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tv   Key Capitol Hill Hearings  CSPAN  December 15, 2014 10:00pm-12:01am EST

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hydrocarbon law. the sharing of the resources, the right to sell oil, those are completely unclear every time there is a situation such as baghdad needs from revenues, there is a political deal. for example, i'm talking about 2007, there was a political deal baghdad allowed them to sell oil, there was some process. price of oil went up, but oil was enough to cover iraqi budgets, baghdad on the decisions. two years later, three years later, there was another deal and then this time, the k.r.g. wanted it, they didn't need baghdad. they build their own independent pipeline. they're all political deals. i tell you this history because we just had a new deal on december 2, 2014, where the kurdish government and the iraqi government agreed on some short-term political deal to
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sell oil and share the revenues. again, is it going to last or is it just another short-lived political deal? my worries are, my hope is, of course, that it will be a step in the right direction and the right direction being a national hydrocarbon law that has at least the quad political backing on both sides, but i also have worries. past legacy is not very promising and, of course, we also have all of these pending issues such as land, such as revenue sharing, the grievances of boss are, the -- bosra, that the same that is echoed, why should the kurdish share oil with the government. these are challenges that the hydrocarbon deal is being faced with. i think kurdish oil policy when
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t initially started in 2004- 2005, some say how oil is being managed. the pushback in baghdad was so strong and fierce and aggressive, this small cat was correspond into the corner and it was turned into a tiger that is thousand big enough for baghdad to deal with. that has been one of the landmarks of kurdish policy, to shoot and ask or maybe not ask questions lately, to impose status quo on baghdad and build the pipeline, and tell baghdad, here it is, would you like to fight it or join it so we can share the revenues. it has worked sometimes, sometimes it has overplayed its hand. so far that is where the iraqi kurdish government is. there is also regional and international pressure on the kurds to stay in iraq. coming from this capital, coming from teheran and in addition to the realities on
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the ground. to conclude, though, some pressures that the k.r.g. is currently under, what really angers and disappoints kurdish leadership and the kurdish in general is that every time something goes wrong in iraq, he kurds are the first to help solve it or and they have to make sure iraq doesn't fall. oil prices go down, the kurds come under pressure they need to rescue iraq once more. prime minister mall i can creates a ton of problems for everyone and the kurds say, ok, that's it, that's kind of the last straw and we're going to call it a game. there is pressure, come on, give baghdad another chance. this doesn't go well in kurdistan, ok. people, and again, politicians have played this because they said the end institutional
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federalism that i was talking about, comes with perks, it comes with lack of accountability. it offers room for lack of transparency in a lot of realms including revenue. the kurds are getting fed up with it, we were promised too much a sovereign state. we were promised and too many times and now it's time to see it. it's time that i'm expecting that that kind of rhetoric that the kurdish leaders have been promoting, again either as politics or as policy is going to backfire in iraq as a country not going to deliver what the kurds want which is an independent economy, a continuous revenue stream and maintaining the level of autonomy that the iraqi kurdish government has been enjoying. the pressures on the k.r.g. also include an influx of refugees, people from isis
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captured territories and you add the demographic pressure in addition to budget cuts from baghdad that were imposed in this new deal of december 2 is going to address that as well as low oil prices and economic creation that the country itself is facing as well as hundreds, actually 1,500 kilometers of borders that now the k.r.g. shares with isis. sorry, that's the failed state, i'm not the bearer of good news, but my main point is that there are these two tracks. we cannot focus on the past history and grievances. we need to look at economic structures and institutions. i thank you very much. >> thank you very much. we'll now have our hostess, she is a long-time activist and democracy promoter who has been
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working reconciliation tracks for many, many years. she is also a fellow here at the foreign policy institute as well as working track two issues at our other sponsored middle east institute. > thank you very much. was involved in a track 1.5 national process between 2006 and 2009 in iraq. listen to my colleagues, fellow panelists, it's deja vu all over again. i was bring back to that room whom ing iraqis many of are in senior positions in the iraqi government. it's the same issues over and over again. that should be telling us why national reconciliation is needed. i was recently at the meeting th a group of senior iraqi
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figures, experts and officials. one of the participants in that meeting said while we can't dasch militarily now, but without national reconciliation, we're not sure that we can prevent it from returning again. there are many former officials from iraqi that said dasch is iraqi 6.0. so if this critical opportunity in my opinion is facing iraq today at taking another attempt reconciliation is not taken up by the iraqis as well as by the region, i think that i'm afraid even if we defeat isis in a year or so, in five years from now, we're
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going to have, who knows, a new group under different terminology. more importantly, i think there is the realization today in iraqi, that this is it. this is the opportunity to make this country work and if we fail at this this time, there will not be a second chance. as few people know in the field, in conflict resolution there are critical junctures in a country's live or a trajectory where intervention can really move that conflict from one state to another. i think iraq today it's at this critical juncture where a serious effort can have a long lasting impact on the future of the country and its people to
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make it work. now i think it's important to also, to address region national efforts, why they have failed and use them as guide posts going forward in thinking about a national reconciliation process. tween 2004 and 2006, 2007, there were three attempts at national reconciliation efforts. i'm talking about not track 1.5, i'm talking about official attempts. there was an attempt in 2004-2005. there was mall i can's national reconciliation project of 2006 and there was, and this is where the top bottom effort, the top down effort. and then there was an attempt or in fact an assumption underpinning the surge in 2007 which says instead of looking at the national level which at
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the time was stalled, was going nowhere, maybe by focusing on the awakening, you create the space through these bottom up national reconciliation with sunni tribal group to create a space and opportunity then that national move the reconciliation opportunity, process at the national level. i think each of these attempts failed and there are common reasons why these attempts failed. one of them and primarily one them is what he said, the lack of negotiators, a convenor that was accepted, seen as neutral and as having the morals and political graph tass in the eyes of all of the parties, sunni, shia, kurds, armed groups, political movements.
