factor. it's a tough job. not to have that central person that it's not handed to case worker but it's a referral to a judge these should be the case is that rise to the top to say we've got something very significant going on here. >> i just have one more thing to say. i think that one thing that we just out of lack of knowledge and fear of protection i think
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it happens all too often that we have judges who are misinformed or who are not clearly indicated in their way of safety is locking people look in detention and i think that we need to be clear when we say people get no rehabilitation they're basically waiting for somebody to pick them up so i want to make it clear that as we defer this to the judges that they need to be educated and informed of other resources and abilities and ways and protocols to deal with these young people. >> thank you. i think the panel and yelled back. >> thank all of you for being here a little over two hours. i just want to say again how much i appreciate what you all are doing to help our young people across this country. thank you for being here today to testify on the number of things that struck a love of the
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members here today. i know it always brings me back to those days i was working with those young people on the street and one of the things that he said about healthy relationships and not really knowing with that of the relationship was when you think about it, most people in the country don't understand what she just said because they have a healthy relationship and when you say i really didn't know what that was, i didn't know what a family was, i didn't know what that was, people don't get. i get it. also i wanted to mention that we have had a series of hearings. one of those hearings a few months ago was about children being children and allowing foster kids to participate in sports and get rides home with
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coaches and other parents and get a driver's license and so that is a part of this whole effort as we move forward to have additional hearings and stay in touch with you. what we would like to do is provide some of the thoughts we are having along the lines of what legislation might look like, forward those to you and get your input so we can make sure this is right to the we want to get this right because it is about the future of the country and it's about saving lives. thank you very much. i must say this last sentence for the record if members have additional questions for the witnesses they will submit them to you in writing and we would appreciate receiving responses for the record within two weeks. the committee stands adjourned.
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[inaudible conversations] [inaudible conversations]
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[inaudible conversations] could [inaudible conversations]
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[inaudible conversations] the chairman of the house committee talking to a couple of the witnesses. you can see all of the
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subcommittee hearing on c-span2 night after the house goes out. there are votes expected on the house floor this afternoon between 5:30 and 6:00 eastern on a bill to reauthorize water resource projects run by the u.s. army corps of engineers. the house is expected to finish work on that legislation today before adjourning for the week. to allow members to attend the funeral of bill yondah who passed away last week. we spoke with a capitol hill reporter this afternoon for more about the bill from the house. >> the transportation reporter for politico. how much does the water will cost and what type of projects are included? >> thank you for having me. there's one thing to know which is this is just an authorization and not any sort of a specific funding that has to come through appropriation bills down the road. it does set up about
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$8.2 billion in spending over the next ten years. it's for a number of waterway projects around the country and the ports and the rivers around the country. >> what's the view of the transportation subcommittee chair who introduced the bill? how confident is he that it will be passed in the house? >> very confident not only that this will be passed in the house but he's even come out and say he would love to see a bill come out every two years which is something that congress hasn't been very good at. it had been a long time leading up to that one, so he is trying to set a high mark to have congress do something every two years. >> is he or their leaders concerned all that yesterday a number of conservatives outside groups including heritage action called on members to vote against the bill? >> there didn't seem to be a lot of concern from the leadership. they had a strong bipartisan support. democrats have strong support to
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the top democrat on the transportation subcommittee dealing with the water bill and they appreciated the way that he's reached out to them and worked with them and also keep in mind he's a member of the republican team so he is working this from both sides so they seem to be confident about the passage. >> the rules committee yesterday little down 100 amendments to 24. what are some of them we should look out for? >> there was one that was ruled out of order kokesh that would have allowed guns. there's one that would boost the amount of the authorized projects. this bill sort of the authorizes some of the project that would increase that from about 12 billion to 35 billion there's another notable one to watch
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from the top democrat on the committee including peter and that would basically delay the bills streamline provisions until the backlog project which is currently about $60 billion that is all the way down to 20 million say you can imagine that would have a delayed effect on the streamline provisions in the bill. >> this is the kind of built in the past might have been leading with member year marks. what has changed to make it so we don't see those any more? >> get listed specific projects that do comply with the earmark to secure the votes in the past it is something that the committee struggled with this time around and they basically said that a process for these projects to be approved so they meet certain criteria, certain environmental criteria and the army corps obviously has to weigh in on those and again the
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goal is to go back and do this every two years so there isn't a big backlog of projects and it's something they can revisit every two years. >> the senate passed its version in may. what is ahead in the conference, what are some of the key issues that have to be worked out between the two measures? >> that is a good point. a lot of people are assuming the house passage and looking forward to the conference. both chambers made this a big priority. it's one of the first bills the senate did. they did it on the committee. there are definitely some differences on some of the pilot provisions as far as innovative finance. the overall price tags are different koppel because it authorizes more projects and in the conference also we never know when some of those conservative outrage against the kentucky kick back.
