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tv   Public Affairs Events  CSPAN  December 20, 2016 12:59pm-3:00pm EST

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i don't think that you want to shake the one-china policy, nor by the way, do you forget the taiwan relations act which you want to remind people about as well. so this is very delicate stuff, and i think a little bit of a disturbance to the force is not all bad, but you do need to think about what is next and then what do they do and then what happens and then what do we do and so forth on down the ro road. >> another pressing issue, much debated and now with the new administration will be confronting, possibly new realities with iran. should a and more to the point perhaps do you think the united states will withdraw from the iran nuclear treaty? >> let me put that in context because again it's always really good if you take again what's a discrete action and then tried to put it into some kind of strategic context. like we had this conversation,
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and it seems to me the are to objectives relative to iran are not want to make sure that they never get a nuclear weapon. and number two, that their malign activity is countered, that we counter that much more effectively with our goals to allies and our goal state partners and our ally israel together. with respect to the first of those, if you look at the deal, which iran is genuinely abiding by. they're been to a violation of the amount of heavy water they can restore but they quickly get rid of that when it was identified, to be ferried are some positive elements to this deal. also some significant downsides. all the medium enriched uranium is gone. the plutonium path to a bomb is a longer because there's been concrete poured into the reactor. the deeply buried site, for now,
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that is a research facility facility that is the one that is publicly known only the next it could crack. and then there's a reasonably intrusive inspections regime. the problem is all of this in either intend to 15 years to think of what element of it because the whole deal is over 15. there is no provision for what happens after that. and so if you think your way through this, and by the way, they also got access to tens of billions of dollars of frozen assets around the world, reintegrating the economy, once the sanctions that used to cause the restriction on about a million barrels of oil exported are off. so they getting a lot more revenue, some of which is without question going to the revolution guards could force to fuel the mischief in the reason in a variety of undesirable activity. so you way that and figure out what could we do it as sense to
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consummate the deal, noting it's a multilateral arrangement, it's not just a bilateral deal and it's very unclear i think that you could reimpose sanctions if we would only ones i conclude we should in our observation of that deal. what else could you do? how about the white house and congress both controlled by republicans get together and say we will have a statement of national policy that iran will never be allowed to enrich to weapons grade uranium. the iranians shouldn't be bothered by that because they've sworn that they would never pursue a nuclear weapons. so no big deal from their perspective, presumably. in the meantime we ostentatiously very visibly maintain the capability that u.s. central command has had and a contingency plan that was developed during the time that i waiwas privileged to command tht organization. the aunt of that than to get together with our partners in the region come with israel, our ally, to determine how indeed we
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can more effectively counter the malign activity of iran. but doing it in ways, we are not out to start a big war in the gulf. we want to preserve maritime freedom of navigation and the free flow of energy resources. even though we are much less dependent on mideast oil that we were before our extraordinary energy revolution. nonetheless, that oil and act as fuels the economy of the world which we are apart. even though we're less dependent on many others on international trade, it still does matter. we want to preserve that an insurer that's the case. i think that's how i would go forward in this case. i was just out by the way in abu dhabi, bahrain, riyadh and ohio -- delhi. a real feeling for the polls. the degree of uncertainty. you have a transition from one
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party to another party, and not a huge amount of knowledge about that use in detail of those who are going to be in new positions. but i think that can be sorted out in fairly short order. >> thank you. i'd like now to turn to one of the major themes of winston churchill as career and as to how it applies to the present. the state of our military preparedness. do you think we are strong or weak in comparison to our counterparts worldwide? and in particular, how are we comparing to china in terms of modernization of equipment? >> look calm you can take our defense budget, just figure it 600 plus million, and then take china's which is at most a third of that of what will ultimately have added to have the overseas contingency operation supplemental funding, however you want to call it. and the next seven or eight countries altogether and you still would not equal what we have. just to put in perspective.
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having said that there's the question that china' chinese miy defense spending has increased quite dramatically at a time when hours was either flat or went down during sequestration, particularly bad below. so there are issues and we have been at work for a long time. there is free of some elements of the force. there's been straight on it on equipment. there's a lot of recapitalization that is needed. keep that in perspective. take all of our aircraft carriers and flat decks and that's more than all the rest of the world together again. so there is an enormous capability. the challenge is that we have to operate globally. china and other countries generally focus a bit closer to home, although china is building maritime expedition capability. that gets them as far as the horn of africa and into the gulf in that direction. so relatively speaking there's no question that chinese military is coming up.
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no question that ours is far and away the finest force in the world but also no question that there are pockets of readiness challenges for our force. there's some readiness crisis in marine corps aviation and a couple of other areas. and if we can avoid sequestration, for those who say we love the military and everything else, if you really do, and the sequestration because that is a horrible way to cut a budget and destroys management and the department of defense. the second is passed a budget come let us to how much there will be with all of it. the additional amounts for overseas contingency operations added in. well enough alone in the year ideally if and before you start the fiscal year which would be a real feat, but at least early enough to you can actually program it out. and then we do need at tens of millions of dollars to the bottom line, noting that is challenging because we want to
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keep one of the other objects as we should have cleared is to keep the debt to gdp ratio going down, which it has gradually been doing but is expected, rejected to go back up starting back up in another year or two as a target spending increases. we had to come to grips with that. >> and by the way, i want to to apologize for calling the iran nuclear deal a treaty a few minutes ago. i inadvertently promoted it. >> yes. it was not ratified. >> i know that you are an admirer of winston churchill, which partially explains why you are here with us this evening but i was one if you could reflect for a moment on what is example has met to you in your life and career? >> again, the title of, i guess it was a william manchester book, last line, line, i think really captured this individual in the extraordinary achievements.
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i've been fortunate along the ways a few different times to be sure luck is what happens when preparation meets opportunity, but when you think about what he accomplished over the years in so many varied fields, even when he was performing all these other task for governments, he was just churning out book after book after book. i forget the code used to about history but it was basically history will be kind to him -- >> so, and he had this wit that was so unbelievable and so quick. god, he could could drink all day and all night and still be productive. [laughter] you give me a glass of wine and i would be asleep in the chair there. he's just extraordinary. i went to his house, by the way, just a funny aside, i guess is what i was a central command command and would go to these different countries that at
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forces in our region fighting in iraq or afghanistan or off the horn of africa, and so i would try to get a couple of hours usually and i would know where we're going to go and so if we would be at oxford, let's go see this place on the way back to london or wherever we were staying. one of the times i was doing the oxford reunion and said okay, great. so let's go to church was home. well, i didn't check any further on that. you know what this is going. we come out of oxford and return and this isn't the way. they said this is where he was born, of course. but chartwell wasn't so. we didn't get there on that trip but a subsequent trip we did. in fact one of his great, great, great grandsons exported or any can you just get this incredible sense, this is a guy, he could paint halfway decent even after drinking. again, a literate accomplices are incredible.
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he was in the last cavalry charge as a young lieutenant or whatever. he wrote about the field force in pakistan. by the way, all that stuff still rings true. there i was the charge of overseeing an area of responsibility include afghanistan, pakistan, later was at the command in afghanistan and i would read the field force. it's all still, this is the same stuff we're still doing, the same customs traditions and anything else you are grappling with. i mean, to say that he achieves prodigious amounts in every different feel detached would actually be an understatement. and then even managed to coin the phrase is that defined entire eras, you know, the iron curtain, the cold war, all of this really extraordinary. i've been to westminster and did something there at that great library, which is truly, truly inspirational and educational and fun.
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and go back out there again in april. this is somebody who is just exceptional and every single regard, except that it do think i could outrun him. [laughter] spirit with that i have no doubt whatsoever. his idea for places him was -- >> and was polo in till he had about 40. and then it was drinking after that. there most good something special in that. the united states has just undergone a dramatic political convulsion, and our cultural divisions seem very deep. i did some they seem intractable. are you an optimist or a pessimist? >> i am a rational optimist. so in other words, this is an optimist with his eyes open and hopefully formed a look at a future in this case i teach a course called the north american
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decades, and we study, have you look at the whole global economy, then you look at north america 21 years into nafta, look at the integration that is so extraordinary you can't unwind of that. you can build it, improve it though and that's where we should go. and then we look at for revolutions, each of which of the u.s. is a leader in the world or among the leaders. so with the i.t. revolution which of the others have built by large, the energy revolution, the manufacturing revolution, and the life sciences revolution. and these are all extraordinary. they are all gathering momentum. some are ahead of others. and again, many are examples of what is made america great in the past and i think will make a great again in the future. it's a combination of factors. there's never a single factor that explains it. the energy revolution is a good example. if you're a fan of fossil fuels are not, the fact is that we did something extraordinary by going from 6 million barrels per day
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to nine point 6 million barrels per day production in the space of about five years. that's unprecedented. no country has ever done anything remotely like that. if you look at why that is, noted that a lot of this of course is getting oil out if she opened also by the way natural gas, we are now the number one natural gas producer in the world. how did this come to pass? china has double or more the amount of oil and gas in jail. many of the countries has more and yet it is only happen in appreciable amounts in the united states. it's very simple. we invented the technology. deep directional drilling because you do go horizontally, stay in the shale seam. hydraulic fracturing at the last was seismic big data tied into the i.t. revolution. we have capital markets that are very agile. i now appreciate my of work, with small and medium enterprises that can very rapidly build out technology, respond to develop it and can be fueled by this capital markets.