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the arab league was not seen as a neutral negotiator for the shia and the kurds for its ears of silence facing the saddam regime acts of violence and definitely mall i can's was not seen as a neutral garktor by the sunnis, especially at the time when he was failing to end the militias in 2006 and 2007. the second issue is i think something that had its end is the failure to deal with this clash that existed at the time between the public of violence between 2006, the outcome of the two narratives in iraq about the violence in the saddam era, but the violence, both of them eras from 2006 and i think each of these national reconciliation efforts failed
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to create a forum where these matters could be addressed an reconciled. there was also escalating sectarian violence at the time, especially starting in 2006 which did not help in creating a national climate that make he reconciliation feasible and the actors, the invasion of 006 brought to the forward iraqi parties movements, armed groups, hundreds of them, many of which did not have political skills, did not have the practice of working politically with each other, many of which have diverse agendas. some of them have the nationalist iraq agenda, but some of them have very much a sectarian agenda. so that clash between these different movements and diverse agendas also created obstacles to national reconciliation.
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i have to end with mall i can. mall i can was definitely the single most influential if we can put it this way obstacle to national reconciliation and the way he went about it that he put forward the 2006 initiative for national reconciliation and he made all of the right moves, supported and pushed it forward and then in 2007, in the awakening gave him the perfect excuse to go back and say, well, we don't need to do national reconciliation at the national level because you have all of this local reconciliation happening at the local level. basically he used the awakening movement as an excuse to an sond the national government and his group of doing anything at the national level. and here we are. we are now at another critical opportunity and i think the window is going to close very
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quickly, but we are there at this critical juncture where a national reconciliation process led by an acceptable mediator and that we're talking about that. i think if we look around the region, i agree, it's not going to be the iraqis doing that. i think each one of them, any iraqi mediator will be a polarizing figure for some party. it has to be a regional figure. i don't think the americans can play that role. we have lost in a way that moral credibility in the eyes of many iraqis to be able to play the role of a mediator. we were talking about this panel, egypt. i think egypt still is a possibility. there is a possibility for egypt to play that role of a convenor, of a negotiator, of a national reconciliation process in iraqi. it carries a lot of baggage for a lot of iraqis, but egypt maybe has an opportunity to
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claim that leadership role that it had as being an anchor of the arab region and playing the role of mediate or of a national reconciliation process in iraq is maybe one way to do it. it has to do also with what the new egyptian leadership, what vision they have for the country, their vision for the foreign policy of the country and the role that egypt can play as a mediator in the arab conflict. now i agree that any national recancelation effort going forward, why it needs to be at the top level coming to readdress some of the issues that in my opinion the constitution failed to address, the constitution in 2005, talk about a missed opportunity. constitution writing is always an opportunity for negotiating among the different movements and parties in a country, the new rules of the game going
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forward. egotiating, for a social government. and i think at the time in 2005 that opportunity was missed partly because of the administration own's reconciliation and electoral timetable pushing the iraqis to finishing writing up the constitution in my opinion in a way that prevented that kind of discussion, that kind of negotiation among the political elite, but at the same time the kind of debate within the iraqi public to readdress the issues of how this country can move forward, the new rules of the game. we need a national reconciliation effort among the political elites, among the different, representing the different components of iraqi society and i agree and one question when it comes to the unni, who will represent them.
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and whether this pact that has been struck recently between parts of the sunni community, tribal elements, large groups of the sunni community and isis or dasch can be broken and whether the sunni political elites who are in baghdad part of the government today or who are sunni officials from mosul can represent the sunni community is a question here. i mean, you work with what you have. these are the elites, the sunni elites that have be in political participation and are in the best position and can make the argument for the rest of the sunnis about the benefits of sticking with political participation going forward. so you need that level of national reconciliation at that thought, but at the same time you need the national recancelation at the grassroots
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level. it has to be a second to act to national reconciliation going forward in iraq of a bottom up, whether in the form of confidences, whether in the form of meetings at the provincial level, the local level. this two-track approach is important but also importantly, since 2003 and the removal of the saddam regime, regional players, regional actors have an important role to play now inside iraq. what happens in the region flows into iraq, but also what happens in iraq affects the region. i think when national reconciliation happens, it needs to have the blessing of the regional actors that have most influence in iraq. i mean by that americans, i mean by that the saudis. i mean by that the turks and the iranians. that brings forward the question of the future of u.s.
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iranian relations. i think without the kind of blessing or umbrella provided by the regional countries and the countries that have influence in iraq, i think national reconciliation, whether at the top level or at the grassroots level has limits in how far it can go. now, in terms of agenda, i think my panel, my fellow panelists here have talked about what the agenda of national reconciliation process, especially at the national level should be focusing on, the question is back to the forward, how you make that work. i agree with you, there is no power sharing and i remember in 2006, 2007, many of the sunni participants in that track 1.5 of reconciliation, the word they came back to time and time again is the idea of partnership, that what you are looking for is partnership in governing which is very much
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similar to what you are talking about in terms of power sharing. the second issue that needs to be addressed i think going forward is the status of kirkuk. we know that the new state of affairs is not going worse. i don't see anybody in among the kurdish leadership arguing for restoring the status quo. what will be the status of kirkuk going forward and how this is settled goes a long way in affecting the attitude especially of the sunnis because these are kurdish authorities. lastly the militias, the shiite militias which are now playing an important role in standing up to isis, but eventually the fear is that they're going to start adopting political agendas that will have to be reckoned with. we had a bad experience with militias that gunned don't get
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disbanded in the middle east. hezbollah was established in 1982 and hezbollah now is the a ary force in lebanon and sector of lebanese politics. that is a fear among sunni and some shiite of some of the shiite militias which are now playing an important role in fighting isis with political aspirations going forward. the same with the sunnis with militias. the fear being raised, especially in places like bosra and in baghdad about the national guard and whether the national guard and the way they get formed can become the focal point for creating a sunni nation to stand up against the shiite militias. so how also the national guard's law is agreed upon and
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how they are formed on the provincial level is important on going forward. >> i will give just a few points, our hostess asked me to say a few things in addition to moderating. i think today has been a wonderful example of the difficulty of reconciling competing narratives, which we have heard in very mild, polite, and academic terms here on the stage, but in iraq itself become much more pointed and much more political. i'll pick on harriet for just a moment. certainly from the perspective of the sunnis and the old regime, sectarianism begins in 2006. i think from the perspective of both the kurds and the sunni arabs, that's simply not the case. and from the perspective of baghdad, there happened to be these unruly people up in the north who revolted in the mid
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1990's and went and put they will down. the fact that they happened to be kurds was irrelevant to baghdad. that is not the way it was perceived in the north. likewise from the perspective of baghdad, you have one particularly unruly cleric in 1980 who needs to be removed and is killed under torture by the government. you have this uprising that occurs as kind of an aftereffect with the war with the americans in the south. you have another unruly cleric that needs to be assassinated in the 1990's. from the perspective of the shia south, the killing the cleric and then the slaughter of the shia in the south followed by the assassination of another cleric is a narrative of sectarian repression from the perspective of these two people. so we have these competing narratives of what was going on and what was happening.
