Skip to main content
Internet Archive's 25th Anniversary Logo

tv   Key Capitol Hill Hearings  CSPAN  May 28, 2014 2:00am-4:01am EDT

2:00 am
the counter narcotics, the afghan local police, public protection force, general directorate of police special unit, basically swat. forces, theyse answered to a centralized police force, but to provincial governors, district governors, a tought is organization to try to manage. they seem to make it work somehow. multiple variables, complexities that we often do not understand. need tol that, we also focus on institution building and reform. this is really the underpinnings of all of that operational capability. thatf those police forces, 200,000 person force relies on pay, supplies and food and
2:01 am
facilities to be provided by a minstry. of anthe establishment durable and repeating processes, institutions, a bureaucracy, but a well running bureaucracy. the police forces of afghanistan really need to endure. transitions are occurring within that force. areraphically, the afghans in the lead throughout afghanistan. even as that process started in 1, the police working to point out that in 20% of the districts, the police have always been in charge because neither the coalition or the afghan national army has ever had and it during presence in 20% of afghanistan. art, ande were a mock
2:02 am
always have been in charge of those areas. establishment the of security privacy is increasing. police are still present in every single district and precinct of afghanistan. that is not something that can be said by any other security force. institutionalme, capabilities need to be established between a coalition provided or underwritten to enduring afghan capabilities. a few of those areas, human resource management. that is the key to this police force. they are establishing and taking ownership of end to end processes. they are reforming their own processes to building coalitions that they had not thought of.
2:03 am
it is tough because they do not have an automated system. while it is being implemented, there are still challenges. connectivity, and lamentation, and execution down to the lowest levels. strategy plans and policies, another area of progress. as the afghans themselves, only with coalition guidance, but not capability replacement, updated their national police strategy, their national police plan, and unlike any of the other anss, develop their own planning and multi-your programs. it is important to note that while the ana has superior products in that regard, it is done on a contracted asis underwritten by coalition funding and not an organic coalition with the ministry of defense. there are areas that need
2:04 am
that requireareas a lot of maturity in their process development documentation and implementation. that is everything from financial execution of their budget, acquisition procurement, contract management, as well as logistics, timely ordering, warehousing, and distribution of materials to the operational forces. as well as maintenance of their expensive facilities. while there army has decided to maintain 100 49 garrison locations in afghanistan, the police have to maintain over 1640 permanent facilities for that nationwide presence. it is a different type of game for the police. other areas of progress include police intelligence. they have changed the paradigm. they recognize that police lease
2:05 am
intelligence is not military intelligence. the majority of their actions will be the result of a population willingly providing information to the police so that they can respond when people are in need. other areas are slow and will be time-consuming. gender integration will require cultural changes well beyond the afghan security institutions. an movement to full western-style community policing will also be generational in its implementation. the complete transition to traditional policing roles, the ,stablishment of and during repeatable, and self-sustaining ministerial processes will take time. it will take years to fully implement and mature. it will also be reliant upon the coherent, and
2:06 am
consistent approach of coalition forces supporting their efforts. and the establishment of a comprehensive, achievable, and lesource plan by al international partners. i want to underscore plan as critical. an articulated plan that leads from our current state to our final goal. afghannally, the commitment to that effort will be critical as well is the integration of the ministry of the interior with other aspects of the government at large including the ministry of foreign affairs will do with border issues as well. the issue -- ministry of finance. justice for of justice sector reform. and the ministry of defense.
2:07 am
only when all of these re-requisites are met will we truly be able to transition all capabilities to afghan forces. >> thank you very much. i would like to introduce michelle and ask her to talk about her report. begin, i would be remiss if i did not say thank you for the opportunity to go back into afghanistan again this at some ofally look the aspects of the afghan national police development that i was able to see at the very iginning starting in 2009 and am starting to see come to fruition. for having the vision to look forward and the willingness to project out to the future of the afghan national police in 2015 and beyond.
2:08 am
i agree with all of my colleagues that they are the key to this security of afghanistan. it is critical that we get this right. the afghans know that and they share that. they are preeminent in that sense of importance. i would be remiss if on this day after memorial day that i do not acknowledge the sacrifices of those individuals that have worked over the years on behalf of the international coalition to build the interior and the afghan national police. the sacrifice in terms of deaths and personal sacrifice, time away has been phenomenal when you look across the coalition and on the civilian side as well. law enforcement professionals have played a huge role in helping the afghan national police get to where they are today. their personal sacrifices are but they ared,
2:09 am
great. i want to make sure that we do not forget what this has cost us. it is not dollars, it is lives. my major decisions are embodied in this report, which you all have. i do not have to try to hammer this into you in 12 minutes. thank you for that. i am fortunate because as we sit here today i am one of the few people who has actually conducted a comprehensive security sector reform based assessment of the afghan national police over a period of time. i have conducted with the u.s. government and assessment of this sort that looks at the linkages between policing justice and governance from the policing perspective every year since 2009. it is a sad statement on the degree of continuity that we
2:10 am
have in the international community and our engagement with afghanistan that there are not more people like me. i'm till you are able to sit back and put some perspective on what has been achieved, what are the challenges remaining, what are the gaps that need to be closed? it is tough to be optimistic. i remain bullish on the a and p. i have seen them at a disastrous state. ofave seen a number capabilities increase measurably. not the least of which, their ability to do strategic landing and execute their ability to do strategic planning and afghanistan. 2010, i wasd in asked to help the coalition, up with a strategy to connect the a and p with the rest of the
2:11 am
rule of law, whatever that meant in the afghan context. developmentt police and the lying of operation of security and justice development were in their own minds of operation for governance and rule of law, there had been very little connection between the how these thinking of things all work together. looking at what had happened to 2006,and p around the 2007 timeframe knew instinctively that they had to do something greater than train and equip. we had to do something that would allow us to move forward. i was asked to look at that. i was told at the time that there was no vision for the future of the a and p. i began to engage with afghan
2:12 am
senior leaders. dealing with professional police officers who in some cases had been policing in this country for 30 years through three regimes. they had a vision of what policing was in afghanistan. we did not understand it. we had not really stepped back and taken time to articulate it. that is what we began to try to do. mta began talking in terms of building an institutional culture and building and operating force. how do we address this from the top down and the bottom up? as we started to engage with the afghans and bring them into the strategic planning process and strategic thinking process, it was very clear that they had thought through many of the aspects. in particular, there is a question that shaun brought up
2:13 am
about change management. the degree of change that has occurred with the anp. when you are building an institution, the critical question is how do you manage transition and change? to talk about it in the report this year. this is where the afghans have really made significant progress area and as they have looked the lastn each of three successive ministries of the interior have articulated a vision for where they want them to go and then how do they build this institutional culture or restore the tradition of policing and afghanistan. with each successive minister's it,on and the refinement of you see more of these elements put in there about community policing and the relationship between the police and the government that they serve and the government with with -- with
2:14 am
whom they have to interact. i believe this is one of the areas that is significant for the future of the anp. we asan experience where the international community have an opportunity to be opportunistic. to link our government development programs that beyond ton 2015 and clear deliverables that can clear institutional functions that allow them to manage change and the resources necessary to carry this vision forward. talk about this issue very quickly about building an operational force and building an international police force and what that means in the afghan context. it was fascinating to me when i was doing my research in january of this year that every single afghan that i talked to at every level of government, inside government, outside government,
2:15 am