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we have property rights laws that allow property owners to sell or lease the middle writes underneath their lands. a number of countries do not have that. we have reasonable infrastructure for pushing around pipelines and so forth. in fact kkr owned part of the colonial pipeline. so we get all of these factors come together uniquely in the united states yes, we're fortunate, we are blessed to oil and gas in the shale with water nearby in most cases because it's a liquid intensive process. but again only here has that happened. that gives me again a degree of the key and rational optimism. i still thought that it from the ridley who writes about the mankind and how time after time mankind is confronted by a seemingly incidental obstacle, and after whatever it may be, the 30 years war, the black plague and again depleting energy reserves, whatever finds
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a way to go around, resolve it or what have you. so again in that sense i am a rational optimist. the challenge for our country though is that we do have policy headwind. in other words, that our shortcomings that can only be resolved by policy or one of these is infrastructure investment because we very much need to improve productivity. gdp is a function of workforce size and grows is a workforce grows times productivity. you've got to increase that in particular. there's lots of economists who worry that you can't get that hike was because we just don't have that kind of dramatic productivity gain that has been associate with previous periods of very high growth. we need to educate the workforce of the future. what are the challenges of the manufacturing revolution is technological displacement. the fact is we're talking about bringing manufactured back to america. manufacturing output in americas at the highest of all time.
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manufacturing is here and it's come back in a number of ways. the jobs have not necessarily come back to manufacturing employment has gone like that and that's because of the rights of the robots of automation and so forth. and so again there is displacement from those kinds of jobs and yet there's millions of jobs lacking people, and we have to train those who are not income to the best we can. in some cases you are not going to be able to do that. but educate educate, train job s and so forth. immigration reform, there's double the applicants at least every year for the h one b visas. that's the smart people visa. we should come to grips with that. we ought to come to grips with what we're going to do about that 10 or more million people who are here without proper documentation. and on and it's the pathway for unskilled labor to come into the country legally and perform the task for which we don't have enough labor in the united
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states in agriculture and a variety of other fields. those are just a handful of the kinds of examples i talk about debt to gdp ratio. one of the exciting, the markets have really taken an upswing because they think that there is real prospect for a reduction in corporate tax rates which are the third or fourth highest in the developed world, and because of the prospect of a tax holiday for the two point 9,000,000,000,000 city cultural and profits that firms will not bring back because the tax rates are so high. and you will get all of that. it's not a liquid. it's not all easily brought back but if you can get one point 52 trillion of that number multiplied by 50% or maybe just 10 percent, that's hundreds of young of dollars for infrastructure investment right there and that's before you do public-private partnerships in a variety of other initiatives. so again these are the kinds of initiatives that are being talked about i.
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speaker ryan has a whole host of these, and again working through those to turn these policy headwinds into policy tailwinds and enable us to capitalize on these four revolutions and what really are great opportunities for what is still very much the greatest country in the world spirit thank you very much. would love to open this to questions from the audience. we have a microphone over here. if you'd like to ask the general a question we ask you to please come to the microphone and ask your very brief question. no speeches, please. >> that say if iran and the u.s. were to come to the negotiating table for a conference of package, a grand bargain, what do you think realistic offers they could give to each other? look at iran operative u.s. and what the u.s. can offer to iran. >> well look, i think what was hoped, i think cautious, very
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cautiously hoped was the iran nuclear deal, the jcp oh, oh, the joint comments a plan of action would lead to further achievements in other fields because they did not have any effect on the light activities iran is pursuing in iraq and syria and yemen, other parts of the gulf, the gulf states and so forth. and it certainly has not so the missile program. in fact if anything each of those has accelerated a bit. so those are the areas of huge concern to our partners at ally in the region. and a huge concern to the coalition that we are part of for the fight against the islamic state, indeed in that region. for them i think this administration reached out and open hand on the number of occasions. i think president obama went above and beyond to try to establish dialogue with the supreme leader and also through
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various talks with government officials. the challenge with iran is you cannot forget that this is a state that is real -- really to states. there's the traditional, a president is elected and this actually happens to be the quote moderate. of course they eliminate some of the real moderates, the council that occurs when you can run or not, but he is compared to the others that were running. there were ministers and army, navy, air force and so forth. that looks reasonable. and then you have not always in reddick reasonable by any means, but then you have the deep state and that is the revolution guards corps, it's the revolution guards corps quds force, their overseas individuals carry out often very nefarious activities and it is that the siege militia that may be as much as 1,000,000 strong now, just got got a new leader.
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we are the pipe swimmers on the street. you will not see another color revolution of the streets of tehran. that state has gotten stronger during the period of sanctions and they have a huge grip on major sectors of the income. it's just hard to see how that would ever lack control and, of course, it has the support of the supreme leader who is up it was some of the councils that surround him. the people over here, my experience with them and they used to go to the border with iran after about to check on security, of right of initiative we had, and there were tens of thousands of religious tourists pouring through these borders on a daily basis into iran because the two holiest cities are there. by the way, the first two were liberated by the one first airborne division when i was privileged to command and the baghdad era salt. i really think this administration worked very, very hard to try to build bridges, to
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try to establish reasonable dialogue, maybe it's just our perspective bu but i don't thine were asking for a great deal. but clearly iran is bent on achieving a degree of regional hegemony at the very least, achieving a solidified shia crescent from damascus done into lebanon, increasing their control in political process in lebanon, trying to some degree to 11 eyes iraq as ambassador ryan crocker used to put it. with the popular mobilization forces, the shia militias militia that are funded, trained, equipped, armed iran with the quds force command action on the ground in some. that's very bright were some. they are led by individuals in several cases who were in our
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detention facilities because of murdering our soldiers on the battlefield, and particularly horrific ways. and they are now members of parliament. so welcome to the land of the two rivers. my home for four years and a place that correctly as one prime minister told them when i'm sleeping after my three-star tour, you may leave iraq but iraq will never leave you. it is a place, there's certain very, very special attributes again to the land of the tigris and the euphrates but there are also pretty maddening aspects to it, too. >> good evening, general. thank you for your service. you talked about private property rights being a bunch of american innovation. some folks know congress passed legislation and the president signed into law legislation that will recognize american rival party rights in outer space.
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>> can you surrender or sell the mineral rights? >> yes. billions and billions of dollars. he talked about the rise of robot is asian. the military in terms of unmanned systems has been on the forefront of that. yet some people in national security committee for many years talk about the rise at thinking machines. where do you see that going in the years to come? >> first of all let me just note that you raised the point that i think has not been recognized as fully as it might've been. i think there's a real revolution ongoing in the way we are able to conduct at least the kinds of wars we are engaged in in the greater middle east. and it's been made possible by the enormous increase in unmanned aerial vehicles in particular the u.s. air force predators and reapers which are the coin of the relevant and in particular there because they roughly 150 people as they are
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backing as a call, fly it, a loader, fix it, fuel fuel it, are met, digit tree interpretation, signals interpretation, flight envoy back from the united states bouncing it off satellites. and on and on at all. the intelligence integration on an industrial strength and then the dissemination of it and all the rest. if you take seven days a week 24 hours a day, one orbit, that meet its multiple platforms and its three plus ships of all these different people performing these important tasks. this is really extraordinary. this is what is enabling us to fight in a very different way. we are enabling the iraqi secret forces, not fighting on the front lines with them or for them. we are doing training and assistance, training and advice, equipping their doing certainly helping them with planning, a variety of other tasks. but at the end of the date they are the ones that are fighting
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and dying on the front lines for the country. at a think what they want as well. that's what we want. there's five important lessons i think we should take from the middle east, the last 10 to 15 years. that and with one that is very relevant. the first is ungoverned spaces in the north africa, middle east, central asia will be exploited by the islamic extremist. not a question of if, but a question of winter las vegas rules don't apply in these areas. what happens there will not stay there. it affects tens dispute violence and extremism, refugees notches in the neighboring countries but all the way into our nato allies causing huge domestic political challenges for them. the third is in responding to this u.s. leadership is vital. it's in part because the military assets that would bring that to get or so probably greater than all of the others put together in the case of
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unmanned aerial vehicles and times six or seven. and all the other capabilities but we do want to coalition. georgia was right on this one when he said the only thing worse than fighting with allies is fighting without them. we very much want them as having commanded the largest coalition on the ground, up to this time in afghanistan, coalition maintenance as a hugely intensive work. it's worth it. we want islamic countries in there because this is a clash that extension for them. this is where a clash within their civilization that it is a clash between civilizations. fourth is in responding to this, there's a paradox that countering terrorist forces like the islamic state requires more than counterterrorist force operations. you just can't drone strike and delta force raid your way out of this. you have to forces on the ground picking up cap reconciliation, politics, local governments, basic service restoration, reconstruction, rule of law.
