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tv   Holt v. Hobbs Oral Argument  CSPAN  November 25, 2014 11:11am-12:15pm EST

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strict scrutiny -- when deciding what was required by strict scrutiny context -- >> there are two questions there. one is a good question. with does this idea of deference come from in this context but the question i was asking is assuming there is a role for deference, how does it fit together with what the statute expressly requires? >> i don't think there's any dissidence between the idea of strict scrutiny which is not a degree of proof required. it's whether you identified a compelling interest and shown that the burden is least restrictive means. that can be shown by a preponderance of the evidence. based on the fact they are charged with protecting the public and administering these prisons. when they provide a reasoned explanation based on experience and expertise, they don't have to point to a specific example of a half inch beard in the past resulting in something horrible -- >> i share justin alito's
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confusion on this point. all the things you're talking about are things we would never allow in the typical strict scrutiny context. you know, all this kind of, well, as long as they say something, they don't really have to prove it and it just has to sound kind of reasonable. that's the very opposite of strict scrutiny generally. >> well, in this context, the statute doesn't say strict scrutiny. >> it sounds like -- >> it's similar but remember this court in cutter has recognized that the application -- what you might broadly label strict scrutiny depends on context and in congress when they enacted laws understood these two concepts could be administered together. >> do you think it's the same standard in both of those statutes? >> for the large part, yes. i want to caveat that because -- >> the language is completely the same. >> yes, but in -- most of the language is completely the same.
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the standard is the same. but in one there is an additional profession that requires that the terms of the statute be broadly construed to the maximum extent possible to protect religious -- >> but i thought we actually used that in the recent case to suggest something about rfra. >> that's because rfra definition of religious exercise incorporates the other definition. it's conceivable the court might have a broader -- >> mr. yang, before you sit down, your brief lists a whole series of cases on page 14 that were decided before rluipa. are all those practices which we approved up for grabs now under rluipa? there were restrictions on receipt of publications was one. >> i think the analysis is different now. it could be litigated.
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any of these claims could be litigated. the state would then have the burden of coming forward to show that the restriction would, in fact, be a least restrictive -- >> so all those we approved, correspondence limitations, all those would have to be looked at anew under the standard? >> i think that's right because if you were to go back to pre-rluipa case law, no one would doubt that a state could, in fact, prohibit a half inch beard under the prior constitutional standards, but congress has set a higher bar and it imposes upon states the obligation to come forward to explain and justify it. now -- >> where are you on the full beard? >> on the full beard, i think there might well be a
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difference, but, again, rluipa depends on a showing in litigation by the state that the means selected is least restrictive means. a state may well be able to show that a full beard would run real risks that are just not present in the half inch beard that we have here. >> assuming that's the case, assuming they have some evidence of concealment or whatever in a full beard, what do we do? just litigate a dozen cases until we settle on 1 3/4 inches or what? >> i think -- >> what i'm doing -- it's the same question i asked -- >> there's not -- >> what's the legal principle and if there is no direct legal principle, then isn't it a situation in which you would employ deference to the administrative judgment? >> i think that's exactly right, that there's going to be a bound, a range of reasonableness that courts will find appropriate to defer to predictive judgments by expert officials in various contexts. >> can i ask a similar question but, you know, lots of religions, including lots of
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religious of one, have dietary codes of various kinds. suppose a lot of prisoners say here is my dietary code personal to me and all of that costs money and let's stipulate as prisons have to spend money on that, they have less money to spend on things relating to internal security. how is somebody supposed to think about those kinds of questions where it's just every time somebody makes a religious claim, the costs to the institution goes up and the ability of the institution to deal with security issues goes down? >> well, maybe not necessarily always the second. certainly you can have costs going up. it may not necessarily affect the -- >> but i'm -- they come out of some place. >> at some limit that's true. i mean, we all operate under a real world with limited costs and as the court recognized in cutter -- >> how do we do that?