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we never know when that will crop back up. islamic adam snyder on twitter, read his reporting at politico. thanks for joining us. >> guest: thanks for having me. >> also today here in washington down to pennsylvania avenue, they also address remarks made by health and human services secretary kathleen sebelius yesterday that president obama was unaware of the extent of the website problems before it launched. >> secretaries sebelius said yesterday the president was not aware of the problems on the web site before it launched and we've come to find out since
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then that there were a bunch of red flags that had been around before it launched so i wonder if the president knows now he should have been made aware of that and should somebody be held accountable for getting him that information and if there was somebody getting his information was he misinformed about the status? >> thank you for the question. secretary sebelius was referring to what i had said and what the president himself said that while we knew there would be some glitches and he said publicly we expected some problems, we did not know until the problems manifested themselves after the launch that they would be as significant as they turned out to be. so you know, there was testing but we did not expect the scale
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of problems that we've seen which is why at the president's direction and the secretaries direction we have launched this effort 24/7 with experts and new allies in the years coming in to exist the new team to identify and isolate each problem that exists with the functionality of the web site and to assess the best solutions are to create a remedy for that problem and then applying it with her it is increasing the server capacity or writing the code providing greater accessibility for improvements. these are all things the teams currently operating and working on making improvements to the system are focusing on and they are tackling the problems one by
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one, they are prioritizing them and addressing them. these are technical problems that require the kind of expertise that is being brought to bear to fix them but there is no question that we did not anticipate the scale of the problems on the web site. what is also important to remember is the website is not the affordable care act. what has been in place since october 1st and what will be in place for the millions of consumers that want the product is the array of affordable health plans out there because the marketplace is set up by the affordable care act and every day more americans are shopping and finding out that they have access to affordable health insurance and they are among the 15% of the american people who did not have insurance in the past they are discovering they
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have options available to them that make it affordable and will provide them come january 1st security that they have lacked in the past. while the struggle the individuals have had with the website are extremely unfortunate and we take responsibility for them and we are working around the clock to make the experience earlier the struggles in comparison to the uncertainty that a single mom who is a breast cancer survivor has felt every day that she has lacked insurance because she can't afford it. she's been priced out of it or the insurers won't give it to her because she has a pre-existing condition and that is why we have to keep focused on the goal of making this insurance available to the millions of americans who needed. >> the entire briefing is available online at
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a panel discussion on the future of afghanistan as the u.s. prepares to withdraw the remainder of its troops by the end of next year. moderated by cbs news this is hosted by the foreign policy initiative and it is just under our. welcome everybody. you have had a long morning already. if anyone still cares, i'm assuming that's why you are here and you are going to pay full attention to what these gentlemen have to say to beat it
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struck me when i was doing my research and preparation for today that what is interesting about the panel that you have in front of you is that afghanistan is well represented and each of these individuals have a good knowledge of the situation on the ground and everyone has a depth of reporting in the region but you also have individuals who are very familiar specialists in all of the issues that are at stake. seth jones worked with the special operations command. he is a very close view on the military strategy, counterterrorism we also have a specialist on asia for years and particularly india he can bring in the perspective because as we had a conversation earlier india has a significant role to play afghanistan and has been at the forefront of the u.s. strategy
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in that region over the last decade and course the doctor is best known for his work in iraq. they've both been at the rand corporation. you can read one of his many books so what you have here today is an opportunity to stockpole to remind ourselves why the u.s. should care. the first question i was given must ask what was at stake but i want to put it in a much more pointed way and that is to say over the last couple of years the term war has become unpopular in washington. in fact from the cia to the white house it has been made very clear that it was probably a mistake. i am very conscious of the fact
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that every other day i get another casualty report where u.s. soldiers are still dying and as far as they know they are still fighting a war. and you have an afghani election coming up, the united states pulling out of afghanistan to a large degree and a nation that has lost interest in what's going on over there and isn't given a reason to care buy any of its leaders so i would put to the panel we picked sat to be the first victim so he's going to begin this conversation and i have interviewed him before and i can promise you he is not boring. >> that's a very kind introduction. i will be brief and then we will discuss various aspects. we will get into a lot of issues. let me highlight a few things. if you look at the polling data
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is probably worth being up front about this according to a july poll from 2013 conducted by "the washington post" and abc news, 28% of americans believe the war in afghanistan was worth fighting, not just was but is worth fighting. that obviously differs significantly from october of 2001 the month after the attacks when 90% of americans, 97% of republicans and 85% of democrats supported u.s. military action in afghanistan. so over the following decade we have seen as a huge drop in support about whether we should have gone there in the first place. i'm going to argue somewhat controversially that i feel the
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u.s. has said it's going to stop combat operations by is december of 2014i am not clear what that means. it hasn't been announced what it's going to look like if the option hangs over the future u.s. role but i'm going to argue that several major factors should give one pause in exit in afghanistan. first is you wouldn't know by political statement that the first is al qaeda's global leadership today is still located in this region in the afghanistan pakistan region. it has been weakened by the strikes which we have seen with the human rights reports that is a controversial step. but in my view a civil war where a successful taliban led
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insurgency would almost certainly allow al qaeda back into afghanistan and pakistan. i was just there last month along the border and i will say up front there is still a presence of terrorists in putting al qaeda fighters along the afghanistan pakistan border. virtually everyone i spoke to that is involved in targeting them, people worked with in the past that said they will be there after 2014. some areas in the east have an organization that they may be there in larger numbers. point number one is the global leadership still there and there were a number of jihadists groups in the region that haven't gone away. some of them including pakistan put in sub in times square to be
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another conducted a major terrorist attack. so our point is there is still the terrorism issue. the civil war were successful taliban led insurgency would deal with in my view a huge blow to the rights in this region. the taliban remain opposed to the women's rights and would likely reverse progress in a country that is experienced in extraordinary improvement in the number of successful students you'd see a major backlash. third, the war in this region would likely increase instability with india, pakistan, iran and russia and i'm going to add china to this either have nuclear weapons or a nuclear program. so there's a concern about regional instability about
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pakistan and india. finally, let me conclude by saying a u.s. exit from this country will likely foster a perception about u.s. reliability. when you look at al qaeda statements recently -- i'm going to leave you with one final thought. in american exit from afghanistan we've already seen this in the jihadists network's. if it were to happen it would likely be viewed by extremist groups including al qaeda as the most important victory since the departure of the soviet forces from afghanistan in 1989. that is a very dangerous legacy that we have to think very carefully about. we can talk about how to proceed later but let me leave you with that thought could at can you take the floor?