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from the perspective of the regime, probably not a sectarian intent, but from the perception of those who were on the receiving end of this repression, it certainly had a sectarian effect and fed into long narratives, both on the part of the kurds and the shia of repression by either the sunni or the arabs, depending on which camp you're from. with that said, i think we are at a point where this is both the best and the worst time to attempt reconciliation. it is the best time because i think objectively speaking when you look at the situations, all three sides have realized that iraq needs to stay together and it is exponentially better for all sides to stay together, the iraqi sunni for all intents and purposes live in syria. who wants to live in syria right now. they live in an area without
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government control and without any significant resources and so long as they are separated from the central state and of course they still continue to receive some remittances from the central state which mitigates their situation somewhat, but so long as they live under the islamic state outside of baghdad, they are in a bad place. they need to rejoin iraq both for the security that it provides, the monies that it can provided and outside of this, they would simply become saudi client or a gulf state client. the kurds i think are a very interesting case right now. we have all heard in town for the last 10 years from the kurds, in our heads, we know we need to be part of iraq. in our hearts we want to be independent. i have never seen those two narratives even more magnified as in the last year. on one hand, the kurds he will pangs into kirkuk, the exuberance that came about because of this, because of
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their expansion, because of the retaking of kirkuk really put the kurds in a euphoria over the possibility of independence. i think the fact that they are now coming to terms with what a border with isis means, what this has done to their brand. for the last decade, kurdistan has been the other iraq, if you have a border with isis, you're just iraq. you have all of the violence. you have all of the risk and so on. i think just in the last month, we have seen the stubborn fact of the fact that kurdistan cannot declare independence and for that matter cannot export oil without the concurrence of an kara and that dates back to all of the decisions, if kurdistan wants to do anything that baghdad does not approve , it must have ankarra's
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concurrence. the realization that they would t do nothing without the concurrence of ankarra. it's a single commodity oil economy but also has the political risk on top of that, what they are willing to do and those two risks together strike all of us objectively speaking as an overwhelming argument against independence. of course, this has nothing to do with what is in the hearts of the kurds. so we have the unique time i think where objectively speaking it's a very good time, but in the hearts of i think both groups, it's a very difficult time. i think this is further compounded by the perception which i believe has been a sunni shia dynamic for some time that the shia have perceived the sunni as in a large part collaborators with terrorism. i think what we see now that narrative has now spread to the
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kurds and we are now seeing the kurds don't, of course, use militias or death squads to push the sunni out. they do use visas and checkpoints and bureaucratic procedures. we are hearing anecdote stories of it being much more difficult at the very least for them to cross the borders into kurdistan, for them to act in kurdistan. it's a very interesting, both best of times and worst of times. stealing my thunder on who can bring this together, i concur that egypt is a unique figure that perhaps could bring this all together. everyone else who has the gravitas to do this the gulf states, the united states, iran, turkey, all vietnammed by one -- vetoed by one of the three parties and aren't plausible. i'll close at the tension that i think is at the heart of trying to find the right
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federalism approach for iraq. we have had my good friend just left town, articulately talking we need a more decentralized and less powerful baghdad. yes, in a way. on the other hand, you want a baghdad that is powerful enough to bring the revenues from basra, bring it in and distribute it. maybe it isn't compatible or tensions in these two positions. do you want a strong baghdad or not a strong baghdad. these are difficult to reconcile. i think the kurds are perhaps insufficiently attuned to how baghdad is balancing not only their negotiations, but everyone else's. for example, i think if we were just talking about baghdad and the kurds, we could probably reach some kind of accommodation. i'm not a party. the iraqis could reach some kind of accommodation on how much oil is pushed through the
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state oil company and how much rough incause there is boz it has toon -- bazra, be redlined on how much can come to the state oil company. i don't think baghdad can afford to coppermine is eyes on that condition, not because they could not work it out but because that president has been set. this is the problem with a multiplayer game, it's not like you can reach an accommodation with two sides, you have to reach an accommodation that includes everyone and i will close on a pessimistic note that even if prime minister a body would say i will do whatever it takes to get a deal, there are no red lines for baghdad -- whatever it takes, we will do. i'm not sure he can cut a deal with the sunnis and i'm not sure he can cut a deal with the kurds that is acceptable to the
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sunnis. that is the difficulty moving forward and bringing peace to an iraq that needs piece. and objectively needs to stay together. that, what time do we end? >> 10 minutes. >> 10 minutes for questions, we will start right here. of the middle east institute -- i have two short questions, what about the role of religious leaders, nobody has mentioned this but they figure very largely in the narratives and -- why are you ignoring the u.n. which seems like the obvious mediator? >> religious institutions? >> religious institutions or religious leaders? i just met one, it was a great
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honor in august. i can tell you if there is somebody holding the shia from than it is him. that's what i heard from his office and from him directly. the was another top call for a bazra region in the past. when i met his son forcing him blank0 he told me point ra provincee the bas fail. he single-handedly socked that. for anybody interested in keeping iraq together they should say think god for him. >> one of the u.n.?
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-- why not the u.n.? >> they could do that, the process needs to happen under a u.n. umbrella -- they can provide that kind of aid. they have their role to play in helping, provincial powers act -- it has provided venues and elementst enable some -- some agreements as i said like the 2015 act to take place -- the question is in this happenon, what needs to is the arab legitimacy for that process. itself as an arab anchor -- an arab center of power.