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>> excuse me? >> so how do we do that? >> i think again it's going to depend. if the factor that is would be relevant is the context. does the increased cost prejudice other types of interests in operating the prison. that would have to be articulated by -- >> wait a minute. i mean, so vote more money. all you have to do is raise taxes. we're talking here about a compelling state interest. bear in mind, i would not have enacted this statute, but there it is. it says there has to be a compelling state interest. and you're asking, let's balance things and be reasonable. compelling state interest is not a reasonable interest at all. >> it's not me, your honor. i think it's what the court actually recognized in cutter. the court in all quotes said the act needs to be applied in an appropriately balanced way with particular sensitive to security concerns and that accommodation must be measured so it does not override other significant interests. >> thank you, counsel. >> thank you, your honor. >> mr. curran. >> mr. chief justice, may it please the court, arkansas's
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security objectives are undermined by the petitioner's half inch beard because he could use it to alter his appearance, thwart identification, and conceal contraband in our maximum security -- >> altering appearance, i thought it was conceded that at intake the prison could take a photograph clean shaven. >> your honor, that is not on the record. i concede that that was not sufficiently addressed to withstand the summary judgment posture in this case. the record testimony was just -- i agree with professor laycock it wasn't satisfactory. let me get to -- >> i don't understand what you just said. >> well, there's two points in altered appearance. one is identification within the prison itself and i want to get to that in one second. one is a post-escape scenario. where you're looking for the inmate. our testimony on that was not engaging in the question. there's no record testimony regarding that. so let me get to identification -- >> why do you need record testimony on a question such as that? if you're claiming if he escapes he can shave off his half inch
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beard and thereby alter his appearance and the response is, well, just take a photograph of him before he grows his half inch beard, why do you need evidence on that point? it seems to me it's obvious. what prevents you from taking a photograph before he grows the half inch beard? which can then be distributed to police departments if he escapes? >> i agree, your honor. there are -- >> it's not an evidentiary matter at all. >> the point of identification within the prison though is an evidentiary matter on this record. and let me get to that because it's very important to understand this in our prison's unique environment. shaving a beard can enable an inmate to get into an area where he's not supposed to be in. that's a joint appendix page 104
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and that a beard can enable an inmate to deviate from an inmate's appearance on an i.d. badge, and, of course, a beard is one of the quickest and easiest ways to change one's appearance. that's on page 97 of the joint appendix. of course, the grooming policy itself speaks in terms of maintaining the standard appearance throughout the period of incarceration. let me explain a minute why this matters in our prison's unique environment and why we're different because it's a very important point here. the testimony on the record, page 101 of the joint appendix, was that we have a very different situation with barracks housing and inmates going outside the fence in large groups of 30 to 60 per barracks unit every day. it's a very high traffic maximum security facility where they come out of a large barracks holding 30 or 60 inmates, go out, and come back. there's a lot of traffic.
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in that environment rapid and accurate identification of the inmate by his face, his i.d. badge and the like, but also general familiarity with the inmate is very important in that process. and if a mistake is made, an inmate could get into the barracks where he is not supposed to be in and an assault could occur. these are separated by enemies and the like and that is very serious in our environment. it was made on the record and it differentiates arkansas from every state mentioned by the petitioner and the united states. >> but you have no example of that ever happening. >> i have no example of a -- well, let me say this. in our brief on footnote 13 and on page 26 of the 18 states amicus briefs there are examples. there are no -- >> examples of what? of interprison identification
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problems. in the prison, a beard being used to thwart identification, and -- >> do you have that same concern with the prisoners who have a very short beard for medical reasons? >> no, and let me explain why. there is confusion about what this so-called medical beard is. there is no exception of practice of a quantitative matter for medical beards. it is a means of shaving exception. our policy changed to reflect our actual practice about a year ago. what the practice is is that when a doctor's order says a person has a dermatological condition or some other scarring or skin condition that needs a shave they use barber style clippers, electric clippers, without a guard and they're used directly on the skin, and the result is a very clean shaven look. not quite as close as using a tamper resistant safety razor that other inmates use, but it is a very clean shaven face. the clippers are kept in the
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barber facility and a couple days -- >> how long are the whiskers when that is done? >> so they may take barber call maybe twice a week. so they will have a clean shaven face and then go a couple days, three days, and then go back to the barber facility. >> are you saying they're completely clean shaven? >> i am saying they are -- what is clean shaven? some would say a razor -- >> clean shaven is somebody like you. >> i would say that's -- i have got a fairly dense hair but that's the appearance immediately after. >> and that would satisfy the medical problem? >> that's correct. >> to be shaved that closely? >> that's right. the doctors prescriptions invariably are getting a clipper shave and that brings a second point up, your honor, the policy's rationale is follow doctor's orders and we think that is fundamentally of a different nature than a religious reason because the eighth amendment law of deliberate indifference and the
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like admits of no countervailing security interest that come into play. our policy is we follow doctor's orders and that's the end of the matter. under the medical -- >> are you telling us that the quarter inch is wrong? i thought that that was in the record as a given, that a quarter inch is allowed for medical reasons. >> the policy states that, your honor, and it's confusing. in practice there is no quantitative quarter inch rule for beards. there's clean shaven that's allowed some length to go to the next barber call. you can still see the skin the entire time in that scenario and if petitioner wanted to avail himself of that accommodation, we would let him do that. >> what about the argument that it's, never mind the least restrictive means, you have no comparable rule about hair on one's head where it seems more could be hidden than in a beard where you hide something in a beard, it might drop out. >> the material difference there is our professional difference