individuals, even shopkeepers. i was able to get out and about this past january. even individual afghans. when i would ask them about the afghan national future, the very first thing that they wanted to talk about was the need for the police officers to understand the culture and the values of the country. several people pointed out from the get-go that if the national police force is going to succeed, particularly as it is currently structured, police officers have to be able to go from province to province, this trick to district, and understand the underlying values of the people in the district that they serve. so that they can gather the information that they need to keep the community safe and facilitate the transition from military security operations to law enforcement led operations
2:16 am
under an afghan criminal procedure and rules and evidence. they can only do that if they can relate to the people on the ground and relate to local governments officials. many programs put in place including the afghan local police program as it stands today and a lot of the leader developments going on in the ministry of the interior and the professionalization agenda is designed for this. where we are in terms of police development and training is not provide that level of education yet. this is one of those aged -- elements that they want to carry forward and where we can really assist in this. in order to do this, it does require that we as an international community look very carefully at the development activities that we will continue to do beyond 2015. look for the policing connections, the dependencies and the enablers that are in
2:17 am
some of these governance and education development are grahams and start asking the question of, what can we build into this existing program that will further strengthen or sustain the progress that we have either begun or that the anp wishes to carry forward? say, it thing i will know i am about out of time. i want you all to be able to ask questions. to me, the greatest impediment out of all of this has been the absence of consistency and continuity in the international community's approach. with every single change of leadership, whether it is on the civilian or military side, there has been a change of emphasis in priorities and objectives. the framework for security actor reform was essentially
2:18 am
volunteer for a province or a volunteer for an assumption or an organization. ifts andllowed these shfi prioritization with leadership changes. it has been nearly impossible to have a consistent development approach. when we talk about building an institution and a culture and an enduring operational force, this is truly a generational undertaking. we have to recognize that and accept it. there are certain decisions that really should not be made below the strategy and policy level. there are objectives that need to be set at the top. they have to be adhered to at the operational level, whether we are talking about civilian development missions or whether we are talking about military train and advise and equip missions. these have to be made at the policy level, agreed upon by the
2:19 am
international community. if we can get some degree of consistency and continuity, then it will confuse the afghans a lot less. it will also enable us in this time of diminishing resources to put our focus on some critical institutional development issues . we have mentioned a couple of them and the special report. ambassador royal mentioned a couple of them as has ambassador smith. we will be allowed to follow those over a period of time so that we can build those institutions and the afghans can adapt. they can become enduring. i believe in the afghans. i believe in this mission. i would not have committed the personal time and effort if i did not. i am really impressed and amazed
2:20 am
at the amount of progress that the afghans have made in the short. time that- period of they had to do this. you look at what the afghans have taken on. it is monumental change management. you contrast that with our own government. stand up to the department of homeland security and it starts to put things into perspective. you start to appreciate what has gone on. i believe that we can sustain this. i believe we have to do it strategically and carefully in a very focused way. thank you. >> we are now going to change our focus. we will move from focusing on the transition of the afghan police to the afghan local police. maye the future of the anp be open to question, the future of the alp may have already been
2:21 am
decided. you look at the strategic land and the strategic vision document, you will see that the alp is supposed to be phased out by 2018 carried we will ask jonathan if this is a good idea and we will ask him to talk about the research. >> thank you very much. slightlyall, it seems strange to be talking about malicious in the context of a debate about policing. it says something about the very ambiguous nature of the security environment in afghanistan. there seems to be very clear divisions between a soldier, a policeman, and a militia man. some afghans may have been all three in their lives. sometimes simultaneously. there is a lot of ambiguity around these terms.
2:22 am
take over and talk about the findings. this is really the first study of its kind. has been the first person doing the primary research on militias. it was based on research in kabu l and three provinces. it is one of the first longitudinal studies. the question that we are asking is what are the roles and the impacts of the alp on the dynamics. and how do we understand it in relation to this complex set of interventions going on in the country? there is a history behind the alp. it didn't come in on a blank slate. which theres in
2:23 am
was extreme fragmentations and the concept of unity. class ofence of a new military entrepreneurs and the long formation of military history. sometimes it has been about supporting and strengthening the regime in power. sometimes it is about the fracturing and the undermining of the regime in power. one of the ways of dealing with folding in -- militia networks into the state. what we are seeing is a former set of structures and institutions underpinned by a set of informal networks linked
2:24 am
to the various military actors. because of this, there has been adeoffs andset of tre paradoxes with the way they have dealt with central afghanistan. activitiesf policing that we have been talking about. on the other hand, there have been various ongoing attempts to work with the formal structures, the hybrid structures that decentralized the means of violence. this became increasingly the 2000 six with growing questions about the failures of state building -- 2006 with growing questions about the failure of state golding. efforts to build the state from the top. ilitias can be seen in
2:25 am
relation to this context. this is where counterinsurgency and state building can together. this is based on what many of you here will be aware of. i will not belabor it. it was about the conceptualization of a different relationship between warmaking and politics. was not about allowing politics to take over. warmaking was exclusively a politics ands 80% 20% fighting. war is about persuasion as much as coercion. this was very much linked to this idea that warmaking was a governance and
2:26 am
the need to penetrate society and reach out to society and provide security at this level. that is where militias produced, recycled, and experimented with. it has a longer-term history of experimentation and counterinsurgency doctrine related to the wars. vietnam, and most recently, the sons of iraq. it has an old imperial history. many of you know about the system on the northwest frontier. franchising out the means of policing to people on the periphery. in afghanistan, there was the invention of ideas like tribal
2:27 am
forms of policing. one thing that we highlight in the report is how these ideas are often at their worst are a crutch. they misunderstood the nature of oligarchy and how they became at the center of the geographical and social conditions. the misunderstanding hast how afghan society been profoundly changed over the past 30 years. one cannot simply reinvent tradition. i think the point here is to say that the experiments set a complicated set of imperatives both within afghanistan and more broadly. how they played out on the ground was a set of very complicated rogue ring
2:28 am
arrangements, power plays, and the outcomes from one context to another are usually not ones that were planned. >> i will start by reinforcing very briefly what jonathan was saying. the study is done in the context of counterinsurgency. jonathan talked about its imperial origins. also, its impact on state building. is wee need to remember have seen this this afternoon, the pundits discuss the need to go to traditional policing. we have the highlight in the report. the political economy which has roots back in the 1980's, the the armed groups that
2:29 am
came to power. .nd then post 2001 many of the actors that we studied were partners of the u.s. military at the feet of the taliban. and then they became new powerholders. it is important to remember that. we forget that there is a larger political economy that will probably not change that much. western resources will withdraw. instead of revenge seeking, there will be more attempts to produce sources of revenue as international sources draw down. is importantxt, it to remember that the war is not going to die down. . themericans will leave afghan forces will bear the full brunt of the fighting. years there has been
2:30 am
so much effort. money has gone into para-militarized and the police. contextualizet to the afghan police. just like the anp, when the american military are merrily responsible for training the afghan police has invested a lot of money into this force. it has been contrary to the idea of being a traditional tribal policing force. not necessarily related to the state. it has been para-militarized. that is important to remember. we point out in the report that the anp is not the first experiment. to military to 2001
2:31 am
intervention. a lot of the actors that we former commanders, former militias. continuitysense of there. there is a number of experiments. we talked about the anp. the afghan government authorized it in 2010. the presidential decree was signed. after intense negotiations. that was under the commanding general petraeus and karzai. general petraeus to expand nationally.