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and in egypt, the political gravitas that egypt carries in the region -- can prove to be less polarizing and at the same time bring the kind of legitimacy of its consolation process under the arab umbrella -- especially with the dissident proponents. i agree the u.n. might be the most credible party but we should know that it is not about the party with well intentions -- we need a party that is able to oblige all negotiations to by the them and oblige commitments they give -- i agree about the egyptian role because they hope the egyptian's -- egyptians will work on their own national mitigation -- [laughter]
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that't feel they have force and credibility is the right form to power. >> one sentence -- comment, the religious institution that generally speaking the religious institutions are increasingly losing power because of the accumulation of wealth and power because of politicians and -- which enables them to co-opt the religious institutions. >> but this is a whole different category. >> right, a major outlier. somewhat accuracy -- if he is in the picture -- >> the derailment in the red tie. gentleman in the red tie. >> i am david mack -- i have a
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good news, that news scenario and maybe some of you can help provide an answer to what ,appened if -- as i suspect h is really dyas overextended. places like mosul are running out of fuel, his tradition of food is breaking down -- to say nothing of a total failure to reestablish the economy and health care. what happens if you have what is first considered good news with former he -- former officers rising up to kill dyash officials and on the pressure from the outside you have a implosion of the administration but everything i've heard doesn't indicate they would be prepared to move in and do much better.
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so it would be kind of in an era away like 2003 -- in an ear he ery way like 2003 with the fall of saddam hussein. is there some way the iraqi state could take advantage of a fortuitous of element -- development? >> the scenario you are describing happened. the sunni tribes rising against the al qaeda and against others and that put an end to al qaeda 's foothold in the country. the necessary steps after that which were power-sharing and partnership, inclusion, did not follow through and therefore that military victory was not lizedon lies on -- capus
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on. sunni leader would say why would we play that movie again -- we have already seen it and we know how it ends. unless there is credible evidence that if they do the same thing there will be something different. >> the gentleman in the blue open collar. presentation. my question was regarding the repeated suggestion that the current egyptian regime could not act as viable mediators and he mentioned 1.i wanted to say which is that given the depth of the current regime -- they are not able to cite -- strike any kind of national compensation in the country and might preclude egypt from playing a viable role
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-- added to this is the current egyptian regime will not be viewed as neutral -- it is viewed by many, especially sunni, islamists as an anti-semite regime so it will not be viewed -- the third and final thing is the gravitas that you talked about. what kind of leverage in terms of political enforcement does egypt have given the economic and theteriorating troubles going through at the moment? >> fair points. any of us -- i think we concede your points -- go ahead. quickly, i am with rhonda on this that egypt is not have to be involved as a state, that egypt has great still among statesmen. there are others who are
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important, skillful negotiators, skill for -- skillful mentors and it does not have to be egypt alone, there are several other people. you would like to see a combination of egypt with a u.n. umbrella and the u.n. -- the u.n. has one option on the menu if anything happens, ibrahami. but there needs to be exploring other talent because there are asces where he cannot be effective. talent andide the maybe even have people from south africa who may have walked the walk. it is good to be an international effort with some kind of international talent and a new umbrella to give us the credibility needed.
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when we talked about before the we weret egypt -- trying to look at which of the regional powers can play the part. it has to be led by a regional power but which one? arabia is for either side, the u.s. is not acceptable for the large front of the population -- that leaves you with a very small cast of characters from which you can choose and egypt from that cast does not have to be alone, but their involvement is critical to give it the kind of arab umbrella it needs to have. haveyptians do not negative approval ratings inside iraq, they are not as resistant as saudi's are others?
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saudis or others. >> that's right. questions.wo quick the first one is about some reporting and reading about what is isis imposed of? and my question -- there are people saying isis is just a cover for the iraqi army and these groups -- could you please tell us a little bit about what kind of competition you see inside isis? second question, how important the american role is in keeping iraq together? think isis is the latest incarnation of the group led by the foully and a rock -- in
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iraq. they managed to attract any people who are part of the former iraqi army and those people playing important roles in military planning, and but ing sleeper cells still think that within isis there is competition on the as an between isis umbrella for sunni militant globaland isis as a jihadist group, sooner or later i think that divide will become clear -- if you want the ability -- ins to maintain unity
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, i think your question the members of the foreign army play a role but i don't think they're very influential in deciding the strategic decisions of isis. >> i will give a closing comment to what i'm told is our last answer is both, isis is both an international hasorist organization that incorporated a number of resistance groups and pieces of the old regime. there are many analysts who are confused as to which was primary in the immediate fall of mosul in may or june. the minute the group took its left turn and turned toward urb eal it was very clear which was the primary motivation -- this was the latest iteration of sunni resistance to a perceived oppression of regime in baghdad.
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huge strategic flaw on their part in the could of exploited that ambiguity for a long time had they not taken the turn into kurdistan but now that question is settled. while it has sunni resistance elements in it -- it is primarily a extreme islamic group that has aspirations to do what it says -- to take over the entire levant and morocco to indonesia. >> we have time for two more quick questions. america is a america, it continues to have an important role in starting with 2003 there is a complex history that makes america's role very collocated and america will always be a player because it remains a global superpower but
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its history in iraq in particular require it to have partners to achieve legitimacy. >> my question is about the region and the efforts -- if you look at the history, the issue region would come up with negotiations with the kurdistan region and i think they're trying to use the formation of the basra region information of the krg. are there credible efforts by the people to form autonomous basra region's similar to the kurdistan region -- regions similar to the kurdistan region? >> there are some similar to the
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judge who has been a minister and parliament member who is probably the best person to --iculate the cause of basra his narrative is quite well known. basra ishat goes on -- not just about basra, the leadership and the political leadership -- the governor and city council, they belong to strong parties that are national parties. there are leaders from outside who paul their own politicians -- poll their own allocations but the -- politicians, but the biggest problem to achieve political status is the politicians.
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but i think he is trying because there is a mechanism to collect signatures and present them to the election commission and then it will go forward that way. the question is will the same people who caused the previous attempt to fail do it again or is the momentum to strong right -- thatoo strong remains to be seen. workable tos more have not just basra but the -- that is more kind of a contiguous demographic and geographic and in many aspects -- that will work better. this idea of having a full-fledged shia presents, if you get that you will force more than one province and that will lessen the tensions nationally.