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>> i would be happy to emphasize on a point of was just made which is projects in afghanistan over the last several years has actually been far more successful than people give us or the afghans credit for remember this is a country that went through several decades of war. when you get afghanistan today when you have is a constitutional regime of the kind that is impossible to conceive of the high tide of the soviet occupation so you are now looking at a country that actually has the potential to build on a structure that unproved and invested can actually provide more opportunities including those
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that are currently opposing the state. so just recognizing that this has been a fundamental success in terms of the ability to put in place a structure where all you had before was and anarchy. >> i would interrupt you to say that americans don't care about that because they are never given a reason to believe in anything the u.s. has achieved in afghanistan. >> i think the facts or refute that. development indicators in afghanistan today are better than they have been in a long time. the simple reality is corruption is endemic to all of the societies. afghanistan is by no means egregious or unique. the question isn't whether one needs to bail out of afghanistan because it has been on maladies
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of an underdeveloped state that whether we can persist consistently in afghanistan not necessarily for the sake of the afghans alone but because it comports with our own interest and what are those interests? those interests come back to the same that they went into afghanistan to begin within 2,001 and that is an unresolved security program that affects the wellbeing of the american people and that of our allies. >> is their anyone on the panel that would disagree? >> i think as we think about afghanistan and why it matters, there is a tendency to treat it in isolation to have this discussion if we should put troops in afghanistan or not and if it's not worth it to be there
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why should we going to afghanistan when we are not going into yemen or other places the problem is you start from reality and the reality where we actually are is we have been in afghanistan and we have made an effort in afghanistan and enormous amount of progress. there is an afghan national security force that is going after, they are getting after our enemies. the people the national afghan security force are taken to our al qaeda. they are doing that increasingly. but they will not be ready to take over that responsibility without any american assistance because they were not designed to be ready for that role anymore than the iraqi security forces were designed to be ready in 2012 to take over the responsibility in iraq. there are domestic deadlines --
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>> there was a negotiated dead line with the iraqis the originated but in the case of afghanistan it also originated with us but it's become an international deadline they told us to but there are deadlines. they were tied to the situation on the ground. i bring it up recognizing how painful the topic is but just because something is panful doesn't mean we shouldn't talk about it. as people are talking about the option and afghanistan and the past 20 the model for that is iraq and what you get out of the administration to talk about this is iraq turned out pretty well so there's no reason we shouldn't do that in afghanistan. the problem is iraq is a catastrophe. you now have a franchise that is back to level of car bombings that it was conducting at the height of the surge in 2011 before the violence came down.
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that has happened since american forces withdrew and the administration says that isn't really al qaeda and we don't need to worry about that it's an iraq. >> they call themselves al qaeda and believe in al qaeda. >> they set up islamic emirates and the hat for and fighters. >> but the ignore everything they have to say in who they are. >> and everything that we know about who they actually are because of the administration is trying to do and this is important with the administration is trying to do is define the threat to be only those individuals who were actually either involved in the attacks are part of the organization at the time and if you want to picture in the white house somewhere a poster that has the faces on the posters
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with at the bottom done i think that is what the administration strategy is. the problem is the world has changed since 9/11 and al qaeda although in some important respects it hasn't of course. >> i would say to you that isn't even good enough because you have people like the guantanamo bay detainee who's been with bin laden since the eighties and went with him from afghanistan back to afghanistan and when he was handed back over to the libyans he was released and we no longer call him al qaeda. he's one of the original al qaeda members but we now want to say that he's an affiliate or some kind of associated group. so even having an al qaeda peery the groesbeck 30 or 40 years isn't enough to get you called al qaeda today in washington.
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>> and we spent too much of our time thinking about who is currently planning to attack the united states and not enough time about what key devotees as the global al qaeda movement have to attack the united states over the long term and what are we doing to address those capabilities. >> let's bring it back to afghanistan. i want to put two things to you in regards to afghanistan. you and i were there from the beginning and we remember what people today in america seem to have forgotten which is the promise that the united states need when they came into afghanistan. this is a very important point because it speaks to the integrity and honor and loyalty could and the nature of being a good ally. the reason i find is a significant is because when we think of the united states and what it is meant to stand for and represent it very hard to look them in the eye today and
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say that we are honorable people and keep our word because we have lost interest in keeping our word. we blame the afghans for that domestically in the united states but just because you have this traditional role doesn't mean you don't get. you know when you've been betrayed or let down and that is pretty much how a large majority feel because they think that letter that treasure how did we end up in this position where afghans feel betrayed and we feel that we wasted our effort. >> it's a very good point. it has given both treasury and blood. we can talk about how well it was used and what to the right strategies were. i will be the first one to say that big mistakes were made over that time. but we look them in the audience 2001 and said we will be
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committed to reducing if not eliminating terrorist groups operating from this region and we will stay until that objective is met. what we have now said is sure that objective has not been met but we are still leaving any way and the blame has largely been placed on the karzai government. i will also say very bluntly that there has been massive corruption problems in the government as there have been in any government in south asia. there of the challenges with building national security apparatus. they're even corruption problems in the u.s. dealing with contracts in afghanistan. but i would say first and foremost not just for the afghan people but can we look the american people in the eye and
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say that we have reached the point in afghanistan where the american homeland is safe for now and in the foreseeable future? i think the evidence as i've spoken to operators on the ground last month suggests no, not at all. there are foreign fighters that continue to come into the camps in the region. there's still active. the leader of this organization al-zawahiri is still headquartered in this area. so the organization is not dead by any means. >> or decimated. >> it is not on the verge of strategic defeat as some would argue. >> on the contrary if you look at any portrayal of where al qaeda is today globally, it has a larger footprint and a much more advanced organization now than it did in 2001 and also in
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2009. it is absolutely unjustifiable to talk about this organization being decimated by want to follow on the training of the afghan people because it's a very important it's not just a question of american on our although that is important nor is it just a question of will of people believe in us which is after the syrian debacle extremely important, but it's very important for practical reasons. what is al qaeda? it's not just a terrorist organization. it sees itself as a vanguard of an insurgency in the muslim world. >> what is our ideal instinct? our ideal instinct is that the muslim world defeat this insurgency, not only reject but a defeat. for that to happen we need people in muslim countries where there are al qaeda to stand up and fight against al qaeda. they've done that in iraq and afghanistan. ..