2:32 am
he needed the force as part of the surge. president karzai and the m inisters, it is about centralizing the means of patronage. it is about trying to control it. jonathan talked about the competing rationale. this is a very important point to remember. it was not just about expanding. it was also about controlling it. initially, it was saw out as a short term solution. in areas where there were no government forces. this is one of the things that we highlight in the report. muchse it needs so
2:33 am
oversight, generally when you stand up to areas where this is beyond government control, that is where the problem starts. it is difficult to monitor. lots of issues arise with that. that is the contradiction of the anp. areas where there is no government control. the criteria for selection was, it was sort of simple. the first experiment of a afghan-u.s. military force was in 2009. it was the public protection
2:34 am
force. it was a program that ran for a year and then was discontinued. for a variety of reasons. one of them being that the u.s. military was not happy with it. there was too much central control. too much bureaucracy. it should have expanded to other ideas, but it did not. the u.s. military used special forces and try to do it on an ad hock basis and the south. it did not have a ministerial link. that was the beginning of the problems between the afghan government and the u.s. military. karzai did not have control over it. local commanders. that was seen as a problem. it lacked legitimacy of the state oversight. a comparison between the three cases offers a way for us to do
2:35 am
it. there are some geographic areas. on findings, in the case study, we made the point that we did as historical research. we go back in the 80's and in the 90's. we were drawing a picture of the local security structure, the context. who were the people that came to power? how did they manage their forces? did they have control over them? gram.avoided the pro a lot of them had the weapons
2:36 am
and the networks. over the years, going back to the early 1990's, it was very fragmented security environment. the commanders. in one valley, there were three commanders. each was undercutting the other. the american military was very difficult. they did not know who to trust and who not to trust. their agendas were different. we talked about the various agendas involved. for the americans, it was about expanding. it was important to control it. our findings indicated that injecting these kinds of
2:37 am
lead toc resources further fragmentation. it did not lead to improvement of security. mainwas one of the l.p.'s rationales. that is the reason you call the local police. we drew a very different security environment. you go back to early 2001. left, it wasban south.trict in the --elonged to helped by someone
2:38 am
who have links to the taliban and. they simply changed caps and allied with the americans. of the dominance of the national police, the commanders felt marginalized. it was a way of renegotiating the commanders. the anpof bringing and alp closer together, the gap was widest. it almost created ghettos. had government forces that were the national police. then you had the anp in
2:39 am
villages. one could not go to the other area. the insurgents with improved security. is totally the opposite effect. we will look at the interior ministry at the time. he has a way of empowering his own networks. i think it is important to talkon, there is a lot of about human rights abuses. how do they feel endangered by the program? how are the communities endangered? some say, i am with the government. you just become a target for the
2:40 am
taliban. we are reminded by this in terms because itccess was was heavily targeted by the taliban. that was also their vulnerability. this is something that we need to keep in mind in terms of pressures and why people join. especially commanders. there is a need to work in symmetry with forces. there are also economic reasons. the that, i have come to end. we have some recommendations. one is to not expand the program further. there should be stronger oversight. that brings us back to the earlier paradox that we have
2:41 am
mentioned. it needs stronger state oversight. think this was pointed out in a number of interviews. this is through the ministry of the interior. paid recruits and commanders. this is where we have the dynamics of dependency. we enter into this with the afghan national police. with that, thank you. >> thank you very much. you have been a very patient audience. out it is your turn. because we have cameras in the room and we want to capture your questions on television, if you want to ask a question, we ask that you move to one of the microphones on either side of the room. when you ask your question, we would ask that you state your
2:42 am
name and affiliation. i would appeal to everyone to ask a question to be brief. we would like to get as many questions as possible. at this time, these move to the microphone. we are trying to take advantage of this couple of minutes while people are moving around. i can ask a question. i will exercise my prerogative as the chair and asked the first question. today it was revealed or announced that the united states militaryeaving 9800 personnel behind after the withdraw of military forces at the end of 2014. i want to ask the three experts on the panel what they know about this and whether they think this is adequate and how they think this will be implemented very quick responses and then we will move to questions.
2:43 am
>> i think the numbers are at least consistent with what the has proposedisap as being efficient for a regional presence throughout the country. it will limit coalition engagement to the ministry and the capital region as well as to other regional moves to provide training and oversight of different police capabilities. >> what is going to be really important is to be the finding the mission of those troops and making sure that we really use them to best effect. from where i am sitting, it is important that policing is given this importance. >> the only thing i would add to
2:44 am
that is that it could be positive that we have fewer numbers. fewer numbers means less opportunity to get in the way. it forces us to focus and be strategic in our engagements. i do think that we need to be very careful that we look at, how do we want to monitor and oversee our investments. with a more consolidated presence, we have less eyes and ground.the i noticed this january that i was shocked to the degree that people in kabul had so little visibility as to what was going on outside of kabul. that was a huge difference than before. that is something that needs to be addressed as we look at 9800.e for the >> i would like to take to questions. we will break and have the panel
2:45 am
respond. >> thank you. i have two questions. one to the panel. >> the microphone is for the television. please hold it up. >> two questions, one regarding the alp and one regarding the future of policing. my name is mike. i was formerly with the nato forces in afghanistan. i did not hear any mention of corruption and how it will affect afghan policing and afghanistan. i say that probably the greatest enemy to the government of afghanistan is corruption. the police perception analysis, which was done two years ago indicated that less than one third of the population has any confidence in the afghan
2:46 am
national security forces. ranked 143rency is out of 145 in the corruption index. i would like to know if you think it is a problem and how it should be addressed. i have often alp, wondered how well the members of the alp are vetted. how do we know what their loyalties are? how do we know that their loyalties are local rather than national? i did not see in your recommendation any discussion of abolition of the alf. i wonder if that is a recommendation you might have. my question, i am from george question issity, my
2:47 am
about the women in police forces regarding culture. what are the challenges? >> thank you very much. let's turn to the panel for a response. we should admit that we had a huge conversation about corruption. we are probably all talked out on that subject. i will turn it over to the ambassador and we will go down the line. >> you are right to call us out on not mentioning corruption. ,he work i have been doing where we need to tackle corruption is by building the institutions. one of the things we were trying to do was to tackle the minor issues of the human resource policy where you promote people by merit instead of people
2:48 am
paying for their jobs and setting up criteria for jobs. veryis a long way to do it it will be a long process to get from where they are now with everybody buying a job to getting where they are on merit. how the money flows, that is something that we have control over here and that is a very blunt instrument to cut off funding. you have control technically, but you do not really. one of the things that we are working very hard on is to try to move the ministry on to program budgeting. you actually have a financial accountability mechanism that is lacking at the moment. you have not gotten a mechanism where you can ask the difficult questions. that is where i start. >> with you ask for a response on the alp question?
2:49 am
, itn terms of recruitment is a document, the guidelines puts a lot of emphasis on local communities and village councils and local councils playing a role in identifying recruits, vouching for them. then there is a process. they should be vetted by afghan government institutions and intelligence services to make sure that they are not members of the insurgency, they are not drug users and all of that. the lot of cases, recruitments are not necessarily done on an individual basis. the recruitments are done by commanders. if you approach a commander, like one commander, he was aroundhed at a time
2:50 am
2009. there were no recruitments coming forward. they were afraid of the tele-bond. he brought 500 of his men -- of the tele-ban -- taliban. he brought 500 of his own men as a local police force. one example of how their loyalties are questioned, i interviewed two young anp recruits in 2012. i asked what they were doing before. they said that they were members of the taliban. they were members of the other side of the reintegration wereams. a lot of groups reintegrated from the taliban founders.
2:51 am
i asked, when you will go back to the taliban. it is very complicated on a local level. you have economic reasons. archers from local commanders, even the insurgency. i hope i answered your question there. >> do you want to comment on the women's issue? >> i am very happy to comment on this one. not only have i been looking at this from the perspective of the afghan national come -- police. we are looking at what we do and how do we integrate women into security institutions and traditional societies? with the anp, this is a very interesting phenomenon. when we initially set up the structure thomas women were distributed across the structure
2:52 am
on pretty much a percentage basis as part of the implementation of a un security council resolution commitment. there was not a lot of thought given to the operational imperatives that drive women in the anp. it was not working very well. as westingly enough, started to mature some of the high and police units, some of the special police units, the swat teams who are the first units trying to do evidence-based operations and security cases, those commanders, the ones that logic would tell you would be the last asking for trained afghan women police were begging for trained professional afghan women police. on their organizational structure, they actually did not have the slots for them to the degree that the regular units did. the i am seeing on this and
2:53 am
is thathat i am seeing as the units have matured and they are more capable and the commanders are more focused on doing evidence-based operations, those are the units where women are having the most success. those are the units where the women are getting greatest acceptance. i think that we are going to see that on a very, very slow, gradual level. we as an international community need to be very sensitive to this. i think that we have not taken advantage of these situations when they have occurred. we have not reallocated slots. that is where i see it sitting now. i saw no change to that when i was in kabul. kabul when the first
2:54 am
female district of police was appointed. >> thank you very much. timeve a small amount of left. we have three questionnaires. i would like to take all of the questions that we have remaining and then we will have the panel respond. >> thank you so much. i came recently from afghanistan. up until recently come a i worked with the united nations he's keeping mission. i had a few comments and a question. i will be very brief on that. for havingo much this forum where we discussed the important issues to find a good solution for afghan futures and for the policing of the afghan people and to safeguard the democratic rss that is going on --, craddick process that is process that is
2:55 am
going on. >> i had a chance to find out the problems. that was related to policing. one of the issues which was always discussed and always shared was lack of equipment, buildings, which we always try headquarters with the relevant authorities. was lack ofke there coordination between the relevant authorities at the kabul level, to which no one paid attention. million to boost the security services. unfortunately, none of those promises was fulfilled.