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all of this, communication. but now we are able to them do it rather than do it for them as we had to do during the surge, , which i believe was absolutely vital for the country to what is going up in flames. but that we don't, we can do this a different way. that's crucial because of the fifth lesson, that is recognizing that we are in a generational struggle. this is not a struggle of the decades, certainly not every few years. we won't put a stake through the heart of the islamic state, that is the army in iraq. never been a question about that, just a question of how long it will take and how you can get it done without endangering or killing innocent civilians and destroying infrastructure that will have to be rebuilt which is why it is going slowly in bothell, but methodically. this has to be sustainable. and here we are we have developed something that is sustainable, ellie for these types of wars because of the assets that we have. and we are thereby, the two
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metrics that matter most are blood and treasure. we have reduced dramatically the loss of life are still about some tragically, but very, very reduced. then the expenditure went to compare what we spent in a single year in the surge in iraq or the surge in afghanistan. it's a very, very reduced. so these are sustainable. and for those who used to say that democracies can't fight long wars, we have been added for for 15 years and afghanistan. yes, the situation is more fraught and i would like to see. we should have reduced the force quite as fast. it was faster than was recommended in various junctures, and we restricted the rules of engagement for the use of our air power in support of the afghans overly much but that's been relaxed now. so again this is actually this is quite a dramatic development. it is because at the end of the day a variety of advances in
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technology. next steps will be what you're talking about about, it's artifl intelligence and you're going to get to systems that are going to be semi-autonomous. your wing man may be, pesto pilot, maybe have a couple of wingmen and so you have that kind of situation. there will be situations in which we will give conditions and assent to the machine. as we do right now to man who are controlling machines, let's say if you identify the target, there is no collateral, there's this, there's about the political political situation is okay. it's not going to enter our campaign, on and on and on, take the shot. i can see the day were actually you might do that to a machine that will be able to check those blocks because of its optics, because of its information. and that's not too far down the road necessarily. it's quite breathtaking what's
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happening in the space and also what's happening in cyberspace spin i'm afraid will have time for one more question. >> thank you for your service. makes me go back to one of the highlights of 2012 debate when obama mocked romney, when he said he thought putin and the russians were our biggest enemy. what can you say obama failed to do or didn't do that we reached the point where these people are now saying putin picks the president of the united states? ..
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at least it has happened now and i think that's quite significant i think history or will look back and ask whether we could have been more for meta- particular juncture. this is an individual where you can keep pushing and if you can keep penetrating further, and actually when he ran finally as russian support separatists and southeastern ukraine when they ran up against ukrainian forces that were going to bend but not break, all the sudden they realize the cost is just starting to get too high. i think you can look back and ask, should we not have given to the ukrainian armed forces shoulder guided missiles that
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were approved for transfer by the authorizer authorization committee and appropriated for by congress. it's that kind of questioning that i think we will look back and just wonder, could we have done that, you're not in a run to moscow with this thing on your shoulder. so, it comes down to those kinds of issues and certainly there are others having to do with syria so insuring there is no doubt in a competitor or adversaries mind that there will be a consequence for an action is awfully important, and i think we've not done that at various times, it has rebounded the wrong way. >> thank you all for your
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excellent questions and for coming out on this very cold night. to the national churchill library and center. i hope you return when we welcome future guests including the creator of house of cards, michael dobbs, the british ambassador to the united states, former chief john scarlett and others, and thanks again general petraeus. >> it's a pleasure. [applause] [inaudible conversation]
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[inaudible conversation] [inaudible conversation] [inaudible conversation]
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>> this week on c-span two, it is book tv in prime time. each night and tonight, tonight, biographies and autobiographies. we will hear from officers of books on al capone and eleanor roosevelt and those who worked
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under kennedy nixon ford and eisen eisenhower. >> we are looking at preparations for the inauguration taking place on january 20, a viewing stand is being built outside the white house grounds on pennsylvania avenue. the new president, his his family and others will be watching the inaugural parade after he takes the oath of office to become the nation's 45th president.
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the presidential inauguration of donald trump is friday, january 20. c-span will have live coverage of all the days events and ceremonies. watch live on c-span and c-span .org and listen live on the free c-span radio app. >> this week on c-span, tonight tonight at 8:00 p.m., jerry green fields, founder ben &
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jerry's talks about responsible business practices. >> the idea that we couldn't sell enough ice cream in the summer in vermont, forced us to look for other markets. >> wednesday night, former vice president dick cheney and former defense secretary on the future of the defense department under president-elect donald trump. >> i think the challenges are very great and i think we have, unfortunately, over the course of the past many years done serious damage to our capabilities to be able to meet those threats. >> we are living in the period where there are a lot of flashpoints and a new administration is going to have to look at that kind of world and obviously defined policy that we need in order to deal with that, but then developed the defense policy to confront
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that kind of world. >> thursday at eight pm eastern, look at the career of vice president elect mike pence. >> amidst the shifting sand of culture and law, we have stood without a policy for the sanctity of life, the, the importance of marriage and the freedom of religion. >> on friday night beginning at eight, farewell speeches and tributes to several outgoing senators including harry reid, barbara boxer, kelly ayotte and dan coats. this week in prime time, on c-span. >> the federal appeals court in chicago recently heard a case considering whether police can be detain and search a person for minor fracking infractions. milwaukee police stopped a car that johnson was in because the car was too crowded and check close to a crosswalk. police say he was trying to hide a gun. attorneys say police should not have been allowed to search the car in the first place.
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>> good morning. our next case, our second to last case for this morning is united states against randy johnson. we will hear first from his attorney. >> this is the facts available to the officers that would allow a person of reasonable caution to believe their actions are appropriate. that is the reason under this case. here's what the officers knew. >> i'm going to just ask you to be very clear, since the stage at which we are discussing this encounter matters to some, anyway. you are talking about the initial move to take the sharp left turn and go up and confine the car. you're not talking about anything later?