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is the disguise component of a beard and shaving a beard is more than that on the head. yours is one to contraband. there's a length and gravity component to a head that's different than a beard for sure. the risk is still there. there is an interest in regulating the contraband element, but the head hair doesn't pose the same disguise related problem as a beard. >> why is that so? are you saying somebody with or without a half inch beard, that's a bigger difference than somebody who has longish hair versus the same person with a shaved head? >> in our professional judgment it is, yes, that's correct. because you're looking at the essential features of a person's face, the jaw lines and chin, and that's the means by which we identify each other, so that is a significant difference in our view and really the head hair policy complements the facial identification policy because
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it's not allowed to get to a length that could obscure the hair and that's the rationale for that. >> mr. laycock characterizes your position as being all deference all the time. so i'll give you an opportunity to say when would deference be inappropriate? >> deference would be inappropriate when the explanation offered on the witness stand in the record of compelling interest and the least restrictive means is neither comports with logic or common sense. it sounds like we're on agreement on that. justice sotomayor asked which lower court decision would lend the most guidance. i think a straightforward but apt analysis is in the couch case in the fourth circuit where judge traxler joined by justice o'connor and judge shedd went
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through the initial obligation is to explain the reason and common sense why that approach furthers a compelling interest and a least restrictive means, and once that happens, deference attaches but that doesn't mean either that you win the case. it just means you have substantial weight. you're sort of a thumb on the scale so to speak and more evidence can come into play and you can still lose. >> can i go back to just so i'm clear in my head, is it two compelling interests, one in identification, one in contraband. >> that's right, justice sotomayor. >> is there a third or a fourth or are those the only two? >> those are the only two we're talking about. in this case the magistrate judge said it's preposterous to think you can hide something. so you don't have a security
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contraband -- >> let me take on preposterous if i might. if you look at the written findings, there is no such finding. in fact, the finding was to the contrary. i believe it's on page 167 of the joint appendix. the magistrate judge says the testimony about small bits of dangerous contraband is the most compelling in the entire case. then if you go back and look at the verbal musings from the bench, the judge sort of reflects a layman's view of, well, the idea of contraband in a half inch beard seems almost preposterous and then the next paragraph he says, well, then i heard the experience of highly experienced correctional professionals and they made me change my mind. he used the word impressed. the word impressed is 155 of the joint appendix. i think what you see here is a judge doing what judges ought to do which is come to court with their layman's understanding of how things work and then hearing this testimony -- >> it is somewhat hard for me given what you just said to figure this out because there may be in my mind some situations with some prisoners where a half inch beard won't hide anything and with others
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that it will. doesn't this law require you to consider the individual before you and to accommodate them in the least restrictive way? so let's assume what the magistrate judge meant, which is what i assumed, you have a different read, that it's preposterous to think this prisoner could hide something in his beard but not preposterous to think that others might not be able to do so. assume my hypothetical. >> right. the question -- you pose a question i think, justice sotomayor, is whether the warden needs to do some sort of hair
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analysis of -- >> no, no, no, no. my question is one of whether you're obligated under this statute to look at the request of the individual and assume that the application of whatever rule you create can't have an exception as to that individual. >> on this testimony, your honor, you pointed out the testimony was a half inch beard, you can't see the skin. i think that's a functional difference, and we've got to think of how to administer a rule where to the person that that level of granularity is just not functional. >> yes. but i don't know given the deference that was given here of the question, was it applied too broadly? what i'm getting at is does a court have to look at the individual request and figure out whether it can be accommodated in the least restrictive way. >> yes, i think it's fair to say that if the court actually did say it was preposterous, saying it defies common sense -- >> in this case. >> i think that's right, but i don't think that's an accurate finding of what the magistrate judge says and i think that's a problem whip that rule is not administratable.
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easier to say how about an eighth inch of beard where in all scenarios you can't see the skin. if he asks for that kind of accommodation, we would grant it. but he's not offered that. he's offered a half an inch, and he's got a very complex lesser of evils type principle. >> on the change of looks, i'm still not sure. could you describe in more detail. i obviously missed it in the record. what is this barracks situation? where do they go when they leave the compound? >> so they're in a barracks situation. they have 30 to 50 or so in a room, and there are four barracks on each side of a common roof. they go out and get in a line and different shifts and they go out and they will go to chow and then they will do their business and they'll go out and work outside the prison fence in fields and they will come back again. it's a very high traffic environment. >> are these unprotected fields?
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>> there's guards there watching them. they're not just out working alone, but there's no prison fence there. it's up to the guard to keep up with them. what you have is an environment which on this record on page 101 of the joint appendix is we're not like california, we're not like new york. they have cellblock housing, and there is no instance in which the government or the petitioner has said -- challenged that as to maximum security facilities. that's a big difference in the nature of how our institution runs. we think deference means anything -- it means you don't have to copy the prison policies of other states who don't even have the similar security concerns. >> did you establish that arkansas is unlike all these other states, that the other states don't have barracks, they don't have people going out to work in the field? i thought that that was not so, that there are other prisons that operate similarly with housing and having the prisoners work on a farm. >> two things in response to that, justice ginsburg. first is on this record there is only two states offered,
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california and new york, and the undisputed testimony in this record is they're different. your question is what about all the footnotes and briefs to the court, if you look behind all the sources cited on those internet sites, which that's what petitioner mostly uses, and the government uses internet sites and also some case law examples, each one of those was referring to a minimum security institution. they have not offered any institutions line ours. as far as i can tell the only institutions that have something similar to ours have clean shaven rules. >> what about the federal prison system? i thought the rule was throughout the prison system. >> both the government and the petitioner cite a link to the regulation in their briefs and that is to a minimum security status inmates. >> when a prisoner goes out in the field and then wants to come back to the barracks, the prisoner is wearing an i.d., is that correct?