2:56 am
the same thing happen with other promises. unfortunately, he earned a name called transitionist. i am from a province in the south of kabul. i have seen the creation of alp as a problem. it creates ethnic problems between the people at the village level and the district level. is, what if the international community had fulfilled what was made during the transition process. the research was done before the transition takes place like in the rest of the provinces. none of those provinces was lack ofd to -- the trust between the people and the government was created.
2:57 am
>> thank you very much. do we have a second question? >> this russian is in my personal capacity. i wanted to tease out questionr royle's about who will be providing the capacity building. since nato's mandate is not include civilian policing and nato members are opposed to expanding the mandate in that direction. is it the eu mission? is it the un? is there the possibility to expand the secretary to include the civilian police oriented advisors as opposed to those who have a military background? >> thank you very much. talk radio news service. i just wanted to ask the panel 's comment on president obama
2:58 am
recent decision to keep less than 10,000 troops in afghanistan and order to support infrastructure. i wanted to ask how you speculated that would affect. >> thank you so much. good question. how should we do this? should we start from the other end of the table and work our way up? i think we have all run out of time. jonathan, do you want to take a shot and any or all of those questions? michelle?start with but i thinkfer, that sean and catherine are the two best to answer that last group. we did address the 10,000 number and how it will impact. i personally believe that dropping the number two 10,000 or below will force greater
2:59 am
focus and also force greater economy on the afghan side. my estimate is based on the most recent interviews i have done this january and those i was spending in country in late honey 12. the afghans are looking forward to us getting out of their way. i will leave it at that. >> i will bounce around a little bit to some of the questions. with regard to some of the support that the doctor may have missed -- may have promised in provinces, support also included support in kind. the equipping of the afghan national security forces, which was not cheap hearing while there is an insatiable appetite for more, for increases in pay, salary, benefits, increases and
3:00 am
equipment, the fact that the afghan national army still asks for nuclear weapons to counteract pakistan. the army and occasionally naval vessels for the aerial to be projectionvide power worldwide. that doesn't mean that support.ally gets the support is still substantial it's notficant because , u.s.rovided through nato funding, but in the case of the national police, again, 30 separate nonnato nonu.s. by to provideeements resources to the a. n. p. are
3:01 am
there. for somebody picking it up beyond nay torque it's obvious that the state department does not want to take ownership of the policing development problem now. it is obvious that the defense does not of policeke ownership development, especially as it is regards law enforcement. but all are in fact looking at the international police coordination board as the primary vehicle to coordinate
3:02 am
those activities. developmentu. n. program, or others, feel that they are currently positioned to to coordinate those activities, especially giving of players that are there much finally with regard again, thep numbers, isaf position has been that troop numbers are consistent with the plan for a wellt natural presence as as a ministerial and capital kabul, and it will be sufficient to meet the resolutent needs under support. >> i want to just amplify something, because the report does talk quite a bit about a recommendations vis-a-vis the state department role and also the international police board.tion absolutely essential that the strengthened. not just as a coordinating body
3:03 am
across the international police and that donor map is expanding even as we sit here today. it was 27 countries about two years ago, it's now up to 40 plus. but also because that is the counterpart to what the ministry need to buildself in order to do its own management of the expanding donor map. finally we make a very strong recommendation in the report of who has the lead for actually doing the and equip andn continuing the train, advise and of the a. n. p., the state department really does hand intake a stronger creating clear u.s. government creatings, and in assessment frameworks and providing oversight that ensure that u.s. government rule of law programming at large or law enforcement related programming
3:04 am
at large connects to policing so that we can get .reater coherence >> thank you. i agree with sean's view that a lot of it did take place, but that the doctor made people hope that it would. but i do think also that there a real lack of a proper need assessment or capability of doing a needs assessment. so when you're actually looking with these sorts of figures and what they're for, actually you're lacking some of basic tools that would allow hoorn do that in a could way, and that is a problem when expenditures get assigned. when talk about the police themselves, there is a real disconnect, and you mentioned it
3:05 am
yourself between what's going on back in kabul.d is there a report into the development of the police and the institution that says that the m.o.i. urgently needs a body within it as a one stop hospital for provincial police forces to to and say look we need to discuss these problems we've got theget that team inside ministry to work through solutions for them, where at the mom there's nothing there. phoning from which ever province, into kabul, trying to fine somebody who is interested problem. and that just isn't a system of coordination. who will do this, it is really worrying. that the ipcbs will be able to do it. think itn it, i don't will. i say, i used -- it took me five months to get my
3:06 am
had ton it because it come out of the u.s. account. when you start to run it that way you've got problems. and the australians and the canadians who have supported the policenished their perhaps, and key members of still left. and the idea that you can put --s issue thato still an when people talk about coordination everybody says they belief in coordination, but they be coordinated. so that is a real challenge for ipcb. the, so who is going to do it. think m.o.i. needs to do it. it is time that this coordination role of the
3:07 am
international community belongs to the ministry, that's what we other country where we do development work. there is a group inside the the, they decide the priorities between them. not fool proof, but that's what we do everywhere else and doing what we should be in m.o.i. now. ipcbnk there is a role in team.p support that it would help bill that m.o. expivment then ipcb could fade away and was have -- a capabilityd built. going and talking to donors and we going to do that. up with people,
3:08 am
contracts, organizations, that's how we do it in the rest of the world. should be looking to transition the program and support to that sort of model. >> thank you very much. like to thank the members of the audience that asked very good questions. like the thank our panelists for some really excellent presentations. invite a round of applause for our panel. [applause] and we are adjourned. >> the supreme court oral argument in wood v. moss is next that's followed by
3:09 am
donald trump peeking at the national press club about and building the trump brand. wednesday morning president obama delivers the commencement address at west point military academy. talk about hiso plan to reduce the number of afghanistan, and help train rebels in syria. live coverage at 10:00 a.m. c-span.here on you can join the conversation on facebook and twitter. with your thoughts on the president's foreign policy. later, the house veterans holds acommittee hearing to hear from the v.a. over their failures to comply the somebody requesting -- the subpoena requesting e-mails and correspond about the
3:10 am
>> for over 35 years c-span brings public affairs events from washington directly to you, putting you in the room at congressional hearings, whowt events, briefings and conferences and offering complete gavel to gavel coverage of the u.s. house, all as a public service of private industry. we're c-span, created by the cable tv industry 35 years ago a publicht to you as service by your local cable or satellite provider. onch us in h.d., like us facebook and follow us on twitter. court tuesday unanimously ruled that secret service agents are entitled to qualified immunity and should be shielded from a lawsuit filed by protesters who say their first are violated.ts the case stems from a 2004 two secret service agents forced protesters away hotel whereon president george w. bush was dining. this oral argument from march 26 is an hour.