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told me years ago when i asked him the first signs of america withdrawalling in the air. i asked him about that. he said to me, had said, afghanistan is a small, poor, third world nation. we don't have any illusions about who we are. we don't think for one moment we can influence the united. he said, but i will tell you
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this, i was fighting these people long before you came to my country. the mountains were here before you. the rivers were here. and they will continue to flow after you have gone. he said, the leader of the taliban, bin laden, these are true forces of darkness. they cannot engender a vision for the world. i will be fighting whether or not you are here. and i found that to be true then and true today. what i love about it is this articulate are -- afghan man put so perfectly. the afghans were fighting al qaeda long before the u.s. was in battle with al qaeda. and now we look at the afghans and say you're on your way kind of thing. i mean, i spoke this morning to someone on the ground in kabul. the sense i had from the john kerry karzai negotiations, is that neither of them are particularly committed to the
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agreement they've come up with. and that is not good for afghanistan and it's not good for the u.s. ashton, can you pick up on that, please? >> i think it's important recognize one simple fact. we cannot afford to let al qaeda and jihadist islam, more general, enjoy another victory over the civil power. i think that there are many jihadists in afghanistan and around the world who believe they successfully confronted the soviet union and defeated it. that empowered the movements in ways that have become dangerous for us, not only in south asia but worldwide. we cannot end up leaving the region in a situation where nay control the same conclusion that now they have defeated the united states as well. that is something that i think we ought to keep in mind as a strategic consequence of the way we manage the transition. there's another point i want to make. getting afghanistan right does
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not require overinvestment on the part of the united. it's very important to understand what we need to do for success in afghanistan does not require us to bankrupt the united states. it does not require an open-ended, uncontrolled commitment of resources. >> which is unpopular. >> which is unpopular and unnecessary given the gains made in the last several years. what it acquires is a responsibility, a consistency of leadership, and a willingness to hold out support until afghanistan can make the transition to being independent. >> how long is that? how long are you talking? >> it's extremely hard to make that judgment a priority. we have to be committed to the principle that as long as the afghans are willing to put their foot to the pedal, the united states will stand with them in
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making this possible. i think this is the -- this is the kind of discussion that we ought to have. because in the abstract discussions about the numbers of troops, discussions about top line with assistance, these things are unhelpful. what we need to do is essentially assure the afghans that if they make their contribution, the united states will not be found wanting. and actually you discovered that the numbers actually not as overwhelming as i think in the hope in the discussion that follows we'll gate chance to explore that. >>set, you're going follow up. some people might think you're crazy. this is a done deal. we're out of there. the administration isn't going consider anything other than how fast we can get out. >> let me say two things. the decision hasn't been reached. we don't know -- december of 2014 is in theory,
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the end of combat operations. what does it mean? it hasn't been decided. i would say i'm a bleak on whether this administration is committed to keeping a necessary footprint in afghanistan. brings up an issue we might disagree somewhat which is what should we be doing? what should the footprint look like? and i'll briefly state these situations are very different, but i -- when i look around the world at where the u.s. has been able to deploy forces whether it's in the philippines -- after nine. with a somewhat-like footprint supporting local forces. i'm not con for instanced at this point in the struggle that the numbers have to be high. i think the u.s. could remain in afghanistan with a lethal counterterrorism footprint which is joint special operations
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command forces. u.s. special operations forces and other con strengsal forces do basic training, advising, and assisting. and what you call enablers, air power that can conduct strikes in case there are pressure by the taliban or other groups on the city. predator capabilities that collect intelligence, surveillance, and reconnaissance. i looked at between 8 and 10,000 u.s. forces that let afghans cot bulk of the fighting. the u.s. is largefully a supporting role as probably be sufficient. >> i have to point out, the afghans are willing to do actually the bulk of the fight. >> they have been. afghans have been taking multiples of the casualties that american -- or that international forces have been taking for quite some time. they're bleeding in the war and they're continuing to recruit
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and stay with the forces. i want to make one point about the numbers we talk about. because, you know, we can come to different conclusions about the feasibility of 8, 10, 12, or 1,000. there was a question about is it something that we're prepared to say that if the requirement in afghanistan to achieve the american vital national security interests is 15,000 troops, but the white house wants to put 12,000 troops in there. is the president actually prepared to say that he is willing to comprise vital american national interest over 3,000 troops? is that actually a calculation. are we prepared to say we'll put in 3,375 troops but not one more. if we lose; therefore, so be it. you either think we have vital national security interests in afghanistan, in which case we might be advised to put in the resources required to achieve them. or you don't, in which case we
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shouldn't be. there. >> what it reminds me of saying you need 200,000 troops. it was unpopular politically. he was gone. it remines me of general mccrystal before he faces recommendation. what concerns me is political leaders seeking political advice from the military leader rather than pure military advice. even if you go back to vietnam is the case but no less troubling today. we have a question from the audience that was top of the pile and one of the favorite questions and on afghanistan. on something i have been glowing up on the afghanistan, pakistan border. one of my interviews many years ago i said to general cia said if you let them operate on pakistan soil. they can find bin laden. he said can i say it is [ bleep
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] was where bin laden found? and who found him? , by the way, i know this is something you have spent a lot of time on. it's a question i think is extremely relevant. president karzai annoyed a lot of americans by saying why are you any villages you're in the wrong villages. you should be across the border. i think what people fail to understand about what he was saying you and i both know the problem lies in the safe haven in pakistan. you're not doing anything about it. this question comes from peter with the american enterprise institute who said american enemies have complete freedom in pakistan. how can we defeat al qaeda without addressing the question of pb? and, you know, anyone on the hill will tell you, we can't open up another front in pakistan and we can't open another war. it suggests nothing can be done. what we can have in pac today
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was a failed policy. it was failed under president bush and under president obama. so who wants to take that one? >> i can start. look, let me just start with what i consider to be the reality, which is the war in afghanistan, partly what we're talking about here. afghan taliban there are plenty of individuals in afghanistan fighting. that said it's worth noting specifically that the command and control structures for every single insurgent group, taliban, are all on the pakistan side of the border. that is where the command and control are. the taliban leadership structure sits in southern pakistan.