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>> that's correct. >> does it say which barracks that prisoner is supposed to go to? >> yes. and what happens is they trade i.d.s and they trade shirts. that happens even now. >> does the i.d. have a picture on it? >> yes. so the person guarding the barracks, so to speak, the flow to and from the barracks relies on the i.d. and the face, but also general familiarity with who he's working with because that's -- that happens. >> i'm having difficult envisioning the scenario you're suggesting. so a prisoner who is supposed to be in barracks "a" has a half inch beard, has an i.d. that says barracks "a," has that person's picture, goes out in the field, brings a razor with him while he's out there, he shaves. he wants to come back and go
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into barracks "b." how is he going to get into baracks "a" if he has a barracks that says barracks "b"? he will trade with another prisoner? >> they would alter the i.d. -- what happens is you've got very fast recognition and if they favor each other at all -- this happens now, your honor. and the shave would take place probably in the barracks in the morning. when they come back, the person monitoring the flow of 60 inmates through there gets beaten and that happens. >> he has to find somebody who also looks like him from barracks "b." >> i would think that's how that scenario would work but that happens. prisoners are capable of doing a lot of mischief in prison as you understand i think, and that kind of thing happens even now. we have assaults in the wrong barracks because correctional officers get beat. >> one of the hazards is razors. you just said that they can
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shave themselves in the barracks. where do they get those razors and what happens to them? >> we have tamper resistant safety razors that are issued and they keep them in their personal possession and then when they're threw with them they can turn them back in on a one-on-one basis and get a new one if they exchange an old one. >> does your standard -- how if at all does your standard differ from what it would be if we had no rluipa. any case that would come out differently in arkansas under rluipa than under the pre-existing law? >> well, i have to kind of get to the different elements. i think -- i'll talk first about compelling interest. alone credited prison officials' testimony that muslim inmates are sort of getting a good rehabilitative event by not having to go back into the prison for friday prayer because they might as well get used to an intolerant employer when they're out in the free world, that won't pass muster under compelling interest anymore. that was the old standard. and the interest has to be truly compelling. on least restrictive means, we
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think that interests grounded mostly in cost and hassle would have survived under the old regime which had a lot of dietary cases and the like. those probably will fail a lot more often under rluipa than under the previous standard. if incremental, like the yellow bear case, maybe an incremental increase in more staffing ever so slight might say that is required to pass least restrictive means, but it wasn't under the prior standard. i think even a deferential approach grounded in logic and common sense you will have more vigor under the rluipa standard and cases will go the other way more often. >> -- about this whole issue
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about cost and the statute. 2000 cc 3 c which says this chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise. >> yes, your honor. >> isn't it anticipating -- >> it is. >> there might be expense. >> that's exactly right. even within the least restrictive means analysis there's a particular statutory command. now, i think courts are going to have to manage that with reason. we can't have each inmate has his own facility with ten guards around it. there's going to have to be some limit on cost. i don't know that this case implicates much of a cost issue. >> it doesn't implicate the cost issue. >> right. >> i thought earlier that you had pretty much abandoned the concealment justification for the policy. do you still -- and were relying upon the identification
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justification. >> where we think each justification stands on its own weight -- >> you think something can be concealed within a half inch beard. >> on this record, something as small as a sim card which the court found compelling could. i think the identification within the prison is more weighty here. >> as far as concealment is concerned, what is the difference between half inch beard and hair on the head that's much longer? >> well, the testimony on the record was that a common sense view that longer hair is a better way to conceal contraband i think is the right one. the question really is, is a beard an unlikely place? the testimony here is not only can something fit in a beard, but correctional officers very likely will be extra reluctant to do a full search of the beard like they would with head hair. >> i take it there's no example, not a single example in any state that allows beard policies where somebody did hide something in his beard. >> i think that's mostly right,
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your honor. >> we have no example. >> there's no -- >> there's no such example. then do you think it might fit within the language of that report which says that the fear of people hiding things in their beards is, to use their language, was it grossly exaggerated? i mean, 42 states, you know what i'm quoting from. i'm quoting from the report there. the exact words are what they're trying to get at is exaggerated fears. it doesn't even say grossly. would you say it's an exaggerated fear that people would hide something in their beards when in a country of a very high prison population not one example has ever been found of anybody hiding anything in his beard as far as you can tell and as far as i can tell. >> as far as --
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>> do i have that right? >> as far as i can tell but let me make a caveat i think is important which is that just because we haven't found the example doesn't mean they aren't there and the courts -- >> no, there are a lot of things we've never found that might be there and i will refrain from mentioning them but you see them on television on weird programs from time to time. >> the following -- these kind of things are buried in incident reports among thousands of other things and this court in the florence case, justice kennedy asked the assistant to the solicitor general, i thought the evidence of contraband was very skimpy. i was surprised to see there weren't more of this and the attorney's response was these things are buried in incident reports. we can't find all of these examples. it's the nature of prisons, but take my newspaper articles and the court actually, you know, took note of that as confirming its common sense intuition there. and i think that's just a problem in the prison
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environment. >> as far as searching a beard is concerned, why can't the prison just give the inmate a comb. you could develop whatever kind of comb you want and say, comb your beard, and if there's anything there, if there's a sim card or a revolver or anything else you think can be hidden in a half inch beard, a tiny revolver, it will fall out. >> you know, i suppose that's a possible alternative. i think the concern there is there's no perfect way of searching and there's a lot of area there and you're going to have to really monitor to make sure they get all the spots, but -- >> do you really think that would be difficult? to say here is a comb, comb your beard? >> i don't think it would be that difficult. i'm not in the prison environment. it really wasn't raised on my record.