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>> we are talking first about the seizure that takes place in what they observed. >> went to car zoom up. >> okay. >> that was the seizure conceded by the government and found by the district court. >> that's correct. >> that seizure and the fact that the officers knew at that moment, they look to the left and in front of an open store they see a car stopped. it's on, it's occupied, exhaust is coming out and it's there. >> that's a great question. they don't observe the driver. that was a huge part of the facts. >> in both cases there was no driver. >> there was no driver. when the officers observed, they don't make that observation. they make the decision to seize. >> they were too far away at that point to know if there's a driver, they find it out later. >> that's exactly it. >> where were you, are you bringing that from the record? >> you can look at page 65 of
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the transcript for the record is very clear. >> that's not in the brief, but it's it's in the record? >> i don't know if it's in the brief. >> believe me, it's not in the brief. >> why. >> good answer. >> thank you. hopefully there are more to come that observation that there was no driver, that comes after the initial seizure, after the box in. at that point, all the officers know was that there was a running car. >> but they can see, can't they they that it's roughly 8 feet from the crosswalk, not 15. they must be able to eyeball a difference that big. >> yes. but there's nothing illegal at that point. there's nothing illegal about a car stopped, standing with its lights on and being occupied. >> that's presumptively illegal under wisconsin law. >> i don't think it's presumptively illegal, it's
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illegal if they're there for that purpose. >> if they're therefore unloading them is not a violation, but if it's a result of lee illegal to park within 15 feet of a crosswalk. . >> the officer is not required to negate an explanation that might prove the conduct innocent. if they see a violation they can stop the car. they can do a traffic stop. >> this is far from those kind of cases. >> wouldn't the natural assumption be that someone in the car had run into the liquor store to get something and was going to bring back? would they assume if they saw the car with the lights on and it's next to a liquor store. >> that's a plausible explanation right there. that's what everyone would assume. >> given the wide number of scenarios in which parking
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violations can occur, is this issue capable of any categorical resolution such as determination that parking violations always or never support a seizure, do you think? mark. >> that's a difficult question. >> why do you think i asked. >> that question, i was asking the easier ones earlier. >> here's the simple answer. common parking violation is never a seizure. by that i mean the meter expired or your part to close to the curb are too far away from the curb, never. there is no reason that the officers have to seize at that point. >> here's where becomes tricky. >> but it is a parking violation. i understand under milwaukee law, even though maybe not common for the police to enforce the parking rules, they are empowered to do so, they can and
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they testified that they, with with some regularity do, even if it's an expired meter or your part to 24 inches from the curb because you're a bad parker instead of 18 or whatever it is. >> we never contested the fact that they can do that. they just can't seize. they can't seize in the sense that it took place here. >> are you conceding that if officer conway had walked up to the car, granted it was a cold night, but were all tough in the midwest so he walks up to the car and then sees everything else that he saw, he sees him squirming around with a gun, you don't have a case if that happened because simply walking up to the car and peering into the window, it's hard for me to imagine that as a seizure. >> can answer that question, yes we would agree if it was a voluntary encounter, but his movements are sparked by the
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seizure. it's not a matter of walking up to the window and saying hey buddy, you have to move the car and he flips out. no,. >> i understood the question to be somewhat different. it's a single officer who walks up to the car and says you are part to close, i'm going to write you a ticket. do you think at that point, the car, if there were a driver, could the driver just accelerate away and say no, you're not, i'm leaving? >> no. >> okay that means you think walking up to the car is itself a lawful seizure because a lawful seizure means a prohibition on walking away. >> i think it's distinguishable and that's what i was trying to get too with the question. that is actually incidental. we all agree, even cases that we stop and say you cannot seize for a parking violation, the minnesota supreme court and the washington supreme court, they
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they agree, once the ticket is written -- >> that's where you lose me because that is a seizure for a parking violation. if there is a legal rule against departing then you have been seized. how does one get around that? >> because writing the ticket was part of the administrative duty enforcing the traffic violation. >> i don't mean you have to start physically writing the ticket, a guy walks up and says you are parked too close, i'm going to issue a ticket, and before he gets out his ticket book the person drives away. i think you agree he can't. >> that he can't drive away. >> just because the officer hasn't gotten his ticket book out of his pocket yet. >> i agree with that. i suppose then you are saying the procedure is perfectly lawful. >> if that's not a seizure, what the seizure. >> a seizure is definitely best for you drive with two cars in the stoplight and five people get out. >> i know that. the question is whether the very
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active investigation parking violation and walking up to the car does not also sees the car and its owners until the incident is concluded. >> or we could say the apparent parking violation. >> there's no presumption of a violation. they are loading or unloading. >> our position is this 5 - 8102 observation isn't enough to decide if there loading or unloading. >> i want to focus in on how does the show of authority factor into the analysis because you know, when we determine whether a serious, whether a seizure is reasonable under the fourth amendment, we have to consider both the governmental
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interest at issue and enforcing the parking violation, but we also have to consider the degree of force as part of the analysis to the degree of intrusion so for instance, could to stop the constitutional if it involved just a couple of officers stopping a person to ask questions but unconstitutional if it involves the full squad team coming down on the person with their guns drawn. >> i don't question that. when you have the balance, you can't come, if the governmental interest is i really want to keep people 15 feet from that crosswalk, then you're not allowed to come with the swat team to go in and investigate that. that actually takes it outside of what you're really investigating at that moment. that show of force is incommensurate with what you are investigating. >> so is it an important part of your theory than that even if,
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in our hypothetical that we been talking about, walking up, the difference isn't just could you write the ticket, but there's actually an independent component in the fourth amendment that relates to the excessive force dimension of this particular seizure? >> i think that's always balanced, every case tells you you have the balance the interest in what you're investigating. >> so if the stop is underway and the officer decided i'm going to shoot you in the thigh because i know that will disable you while i pat you down, you would would say even though the legitimate patdown would be okay, that's excessive for. >> i would agree with that. >> and i should take nothing for granted today, would you concede that a seizure akin to it stop would be appropriate for some parking valuations, in particular, in violations that
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would raise serious safety concerns if a car was stopped in a no parking zone or a populated event like times square on new year's eve, would it be constitutional to seize the individual to investigate that kind of parking violation? >> we say no, you cannot seize for that, but they have to balance with officers who say the safety interest of times square on new year's eve is such that we gotta find out what you doing here. that goes more to community caretaking than anything, but it's part of every factor that you have to look at. >> so you're not advocating a blanket rule. >> no. >> you are saying there's exceptions to the rule, where there is a public harm, potential public harm? >> yes and a lot of it is just
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the cops trying to direct traffic. i was in madison and when you go, there's one big main road that goes through. they are towing at 801. everybody's getting towed. clearly there's a seizure going on there but when the officers are going to allow that to obstruct the traffic has once they do that puts you in gridlock. ever but he had a bad day and you're upset and everything else so officers are normally just trying to direct traffic. >> so was there's no piled away from the curb into a street? >> i believe it's exhibit f and are, if you look at the pictures you can see it. we all come from the midwest so we have different concepts of how high a snow pile is. this one is clearly a snow pile. you have the very convenient, you can actually's no blown one of those walkways and that's where the car is parked. the it's not parked along the
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curb it's parked along the street. >> so it's not. [inaudible] i know exactly what you mean. so what we have isn't pushed over into traffic. you can see the curb. milwaukee has great snowplows and they got right there so it's within the 18 inches. >> was their path behind her in front of the car. >> it was actually to the rear tire. i have a picture if you want me to pass them out. it's right there. then there's a second path because there's an angle street and you have two paths, but the one, the person who's going into the liquor store, it's the one right there. >> did summary go into the liquor store. >> yes, the driver of the car who we didn't know about until after they seized was the one who went into the liquor store. she on the car, it was my client sister and it was the other sister who was in the front seat >> so she comes out moments later and says hey, well, what's
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going on. to get back to the core question, and i don't want to lose this because i really want to address this, if you look at shields, shields seems almost unremarkable because there everything they are doing when they seized the person, the court finds a seizure and i would say it's the need to decide that seizure, but it looks like a voluntary encounter. in fact, the defendant says it was a voluntary encounter. i wasn't seized but i voluntarily got out of the car. that's what most of what you're talking about, that's what most of it will be. there were many of the same aspects, and that's where, when you have that scale and you say okay, this is legitimate when it's like a buddy, what are you doing. what i feel free to leave? i don't know, i usually respect the cops and do what i'm told.
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on the high-end where you say you can't come to the swat team, you can't come with four cops to this parking violation. >> would it be fair to say that the behavior of the police, if it had been five civilians into cars with those lights in the aggressive approach it would've amounted to a tort of assault? >> fully agree, no question. >> it's it's an intimidating show of authority against private civilians of intimidating people without a batch. >> no question. this would be a scary scene. the floodlights coming and being boxed in and then it's hey buddy, come on, you have seven more feet to go. >> doesn't make any difference what time of day it was a matter was a liquor store. >> i think it makes a big difference in that it gives the benefit to he's going into the liquor store.