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one level down in the organizational structure you have three regional committees. one it is worth noting that the borders here are significant when you look at the command and control for al-qaeda's global leadership that also sits on the pakistan side, so indeed, we spend a lot of time talking about afghanistan. there's an afghan dimension to this this is important. the command and control nodes every group side on the other side. i'll say with both this administration and the last one, there have been virtually no major successful efforts to target the taliban leadership on the pakistan side of the border. there are no drone strikes that happen there have been virtually no individuals captured.
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that's where the taliban senior leadership was located. if one is to get serious about this. one has to take in to consideration, a., why has it been done? and two, what are the implications of continuing to do virtually nothing about this? so i can believe this to others to solve. but i wanted to get the threat and the reality on the table, which is -- there is a serious pakistan issue here. >> can i add -- [inaudible] >> can i add two thoughts to that? i think we should at least entertain that pakistan will recognize it's in the interest to do more than it has ever done before for a simple reason. now it's a realistic proprospect that the united states could leave. it could leave behind an afghanistan that becomes sanctuary for terrorist groups
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that are as much antipakistan as antiafghanistan and antiunited states. for the first time pakistan has to confront a reality that afghanistan could now begin to feed and funnel terrorist groups that undermine the own interest. second, we cannot count; however, on pakistan conclusions i think we need to rethink the character of our relationship with pakistan. to my mind, there's no alternative. to make the relationship with a pakistan a lot more contingent than historically done. we can debate the details about how this contingency is to be expressed. if you have a relationship with pakistan that in effect conveys to them that no matter what they go, american -- what you have done is created a strurm situation where they have
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no incent toif change. so at the very least, the u.s. needs to looked at i.t. in its own policy to think about how we might reengage with pakistan. let me end by saying a word about india. india is concerned that a premature american exit from afghanistan would end up leaving that country in exactly the way that the indian face it in the '90s. which was essentially a corp. dron from all kind of terrorist groups that would move with pakistani support or without it to attack indian interest. the indians have essentially said they will do whatever they can to prevent the -- in pakistan from being overthrown by force. we also got to realize the reality. the indians do not have the capacity to substitute for the united. the indians; there, are going to look at the united states for
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leadership. before they begin to show their hand. and the surest way to lose all the regional allies who might be supportive of kabul is for the united states to run to the exit. it comes back at the end of the day to consistency of policy and consistency of leadership. and if we fail in that count, we will not be surprised to find that afghanistan will lose many of the regional partners as well. >> i have to say that i'm less optimistic about pakistan than i am about afghanistan. i think there are things that we can do in afghanistan to move it in the right direction. there are forces working in afghanistan moving in the right direction. if we do the wrong things i'll they'll be defeatedded. pakistan is an enormously different problem. it's a country of 190 million some odd people approaching some 100 million nuclear weapons and
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the largest concentration of terrorist groups in the world. it's clearly a problem. you have to explain how the situation has helped by taking a weakened al qaeda in afghanistan and making it stronger. while trying to persuade the pakistanis to fight the ramification of that on their side. it's quite true you can't win the fight on the either side of the line. the corollary is -- they are linked in that way and this is just too often left out of our discussion entirely. one of the reasons to care about afghanistan is because of pakistan. >> and pack's nuclear weapons. >> yes. >> from joseph.
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why the leaders for not giving us a reason when it's the media that constantly reports on corruption, failure of program, et. we both bear responsibility, autoslyly. without any question the media is copyable. there is some good reporting on afghanistan not nearly enough. there's some terrible reporting on afghanistan. what i would point out here to you edward joseph. the journalist writing a lot of tough are getting calls from government special -- officials who love to leak things when they are doing the leaking. very active in going after leakers when they don't like the leaks. they counter act the message of the administration. we apparently like to journalists and apparently the media doesn't seem to raise an objection about it either. there is a lot lacking in the media. i would say to you though i did
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a piece not this season, last season about the return of al qaeda in afghanistan and the significance of what they were doing and, for example, after bin laden was killed, the announcement that came for his replacement came out of coup are in when was the de facto hers. -- headquarter. the seven-day forecast there. -- seven-day forecast there. it's definitely a factor. the people giving the message who are deliberately misleading are the leadership. that's what i hold them accountable for. when we look at the realty it's different to the picture paint bid the leadership. we all have a responsibility to be honest. not just the media and not just the politicians. and the failure of policy is something we have not addressed well in the media that the failure of policy in afghanistan and failure of policy in pakistan we don't even have one
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to tell them. certainly not one that makes any sense or gives them any confidence. we're quick to hold the military accountability for the failure as they should be. no one seems to be quick for the failure of policy. the next university of wisconsin. i think the point he makes with the signs of progress cited by the panel what percentage of the afghan -- there's no percentage part of the state. but that is not necessarily the benchmark here of progress. i do remember in afghanistan that didn't have kabul is pretty dramatically different from what it was when i went from the afghan who took it from the taliban. >> the objective is not to establish a modern functional state in afghanistan. and not been the objective for
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quite a number of years. i had the privilege of serving on general mccrystal's assessment review when we had the long conversation about what the objective should be. and concluded inspect is what i believe the white house believed and believes that the on job -- sufficiently legitimate by the people the nature of the state is not fueling insurgency against it. the way most people in most countries around the world and all countries that don't have insurgency do. that's a different standard in different part of afghanistan as you know. when you go to cap already valleys. they don't want any government. when you try to bring government to them. you have a big problem.