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my clients might think it is. based on the information i have, i would think it sounds like something that could be done. and i do think it's important to distinguish sort of the rule that i would propose and that is -- what i think is very similar to what the government is offering here is really an effort to marry strict scrutiny with deference in a way that doesn't invite empiricism. this court's strict scrutiny jurisprudence hadn't always demanded examples especially in the prison context and i think that's important that we do be allowed to have prophylactic rules in some settings. justice ginsburg asked about what about literature? we have a rule that says racially inflammatory literature of a religious nature that incites violence isn't allowed in the prison. justice ginsburg in the footnote in the cutter opinion seemed to think that, of course, that's a concern that prisons ought to be worried about. that's not susceptible to any kind of empirical proof i don't think, and as i understand my friends' understanding of the rule, we're in a land of strict scrutiny really that's akin to content speech related. we ought to be using after the fact deterrence measures against
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maximum security inmates. they've already shown themselves not to sort of comport with that view of how to behave, and i think it's particularly dangerous in the prison setting particularly in our prisons environment. thank you, your honor. >> thank you, counsel. professor laycock, you have five minutes left. >> on the issue of the written findings, magistrate said it's almost preposterous to believe you can hide anything in this beard, and then he immediately said, but there's a larger principle here which is i have to defer to these people and there were subsequent written findings based on that mistaken label of deference. he said three times i'm constrained by the case. the eighth circuit applied the rule and he gave that level of deference and he made written findings apart from what he had
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actually seen. on the issue of identification inside the prison, prisoners can shave their heads, shave their mustache, shave their medical beards. they don't claim that's a significant problem. the other 43 states do not appear to have found this to be a significant problem. it is a small and manageable problem. on the question of the quarter inch medical beard, the policy is in the appendix to our brief at page 11a. this morning is the first time we've heard what's really not a quarter inch rule, really some other kind of rule. first time we heard we let a religious claimant have a medical beard. they never said that before. and, you know, they had not been able to justify their policy. they do have to prove it,
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justice kagan, if the proof comes close they get deference. if they offer serious evidence, they get deference, but here they offered very limited conclusory testimony, no examples in a situation where there should be plenty of examples. you can't administer a prison and maintain any kind of safety and security if you don't have some sense of where prisoners hide things. they don't have to dig out the data from the files. if prisoners were routinely hiding things in beards, these two witnesses would have known that, would have remembered it from the earlier rule in arkansas, and it would be easy to get examples of that from other states. there's simply no evidence in this record that it's a significant problem. >> what about the argument that there's no comparison, that arkansas is unique in the way it houses its prisoners and that the rules that were cited elsewhere have to do with minimum security facilities? >> arkansas may be somewhat different in how it -- in the number of maximum security
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prisoners working outside in the fields, but that does not make the half inch beard any more attractive of a hiding place. if i'm out in the fields i'm trying to smuggle something back in, i still have lots of better places to smuggle it, including my shoes and my pockets and the lining of my clothes and as mr. curran just agreed, the hair on top of my head. again, there's just not a rational difference between where on the head the hair is located. >> you made a statement just then, mr. laycock, about how to think about deference in the context of this statute. and it's something that still troubles me so i'm going to ask you to expand on that. i mean -- and to say -- just seems like a contradiction in terms. i want to understand how it's not a contradiction in terms. >> there's obviously some tension here, but the legislative history says due deference. cutter opinion quotes that
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legislative history and says due deference to expertise. it doesn't say how much deference is due. that's the question to be decided here. we think the more informed and considered and well explained their decision, the more deference it naturally deserves, the more deference is due, but they have to take some account of the prisoners' religious needs. they have to take some account of solutions that have been found to work in other states. if it's something so dangerous no one would ever try it, then, of course, you wouldn't expect examples, but here 43 states have tried it. arkansas tried it for years. in a situation like that where there ought to be plenty of examples if there's a problem, they ought to be able to produce some of the examples. the degree of deference depends on their consideration of the issue. here there's no indication they ever considered the religious needs of the prisoners in the adoption of this rule. and the testimony is very conclusory, devoid of examples,