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>> is as a high crime area? >> yes. >> and it's a liquor store. >> yes. >> and there's a car parked out front at 745. >> at 741. >> it was dark out - yes. during normal hours when people go to get liquor on a wednesday evening. >> how much time do you think needed to pass before the officers could have ruled out the loading and passenger discharge exception. >> so i think that reasonableness you would say two or three minutes. some cases you might say five minutes. if it was a jimmy johnson much sign on top of the car i would say five minutes. if i'm in starbucks, how long does it take for a latte. i'm okay to be there because my lights are on, my car is occupied and i'm just standing there. now, to to take that inference
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that it's going to be a stickup job, you have to go back to this case. that officer did what we want. he observed 24 trips. he did what he should do him a he waited observed. >> that's not a traffic stop case. we are in the traffic stop domain which is a species of stops that doesn't require criminal activity. a parking violation like any type of violation is enough to initiate an investigation, temporary detention and that's what happened before the movement citing the gun was noticed. >> i agree you have the right to investigate, but the investigation is just observation. it doesn't need to be the seizure at that point because at this point, all you have suspicion but you don't have reasonable suspicion. >> have you accepted that a parking stop and a traffic stop
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are the same thing. >> i think they are distinguishable. here's the big one. a traffic stop goes to an individual. i'm speeding or you go back to this court decision. you don't have your seatbelt on, but a parking violation, you don't get a parking violation, you give it to the vehicle and that's exactly, so the ability to arrest on micah traffics stop, you can arrest them. under a parking violation the same thing doesn't hold true. it's also not a crime in wisconsin, it's just a a forfeiture. a forfeiture is not a criminal act. so when we say this is exactly what you're dealing with. >> but there's all kinds of noncriminal traffic laws, including all kinds of noncriminal parking violations
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of a whole different variety and there's no requirement, wait-and-see requirement before the officers are entitled to investigate once they see the violation. >> i think in most cases it becomes a part parking,. >> there's tollway zones, there's lots of parking laws all forfeitures, all noncriminal and to the officer need to let time pass to determine whether this actually has an explanation. the law doesn't require that nor does a general understanding of reasonableness under the fourth amendment. >> that's because all those are specific to the violation. you can see it right away. i see the red flag is up so that i might okay, your meters expired or you're parked in the middle of a crosswalk. i can see right now that you could never be in shields there. so those, you don't need any more investigation, but here here you need to do some investigation. it snowed different than
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texting. am i texting or on google maps. once legal and once illegal. >> tollway zones, lots of clauses in tollway loss. >> do they have to wait in the gate if they see a car in a tollway zone, do they have to wait and rule out all the innocent explanations that might take it outside of violation. >> there's two different kinds of tollway zones. we both know that. that's where they're going. so i want to make sure i don't get tripped up. the one where there's an emergency, you of the fire department and you're not allowed to be right in front of their. it doesn't take much to not, not window and say move along. >> so that's okay to move in right away. >> yes. >> is it part? that the other. if nobody's in there and they're like the guys homeless any sleeping in the back seat, that car is parked. it's not standing it's not stopping so someone can load and unload. here, you have it for you have
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none of those so that somebody's parking. i would also say, going back to my point, a lot of this is community caretaking. it's not that you're doing a criminal investigation, it you're saying i just have to move the traffic along. i'm calling the tow truck and then he will be here and we have to move it along. >> right but the subjective intent of the officers doesn't matter. it's what what they think they're stopping for doesn't really matter. >> no question. >> if they think they're stopping to move the car along and did community caretaking investigation or if they think they're doing an investigation for the a drug dealing, it doesn't matter. >> while it does matter. >> it just matters if there's a basis for the stop - exactly, that's that's what you need. you need an objective. you have to talk about the rules. you get probable probable cause
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and reasonable suspicion. you have enough time to make your suspicion reasonable. if you don't get there it's not objectively reasonable and that's what it is right here. you have two allowed to develop the facts to make that call that there's reasonable suspicion that that person is not loading or unloading and they're actually parked there, and you can't make that until you observe longer, until you actually go and see, whether it's two trips around the block or sitting there across the street observing for two minutes, whether it's just walking up as a casual encounter. were not asking you to determine were just asking you to do one or the other. that has to be done. you can't go in with five police cars and block someone in after five or ten minutes of -- five or ten seconds of observation. >> you have said if this is an excess m show of force to box them in, then exclusion of evidence follows. does any case in the supreme court support that proposition
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if the same evidence would have turned up without excessive force? the comparison is the officer walks up to the car, and you can see the car drive away, is there any support in the supreme court for saying if excessive force was used, then the evidence must be suppressed rather than used as an award of damages. >> there is no answer that gives to the walking up. i'm just interested in whether the supreme court has ever held that an excessive use of force justifies exclusion of evidence as opposed to an award of damages. >> never. >> the theory is that it's unreasonable seizure. >> exactly. if you go to florida it's already on. >> in january 2014, we know
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mr. johnson couldn't lawfully possess a firearm, but unless you knew there criminal record in january 2014, was a lawful for wisconsin residents to have handguns in a car? >> yes if they had a ccw permit. >> any kind of weapon. >> no they couldn't have an easy or an assault weapon. >> about the extended clip. >> i don't believe that in itself is illegal. i know that's an enhancement feature but the clip itself is not illegal. >> was this the sidewalk itself, was was that cleared through the snow? >> to the alleyway. the alleyway, if you go on google maps, it's probably next to 10 feet up. the sidewalk is cleared. it's a corner lot. >> and the car has actually
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covered up at that point, temporarily well was parked there, the cut through that the store owner made. >> there to cut through spreaders cut through right where the streets come together, and then there's a second cut through 4 feet over. >> and that was one, the car cover that? >> yes, sir. there's nothing illegal about covering that. again this is an unmarked crosswalk. to get back to your question, though the supreme court has not set it, it goes back to the right for the basics and that is that the police have been involved or engaged in illegal activity and the evidence is derived directly from that. it's not that they couldn't have gone and got a warrant and gone through his papers or was. >> actually, the case that i was thinking of is against michigan where unlawful force was plainly used in order to enter the
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house, instead of knocking and announcing as the constitution requires, the police knocked down the door. the supreme court is suing that that was excessive force and unreasonable entry and nonetheless held the evidence must not be suppressed, that the remedy is damages because if they had not been announced they would've found this stuff. the question i'm asking is why isn't that the general approach for excessive force, we have damages remedy. >> let me ask you a different way around that question. suppose you agreed with judge easterbrook that that is what hudson said. on the facts of this case, is it clear that the gun would have been found anyway? >> no, definitely not. that also is the government's burden. if they want to establish inevitable discovery they need to set forth that.
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for us to try to second-guess, and what would be mr. johnson's response to being seized with two cars in the spotlight or him and someone going and knocking on the window, that's for the government to do in front of the district court. the never did it. we don't have have that record to be able to make that discovery argument. i think it's far from clear. i would ask that the court not rest a decision on that. >> i will just warn you that you're in your rebuttal time, but feel free to answer the question. >> so they say it doesn't go down to the constitutional right. in that case, they had a warrant. so they had. >> that wasn't the court's point. the court's point was that the unlawful entry or the unlawful force was not in the chain of causation to finding the evidence. >> now that drives us back to chief judge woods' question, we would need to figure out whether the appearance of two cars, if
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that's unlawful was in the chain of causation. >> so the chain of causation is set out. >> the supreme court's decision has nothing to do with a warrant and everything to do with causation. >> but you've also, i'm just going to ask you to maybe save this, but i but i think when you answered my question you said that the record isn't there to show it. you said, as i understood you to say that the record in this case isn't there, that the gun would've been found had it not been for the cars zooming in and boxing up. >> that's correct. >> let me ask you this. are you challenging the fact that two patrol cars in a high crime area traveling together. >> no. >> you keep talking about this boxing in. there are two cars. the fact that they're not sequential, is that something, should they had been parked behind each other.
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>> without somehow be a lesser show of force? >> it's like to man cars rather than one man cars. look, if they wanted to park across the street and walk over, that's one thing, but it's a show of force, it's it's the boxing in. it's what's reasonable when it comes to parking violation. we have no problem of the neighborhood tax force. they are allowed to go and look around and drive around and have that, but when they don't engage in parking violations with that type of shout show force, it has to be balanced. >> officers could see the shapes of several individuals through the tinted windows. the government says they could see him. which is right, could could they see through the windows when they walked up? >> the windows are tinted.