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both --nk the answer is it is a real thing but it becomes more salient whenever bargain is toived make the rest of iraq look worse. i don't think the two ways you're putting it is intention -- they are very real. as the perceived deal that basra gets a piece of the rest of the country starts a look work than the salience of basra's larger southern regional status becomes more salient. wait for microphone please. identify yourself. i'm from the city college of new york -- a graduate student. my question is am a i want to go to the role of the u.n. itself, you mentioned it has no large
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power over iraq but they do have , all members are obliged to act collectively should any member state failed to protect their own citizens and they already did that in labia -- libya for example. using peacefult or coercive means but the the p5 led theld u.n. interfere into the iraqi issue -- for example they could build the trust that has been lost in these attempts to reconcile the iraqi society. i think they do have that role. i don't know if you agree with me or not. i think the u.n. has a role
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to play but in this issue -- and important roles in helping iraq on some levels -- it has played a role in training with the iraqi and iran ofernment but in terms national levels involving the thinklitical elites -- i the u.n. needs to happen under the umbrella and in terms of the actual leaders and the actual people. hypothesis is that it has to be led by arabs -- by people from the region. it has to be led by a country that is seen for all practical purposes an important country and an anchor to the region and egypt is such a country and has
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been applied before -- it does not evoke the negative attitudes among iraqis that other potential regions can say. the u.n. has to play a role but we are in a definite gain in terms of iraqi politics and --ing egypt play that role it could be a member of the convening team and bring that game to a level that it needs to be brought to at this stage of the conflict in iraq. u.n.agree and i think the has a great moral persuasion role to play but in terms of an enforcement mechanism of getting chapter six or chapter seven on iraq -- that is a paper tiger and i'll think anyone thinks that is a political possibility unless there is a quantum change in iraq. when he to be realistic here,
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we're talking about region which there are almost five states now -- there are probably more coming but i don't think that the international community will be able to have the same commitment it had in 2003 for the iraqi issue, i do think that you need to renegotiate the political process in iraq and to reach a new compact between iraqi factions -- you need a third-party and in this case a fourth party was able to enforce partyleast to ask the like themselves what they promised to do and i still think collaboration between united states and iran and turkey might be helpful --
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you cannot execute regional powers because you are to exclude them and they will not exclude themselves -- they will try to influence the process and the best way is to involve them to be part of the solution and not part of the problem. >> time for one more? >> yes. >> good morning, my question to friends i'm from syria you mentioned that the sunnis -- the kick up the shia from their more, can you elaborate about what they did to the sunni as well and can you elaborate about how the sunni will react
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to the shia and others and how they will fight isis in their -- area and dear friends when he met in damascus, you are there to brief us -- >> meaning the syrian government? >> yes. committee --iraqi one of the cases you speak of is that there is no one preventing no one -- as you are proficient, how do you pick up the people that they got, how can you expand the point? let's look at what he was referring to. since the coming of isis. provinces,n in other
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isis clearly did not allow -- they give the christians, not just the shia, the christians were pushed out at least they were given 24 hours to leave some of them were asked to convert -- i went to school in most 442 years and is a change that for the first time in over has noars that christians at all -- not a single one. they were also slaughtered so was anybody else -- but also with the shia, they were not even given that luxury, shia be killed for their work cut and the other areas crisis came, , 1700was a slaughter deaths were killed by tried -- not quite isis before isis got that place and never having to
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shia became commonplace. every sunnit is not that killed every shia. there are so many families from those provinces who were rescued also,re sent back -- but if you look from the other side, all of the internally displaced people from falluja, where are they? monthswere hosted for right now, nothing of that nature happened in the south act whereno counter the sunnis were slaughtered in the shiite -- know that happened but your question is to what the others were doing in the fight. groups thatring to have been acting -- they have
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their own leadership and structure and they have done a mixed bag. a lot of the footage that was shown was very disturbing to say the least and no less than the torture that happened elsewhere but also, let's face it those groups whether you like them or any successful fighting in iraq since isis came in. they have not done anything to speak of -- they are the ones they are sort of external fighters and volunteer fighters and they are the ones who achieved and asked themselves of that -- all of that. was it a favorable way to go?
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no, for sure. you would rather see the state and the military do its job but the military has not functioned and iraq was left to those groups to defend it. it is very hard to speak of that in terms of -- did a have american blood on their hands from the oh days -- they have american blood on their hands from the old days but they are being trained by the united states right now. ones who shot at the americans in falluja and elsewhere. we have the same history, dealing with them also is problematic. --hink the american reproach approach is rather than doing something for the iraqi military they are approaching it from a macedonian way -- if you have a problem, the solution is to make more of them. [laughter] solutionlike we had a
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with them and now we are making more of them and where having -- let's hope that macedonian solution will work for iraq. -- i'm not going to hellcoat anything, it is a of a difference between the cold-blooded butchers who were killing shia for being shia and under those who are on the battlefield doing things -- both of them are wrong but equating with isis and the militia is misleading in that sense. but i am on the record, my favorite way is to help the iraqi government -- i was hoping american troops would go into the job but since this is out of the table as a policy by
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president obama administration -- there is no other option to use whoever is willing to carry out the arms -- the tricky issue is these people are backed by powerful and it is hard to go against them right now and the current situation in iraq. it also applies to shia or kurd -- in the past few months since june to now in particular, even know all of the time was bad, the last few months have been heartbreaking for anyone with any sense of decency to watch those people killed, the kurd, shia and sunni everybody else whose faith put them in the crossfire in a battle that was not his or her battle. it is shameful. said,t to add to what he
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when it comes to the spending the militia will have to do with militia -- -- those whether iran decides in the presenceat their serves or undermines its political objectives will go a long way in what happens to them down the line. in terms of how you pick members or people -- you work with what you have. there is a problem with the sunni community saying there are ways to go about that and the case of what we did in thousand six to 2009 we went and chose --
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2006 two 2009 we went and chose -- 2006 to 2009, we went and chose leaders. meeting juste-time to understand the lay of the land in terms of their own calculations and in terms of their own plans going forward. in terms of going now forward you have to work with what you have -- you work with members of parliament and civil society and you work -- these groups remain. >> are we at a time? >> i think we are. >> thank you very much. [applause] will have a panel following
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the session with i and robert fort. thank you very much. >> on the next "washington journal." aboutstebbins and talks -- emily stephenson talks about the derivatives. brad and dallas woodhouse talk about bipartisanship and government and then a look at how federal workers view their job based on a survey for the partnership for public service, the president and ceo joins us. we will also take your calls and puts we are comments on facebook and twitter. washington journal is live every day at 7:00 a.m. on c-span. >> real estate mogul donald
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trump was at the economic club with washington, d.c. on monday where he talked about his brand in the business community as a whole and he was asked about his intentions of seeking elected office. >> are you considering getting into politics as a candidate and running for president? building buildings all my life and have done a great job as you understand and one thing is if you didn't think i did a good job i wouldn't be here tonight so i want to tell you we have done a good job and i'm considering it strongly. a lot of people think i have fun with it and i am playing games and i enjoy the process -- and i certain extenta but the country is in serious trouble and we just broke $18 due ton in debt largely different places like china and others and we are in serious trouble so i'm considering it strongly. >> when do you think you'll make
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a decision? >> sometime after the beginning of the year. >> you can see the entire event with donald trump later in the programming schedule or anytime online. ruled on aeme court case questioning the use of evidence obtained during a police traffic stop -- that oral argument is next. to theoor tributes retiring congressman of michigan and later a discussion on the future of u.s. foreign-policy. court monday handed down a decision in a case involving police traffic stops 8-1 that lawruled enforcement can use evidence seized during a traffic stop, even if the officer pulls the car over based on a misunderstanding of the law.