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in urban center it's a different situation. i think we have seen some progress. the corruption is important. we shouldn't minimize it. it has been a driver of instability and continue to be. we're looking for something that will satisfy the afghan people. and that's we've been driving toward. i think that's where the progress has been moving forward even though we don't recognize it as state that most americans would want to live in. country of the things that struck me as spending time. several of us spent time over the years in afghanistan how many types of states there are within -- there's a formal state apparatus that is based out of kabul -- is a very different kind of structure. it's not the l -- it's not germany after world war ii. the state system is very
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different here. it's a limited central government, and when you get in to southern afghanistan, for example, you have -- clans, powerbrokers. the interesting thing over the first couple of years over the struggle is how many resources the resources try to push through the state system. justices is handed down through informal apparatus leaders in a village will adjudicate dispute informally. this is not the united states, this is not western-style state apparatus. part of the issue, i think, we need to be a little careful about what we're trying to construct and what we should construct. i strongly second fred's point.
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if i say one other issue about the media. one of the things that struck me about the media and, laura, you have been a major exception to this. how little people have actually looked at the other side of the struggle. this is not just about focusing on what is going on within the u.s. but in the afghan government. there are problems like any war. but you look at the taliban side. they had to establish an accountability commission. there's been corruption within the taliban. they're involved in the drug trade, they're involved in trafficking poppy, in targeted assassination. roughly 75% of the civilians killed are done by the insurgence side. one of the disservices, i think, to the coverage of the war from the media perspective is when issues of corruption come up, the focus is on one side. the reality it's a struggle within multiple different organizations and there are just
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as many if not more challenges within the insurgency as within the government. everything from corruption to the inability of taliban forces to read people show me literacy rates among afghan forces i say, actually interesting to compare. they are better than the insurgent side. we want to talk about compare sob. i think that's been a disservice in the way the media covered the war. i would make the point afghanistan has always been a decentralized state. any model that thinks of afghanistan as a using their own benchmark. we ought to be using is a simple one. for the average afghan has been social security increased in the every day circumstance of their lives.
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has there been a -- are ordinary afghans able to conduct their economic activities without undue interference from the state? , i mean, these are the metrics by by which you judge progress. the picture varies considerable mr. wilson depending on which part of afghanistan you go to. and our job -- objective to has to make certain the portion of the afghanistan has not established -- actually begin to grow and develop on the basis of example set by the more successful neighbors. >> the last question i would like everybody to answer if they can add their point. i'm going to take a question from the add audience and add to it.
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a decade long war. i think the nart is even more relevant if we haven't won the war in twelve years what more can u.s. troops establish beyond 2014, 2013, 2015. what i would like to add there's a narrative pushed by the pro taliban faction and other people in washington that says the taliban doesn't have any beef with america beyond the fact you're in their background. there is no ideology in the fight. go home and we're done. it's over. and those are people who believe that the taliban and al qaeda's -- and i would put to that of all the people from the taliban side who have come not a single one of them has ever publicly
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announced al qaeda. not a single and why we should care. what is the consequence of coming home? why does it matter? >> do you want me to take a crack? >> sure. >> i think the most important thing we can do is help the afghan state take greater responsibility for the security of it own country. in practical terms, what means are three things. first, standby afghanistan so it can negotiate with the regional neighbors from some position of strength as opposed to becoming a victim to more powerful neighbors. two. you have to have the afghan state overcome what will be a severe contraction in national
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gnb after u.s. and the national forces cease to engage in security operations. nothing works if you do not have an economy that at least moderately successful. and so anticipating the contraction in afghan gdp and working to mitigate it at least until afghanistan can stand on the feet is the second important object pitch the third is helping the emsf, scecially succeed in the fight which is increasingly their own. the role we can play is not for the united and the international community to take the lead in fighting the adversary. they want to do that. they're capable of doing that. what we need do is simply provide them the tools so they can finish the job. >> let just add to a couple of ashley's comments.
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i think one way to look at this is if you look at the last major ideological struggle that the u.s. was engaged in, against the soviet union during the cold war. i don't want to draw too many parallels here. it was a struggle, in part, against marxism, lennonism. it was not just on the battle field. if you ask yourself in 1960, we've been at this for 15 years haven't we done enough struggling. if we sold out the opposition group in poll land in the 1960 or 1970. within groups like state rose up finallily against an ideology
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that the population could not live with. to shift gears here, an afghanistan is a good example of this we're in a struggle with an oppressive ideology the taliban vision of afghanistan -- but in afghanistan the groups that are trying to win this one from the opposition side are trying to establish an extreme version of islam and em rat where the most support virtue and vice. an ideological struggle. i would say people who want to give up this early on, remember, this is a generational struggled. not measured in months or years. i would view afghanistan in a much broader sense. when you look at what is
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happening with north africa and the middle east. it's happening on mulled. continent. the leadership, though, sits in this particular renal. i'm going end the comment here. it makes the particular theater so critically important is the leadership structure sits here. i second all of the comment. it is quite true that he never swore allegiance to bin laden. because actually it was the other way around. bin laden swore allegiance to him. as we talk about this aggravating al qaeda and the taliban, it's important to understand they have for two decade. and as you say, there have been arguments about whether to -- there was a big argument. he was on the other side.
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guess who won? there was a fight when we demanded after 9/11 bin laden. one would think it would be a good moment to break with al qaeda. he said no way and they said no way. so these are groups that have been fighting together and for each other for a long time. and i know there are people who think they can see in to his soul and believe they, you know, if they could only talk to him are a little broader and we can work it out. there's no basis in reality for that view. look, as we talk about, i think s et h's analogy is a good one. the tide of war is not receding. by any measure the amount of war in the world today is higher than it was when barack obama took office. it's higher than when bush took office, also. the tide of war is not -- the tide of american desire to be involved in war is receding. but now i have to go back to my
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roots and say we may be tired of war. war is not tired of us. we can decide that we are going stop fighting al qaeda but al qaeda has not decided it's going stop trying attack us. every day thousands of al qaeda fighters and leaders wake up and ask themselves what they can do that day to improve their ability to kill -- >> we're leaving the last few minute of the recorded program, which you can see at for live coverage of the discussion on the constitution. the heritage foundation will hear from ninth circuit court of appeals judge diarmuid o'scannlain. >> this afternoon. we would ask everyone in-house to make sure your cell phones have been turned off for all the recordings going on. we will post the program within 2 hours on the heritage home page for everyone's future reference. and our internet viewers and television viewers are welcome to spend questions.