3:11 am
>> we'll hear argument this morning in case 13115, wood v. moss. mr. gershengorn. >> mr. chief justice, and may it please the court -- the ninth circuit held that individual secret service agents could be held personally liable for their onthespot decision to reposition a group of about to demonstrators who were within weapon's range of president bush as he made an unscheduled as he made an unscheduled stop for dinner at an outdoor restaurant patio. >> may i ask a question? so were the pro-bush demonstrators. in fact, the pro-bush demonstrators were across the street pretty much at a diagonal to the president, and they were permitted to remain there the entire time. he they had a throwing distance of a bomb or a shooting distance as well. >> so, your honor, the pro-bush demonstrators were differently situated from the anti-bush demonstrators in
3:12 am
several fundamental respects. with respect to the weapons range, there was a two-story building between the pro-bush protestors and the where the president was dining. it's in stark contrast to the open alley that led down precisely to the six-foot wooden fence behind which the president was dining, which is where the anti-bush protestors were. >> that was after the second move, not the first. >> no, your honor. at the first move, when the president arrived for dinner, the pro-bush protesters were on the north the anti-bush protesters were on the north side of california street between third and fourth, and the alley that led right down to the restaurant patio was right there. the they were at the head of the alley. so they were very differently situated from the pro-bush protesters. >> counsel, i don't understand the government to be making the argument, and i can't understand why it isn't making the argument, that it doesn't matter whether there was any intent to suppress anti-bush demonstrations, that in this area, as in traffic stops, we
3:13 am
don't consult subjective intent. if if a policeman stops somebody, and it's, oh, you stopped me only because i was coming back from an anti-bush demonstration, we wouldn't we wouldn't listen to that argument. we'd say, did you have a broken taillight or not? if you had a broken taillight, we do not inquire into the subjective intent of the officer. why is it any different here? >> your honor, i don't believe we are avoiding the argument that your honor suggests. >> you haven't made it. >> we don't think it's i think, your honor, with respect, that we have. our position is that it is not clearly established law, that if there were an objectively reasonable >> you don't even have to get
3:14 am
into that. you don't have to get into clearly established law. it's a very simple case. if you say, was there objectively a reason to move these people? if there was, if you had an ulterior motive that was unconstitutional, we don't inquire into it. >> your honor, we agree with that. we just have framed it as terms of in terms of clearly established law, that if we think along the lines of what this court said in reichle with respect to retaliatory arrest, if there is an objectively reasonable basis for the move for the repositioning, such as a valid security rationale, it's not clearly established that the presence of animus would be enough to take to raise a constitutional -- >> well, do you agree with that, mr. gershengorn? because you have these hypotheticals in the last page of your brief where you say that a complaint could survive a motion to dismiss if the secret service members had, you know, announced, had admitted that they had an intention to discriminate or if they had told the local police that. so i took what you were saying there to say, if there is evidence of a very clear nature, that it was all about animus and it was nothing about security,
3:15 am
then the complaint would survive. >> so, your honor, i think that the way we reconcile the two positions is the following -- if there is no objective legitimate security rationale, and it is animus, we agree that it would be clearly established law that the officers could not have taken the agents could not have taken responsibility could not have taken the actions. however, if on the record there is an objectively reasonable security basis, then we don't think it's clearly established that, even if the individual officer didn't take the action for that reason and took it for animus, that it's not clearly established that that is a constitutional violation >> could you get oblige us by answering justice scalia's question. forget clearly established. what do you think the law is or ought to be? if the only motive for the officer's action, for the secret service action, is one based on viewpoint discrimination, but that nonetheless there was an
3:16 am
objective reason that could have justified the action, what should the outcome be there as a matter of law? forget clearly established. >> we don't think they've stated a constitutional violation in that context. however, what the court did in reichl -- >> i don't what does that answer mean? >> that means there is no constitutional violation. >> so you so you say that any time there is an objective basis for the secret service to act to move a protester, the fact that this wasn't the motive at all, but that it was viewpoint discrimination is irrelevant. >> so, your honor, i want to -- >> is that your position or is it not? >> that is our position, but i don't think that's what we need to win this case. >> i know that, but the reason that you the reason i think these questions are being asked, my impression is exactly what justice scalia said in respect to a fourth amendment case against a police stop.
3:17 am
but my impression also is that where you have a first amendment case and it's not against the policeman, against secret service, this court has not said that. am i right about that? and the reason that your position, if i am right, is relevant is because i think maybe we shouldn't say that for the first time in a case where the government hasn't even argued it. >> answer to what i just said? am i right on part two? so, your honor, i now and what is the answer to your honor's am i right on part one, and -- the court has never held it. what the court the closest the court has come is in reichle where what the court said was in a case of retaliatory arrest, it was not clearly established the court didn't reach the constitutional question. the court said it was not clearly established that where there was objective probable cause for arrest, retaliatory animus was not relevant. we think a number of the same
3:18 am
factors that motivated the court in reichle could motivate the court here as well, were they to reach that question, and i'll explain why in a second. but we do not need to win on that question because it's not clearly established. so, your honor, with respect >> well, we all know you don't need to win on that question. the question is -- should, in your opinion, the court reach that question. and my hesitation would be that it is one thing to talk about ordinary policemen. it is another thing to talk about first amendment matters where we are engaged with a kind of special protective force, and certain residences there that make residences that may make a person hesitate to extend into that area. and so what is the government's view? >> so, your honor, i've been asked the government's view on a couple of things, so i want to be very clear. the question of what is our position is the position articulated by justice scalia. the question of what we need to win, it's qualified immunity. the question of whether the court should reach the constitutional question, i think our answer would be no, that the parties haven't breached it as your honor said, that the normal course would be to do what the
3:19 am
court said in reichle and say that it's not clearly established. >> i can't understand why you didn't brief it then in that case. i cannot understand why you didn't brief it. and talking about things that we haven't haven't held in the past, we haven't even held in the past that that there is a bivens cause of action for a first amendment violation, have we? >> no, your honor. >> do we have any cases that has held that? >> no. and we agree with that, but the argument was not preserved below, so we have not presented it here. >> is that a relevant well, what is your position on that? is it pertinent in analyzing qualified immunity that there's no private right of action for the asserted constitutional violation? >> we do believe, your honor, that it is it is the court would have jurisdiction to reach it because it's a logically antecedent question and that it would be something that the court could consider. it's not something -- >> but i don't mean what the court could consider. >> yes. >> i want to know whether or not well, the question is simple. can you only can you not violate the constitution if there's no right of action against you, or do you look and say, well,
3:20 am
whether there's a right of action or not, it still violates the constitution? >> your honor, i think that the presence of the court's hesitant to recognize bivens and the factors that go into the that gave the court hesitance to extend bivens to first amendment claims are relevant to the analysis here. we didn't raise this argument because it wasn't preserved below, but we do think the very same factors that should that would give the court pause about recognizing a bivens actions are the ones that would cause the court to reverse the ninth circuit's decision here. >> well, on the merits of the case, if you were called to brief the secret service, what would you say in response to this question -- do we have any duties under the first amendment when we are protecting the president with respect to crowds and and people that are close to him? do we have any first amendment duty? >> your honor, we would first of all, as the policy i know your honor hasn't asked this, but i just want to make clear. there's a policy that would generally prohibit the secret service from doing that, an internal policy. >> they're asking about a law,
3:21 am
they say we want to know what the law is. we're law enforcement officers. will you please tell us what the law is. >> i would say, your honor, that the law is not clearly established. this court has never held that the secret service -- >> they said that's why we've invited you to lunch, so that you will tell us what the law is. [laughter] >> and we may yet get clarity. but as -- >> you actually are arguing that it's not >> could i -- >> that it's not -- >> have an answer to this question, please? >> answer justice kennedy's question. >> we would tell i think i would have to say in candor, your honor, that in part because of some of the discussion we're having, that we think the better view of the law would be if you have an objective security rationale for the action, that the retaliatory animus would not render that unconstitutional. >> well, can i ask you a question? but i would have to say that that's not clearly established and there's a rule -- >> do you think it's not clearly established that you can't discriminate solely i've used the word "solely."