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devoid of attention to other jurisdictions. the level of deference cannot be so great as to negate the statutory standard. you have to administer deference within that standard, not substitute deference for the standard and the statutory standard is still compelling interest and least restrictive means. thank you. >> thank you, counsel. case is submitted. next, a discussion ton on the future of nuclear power and then a look at promoting democracy abroad. then a look at the national academy of social insurance talks about the future of social security. here's a look at our prime time programming across cspan networks. starting at 8:00 eastern, a look at how one community in america is handling an influx of young, undocumented immigrants. you'll hear from lynn kennedy of massachusetts who describes how to help with education and
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health services. the center for immigration studies heros this event. at 8:00, a decision on cronyism in government. at california from a hungry minds speaker series in englewood, california. tonight on c-span we'll feature tom harkin and howard coble. this is part of our week-long series. this thanksgiving week c-span is featuring interviews from retiring members of congress. watch the interviews tonight through thursday at 8 p.m. eastern. >> i've often said the republicans do have a legitimate argument here, by the way. in that they're not being allowed to offer amendments. well, they're not being allowed to offer amendments because they filibuster bilsz. they're not allowed -- it's one of those chicken and egg things. best way to get rid of it is to get rid of the filibuster but at
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the same time guarantee to the minority, new rules in the senate, that the minority will be allowed to offer germane amendments to any bill that's on the floor. germane amendments to that legislation. with reasonable time limits for debate. >> the late henry -- i won't even call it, i'll say probably the most eloquent orator in the congress. henry told me one time, he said, i'm not wild about this impeachment but he said, there are 23 american for having committed perjury. he said, how do you justify that and then turn a blind eye to the president? he said, i can't do it. and i'll always remember henry saying that. >> and also on thursday, thanksgiving day, we'll take an american history tour of various native american tribes. that's at 10 a.m. eastern
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following washington journal. then at 1:30 attend the ground-breaking ceremony of the new dip lolomacy center, with clarence thomas, sonia sotomayor. for our complete schedule, go to c-span.org. up next on c-span $3, a conversation on the new start nuclear arms treaty with russia. the under secretary of state for arms control spoke about the treaty at the fulbright association last month. >> good morning. >> good morning. i know can you do better than that. i know it is a good morning.
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steve, thank you very much. he said retired, what is that? as my mother says, you breathe your last breath, then you retire. our theme for the program is dare to act. the theme today is dare to lead. we have all of these dares and i want to take a second to speak about them because i want you to own them, at least own one. dare to act for the conference, dare to lead this morning, dare to impact, dare to include, dare to engage, dare to innovate. now, here's one i love. dare to transform. got it? dare to improve. dare to empower. my work, dare to educate and dare to create. so, how many of these dares have you had as a part of your life?
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think about it. i can run through the list and think about the 100 years i've been alive and i've been daring all my life. what about you? i certainly hope you will help us as we go into a new -- new age of fulbright, being not afraid to do but being committed to dare. yes? wonderful. i spent my fulbright in south africa up. know i came back with many dares. it was the year of 1996 and 1997. as that entire country was changing, not onlydy change, my husband changed, my husband changed, my kids changed, my community changed, extended family members. then i came back to america and said, y'all come. so for about 15 years we took 500 people with us. dare to change, dare to transform. so, those 26 trips totally changed me. but as i said, my entire community and we have center fulbright to say thank you. isn't that powerful?
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dare to transform. and so as we transform, we change our world, yes? so i'm expecting a lot from you. so, as i pump into you in the hallway or the ladies room or coffee hour or whatever, you would need to look me in the eye and say, i'm ready to dare too and you have to speak the next word, all right? i'm going to look at you and you've got to talk back to me. my task today is to introduce two very important individuals. and i am just delighted to have this opportunity to, first, introduce dr. hans blix. he's the recipient of the 2014 prize. we're absolutely thrilled to have him. then i'm going to introduce tom nides. let's start with dr. blix, who is a swedish diplomat and politician for the liberal
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people's party. he was swedish minister for foreign affairs 1978 to 1979 and later became the head of the atomic energy agency. blix was the first western representative to inspect the consequences of chernobyl disaster in the soef union on site and led the agency's response to them. blix was also the head of the united nation monitoring verification and inspection commission from march 2000 to june 2003. he was succeeded by demetrius perkov. in 2002 the commission began serving iraq for weapons of mass destruction. we know the end of that story, right? so, we welcome him and we're so proud to have him as our
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recipient for this year. next, tom nides is a managing director and vice chair of morgan stanley, a leading global service firm. he focuses on the firm's global clients and other key constituencies around the world. and serves as a member of the firm's management committee and operating committee. and reports to morgan stanley's chief executive officer, james gorman. prior to rejoining the firm, he was deputy secretary of the state -- secretary of state serving as chief operating officer of the department. a graduate of the university of minnesota is married with two children. please join me in inviting our guests to the stage.