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the case stems from a 2009 incident and north carolina when the car passenger was found in possession of cocaine after police stopped the car for broken tail light. thatupreme court decided since the officer's mistake was reasonable, there was reasonable suspicion justifying the stop. this oral argument is from october.
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>> our first case is heien v. north carolina. >> in a country dedicated to the rule of law, officers should be presumed to know the law at least as well as citizens are. that being so, when questions arise in the fourth amendment, they should be addressed against the backdrop of the law and not simply any plausible reading an officer might have. >> suppose they did have a good-faith exception to the exclusionary rule. what would be your argument today? >> it would still be arguing about the case where not only the fourth amendment was violated, but that the good-faith exception didn't apply. you wouldn't have to reach that in this case. that would be a debatable argument. >> why would it be more debatable than the argument you are making here? i more or less anticipated your answer. i think it has to be. i think you have to tell it even if the good faith applied. >> that is not exactly -- the court has held that reasonableness of mistakes of law could be take into account to remedy. >> but then why isn't that a problem for you when you say
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there couldn't be a reasonable mistake? we know there can be. >> there is a difference between rights and remedies. we asked the question of what is reasonable as to whether or not the fourth amendment was violated, a jurisprudence in criminal cases and other cases, you would do that assessment against the correct interpretation of the law. >> we can have this dichotomy known as a lethal mistake. it is a difficult one, interesting question. it seems to me that to make the same argument here with a good faith exception that you have a problem. it's the problem with that that undermines your argument. >> i do not think so, justice kennedy. i think the best jurisprudence -- when the fourth amendment was
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violated, we do not take the state of the law in account. this is the premise from which three derive. >> i have a preliminary question. even if you have a mistake of law, the traffic stop ended with a warning citation. the traffic stop is over. at that point, the police officer asks if he could inspect the car and the answer is yes. why isn't there a consent to
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search the end of this case? >> because it would be the fruit of the poisonous tree if the stock is illegal. there never would have been on opportunity to ask for consent. the consent wipes away the fourth amendment question. >> suppose the officer had said, i'm giving you a warning. you're free to leave now. by the way, may i search your car? >> i think that is more or less what the officer said. >> even in that situation, that would be the fruit of the poisonous tree? >> yes. the stop would not have taken place. a traffic stop is a seizure. upon pulling mr. heien over, the officer are needed reasonable suspicion to do so. the only argument is the stake of north carolina law as to the brake light in this case.
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>> i understood you said earlier you do not take distinguishing the exclusionary rule. you do not take reasonableness into account when it comes to mistake of law. >> i'm sorry, mr. chief justice. i think what he said is you do not take the reasonable mistake into account when you ask if the fourth amendment was violated. you do sometimes ask about the remedy. >> the fourth amendment itself protects against unreasonable searches and seizures. it was a stronger argument for taking the reasonableness of the officer's actions into account in the mistake of law. as opposed to remedies and qualified immunity.
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>> the court rejected that precise argument that actual argument that the word symbol and this means the fourth amendment incorporates mistakes of law. as of a deep common-law which is -- >> i'm sorry. i thought we said that? even though we will look at in terms of remedy, that was not to say that the reasonableness did it go to when it was a violation of the fourth amendment. >> my understanding is it would be a mistake of the fact case. it would have been a factual question and not necessarily a legal question. in leon, the courts as the officer acted as a reasonable officer could and should have acted. in time and again, this is officer acted reasonably because you can take into account whether the officer reasonably misunderstood the law. forgive me. >> why does it make sense to say that you do not take reasonableness into account when it only protects against unreasonable searches and
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seizures? >> three reasons -- a practical reason, theoretical reasoning, and a jurisprudential reason. >> the deep common-law heritage in this country that we have always followed is that the criminal law is presumed to be definite and noble. in all kinds of settings whether he punishing someone where any other actions, citizens or government engages in, we assume a correct understanding of the law, even if it is later construed by the court in a way that wasn't exactly -- >> didn't the court hold in cheek in that circumstance there, ignorance of the law would be a defense? >> because of the special statutory that congress had written.
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numerousraph sets out citations this principle that justice holmes's and others that -- law is presumed to be definite and noble. once you take that presumption and put into the police officer's mind in this case or any other actor who asked by mistake a law, then there is no reasonable suspicion. we presume they presume the law when they acted. >> suppose the officer stopped the driver and said you know, i have been going -- we do not know about this one light or two light thing. there is an intermediate court of appeals but i don't know what the law is, you better get this fixed. and then he seized in the course of this conversation the contraband. >> i think there are two questions in there. one is whether the officer can look to court decisions or other third-party sources to help him theis job -- that is what
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officer said in the coal and davis cases were you take into account police manual court decisions and the court has embraced that in its remedy decisions but iran it is off-limits with the fourth what if the officer was worried about his safety on the roadway, that would be a different case. if there is a stop done for reasons aside from possible cause, the purpose of that stop such as the community caretaking function might kick in. but of course the state hasn't , made any argument in that respect in this case. they were clear the officer was following a criminal investigation. >> mr. fisher, we do not review opinions. we reviewed judgments and we review results. what you are complaining about here is the admission of what was discovered in the search of the car, right? what difference does it may that washether
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lawfully admitted because it was a constitutional search, or it was lawfully admitted because the remedy of excluding it would not be applied if there was a mistake of law, a reasonable mistake of law? the constitutional problem is the admission of this evidence and it seems to me whether it is properly admitted because it wasn't violated or whether it was properly admitted he covers -- because the remedy for that violation is not exclusion of the evidence, you lose either way don't you? justice scalia, no one has addressed the question of remedy because no one needs to address --
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>> if you find because it urges you to find that it violates the fourth amendment to make the search. we would then have to -- in order to decide whether this judgment is lawful, we would have had to decide whether the remedy of excluding that evidence has to be applied. >> forgive me. with respect, i do not and the -- i'm not sure the court needs to do that, i think the court can vacate and remand the judgment just as it does numerous other times. they find a problem in the lower court decision and sends it back -- even if this was purely a federal case, i think i would be saying the same thing. no one has briefed or argued exception in this case. >> you have. and you acknowledge that it applies to remedies. >> no, no, no. here is what i have a knowledge -- this is important. we have acknowledged that the question of whether the mistake was reasonable would be relevant if it all with the remedy stage.