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the district court, your question is a good one. you also have the two squad car lights. you have a tinted window at a liquor store without a seizure, probably not. if you have the seizure with all of the lights on which is really the critical point, that's when they say yes we can see it at that point. our argument was different. our argument was he opens the doors to the dome light comes on and he has a flashlight. that's when they see everything. when you think about what mr. johnson is doing, that's a reaction summary has to a flashlight in your face. that's the moment of seizure. >> here's what the brief says. this is the government's brief brief. when the officers got out of the squad car officer conway saw johnson in the left passengers
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seat lean back and move both hands toward the waist. earlier they said randy johnson he saw randy johnson with a gun. >> my statements were that this is all post seizure. so they box them in at that point, this is. >> okay so he's walking up to the car. >> rate so when all the lights are on ma has squad lights on and have the beams on than they can see it. so we take away the beams we take away the seizure, i don't think you're seeing that sudden movement. >> i think one car could be a seizure. it's a show of force. this court has to measure those. >> to show up with a spotlight on the car at night, that's a short force because they have
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their lights on. one car pulls up behind the suv. i guess that's a show force. if you're on highway and highway patrol comes up behind you, that's a show force. >> exactly. this is a high crime area where it's not unusual to have extra police in this task force, your acknowledging that. >> i agree. >> but here we have an suv with five people in it. >> that's correct. >> i'm just trying to show some principle be you of how are going to analyze force on the seizure question. >> where is it on the spectrum. >> why did the officer stop. one officer testified, and part
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of our initiative is what to look for smaller infractions. whether you can target small infractions because you think there's something amiss going on of a criminal nature, right. >> i disagree with that is what the case is about, but that's exactly what happened. we all know that's what happened. are looking for bigger and better thing. >> this case is about so much more. it's not just about bigger and better things. it's about what kind of forest can the officers use, what kind of show of force can officers use during a parking violation and how much do they need to observe because if you allow for reasonable suspicion to just be a 42nd glimpse, he's there and everything else goes against it. the reasonable possible thing is he's in the liquor store. summaries in the liquor store getting a six pack of highlight and the to come out in a second. if we were race all that than the fourth amendment means nothing at that point. it is no longer reasonable that what we are going to allow for you to seize four. if we write it out because it's
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a high crime amendment that means we have to fourth amendments. this issue is so big. that's why we are all here. >> what would you have done as a reasonable officer. >> i would've watched for two or three minutes to see what would happen. that's exactly what a reasonable police officer should've done. >> there is no need to seize for that parking violation. >> we had what, five unreasonable police officer's? >> i think you have one, the driver of the car. everybody else is just following in line. the one guy who says you know what, i want bigger and better. there's nobody else is going out on the street. reporter: nouns high crime neighborhoods a note i'm in a do i'm in a create something where i can go look for something bigger and better. they go and they find this parking infraction. think about it. if this case had gotten up to the supreme court, would he ever
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say that seems reasonable were they say 24 trips that the officer observed and that was for a stickup robbery. they applaud him and they say that's what a reasonable officer would do. that's good police work. going back 50 years ago, no one would've ever said you're right, that's reasonable, that's a show for. >> your position would include a state police officer on highway heading toward what we call a city with a beat-up pickup truck and an out-of-state plate and a taillight that's not as bright as it should be. that pickup truck is stopped. then he's profiled because he thinks he's the courier. that's still going to be allowed, that same police officer in the middle of
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illinois will pull him over, even though it's a minor infraction but he really believes it's a drug courier. >> yes, that isn't change by this case. if it's burnt out taillight,. >> i think you're going to need to wrap up, thank you very much. >> mr. alexander. >> thank you. may it please the court, i represent the united states. to get the question that was just asked, if this were too go to the supreme court, the issue would've been ran. the supreme court decision that held and specifically said that courts should not try to distinguish between more important and less important violations that would justify an investigatory stop.
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>> would we make of hensley. >> in deciding whether a stop is authorized, we have to balance the nature and quality of the intrusion, we've all heard about the details of that here on personal security against the importance of the governmental interest alleged to justify the intrusion. what are the governmental interest that justify this intrusion on the occupants of the vehicle? >> the government interest is to enforce the law that they were investigating. >> the parking. >> well it's interesting, i want to clarify something as well. they are saying parking is prohibited, but the statute is very clear. it says no person shall stop or
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leave your vehicle standing. it's interesting. why does the statute add that extra, because there are two different concepts in wisconsin law, the ending is different than parking. standing is a temporary holding of your vehicle. that's how the statute defines it. to pull up to a stop line, you have temporarily halted your vehicle. parking is holding your vehicle whether temporary or otherwise. so typically you think of someone pulling their keys out of the car, walking away, coming back. >> what about when two people are in a car and maybe you're driving with your wife or something, you stop next to a store, she runs in to get something. is that violating a law by stopping for a minute so someone can run in and buy something? - i don't think my wife.
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>> is that a violation of law or not? >> yes, it would be. >> that's ridiculous. >> if i pull up to a store and let my wife get out, when she is opening the door and walking to the store, yes that is permitted because the statute said you can leave your vehicle standing if you are actually engaged in the receiving or discharging of passengers. once she's in the store, the doors closed, i can't just stay there. >> you can't stay there forever, obviously. >> i can't stay there until she's finished shopping. >> what you supposed to do? >> pull forward eight or 9 feet and part were supposed to. >> what if there's not a parking place in the area. >> everybody is doing the stopping, letting someone out for a minute or so. >> yes, that's right.
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if i were to pull up to this crosswalk, let her out where the snow was not add so she could walk into the store and go in there and shop, she would close the door and i would drive forward. i couldn't just stay there until she was finished shopping because that's what the law says. no person shall leave their vehicle standing. the question that's unanswered. >> unless you're loading and unloading. >> that is correct. given that the parking prohibition in this case is generally enforced by the department of public works, not the police, that it can only result in a $30 fine and no criminal liability and cannot be the basis for a warrantless arrest, isn't it clear that the
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government interest in this case is really minimal, and where it's so insignificant, how can any intrusion be reasonable when the less intrusive means of enforcement was not even attempted first in that the officers did not simply approach the vehicle but they immediately seized all these occupants. >> i think part of your question is answered directly by the unanimous supreme court in rent. in ran it was an undercover officer who was attempting to pull over somebody for a civil traffic violation. >> remember in ran, the supreme court says there was actually probable cause. now maybe high-end downshift to reasonable suspicion that the backdrop against which the court wrote all of that was one in which the officers had probable
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cause. >> that is correct. they had probable cause. the magistrate court found there was probable cause, but the police manual said the undercover officers typically were not supposed to be making traffic stops, only in emergency or urgent situations. that didn't matter to the supreme court so it shouldn't matter here. >> so your argument is the level of the government interest makes no difference. if, in downtown chicago, all of the police decide we really need to crack down on jaywalking so were going to arrest and frisk every person who we think is about to cross the street without the little white light that says you can cross so we can all just be stopped now, that's fine with you, even though me because there's a law that says don't jaywalk, up to and including somebody who is planning a murder, but you think the government interest means nothing.
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>> let me answer this way. in ran, the supreme court says courts are not generally supposed to be balancing because it would be apparent because like you said, when there is probable cause for the stop, that's when extraordinary circumstances, courts shouldn't be balancing. >> but the thing is, what worries me about your position aside from the fact that it seems to give the police a blank check to stop anybody at all times for no reason at all, but the other thing that worries me about it is that if there is no correlation between the level of force the police are you allowed to use and the significance of the government interest, the police could have shot out all the tires of this car, they could have tossed a grenade into
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it, they could've done anything and as far as you're concerned, that doesn't matter. whatever level of force they want is all fine. >> no that's not my position. in extraordinary circumstances like that. >> the lights, the stoplight. >> , how would you feel if all of a sudden you're surrounded by police cars and these lights are flashing, those people would be very upset by that. >> the squad light. >> what reason do they have, is there no other way for them to find out what's going on, one of them could've walked into a liquor store to see what was going on. they could've driven around the block. they could've sat there for little while waiting for someone to come out of the liquor store. why did they have to act with
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such excessive force? >> the spotlights were used to see who was, if there were people inside the vehicle, and how many. there's no claim that that was unconstitutional. for randy johnson's perspective whose fourth amendment interest interest -- >> so you think that's fine, please please go up with their flashing lights at night, looking in to see who's there, maybe there's somebody in there. >> gun versus the united states says -- >> that's not the right way to run a police course. >> done versus united states -- >> you can understand why people dislike the police when they overreach like that. >> the reason why they were able to use a stoplight is because they are able to eliminate what otherwise would be in plain view for anybody walking by. in addition, officer safety is critical here. the supreme court --
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>> officer safety? why don't they just sit in their car on the opposite side of the street and wait to see if somebody comes out of the liquor store. if there's a delay then okay, they should probably go into the liquor store and see if someone's shopping and then they could say look, make a purchase and go back to the car because of sitting there for too long. >> and that's what may have happened if they would've gotten to that point, but the magistrates court finding of fact is very clear. >> all they had to do was, one of the cops get out of the car, cross the street, walked the liquor store, see what's going on, peek in the car if he wants, why is that such a big deal that they have to resort to these flashing lights in their vehicles? >> as to the point of whether
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they should've waited a couple more minutes, there is no requirement under the fourth amendment. >> they can be as stupid as they want, that's your your position. they can't be required to be reasonable. >> my position is based on the whole line of precedents that say the purpose of an investigatory stop is to resolve any ambiguity. were not talking that they don't need to have anything close to preponderance of the evidence to conduct an investigatory stop. >> what's the ambiguity. what did they think was going on ? staff from the liquor store or what. >> there was no and beauty because the car was clearly stopped well within 15 feet feet. >> it was stopped because someone was going in to buy liquor. that is clear enough so what's the mystery that requires this deployment of force of these flashing lights.
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>> two things. the fact that somebody went into a liquor store to purchase liquor, that was not on the record. that's first. secondly, as i said. >> without the obvious inference for car stopped to a liquor store at night. >> i think maybe we better stick with the rhetoric cares. >> so is your bottom line that anytime the police have a parking violation like this that they don't have to wait at all, they can surround the car, they can do that so just the mere fact of a parking violation, they wait just a few seconds and boomed there in there, they can go in and surround the car or do whatever they need to do, is that the rule you want us to adopt? >> given the circumstances that the officers observed here.