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>> good morning, everybody. i was going to talk about retirement here and i confess sometimes i get the question, are you going to retire some time? and i'm saying, what exactly do you mean? and then i add that i have done that three times and i'm not going to do it again.
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it's a great honor to give the first speech at this conference. the fulbright association here in the united states and in many sister organizations all over the world represent unique soft power that deserves to be supported by governments. the vast circle of admirers of senator william fulbright is a force permanently immobilized for better international understanding. for the many who, like me, have benefited from the senator's wisdom and program, there is no lack of issues that need to be taken on with soft power. and we should discuss some of them in this panel. i woke up to political conscience in 1945 when nuclear bombs were dropped on hiroshima and nagasaki, and when the united nations came into being. two issues were immediately then placed on the new world organization's agenda -- atomic
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energy and atomic weapons. and they are still there. one crucial question is how we can harness the enormous potential of co2-free atomic energy safely to help countering a global warming that scientists predict could threaten humanity with a slow suicide. the other crucial question, one that senator fulbright warned already about in the '60s, is how we can ensure that the human civilization does not commit a quick suicide by use of nuclear weapons. in these existential issues, two imminent women on this panel play crucial roles to help make nuclear power so safe that the world will recognize it as a viable major way to meet our
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energy needs without emitting greenhouse gases that use the earth's atmosphere as a dump site. rose gottemoelle, department of state, is a key person focusing on the threat of nuclear weapons. she needs to convince the world, especially the u.s., russia and china, that there will be greater security in spiraling down the arms ladder than in a renewed spiraling up. she negotiated the 2010 s.t.a.r.t. agreement that capped u.s. and russia's developed deployed nuclear warheads and carriers and we look to her for continuing the reduction of the piles of nuclear arms that exist around the world. to develop meaningful actions against the threats to the world, we need to understand how they came about. from where did the threat of global warming come.
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well, i go back to the bible that tells us that when man was driven out of paradise for eating the fruit of the tree of knowledge, the lord told him that he would henceforth have to use his own energy to survive. in the sweat of thy face shall thou eat bread. the lord said. well, paradise was lost, as we know, but man developed a great talent to use energy outside his body. fire, wind, hydro, horses. and with explore tags of oil and gas, industrialization became possible. today developing countries, industrialization and an expanding global population result in a steep expansion in the world's energy demand, but some grave problems result. and one is geopolitical. during the 1979 arab oil embargo, access to oil was used
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as political leverage. one way to reduce dependence on oil and gas was then to expand nuclear power as france did. today ukraine is lucky that about half of its electricity is nuclear. it is less jeopardy than otherwise. and this in ukraine despite the chernobyl accident. the second grave problem is the environmental. as developing countries accelerate their use of fossil fuels, we in the industrial world shout, stop, and explain that we have already put so much carbon dioxide in the earth's atmosphere that the climate is in jeopardy already. while this political wrestling between the rich high energy using countries and the poor parts of the world is on, we all seek and look for measures that can result in more effective generation and use of energy to get more miles out of the
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gallon, to get more megawatts out of the same power plant, and to use energy saving insulation and lamps, et cetera. replacing co2 fossil fuels is more difficult. many tell us that renewables of resolution, even though the price of solar and wind power has come down, they remain costlier when the subsidies of the tax bill is added to the electricity bill. they also have the problems for the intermittence. a sailing ship could perhaps stop when there was no wind, but it's harder for a train to stop and announce to the passengers that we have to wait for a while until it starts blowing again. nuclear meets some resistance almost everywhere. and i think the principle cause is the fear of radiation reaching us through accidents or through leaking spent fuel. it is necessary to explain to the public that compared to fossil fuels, nuclear radiation
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has caused little damage to life and the environment. but this is clearly not enough. further improved technology, even better maintenance and operations are needed to ensure that there will be no severe accidents. i spent 16 years of my life at the iea in vienna to help build and strengthen an international regulatory and service infrastructure for the safe use of nuclear energy. it was a productive and constructive work but the heaviest lifting in this area lies with technology innovation and the national regulatory authorities. for a time i was happy to be associated with those who deal with the innovation with those in american company dealing with foreign fuel and a similar company in norway dealing with thorium you may never have heard of it as a fuel but it is the other way of producing nuclear power. this is one type of innovation. but i would like to ask miss
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macfarlane, who will take the floor in a while, if she thinks that some type of reactors of generation three -- that's the reactor coming on the stage now -- and new regulatory requirements will be able to ensure against core melts with emissions into the environment. and is there an expectation that generation four, which is on the drawing board and in some experiments, can bring us unquestioned safety, easier operation, better use of energy of uranium and thorium fuel, and without waste. and if so, when do you think we can get it on the market? now i turn to the need for security against war in a world with nuclear weapons. i start not with the bible this time but with the united nations charter in 1945. it created a seemingly muscular system for collective security. and senator fulbright was very much behind it and encouraged