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hosting our discussion and introducing our special guest today is the ronald reagan distinguished fellow at the heritage foundation also the 75th attorney general of the united, edwin meese. [applause] >> thank you, ladies and gentlemen. i enjoy, john, and welcome you here to the lecture this evening. which as you know, the joseph story lecture as those familiar with legal history know is named in honor of a distinguished judge who epitomized faithfulness to the constitution, and this lecture is part of a series we've had here in the preserving constitution series. and that marx the a very important part in that series, obviously. well, in november 1811, at the
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age of 22, joseph story became the youngest justice appointed the supreme court. he served in that capacity from 1811 to 1845. he is perhaps the best remembered for his commentary on the constitution in the united states which was first published in 1833. this work is met by many experts in the field is marked as literally the corner stone of early american jurisprudence. it was the first comprehensive treaty on the provision of the united states constitution and remains a critical source of historical material about the forming of the american republic and particularly that novel idea that the founders put together in our constitution it was an independent judiciary and particularly the supreme court.
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joseph was known as a statesman of the old republic, in the sense that he was one who did much to shape the concepts, the ideas in accordance with the ideas of the founders as they looked for our constitution and how it should be utilized and interpreted, and how it should become the foremost basin upon which the court should make their decisions. and of course, that continues to be something very important to us here. he was active not only as a justice but literally as a pillar of the legal pro-- profession. he was even while sitting on the supreme court, he became a professor of law at harvard. he was a prolific writer. writing many law review or magazine articles, the like.
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he also app frequent orator on patriotic occasion and other public event, and also published a variety of books on a little series of subjects relating to the law. his books were recognized even in those early days in the united states and also internationally. our speaker tonight demonstrated throughout his career his fidelity to the constitution. i might say that in a circuit that frequently had need of such guidance. [laughter] as a judge on the u.s. court of appeals, for the ninth circuit, judge o'scannlain has participated in over 10,000 federal cases and written hundreds of published opinions on a broad range of subject. one of his particular subjects on which he is expert is, of course, constitutional law, which makes him a logical speaker here at lecture.
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he's also worked in a number of ways to further the cause of justice. the late chief justice -- on appellate judge education, chief justice roberts, more recently, appointed him to the international judicial relations committee of the united states judicial conference and subsequently appointed him as chairman of the body which is critical in bridging the gap between the united and other countries in the discussion of the judiciary and constitutional matters. his professional interest that also include judicial administration and reform and particularly legal education. he has been chair of the judicial division of the american bar association, he's chaired the aba's appellate judges conference and the committee on appellate practice. he's also an adjunct professor at the lewis and clark law
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school and been a judge throughout the country in a number of distinguished law school. he's retired from the united states army reserve. he served for 23 years, i believe, in the j.a.g. corp. and worked in both the army reserve and the national guard. judge o'scannlain and his wife, who is with us here tonight, have eight children and 18 grandchildren. so he is literally helping to carry-on -- [laughter] the spirit of constitutional fidelity. ladies and gentlemen, an outstanding speaker truly worthy for his fine work as a judge and defender of the constitution. judge o'scannlain. [applause]
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>> thank you for that very kind introduction. it's a singular honor to be delivering the joseph story lecture here at the heritage foundation. your presence here tonight makes this honor all the more meaningful to me. for those of us who believe that judges are required to enforce the original meaning of the constitution, general meese is a real hero. not only was ed instrument fall in the appointment of judges who value the original meaning of the constitution, but he also made the case for this interpretive approach in high-profile speech during his time as attorney general of the united states. those speeches had a tremendous impact on the legal culture and it is fair to say that without ed mideast the effort to restore the original meaning of the constitution would not have been nearly as successful as it's
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been for that, all of us, owe ed a debt of gratitude. [applause] the name -- name of this lecture carries with it a great legacy. through opinions, essay, commentary justice joseph story's influence continues resound through american legal. and rightly so. his breadth of knowledge was extraordinary. spanning subject his promise care note, constitutional law, and even natural law. james mckell less than, -- one said that stories work on natural law stand out like a ray of light in the midnight hour of american political theory.
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indeed it is his natural law philosophy i wish to focus on this evening. a comprehensive analysis of his jurisprudence, of course, far beyond the scope of this lecture. rather, i offer a sketch of his views on the natural law with the modest goal of showing how some of his insights might bear of few of today's most hotly contested legal disputes. my analysis of stories natural law philosophy must begin by acknowledging the limits of my inquiry. to speak of his philosophy, is to imply that he had a consistent, coherent understanding of natural law. but the truth is that there was a good deal of confusion about natural law in the late 18th and early 19th centuries.
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the natural right theory of john locke and other enlightenment thinkers was often unwittily conflated with the theory offered by policy fors. -- frols for. fortunately; however, we need not detain ourselves with the differences between natural law and natural rights. because the aspect of his philosophy that i wish to exam tend parallel fairly well. be it imperfectly. those on the classic natural law tradition. let us begin then by examining stories understanding of the relationship between natural law, the that exists without any human author, and positive law. this kind of manmade law that
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congress passes and i interpret in my everyday role as a judge. in addition to being a justice of the supreme court, story, as you've heard, was one of the great legal scholars of his day. he was a chaired professor at harvard law school. and it was as a professor that he produced his famous commentary on the constitution, which serve as the textbook for his course on constitutional law. given his extensive body of scholarship, it is unsurprising he penned an encyclopedia entry on natural law, which appeared in francis lever's encyclopedia american. this encyclopedia essay remain his most complete exposition of views on natural law and so it
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is appropriate that we focus our examination of story's philosophy there. story's essay opens by defining natural law as that system of principles which human reason has discovered to regulate the conduct of man in all his various relations. let me reread his definition. natural law is that system of principles which human reason has discovered to regulate the conduct of man in all his various relations. immediately we should notice it sees it as something pertaining to reason to use the word. --
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unlike the law that are passed by congress, natural law does not change. he said that god has fixed the law of mankind's being, and has a supreme right to prescribe the rules to which man shall regulate his conduct. again, we see the agreement between story who wrote that the natural law is all together unchangeable in its first principles. it is important for us to pause here and to understand that the natural law applies to man because of the nature of man. and that natural law thinkers, including story, believe that man's nature is an important respect inherit. and unchangeable. this is critical to grasping why it has been said natural law is
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universally binding on mankind. indeed, our declaration of independent explicitly assumes a fixed human nature for which we can derive certain principles. the declaration said we are endowed by our creator with certain unalienable rights. such as life, liberty, and the pursuit of happiness. but those rights derive from the premise that all men are created equal. in order, it is only because of the nature of man our fundamental equal dignity that certain principles are binding upon all mankind. these conclusions lead directly in to stories account of manmade law. sometimes called positive law.