3:22 am
no security reason, no nothing. you can't discriminate solely on the basis of viewpoint? >> that's correct, your honor. we agree with that. >> that's constitutionally established? >> and i take that as different from the hypothetical that justice scalia proposed. >> no, no, no. let me go. >> okay. yes. >> step by step. you agree that's clearly established. >> yes, your honor. >> all right. what you don't think is clearly established is a mixed motive case. >> that's correct. >> that's a different issue. so the question here is -- is this a mixed motive case or not? >> your honor. >> that the other side, i think, is saying it's not, that there was no valid security reason, no objective security reason for this move. >> and i think our response to that, your honor, is we would agree that's clearly established. if there were if no reasonable officer could believe there was a security rationale and it was only on the basis of animus, then it would be clearly established. we believe -- >> that's not a mixed motive. why why do you accept the description of that as a mixed motive case? >> i don't think that i don't think justice sotomayor -- >> if you agreed with my hypothetical, the point is it doesn't matter what the officer's motive was. it does not matter. if there's an objective basis for a traffic stop, even if his
3:23 am
sole motive was discriminatory, the stop is nonetheless valid. this is not a mixed motive issue. >> your honor, i took justice sotomayor to be asking me a different question -- if there is no objective security rationale, which takes it out of your honor's hypo, then we agree it is clearly established and we believe this complaint fails because they have failed to satisfy iqbal. >> then don't just don't call it mixed motive. it confuses everything. it confuses everything. >> no, that i don't think is mixed motive. but what justice sotomayor was asking was, i thought, something different, which is that whether there is a sort of mount healthy butfor causation. and i would say i just want to be very clear what our position is here. i know i'm being asked on the merits, but just to get our the position on qualified immunity. it is not clearly established that taking viewpoint discrimination into account in a security situation violates the constitution. it is not clearly established that if there is objective security rationale, even if you act then in animus, that that would violate the constitution. >> justice -- >> but we agree --
3:24 am
>> justice alito has been trying to get a question in. >> i'm sorry, your honor. >> no, no. it's certainly not your fault. [laughter] >> this question about the the issue that you've been addressing in response to justice scalia's question. in in the fourth amendment context where it is purely the inquiry is purely objective, we have case law on what is reasonable suspicion, what is probable cause. now, if you apply that to a first amendment case where there where it's asserted that there is a security there may or may not be a security concern, would it not be necessary for us to identify a a degree of suspicion or probable cause that the secret service would have to have before making before moving people for security reasons? i imagine whenever the president is out in public, there is some degree of risk. you want no risk? you know, keep him in a bunker. so at some point do you see what i'm saying? the secret service has to make a
3:25 am
decision about how much information they need before they can they should move people or change a route or something like that. so the courts would then have to set that standard. >> your honor, i think it -- would have to be a very deferential standard and it would and i think that that is proper under this court's case law. if i could attack that in sort of two ways. the way the court addressed this issue in reichle we think is quite parallel to how it would address it in this first amendment context. what the court said in reichle was -- first, the existence of probable cause in that case is likely to be an issue in every in virtually every case. and we think in this situation, the existence of a legitimate objective security rationale, in part because that's what the agents do and in part because of statute that that requires the agency to protect the president, a legitimate security rationale is likely to be in every case first. second, what the court said in
3:26 am
reichle was that it's very difficult to distinguish animus from the proper use of reliance on protected speech because because the court has recognized that it is valid at times to take into account the nature of one's speech in in making arrests and other security decisions. and the same would be true here. and we think there's a third factor here which is important, which this court has recognized, that the physical security of the president occupies a special place in our constitutional structure, as justice breyer put it in his rubin dissent, and that the secret service has a special role to play. >> would you say that under your view of the case, that there is a first amendment interest that protesters have, but that it is virtually unenforceable in the context of crowd control? >> no, your honor, we would not say that. we think there are -- >> because it seems to me that if this complaint doesn't survive, nothing will. >> so, your honor, i'd like to address that in a couple of different ways.
3:27 am
first of all, there's a very big difference between whether there's a bivens action stated and whether there are other ways to enforce constitutional rights. so it is possible and there have been suits that have sought injunctive and declaratory relief before things like inaugurations, political conventions, even just regular presidential visits. those would be unaffected. second, there are there are situations in which plaintiffs, and there are pending challenges now, have challenged secret service policies, for example a secret service policy that no that bars certain supports for signs from a parade route. that's being challenged now in the court. and then if there are bivens claims, we think there are allegations that would survive. but we do recognize that this would that that a ruling on qualified immunity here would cut back on damages claims against individual agents, but we think that's appropriate in light of the difficulties they face. >> you know, i really i really don't understand what the government is doing here.
3:28 am
it seems to me you want to win this case, but not too big. [laughter] in in light of the arguments waived below and the arguments not made here, you want us to find for you, but on the narrowest possible ground. i would think it is in the interest of the united states and the secret service to say there are no bivens first amendment actions, but you don't make that argument. didn't make it below -- don't make it here. likewise, it would be in their interest to say, oh, this is just like a traffic stop. it doesn't matter whether we had a a bad motive so long as there was an objective reason, that's the end, but you don't make that argument here either. i i really can't understand what the government is trying to do here. >> your honor, we are we are doing our best to make with the arguments that we have before the court. we think that the that the qualified immunity standards that we have articulated and the position on clearly established law we have taken is sufficient for this court to decide the claim.
3:29 am
although. as i've tried to say, we agree with both of the propositions that your honor has said and in a properly preserved case we would be likely to address them. >> mr. gershengorn, suppose that we changed the facts here and that both the pro-bush demonstrators and the anti-bush demonstrators were in the same place and they were at the foot of the alleyway, so that there was an objective security rationale, but that the secret service members and they were in all respects the same except that they had different signs. some signs say the president is great and some signs say the president is terrible. and the secret service members had only removed the ones with the signs that said the president is terrible. so what would your analysis of that be, both under the clearly established, but also, i want you to get to what you think the law is there. >> all right. so under clearly established, your honor, i think we do think that that would make a plausible case that there that the agents acted without a valid security
3:30 am
rationale because they because they moved the anti-bush protesters, but not the pro-bush. >> i think you're changing my hypothetical, or let me just explain my hypothetical. >> okay. >> i put them both at the foot of the alleyway because that meant that both have a straight shot, you know, that they can throw a grenade into the patio, which is, i take it, what the nature of your objective security consideration is. so that's true of both of them. but you only move the ones that say the president is terrible. >> so we would say, your honor, first on clearly established, that it is not clearly established that the agency couldn't do that, but we recognize that the court is concerned about that situation where an agent an agent has a legitimate an objective security rationale, but acts solely on the basis of animus and i think it would support that kind of inference. but i would urge the court to think, as it thinks about it about the flip case, which is an agent who has an objective
3:31 am
security rationale -- >> but just tell me what your answer to that case is. what do you think -- >> the answer is it would not be clearly established, that they >> and do you think it would be unlawful? forget clearly established. >> the government's position is if although we haven't briefed it in this case the government's position would be the one articulated by justice scalia. but we recognize that is not something that the court has yet held and so i think -- >> i don't think that's -- responsive to justice kagan's hypothetical. justice scalia's hypothetical, there is an objective reason for stopping the car. it's violating traffic regulations, which is the broken taillight. i understood my colleague's question to be there is no objective security rationale. >> i'm sorry. i had understood it differently. did you believe i thought you were saying there was an objective >> i said both can throw a grenade into the patio area, but in fact you only remove the people who have the anti-president sign >> so i took the fact -- >> notwithstanding that the
3:32 am