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what you would do is you would ask the question if this were a , federal case we had to reach the question, you would ask whether the officers mistake of law in this case renders appropriate. i would add that holding that it did render suppression and appropriate, that it would be an extension of the words good faith doctrine apply. >> the most he can get from us is a remand? >> that's right. -- >> the court would decide whether the remedy of exclusion should apply -- >> that's right. i'm not sure if it is any different if i may or may not be entitled to a remedy. under chatman. those of the kinds of situations where the court would always resolve the constitutional question that the lower court addressed and send it back down to the question of remedy. >> i don't know why following up
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on what justice scalia is saying, he sang we don't give sayingemedy -- he is that we don't give you a remedy unless we believe one is warranted under the fourth amendment. since we apply, it doesn't matter good faith are not here , what we apply in terms of determining whether an violation is subject to any type of remedy. for you it is a good faith exception. so why do we have to remand? justice scalia's question and i do not you have answered it. >> the reason to remand it is the lower court hasn't addressed any question of remedy. in the first instance you should send it for a full briefing -- >> north carolina has a rule that if you violate the fourth we'd --t, that is it, we don't handle the good faith exception. isn't that what the north carolina law is now?
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answer the good faith exception. >> it would not be futile, justice ginsburg. i think the analogy i gave earlier is more or less on point. the court is held that the constitution is violated if they -- that the defendant in the criminal case does not get a remedy unless he satisfies that test. >> that is because they would be applying federal law. they would be answering the question. you want us to leave it unanswered, mainly whether the constitution requires that this evidence be stricken from the case. if it is indeed they are not going to ask that question when we sent it back, it seems to me we have to answer that question here before were able to reverse or affirm the north carolina court. it is a federal question.
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they are not going to get to that you're asking us to invalidate this conviction on the basis of federal law. it seems to me we cannot do that unless there has been a violation of the fourth amendment. the remedy must be exclusion of the evidence. that is a federal question we will have to decide if he send -- if we send it back to north carolina, they are not going to decide it. >> no, i do not believe they should or would. just because a state adopted a rule saying we will have a more favorable jurisprudence of constitutional error and give automatic new trials, the court would not be prohibited from deciding a constitutional issue and sending it back down to the state. minnesota is another case where the court has said that states can choose for themselves to have more favorable remedies. and the court deals with the federal question.
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>> there is no question if north carolina applies a state constitutional analog. they could have a more extensive remedy than is recognized under our for the many cases. your argument is they could adopt a state law rule for fourth amendment violations. that is more protective of defendants than federal case law provides. that would be your argument, right? >> i don't need to make that argument. i think it would be an interesting question. i think the state may be able to what carter in north rodda says violations of the state constitution cannot be overlooked on good faith doctrine. >> was is based on the state constitution? >> know it was based on the federal constitution so we would send it back down. we preserved an argument that a violation of the fourth amendment also violates the north carolina constitution.
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>> you are asking us to reverse it on the basis of federal law. you're asking us to send it to a state court which is not going to require any further federal law. even though federal law arguably you will concede, says even if there is a fourth amendment violation, if there is a good faith reasonable belief that the law was violated, the remedy of exclusion might be imposed. that is what the constitution requires. you're asking us to say no, there has been a violation of the constitution and we are going to reverse this judgment. even though we haven't inquired into whether the remedy you want is required. it seems to me i do not see how we can do that. >> why do i keep saying the same thing? i will type to say it one of our
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-- i will try to say it one more time. i think it is fully customary to the case were state courts have ifuling on a federal law, the question of federal law decides incorrect, this court can reverse the judgment and say you got federal law wrong and we will send it back down. >> but it chooses to decide on only half of the federal law. north carolina more or less set us up that way? they didn't get federal law wrong, they're appealing got federal law wrong but their judgment did not get admiral law wrong. wrong if indeed a good faith of law doesn't include the exclusion of evidence from the trial. if that is the case. i think their analysis got
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federal law wrong. >> we don't review analyses. we review judgments petey or are urgings, you that this conviction has to be set aside, that's what we are reviewing, the conviction not the opinion. >> if you wanted to set the good good faithe the question that has not been briefed by any party, i suggest you might want to tread carefully. we've given you what maybe you need to do, for a sit down and reserve my time for a bottle, maybe if you feel we did not get to that question, i do think you need to, what if you did get to that question why should say the good faith doctrine doesn't apply -- >> i don't what to take up your rebuttal time but your argan has confused me on something i thought you understood -- i thought the reason you argued this case the what you have, trying to convince us to drop a sharp distinction between right and remedy is because you believe north carolina has the right under state law to devise its
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own version of the exclusionary law, if that is not your argument than i am puzzled. >> functionally, that is the way things work in north carolina. the only thing that maybe i need to make more clear is the reason why it works that way is that the state has held that violations of the state constitution cannot be subject to a good faith exception. >> the constitution is he irrelevant because you are arguing whether there can be a mistake of law when ruling on the constitution of the united states. whatever we hold on that, north carolina can do whatever it wants on the same question with first to the state constitution. >> that is the next thing i was going to say in theory, you are , right, but what north carolina has said is we construe the article one, section 20 which is the state counterpart with the fourth amendment. so functionally in the state of carolina, where you are is that
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fourth amendment questions run exactly parallel to state constitutional law questions. if there is a violation, you suppress. >> suppose this were a federal case and we had available to us two alternative holdings in order to support the conviction and one holding was that this is not a violation of fourth amendment law in the first instance and the other holding law was this is a violation at the exclusionary rule operates and so the good faith exception to the exclusionary rule operates and so the evidence comes in. is there any difference between those two holdings? >> i think the difference between a straw holdings if the court remanded would play out differently in north carolina. >> no, if it were federal case. >> on sorry i missed that. reasonsuld be important
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nonetheless, even though that would be a functionally identical holding for the parties in case. it would be a very important reason nonetheless to make sure you render that holding to remedy jurisprudence not as the fourth commitment itself. the government should be presumed to know the laws. it would undercut public confidence and law enforcement and the common lot rule upon which the criminal law is built to say the government does not have to be presumed to know the law. >> some people say the existence of a rule remedy gap undermines public confidence in the law. why should we take back argument -- take that argument anymore seriously than the rule remedy gap problem? >> because that argument is academic literature and mine comes from the courts jurisprudence. there is an important reason to announce the right even if you're not going to give a remedy.