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>> they just saw the car was parked for three seconds and it was not within that 15, it was beyond, it was inside that 15-foot perimeter. that was it. that's all they have, they have, three seconds so you can even determine whether it was there to load or not load or anything. that's what i want to know, what kind of rule you want us to adopt because it sounds to me like you're saying it's the parking violation, all they need to do is wait two or three seconds and they can then take further steps to investigate. >> they also saw that no doors were open or close but they also did not see anybody approaching or leaving. >> they didn't have time to because it was only three seconds. >> i just want to to clarify what your position is on this. he said when they make the initial decision to go in with the two cars, they do not come at that point have enough of a site line to know whether there's anybody sitting in the driver seat, whether there's anybody in fact inside the car. they make make the decision to
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surround the car and it's only then when they get out that they see there's nobody in the driver seat, there are other people. is that your understanding of the record. >> that's correct. >> they saw that the vehicle was on. >> they know is running, but for all they knew maybe there was a person sitting behind the steering well. >> yes, they saw the vehicle was on. >> so you agree agree those are later developed faxed. >> yes. >> and on the point of what they saw, it was very clear on the record, officer conway saw freddie johnson pulling out a gun before anybody. >> but that was after the stop. i think you're right. the stop is okay, according to the findings of fact, officer meet jack conway made those observations. i know there was a contest about that, but that's the fact so
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must the stop is wrong, it's hard to see how the rest of it doesn't unfold. >> i just want to emphasize that point because much is made about excessive force. officer conway, let me put it this way. from randy johnson's perspective whose fourth amendment interest we are concerned about, he is sitting in the middle row of this suv, sitting by a window, he observes a squad car pulled up next to the car, he might see the other one behind it, he probably notices a spotlight shining in and that last seconds before officer conway sees him pulling a gun out. this is not an excessive display of force. :
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that the officers can just go down car by car and commend everybody to get out of the car. it might be violating the law after all. might be parked illegally because the meter expired. >> if somebody come if they observe somebody violating the parking law they can certainly stop them for a long enough period of time to write a ticket. >> you're saying they can also order them out of the car and they could also block the cars access to the road and they can also perhaps take other forceful measures. >> maryland person wilson escorted on point. >> in the special context of traffic stops, we obviously have special rules, the supreme court
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has developed special rules as in wilson for moving violations. and to stretch those two parking practices is something the supreme court has never done it at have to i probably said in the panel dissent, would really be an extranet extension in terms of what could happen on the streets of our cities. >> i don't think, first of all i don't think it would be an extension of brand at all. i don't think so at all. every federal circuit that has considered the issue has held that rand applies to parking violation. if we start doing come if the courts start doing what rand directed courts not to do what just try to distinguish between what's more important and less important, we come up with unworkable standards and the statute -- >> what do we do with hensley and the general reason was standard which tells us to worry about government interest. what i'm suggesting is that
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analysis takes a special tone, a special cast, a moving violations as in rand and extended to a lot of situations with traffic stops here but a more fundamental approach under the fourth amendment that is protective of individual liberty and privacy, we say that we do not want to go into the snare that chief judge would just describe god with jaywalkers are people sitting parked cars by expired parking meters. >> i think what would happen, if this car was operating, stopped and it wasn't a license plate or a registration was expired, the office would be able to didn't conduct an investigatory stop pursuant to this courts precedent. so the fact that it is moving or not moving doesn't matter for equipment violation. this court upheld an excessive
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crack in the windshield. if the person is operatively and happens other car stopped and they notice a 10-inch crack in the windshield, this court has held that they could do an investigatory stop. moreover,, this particular statute as indicated earlier prohibits parking and standing what are two separate concepts under wisconsin law. standing is treated as a moving violation. party as a nonmoving violation. if we try to draw the distinctions and become the first federal circuit court to do that we will come up with all types of unworkable texts that just will not be clear when the violation is serious enough or not. and so that i think this court should take it into account. the sixth circuit case, the ninth circuit court on this issue also is instructive. those are clearly parking violations. the questions asked were was it a traffic collision under the state law and whether the
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officer had authority to investigate or enforce that law. the answer to both questions given those particular states statues was yes. the affirmative responses were the same, it is a yes. this law is a state statute under chapter 346 entitled rules of the road. the same chapter that governs stop light violations, laying deviations, other traditionally other traditionally understood traffic violations. the state of wisconsin treats this as a traffic violation. and the officers clearly had authority to enforce it. so following the reasoning of copeland, this court should likewise not try to embark on the exercise of distinguishing between what's more serious and less serious, particularly here when the statute and within the very chapter of the wisconsin code regulating traffic regulates violation. >> so could jay walking beating a traffic violation?
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>> i don't know for sure. i would think not. >> why not? >> because -- >> it's a very dangerous. you have jaywalkers, cars screech to a halt. >> i don't know -- >> jaywalking interferes with smooth traffic management. >> to answer your question directly i don't know if wisconsin law treats jaywalking as a traffic violation or not. >> i'm just saying it could have spirit if the officer were to stop somebody, would be a significant difference. they would be able to see the person in front of them. it would be able to see their hand. not so winter conducting even a minor traffic violation. as marilyn versus wilson, the supreme court decision they just despicable of an officer were killed. over 5700 were assaulted in traffic related stops or pursuits. that's wilson, 1997 case
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deciding from 1994 but it illustrates something that at least i don't often consider. when officers pulling out there facing an inherently dangerous situation. they can't see peoples hands. that's why the supreme court has said that the officer should take unquestioned command of the situation for their safety. they could direct passengers who are not committing any violation whatsoever out of the vehicle for their safety. the officers here never even got to the point of ordering randy johnson out of the vehicle because he immediately showed the officers that he was trying to hide a gun. that completely changed the landscape. so with a few seconds he was, the few seconds he saw squad car and some lights, that was the level of intrusion on mr. johnson fourth amendment interests were talking about. ordering them out of the vehicle which would've been a much greater intrusion, and that is specifically allowed under the supreme court in marilyn versus
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wilson. >> do you think courts should simply ignore the seizures in this case that are targeted towards only certain populations? you know, here residents of high crime, low income areas are utilized to pursue the interest that someday seem to be unrelated to any concern with parking violations? and when you systematically in that manner, shouldn't we at least refuse to extend rand to such situations and prohibit seizures in which the parking violation certainly seems pretextual? >> so you're asking the question about the race is the question? >> about the neighborhood, et cetera. >> at the supreme court
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unanimous court addressed that very question. they discussed it. and they said, because that was a concern for any traffic violation, unregistered license plate, cracked windshield, whatever it may be, that is a concern. the supreme court unanimously said that that is an equal protection violation. no question, if someone is enforcing the law based on race or investigating based on race, that is a violation violation of the constitution but that -- >> have any successful cases can you think of at a pursuit that theory? >> i don't know. >> that was my next question. >> i don't know the answer to the question but what has been clear is that the supreme court addressed that very question and unanimously said it doesn't matter in the context of the fourth amendment, the subjective intent of the officers is out of bounds for regard to the fourth amendment. the question is what objective facts they observed and whether those objective facts leads to
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probable cause or reasonable suspicion to believe that there might be a traffic violation occurring. >> with regard to balancing bali think it is also instructive for the supreme court doesn't seem to be backing away from rand but seems to actually be embracing it. the high indecision recently demonstrate that. they are the supreme court upheld the stop of a vehicle when the officer was wrong about the law. the officer thought that if one brake light was out, rather than to come that would be a violation of north carolina law. the officer was wrong about that. the court said so long as the mistake was reasonable, the stop was to permit it. there was no balancing of the government interest in this mistaken understanding of the law that the officer was trying to enforce versus the intrusion of the persons liberty when he
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received for the officers mistake in violation of the law. rather, the question was simply whether the mistake of law was reasonable based on the observations of the officer. so the supreme court, and that was a reasonable suspicion cas. answer the supreme court despite the reasonable suspicion case, did not do the balancing of the appellate infighting is core to do. to look at the seriousness of this particular violation versus the intrusion upon the -- >> the question question, how mo they really encompass and how much are we being asked to push them beyond their original boundaries. is the question whether there are actually any meaningful limitations on police behavior and this? i think it's an argument that the answer it really know. we just have to have good and trustworthy police officers speak i think the answer is yes. there are extra ordinary cases. that would invite the balance.