security consideration applies to both equally. >> so i took that to be that there is an objective security rationale, and i think in that situation, we would say that the a, it's not clearly established but that we believe that the better answer is the one from justice scalia because there's an objective security rationale. >> well, no. i thought the question was there's no differential security rationale. in other words, maybe it's not the question my colleague asked, i'll ask it. >> okay. >> let's say you have to move the president in an emergency situation. you've got two options, go through the anti-bush crowd or go through the pro-bush crowd, and you've got to do it right away. is it a justified security rationale to say that we think it's more likely that it will be problematic if you evacuate the president through the anti-bush crowd than through the pro-bush crowd? >> we do not think that would be unconstitutional, your honor. but -- >> so in other words, the viewpoint itself constitutes a security consideration? >> that's what this court said in reichle, that there are times, not that it inevitably -- >> and so, your answer to
3:33 am
justice kagan is that it would be proper if you have only minutes, a limited amount of time, to move the people with the with the adverse with the signs that criticize the president? >> that's correct, your honor. >> so your answer to justice kagan is that there is no violation if they move just the bush protesters. that's your answer. >> that's correct, your honor. but i and if i could just say a word or two about the >> i don't know i thought what the chief was going to say, there's no differential reason to move one or the other. let's assume you have an equal amount of time, you can get everybody moved, and you just are choosing to move the bush anti-bush demonstrators. >> your honor, i understand that this is an unattractive hypothetical for the government's position. and if i could explain why nonetheless i think it's the right answer because the flip side is if you have an agent who has a legitimate security rationale and is going to move
3:34 am
against somebody who's hostile who's showing a message that's hostile to the president, you don't want that agent to hesitate. that's what this court said in hunter. the court said in hunter there are times when we don't want a reasonable official to hesitate before he acts and nowhere is that more important than when the specter of presidential assassination is in order. but i want to be crystal clear that we don't need that i think i've said that before, but i just want to make sure that we don't that to win. it just has to be clearly established. >> i mean, suppose i add to my hypothetical and i say and the secret service goes to the local police and says and, you know, doesn't talk about grenades at all and really just says we have got to get these anti-president people out of here because they're annoying the president -- let's do it right now, and that's what they do. >> i think, your honor, that at some point you would cross over into a position where you would say there is a real question about whether there's an objective security rationale and we would be in a situation
3:35 am
>> well, there is one. i mean, there is one in a sense of as we look back, we can see that there's an alleyway and that somebody could have a grenade, but there is evidence that that's not at all what was in the heads of the secret service members. >> your honor, i recognize that that is as i said, i think that is a that is the hardest case for us and i recognize that's why your honor posed it. but i urge your honor to think about from the flip side, which is if you adopted the rule that your honor's question would not attributing to you, but might lead one to adopt, that the result is an agent who has a legitimate security rationale but is operating against people who are expressing a viewpoint must hesitate. and i think it's important in this context to remember that what we have are secret service agents who are making on the spot judgments while protecting high level officials. >> we understand that and i
3:36 am
think that that's the problem, and i think you're being sort of picked at for this reason in my mind, and i don't know if you have an answer to this. i know everyone understands the importance of guarding the president in this country. everyone understands the danger. you can't run a risk. at the same time, no one wants a praetorian guard that is above the law, and we have examples of history of what happens when you do that. so everyone is looking for some kind of line that permits the protection but denies the praetorian guard. and if you have anything to say that we're immersed in details about how to get to that general objective, i would love to hear it from either side. >> your honor, very briefly, then i'd like to reserve. i think the simplest way to reserve it is actually to resolve this, is to hold that it's not clearly established, that it's a mixed motive case-- it is not clearly established that the situation justice scalia posed would be unconstitutional-- and that under iqbal, that the plaintiffs have not alleged what they would
3:37 am
need to allege under clearly established law, that it was the sole motive for their actions and there was no objectively reasonable security rationale. i'd like to reserve the balance, your honor. >> thank you, counsel. mr. wilker. >> mr. chief justice, and may it please the court -- the plaintiffs have pled a plausible claim for intentional viewpoint discrimination in violation of core first amendment principles. we have done so for three interrelated reasons and we've pled it as a sole cause. this was solely the cause, not security rationale, but the sole cause of the move here was the viewpoint being expressed. >> would you have taken the same position if all that had been was the first move, that is, the move to fourth street? then there would have been about an equal distance from the pro-president demonstrators. >> i think that would be a more difficult case for us to prevail because we wouldn't have one of
3:38 am
the prongs on which we rely, which is the disparate treatment as one of the factors we rely on to establish the inference of intent. >> well, then would you say that you would have no tenable case if they moved them just the one street over so they wouldn't be in a position to throw a hand grenade to the patio? >> i think as a practical matter, we would probably we would likely not have as tenable a case as we do. if in fact the only reason for the move was the officer's intent to move the anti-bush demonstrators further from where they were so that they could be heard less well, that would in our view state a claim for relief. it would be a more difficult claim because we are trying to establish intent and we're
3:39 am
trying to establish intent from the inferences from the various facts that occurred that evening. >> counsel, do you acknowledge that that the issue here is whether the law was clearly established? do you agree with that? >> i think, the i think we believe the law was clearly established by this court's precedents. >> i'm not saying whether you believe it is. is that the if you find it wasn't clearly established, do you lose, is what i'm saying? >> well, i think this court's qualified immunity precedents make that clear. >> okay. now, how can it be clearly established if we have never held that there is a bivens cause of action for a first amendment violation? we've never held that, have we? how can you possibly say that the violation here is clearly established. >> i think you can, justice scalia, hold find from this court's decisions in its viewpoint discrimination holdings, like rosenberger, like r.a.v. st.paul, like pinette, where the court has clearly made it clear that viewpoint discrimination is a pernicious form
3:40 am
>> oh, it is pernicious. but is there a bivens action for it? the constitution does not create a cause of action for this. doesn't cover this. we invented it out of really out of nothing, and we have not extended that to first amendment violations up to now. >> up to now. and that argument was not made below, nor preserved to >> well, regardless of whether it was made below, it certainly goes to the argument that was made below and here, that the violation here was not clearly established. >> well, i think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established. >> well, okay. >> the violation was clearly established. whether or not there is a remedy for that violation under bivens -- >> that's a good point. >> is a different question. >> that's a good point. >> mr. wilker, let's say something happens back in the patio area where you you're the head of the secret service detail.
3:41 am
you've got to evacuate the president right away. do you go through the anti-bush crowd or through the pro-bush crowd? you've got to decide right now quickly. i'm serious. you have to make a split-second decision. which way do you go? >> i think whichever way provides the clearest egress. >> no, no. they are both the same. that was one of your propositions, that there is no way to distinguish there. it's too late. you've taken too long to decide. it's a serious point. >> it is a serious point. >> you've got to decide like that. >> but that's not the position that that's not the position the agents were in on october , . >> no. i know. but if we're trying to decide whether viewpoint can ever be a security justification, we have to consider all of the possible situations. so again, if you had to decide right now do you go through the anti-bush crowd or the pro-bush crowd? guns are going off, explosions. which way do you go? >> i truly don't know the answer to your question because i'm not
3:42 am
>> really? >> a security expert. i don't know where the guns are coming from. i don't know what the -- >> you're the farthest thing from a security expert if you don't know the answer to that one. [laughter] >> that's actually not much of an answer for lots of reasons, but the most, if you don't know, how are we supposed to know? >> well, because that's not the issue that's presented to this court for decision today. we're this is not a case in which the secret service made a split-second judgment as to which evacuation route to take with the president. >> well, but with respect, my point is that we do have to adopt a general principle, and if we say viewpoint can never be a consideration, then you have to say when there is an emergency going on, it's just as likely there will be a problem if we go through the pro-bush demonstrators or the anti ones, which seems to me to be, on its face, implausible. >> well, in the context of an emergency, there may be a different rule than there would be in the context of a considered decision to take viewpoint into account in making a decision, which is what we have alleged here. >> so then you think there well, there may be situations in which viewpoint alone may be a security consideration.