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in classic natural law theory, positive law is derived from and implements the natural law. as the reverend martin luther king jr. explained in his letter from a birmingham jail to the extend that a positive law conflicts with natural law, there is no obligation to obey such a law because it is no law at all. now story was in agreement with dr.'s king's description of the relationship between natural and positive law and use the example of marriage to illustrate the view. the law of nature because it channels otherwise dangerous sexual appetite toward the mutual good of the spouses. and the responsible procreation
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and rearing of children. from these premises story concludes, marriage be an constitution derived from the law of nature whatever has a natural tendency to discourage it or destroy the value is by the same law prohibited. in other words he believed that positive law must conform to natural law. remarkably for justice joseph story. positive law that conflicts with natural law is not law at all. having examined story's general philosophical framework, let us see how he applied his view in concrete cases. in the 1822 case, an american
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public armed vessel sees an allegedly french ship is suspected in engaging of the trafficking of slaves. the american captain asserted that the trafficking of slaves from africa to a foreign port violated the law of nations. and; therefore, the confiscation of the ship was the appropriate penalty. story's opinion begin by claiming that the law of nations rests on the eternal law of nature. the law of nature, he said, is deduced by correct reasoning from the right and duties of nations and the nature of moral obligations. natural law for story is the
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basis for the law of nations. however, story is careful to note that he, as a judge, only has the authority enforce the law of nations if it has not been relaxed or waved by the consent of nations as seen in their general practices and customs. indeed he was willing to enforce the fugitive slave act of 1793 and the opinion versus pennsylvania despite his strong view that slavery of inherently unjust. thus even story an ardent proponent of the natural law recognize that the judicial office place limit on the ability to apply natural law. in another setting, i have expressed a similar view about the power of american judiciary to enforce natural law.
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i will leave that issue to one side for our purposes this evening. turning to the practice of slave trafficking, story writes that, i quote, it cannot admit a serious question that such exploitation is founded in a violation of some of the first principle. s which ought to govern nations. it is republic, repugnant to the great principles of christian duty, the dictates of natural religion, the obligations of good faith and morality, and the eternal maximum of social justice. and here is the key line. when any trade it is impossible it can be consistent with any system of through a proports to
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rest on the authority of reason or revelation. e end quote. now remember that story believes that positive law is the only law enforce it conforms to natural law. natural law is derived from reason. having concluded that natural law prohibits slave trafficking, story explains that no system of law that proports to be based on reason can sanction such activity. therefore, story writes to be sufficient to stamp any trade as interdicted by public law when it can be justly affirmed that it is repugnant to the general principles of justice and humanity. and so the court held in that case that slave trafficking violated the law of nation and it refused to order return of
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the vessel to is it owners. nevertheless, for reasons of comedy, the court did hand the vessel over to the french consul. his interpretation and application of the natural law was thus decisive to the outcome of that case. several features of story's natural law philosophy stand out in the opinion. and the privacy of natural law, over positive law, it is prominent. as is the idea of that the natural law is rooted in the common nature of man. such not that the natural law is universal to all mankind. we will revisit these themes later. first, let me exam story's
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philosophy of positive law. as many of you know, story was a self-proclaimed designable of ed monday -- ed -- burke. it was burke who said we are afraid to put men to live and trade on his own private stock of reason because we suspect that the stock in each men -- and that the individual could better to avail themselves of nations and of ages. when he surveyed the list of men in the national assembly at the start of the research revolution, he observe observed that best were only men of theory. lacking in all practical
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experience. but as burke put it. from the moment i read the list, i saudis tingly and very nearly as it actually happened all that was to follow. in his view, the chaos and barbarism of the french revolution depicted by charles dickens in "tale of two cities" was a direct result of the revolutions attempt to divorce itself from fran ice history custom and experience. his emphasis on experience and that dpition derive from the understanding of human nature. he believed that the nature of man is intry candidate and no simple dispositions or direction of power can be suitable either to man's nature or to the quality of his affairs. therefore, a deep knowledge of
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human nature, he said, of required of statesmen. and history and traditions are the best way of knowing what constitutions and laws are best suited to human nature. joseph was of the same mind. in the introduction to his commentary on the constitution story wrote, a constitution of government is addressed to the common sense of the people. and never was designed for trials of logical skill or visionary speculation. he believed it was essential for any public official to distrust the theory and cling to practical good fop rely more on experience than reasoning. more upon institutions than laws, more upon checks than upon motive to virtue.
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it is quite clear then that story embraced -- over theory and novelty. this theory of law making accords with story's views of natural law. as professors have reminded us, natural law theory distinguished between two kind of positive law. ..
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practical judgments about the best way to achieve some end rather than deducing these laws directly from natural law principles. thus it derives binding nature from the fact that they were promulgated by a recognized competent legal authority rather than being compelled by the natural law. acquainted says in the determination lawmakers should follow aristotle's advice and pay as much attention to the young demonstrated opinions of


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