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>> is that 1% of cases? the rest of the time since this is an objective test and subjective motivations don't factor into it, there's really no limitations. >> i think the examples you gave would be limitations. if the officer shot out all of the tires, threw a grenade in, extraordinary. those are examples you raised earlier. those of the extraordinary. that would be something that rand says we should look into. but the typical traffic stop isn't, that isn't the case. and the fourth amendment doesn't specify how many officers are supposed to have enforced a a parking violation. >> it calls for reasonableness. >> and so if we went down that path and say one squad car instead of two or four officers instead of five, in this particular circumstance are
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permitted, we would create an unworkable rule that would not give guidance as to when they do. >> the issue is less the number of officers or cars as the show of authority that makes it clear that nobody is free to walk away. and that's really the critical point it seems to me. we have a seizure. was there a foundation for it? and so thank you. >> and i agree. the seizure here, the show, the showing that they were not permitted to move prior to randy johnson showing the gun was the following. two police squad cars make a left-hand turn. they pull up to the car. the officer, due to an out-of-court? know. did you jump out of the car? no. he approached the vehicle and before officer conway, he testified to this. as he is getting out of the
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squad car he observes randy johnson with a gun. he's not even completely out of the squad car. >> those are not the findings. the findings we are left with, he saw movement come he thought what he thought it would be, turned out he was right. the critical point is, that is the seizure of everybody in the car, including johnson, and the question is what is the factual legal foundation for the seizure? that's the focus. >> and for the love of the seizure what i'm saying is when randy johnson completely changed his fourth amendment interests, when he was observed with a gun, that occurred as officer conway was getting out of the vehicle. he wasn't, he was just approaching the vehicle. >> would you agree he was seized already at the point? >> for a few seconds. yes, he was. >> what is your best argument that god would have been discovered at the seizure had a less aggressive, in terms of fax? we don't know whether he had the
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gun in his pants, under a coat or anywhere that an officer couldn't see. how do we know it's inevitable? if it'd been a less aggressive seizure. >> if the government did make that argument. i think the panel, i think the the decision about though is justified and can be reasonably inferred from the facts that randy johnson upon seeing the police come his first reaction was to get that going off of his person. that was his first reaction. he didn't, it's a whether it was one squad car or to squad cars or three officers on one officer or an officer commitment flashing a light in, one can reasonably infer from his record he would've done the same thing, tried to get taken off of his person. >> supposed there hadn't been a gun, what would have been the next depth? >> the next step would have been to ask why are you stopping? officers testify to the fact that if they would've said somebody is in the store shopping, i think the option then the office of database
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either to issue a citation for illegal standing or similar to just move forward eight feet and i'll give you a warning and be on our way? to goodman over in a matter of a minute or two but randy johnson didn't even give them a chance to ask that simple question. >> you said, i think it says one of the occupants had a driver's license. which occupant was it? >> i don't know speak somebody other than the driver? >> yes, that's correct. i see i'm out of time. unless there's any other questions, i will rest on the government brief and asked the court to affirm the district courts denial of the motion to suppress. thank you. >> all right. thank you very much. you more than brett out of time but it was because we're asking you 1,000,000 questions. if you really want to take one minute ny minute only, i will give it to you. >> i appreciate that.
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i will keep it really short and less to our questions. i would just ask, i know it's probably late, thanks giving weekend but i filed a letter on monday addressing the governments concerns. i think he's wrong on whether not there's a parking violation or a moving violation. i said it at -- traffic violations, leaving being the only one. i think we're pretty from on this point. this is a parking violation. there's no reason to and allies it as anything else. thank you. >> we thank you very much. thanks to the government as well. the court will take the case under advisement and will be in recess. >> c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable-television companies and is brought to you today by your cable or satellite provider.
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>> this week on c-span2 its booktv in prime time each night.
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>> afghanistan spambots or to the u.s. spoke at the heritage foundation last week about the incoming trump administration and use military involvement in afghanistan. after his remarks a panel discuss at the future of use policy in afghanistan. [inaudible conversations] >> good morning. thank you for joining us are at the heritage foundation and on lewis lehrman auditorium. we appreciate those are joining us on the heritage.org website. for those in-house we would ask if you would make that car to check that cell phones and other mobile devices have been silenced as a courtesy to our speaker. and, of course, we will post the
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heritage program on the website following today's presentation as well. lately our discussion this morning and opening a program we are pleased to have the present at the heritage foundation senator jim demint. senator? >> iq, john. welcome to all of you to the heritage foundation at the freedom center here in washington. we are delighted today to welcome the afghan ambassador to the united states, his excellency hamdullah mohib. he is here to kick off a half day event the future of afghanistan under a trump administration. i guess a trump administration. excuse me. as the war in afghanistan is now 15 years old, it's no time to lose focus on the future of this nation. in 201 2015 we at the heritage foundation are pleased, we were pleased that the white house
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finally agreed to reconsider the timeline for withdrawal of the u.s. forces. we were even more pleased when president obama agreed earlier this year to maintain current u.s. troop numbers for the duration of his presidency. it was something that the heritage foundation had advocated for for a good while. we are of the firm belief the next administration should determine its strategy based on conditions on the ground in afghanistan rather than on political timetables in the u.s. it's important that the afghan people know the u.s. will stand with them in the fight to ensure the country never again turns into a safe haven for global terrorists. were we to leave afghanistan permanently, it would send out the signal we do not have the moral fortitude to see through what we believe to be a matter of national security. the impact of this would be felt
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beyond afghanistan and throughout the world for it would extend across the region into the middle east and north africa in one direction, and southeast asia in the other. the u.s. and our partners have sacrificed greatly in afghanistan. more than 3500 u.s. and allied troops have been killed since 2001, and since they have taken the lead in the security operations, afghan security forces have shown their mettle and they have suffered greatly. more than 5000 forces of afghan troops and police were killed in action, and over 14,000 were wounded in 2015. and there were reports official figures for this year maybe even higher. our continued support whether it be training, advising, equipping or funding the afghan forces is crucial. now is not the time to turn our
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backs on afghanistan or the afghan people. before i turn the floor over to our honored guest, let me tell you a bit about his background. before being appointed ambassador to the united states, he served as deputy chief of staff to the president of afghanistan. he has a and a bachelors degree with honors from brunel university in the united kingdom. before joining the government, the ambassador work for the american university of afghanistan and intel corporation. he's been an active leader in civil society among the global afghan community, has carried out excellent charitable work for his own country and is a published writer on afghan politics, as well as academic research. there's no better representative of afghanistan to the american people and we are honored to have him here at the heritage foundation today.
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mr. ambassador, please join me. [applause] >> senator, thank you for this kind remarks and for the introduction. i'd like it will be begin take a moment to honor the sacrifices of the both american and afghan troops have made for joint effort in combating terrorism, not just for afghanistan but for the entire world. so i would like to thank those who served in afghanistan and i would also like to thank their families who are also taken that burden with us. this is the joint war, joint effort. we are fighting joint threats, and i'm glad to see that we continue to be able to make sure that no one makes, sandra makin, that afghanistan ever becomes aa safe haven for terrorist groups. with that said i would like to thank the heritage foundation
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and lisa curtis for organizing this very timely event. this is a remarkable time to be in the united states. a new administration with the bold, new ideas is about to enter the white house. in six weeks a new president will inherit the responsibility of america's role in afghanistan. unlike his predecessors, president trump will be working with a country that is already two years into our transformation decade. we are at the start of an unprecedented 10 year journey, out of door and into era of stability and peace. we could not have begun this turn if the united states have not been a foundational partner to the afghan people for the past 15 years. already we are closer to our goals of self-reliance, security, poverty reduction, clean governance, and regional
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economic integration than we ever were. i'm delighted to represent afghanistan in washington at this moment in history. i echo president rouhani his optimism that 2017 will bring closer cooperation between the united states and afghanistan, and greater progress on our shared national security interests. for 15 years the united states and afghanistan have joined the pursuit a shared goal in the name of keeping our two nations safe to harm. eliminating international and regional terrorism from afghanistan. in pursuit of this goal, both our peoples that sacrifice the north blood and treasure. we also recognize that sacrifices of our other international partners. both our country and our international partners are weary of this fight, and want nothing more for it than it to be
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finished. one decisively by the forces of good. i don't need to tell you that we are not there yet. as the trump administration considers how america engages with afghanistan and how it fits into their foreign policy and national security goals, one overriding fact is indisputable. the rationale for u.s. involvement in afghanistan remains as urgent today as it was on september 11, 2001. as general nicholson pointed out earlier this month, to quote him, out of the 98 u.s. designated terrorist organizations, globally, 20 of them are in the accpac region. ..

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