3:43 am
>> there may be. and i think if there were individuals directly in proximity to the president, not, you know, feet or feet away, but directly, could the secret service take into account, i think that's what this court said in reichle, is that the court can into account where it said in the proximity of the president, or in that case the vice president. >> mr. wilker, do you concede that, looking back on this just in a hindsight kind of way, that there is an objective security rationale here, that they are standing at the foot of the alleyway, that you could throw a grenade into the patio area? do you concede that just looking at the situation and not thinking, not taking into account any evidence of what was in their heads, that there in fact is an objective security rationale for moving people from this area? >> i think if you if the concern was the mouth of the alley and that the riot geared police guarding the mouth of the alley were not sufficient to protect the alley and protect against that kind of incursion, the more
3:44 am
simple solution in this case would simply be to move people slightly to the east or west where they had buildings between them and the president. >> the question is, what is there are so many different theories floating in this case that i've had a hard time trying to figure out what you want me to decide on what theory you want me to decide. is your allegation that the secret service agents were motivated in part by security reasons and in part by bad what you would say, bad viewpoint reasons? or is your theory the secret service was motivated only by viewpoint and zero by security? >> it's the latter. >> it's the latter. okay. so then if it is the latter, i think you're hearing the government saying, yes, that is clearly established, that they could not in fact be motivated only by bad viewpoint reasons and zero by security, and
3:45 am
therefore, you have stated a claim, if your complaint does say what we both just agreed you wanted to say. >> i don't think the government has conceded that. >> all right. maybe they didn't and i have to decide that. >> i don't think the government >> does that save the claim? leaving all that out, the next question would be, which i haven't heard argued yet, what more do you have to do then state a claim? five years ago i would have thought, nothing. if you have an absurd claim -- i am not saying it is absurd, but
3:46 am
if it were absurd, a district court could deal with it. they would deal with it by giving you five minutes of discovery and then saying, hm. or 10 minutes plus some judgment. or they have five or six different weapons. that is what you are arguing, i think. -- it is a comes long way of focusing you on that question. said to bert plausible it has to be something more than possible. but plausibility is not probability. the way we establish intent is rarely through the admission to local law enforcement or someone for anat the agent acted impermissible reason. what we do to establish intent is plead facts from which intent
3:47 am
can be inferred. we believe we have pleaded facts both with respect to the treatment, with respect to the time that elapsed from the president's decision to dine, from the time he sat down and then 15 more minutes until the decision was made to remove the demonstrators. >> it is more than that, not just that you have to allege facts. just quoting from page 681, the court goes on to consider the factual allegations to determine if they are plausible. giveno on to say that more likely explanations, they do not plausibly establish this purpose. based on your complaint, we have to determine whether there are more likely explanations. we have in your complaint the idea that they are at the front of the alleyway. thosetainly can look at and decide not simply whether
3:48 am
you have pled the cause of action, but whether it is more plausible than other justifications. once we meet a certain threshold of plausibility, unless the competing inference is so compelling to make our complaint implausible, it involves a pleading stage, such a great burden that no plaintiff could ever satisfy it. they could always articulate some rationale that would create a competing inference. >> sorry to take you back to this, but in this case do you concede that a reasonable officer might have had a terrible motivation, but that a reasonable officer could look at this and say, look at the distance between the alley and the outdoor patio. either throw an explosive in their -- that seems really bad. but get these people out of the
3:49 am
way. could a reasonable offer have said that? that is the proximity, certainly a possible conclusion. that, it doesn't because the answer to that is to take a response consistent with the secret service guidelines. of those firstl amendment rights of people who are demonstrating on the public streets in the center of town. >> you conceded that it would be interest.a security that people are in front of that alley where they could throw a grenade. say you concede that, you but the security interest is ithed away because in fact
3:50 am
was viewpoint. >> i think there is a distinction. could there be a security interest? there could hypothetically be one. was there one? we say there was not. >> i am not sure i understand. it seems to me there either is or isn't a valid security interest. whether they acted to cause that is a different question. you might say there was a valid security interest but that is not why they acted. as to the first question, there are either is one or there isn't one. what would a reasonable police officer think of the security interest? what would a reasonable police officer do? >> the question is whether proximity a loan of a peaceful group of protesters is enough to create insecurity? in hindsight, you could conclude
3:51 am
that. i respectfully disagree that that means there was one on the evening in question. claim thatndant's secret service agents told them the reason the secret service's request was that they did not want anyone within handgun or explosive range of the president. madee extent the agents such an assertion, the assertion was false. the defendant and police defendants knew or should have known it was false. you think it was false. they think it was true. that is: dispute of fact. the normal circumstance is that the judge has various weapons at his disposal, legal weapons to time beingent courts
3:52 am
wasted, officers time being on factual allegations that are unlikely to be true. that is your position. >> yes and no. case, a court said it doesn't matter -- it is not a question of whether the case is likely to be proven true. iqbal didn't precipitate the change. we believe we have pled enough facts to create a basis for the inference of intent. case but not your exactly the same, you don't plead any evidence of direct intent. you have two groups. one is pro-, one is anti-. the officers put one group in
3:53 am
one place, the other group in the other place. the distance from the president to the groups is not the same as someone closer. the things that are in between the group and the president are different. maybe in the group that is further away, one might think that there are fewer obstructions. maybe there are more instructions -- obstructions on the other side. you plead that the placement of the anti group was less favorable than the placement of the program. was that enough? >> we need to allege personal participation and intent. >> you plead intent. if you pled intent, would you be in violation of rule 11? >> i don't think we would be in violation of rule 11. i don't know that that would be
3:54 am
enough. , that would have been enough. we have pled other evidence. one is the time that elapsed from the time the decision was made. which lessens the which suggests and supports the inference supports the inference that it wasn't a securitybased determination, but, in fact, was based on a viewpoint animus. >> just to make sure, we're talking about the minutes between when and when? >> so we're talking about the time the president made the decision and and the initial security arrangements were made approximately at -- >> right. >> then the president sat down approximately, and then minutes elapsed before the decision is made to to move the anti-bush demonstrators. >> and the first they first cleared the alley, right? >> yes. >> and then the movement that you're concerned about. >> right. >> now, doesn't it make sense, just hypothetically, if you're the secret service agent and you suddenly have this challenge dropped in your lap at the last
3:55 am
minute, you say, okay, here's the thing, the first thing we've got to do is clear the alley, right, because that's right up against where he's standing. so you take care of that. you clear the alley. then after you have more time to assess the situation, you say, okay, now we've got to get these people who are at the foot of the alley, we've got to move them. in other words, they had to act not in an emergency situation, but reasonably quickly and they did it step by step. >> and we understand that's the competing inference that the government has offered here. we respectfully disagree that on the facts that we've alleged that that's so compelling that it renders our allegation implausible. >> but here's where we get back to iqbal. it doesn't have to be so compelling. it simply has to be more likely, is the quote from iqbal on, and it has to be an obvious alternative explanation. and that's enough, no matter what you've alleged. >> but we rely on the language elsewhere in iqbal, which we think has to be read together, which is, plausibility doesn't mean probability. and so if the contention is that
3:56 am
if -- there's a more likely explanation, ours is then then we're being held to a probability standard that this court said we weren't being held to on a pleading standard, and which we would suggest to the court is not consistent with rule with a short and plain statement of the claim. again, we haven't had an opportunity to develop a factual record here. >> all right. how do you do that? because i want to follow up on just what the chief justice said. imagine that what he just said is the real case. you have a client, imagine, who's quite sincere, absolutely sincere, and really feels he was very badly treated, and you can sign a rule 11 statement, but suppose that the facts are just what he said. then suppose that iqbal were not the law. forget iqbal for the moment. now, you've got my hypothetical. >> i think so. >> all right. what weapons does the district judge have, which i have so blithely been assuming, to
3:57 am
prevent a waste of time by the secret service, a demoralization of the service leaning in the direction of being overly careful and therefore risking the president. what procedural weapons does the present law, absent iqbal, give him to dispose of a case quickly -- without disturbance if the true facts are what the chief justice said? >> well, i think there has to be some opportunity to develop a factual record. and the trial courts have ample authority to control discovery under the rules of civil procedure. >> so discovery is your answer. and of course it is. you've got allegations. you're going to go to trial. the first thing you're going to do is file interrogatories, you're going to file requests for admission, you're going to file discovery requests to the secret service. and the district court's going to have to allow some of that, isn't he, if he's allowed your allegations to go forward? >> i think i think the court
3:58 am
would have to permit us to engage in some discovery of the agents regarding are there reports of the events of the evening? do they admit certain facts or deny them? should we have an opportunity to take brief depositions of the agents? and i think those are appropriate steps. that's not full and unbridled discovery. the rules already limit discovery to a certain degree. the presumptive limits on depositions. >> but what about what -- about the -- >> the first thing you'd want i say the first thing you'd want to know is whether this was a departure from established policy. so the first question in if i were drafting interrogatories would be, what is your policy with respect to moving demonstrators at a presidential event? what do you do? and i can see the secret service saying, well, that's kind of a bad thing to make it public because there are people out there who want to kill the president, and if you go through your discovery and say, this is how we look at that situation, this is what we do, that gives people a a guideline for how to break through the security arrangements. >> well, the court the trial courts, the district courts have
3:59 am
also have ample authority to enter protective orders. there has been no assertion that the information that would be required here, and we don't know because we haven't gotten to that stage, and i think it's premature to get to that stage whether there would be any claims of secrecy that would limit what we could or could not do in the context of discovery. but those are matters that can be best addressed by the district court in the first instance, and can be addressed by the normal and appropriate means that district courts use all the time to address sensitive information when it's presented as part of the lawsuit in federal court. >> what then what does happen if a district court does allow discovery of things what the secret service thinks are confidential? under certain how far should demonstrators be away from the president? how high must a fence be before we think that it provides security against a thrown object? suppose the district court allows discovery of all of that. what are they supposed to do? they have to file a mandamus petition with the court of appeals and get have the court of appeals try to persuade the court of appeals to review a discovery order?
4:00 am
>> i think that ultimately is one remedy and it's a remedy provided for in our system whenever we have an issue in which sensitive information may be involved in connection with a federal lawsuit. that's not it's not an answer to say that simply because there might be some information that the secret service would rather not share, that that should stop us in our tracks to begin with. those are the kinds of determinations that a district court should be trusted to make in the first instance and which district judges make every day in this country. >> there was in judge berzon's opinion, she seemed to think it was very important that when the president got into the motorcade to leave only one side had access. so leaving aside what happened when the group was moved, would

39 Views

info Stream Only

Uploaded by TV Archive on