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the creation of the organization. it proclaimed the sovereign equality of states as a general principle but it was based on the practical knowledge that some animals aren't more equal than others. the central idea was the tooif great powers that wob the second world war would continue, if i may be irreverent, continue with a powerful junta within the new security council to maintain world order. while members were allowed to use force only in individual or collective self-defense against armed attacks, the council was given authority to take action, even armed action, to meet threats and breaches of the peace, and the five members gave themselves permanent seats in the security council and veto powers added to that. it was radical and innovative, but as we know, the cold war
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stopped the junta of former allies to act in unison. under u.s. leadership then nato came into being and the successful policy of containment was developed against any soviet and communistic expansion. and in a relentless race the military arsenals grew with a number of nuclear weapons peaking at some 75,000 weapons in the world. nuclear war was never closer and anguish never greater than during the 1962 cuban crisis. i remember in the cold war, there was a danish poet who i liked very much and he wrote a little poem saying, the noble art of losing face may one day save the human race. well, president kennedy was wise enough to avoid the void that
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mr. khrushchev lost face and u.s. withdrew weapons from turkey. that was the face-saving part of it. the political crisis was formulated in 1984 by president reagan that a nuclear war cannot be won and must never be fought. in today's conflict regarding ukraine, i believe that the major nuclear weapon states will, as in the cuban crisis, seek to avoid getting into direct arm confrontations. mutual economic dependence is an added reason for restraint between europe and russia. and perhaps we should not deplore this as some do, but rather recognize that globalization, including accelerating economic interdependence, is an important factor standing against war. in crises like the ukraine and cuba, the military body language commands most public attention,
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yet diplomacy that is constructive, soft power, and avoids humiliation must provide accommodation and return to peace. in the case of the ukraine, it is of key importance to understand that ukraine must not become a member of nato bringing its integrated military system up to the borders of russia. russia's annexation of crimea and incursions into eastern ukraine constitute clear breaches of the u.n. charter rules and of helsinki final act and they are not excused by earlier western breaches of these rules. yet, when looking for accommodation on the basis for future peace, i think we would do well to remember that the west once saw containment as necessary in the face of a soviet union bent on expansion. in today's russia, many feel a need for containment of the north atlantic alliance that has crept ever closer to russia and
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that conduct's daily naval operations in the black sea, not only north atlantic but in the black sea. if russia, as i think and many think it is naive of me, is seeking containment and respect rather than imperial expansion, there will be many common interests that can and need be pursued, even though a continued authoritarian order in russia will naturally set some limits on the proximity that we'll have. a resumption of serious work on arms control and disarmament is one such common interest. and rose gottemoeller will tell us of possibilities and problems. one major point on her current agenda is well known and i hope and trust she will talk about it and that is seeking further cuts in the excessive nuclear arsenals in russia and the united states by a follow-up on the s.t.a.r.t. treaty. i could generously add many more items to rose's agenda because i
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was the chairman of a commission on weapons of mass destruction, and we had a long catalog of it issued in 2006. and the book is still very valid because so little has been achieved before. on that agenda, of course on the top of it i would place comprehensive test ban agreement that needs ratification of united states and china and few other countries to enter into force. and it should be realized that leaving this treaty in limbo as is now done -- it was once rejected by the u.s. senate -- is now left in limbo has grave risks. some of the countries or one or several of them might come to test weapons. then we may be in for another round or race. so renewed testing by anyone could start a new nuclear arms race. let me conclude with some points about the united nations. despite the iraq war in 2003 and the bypassing of the security council at that time, the
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council has never returned to the paralysis that prevailed during the cold war. many matters are in fact agreed between the five -- the junta -- and a great number of u.n. actions continue to be taken. there are even what we might term some -- i would term -- many resets. corporation on some highly specific issues. let me mention first the chemical weapons disarmament in syria was a product of american and russian cooperation and of course it was bilateral cooperation but it got its legal form and force in decision by the security council and subsequent decisions in the organizations for chemical weapons. in the case of the controversy raiding uranium nuclear program hold talks in geneva and vienna this week and understanding that a draft resolution will be
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brought one day to the security council for legal action. in dprk, north korea, you'll see some of the p-5 working together and trying to find a solution. despite much disagreement and tension between permanent members of the security council, the council is gradually emerging as the authority where action to global legality can often be decided. in the under secretary's thoughts about global security i could ask what you think would be the future use of the security council but i would also ask you about the other two concrete issues about your work to continue, get a new start again and on the comprehensive test ban and lastly about the issue with which i was much engaged, namely, the value and importance of independent verification. we faced that problem in iraq

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