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there are practical reasons as well. even in the good faith jurisprudence, the court has given leeway to officers only to the extent the officers relying on a clear directive from a third party like a legislature or a court. this is different. this is like the johnson case from 1982 where the court held this is like the johnson case from 1982 where the court held if the officer acts on his own view of the courts unsettle the rule of law, we not only find the fourth amendment violation, we suppress. >> is is a reasonable interpretation of state law? >> i would dispute in the chevron sense. i do not issue be viewed as a reasonable mistake under the good faith doctrine. the good faith doctrine deals with directives from third parties. johnson says that -- >> >> i don't mean to ask this in the context of the courts case. just in the commonsense understanding of the term.
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was it reasonable? even if an attorney sat down and read the relevant north carolina statutes do you think it would , be reasonable for the attorney to conclude that you need to have two functioning brake lights and not just one? >> i think in the commonsense way, i could concede that would be reasonable. there is a legal way of asking what is reasonable and what is not. the court has never taken into account ambiguity or the possibility for error and asking whether an officer gets the law of right. secondly, you have to define the concept of reasonable. if you think this mistake was reasonable, the other side hasn't given a definition of what it would say would be a reasonable mistake to the law. i'm not sure what the definition
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would apply here. wednesday i do know from the , you have to define that concept, and the definitions are very, very broad. that goes to the practical reason i was going to describe to the court why you shouldn't , hold the fourth amendment to satisfy here is because if you say anything is reasonable, you vastly expanded police officer discretion to conduct a traffic stop. officers have an enormous discretion. >> let me try one last time before your time. you assert that we should not decide the remedy question because it hasn't been argued. wasn't it your responsibility to argue it?
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you're ask enough to set aside a judgment of the north carolina court. that judgment could be set aside only if the fourth amendment was not violated or it was violated, but the remedy does not have the exclusion of the evidence? it is your burden to establish not just that the fourth amendment was violated, but also excursion was necessary under the constitution. it is no answer to say that hasn't been argued. you haven't argued it. that is the problem. >> i would refer you to the piper argument in the opening brief explains why even if you move good faith into -- those of the my arguments. the other case that comes to mind is a case from several years ago. there was a takings question brought to the court. the court reversed and sent it back down.
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what i'm asking for is different. >> sent down to the court to decide, that this court will not decide. >> if the state makes that choice that it's going to give a more favorable remedy, then they should respect that. >> i would like to reserve the rest of my time. >> thank you, mr. fisher. >> mr. montgomery. >> may it please the court, the fourth amendment prohibits unreasonable search and seizures but it does not require that police officers be perfect. because this touchstone is reasonableness all that is , required is that a police officer has a reasonable view of the facts and applies those facts to reasonable law. >> when will we get a right understanding of the law?
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as i read the north carolina supreme court decision, it still hasn't told me whether it is one or two brake lights. the next police officer who wants to stop someone will not know that either. he might be found by the appellate court decision, but that will not help clarify the state of the law. isn't what you are doing going to leave criminal law unclear? it is one thing to say you want to not subject officers to civil liability. it is another to state you want to leave the law unclear in a criminal prosecution. >> in north carolina, controlling -- comes from the court of appeals. that is not to say the supreme court may not reach a different decision someday. for now, police officers would
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be bound by what the north carolina court of appeals decides. the lot has been decided. an officer who makes a stop tomorrow because one brake light would be acting unreasonably under that decision. it doesn't leave criminal law uncertain. >> it does if it is taking your view that it can find out whether the officer's reading of the law is reasonable. it basically means that anyone can question police officers who rule in favor of the right to search. >> it depends on whether the question is an open question and whether that interpretation is reasonable. it certainly may be an unreasonable interpretation. >> to find what would make it unreasonable. >> it would be unreasonable if there was some language of the
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statute that no one could breach and interpretation at all or if there was a definite decision by an appellate court. it would be unreasonable for the officer to interpret in his own way. the whole standard would be a reasonable person standard. would a reasonable person be able to take this view of the statue? >> that is a very broad definition of reasonable. i understand when 99 out of 100 think you need to have to break lights like you have have everywhere else. it is reasonable for the officer to think that. it sounds to me like you're adopting the same standard that would apply in qualified immunity that gives officers quite broad scope. that is troubling. >> it is not the same as qualified immunity. we are not paying that is the standard here. >> i think what the chief justices asking you is to describe a case for us where the
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officer would receive qualified immunity, but wouldn't count as reasonable for these purposes. >> this court and other courts can look beyond officers interpretation like this you could look to other matters. it could be in officer who had an unreasonable interpretation on the statute. yet he might still have qualified immunity because he was told by a judge or that attorney general or someone that this was correct and that was a complete misunderstanding of the statute. it might be that the officer would be protected by qualified immunity. but for fourth amendment purposes, that would not be a reasonable interpretation of the statute.
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>> let's say the cases flip and the most reasonable reason is you only need one brake light. you pull them over. he's going to say i reasonably , thought i only need one. the court says i need two. in that case come ignorance of law wouldn't save him, would it? >> no, it would not. officers believe you needed all of your brake lights. that does not mean that person is guilty. in other words, the defendant here could not be held liable for the brake light violation. it is not the fact that an officer thinks recently that the law -- that doesn't make it the law just like a citizen does not think that is the law, that doesn't mean he could escape
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liability. >> the police officer was in stopping him because of the brake light. the police officer was involved in criminal -- and admitted this was a prefix. a lawful prefix he thought. he wasn't there just to tell him that. fix your brake light and drive away, there were never be a lawsuit, correct? >> that is correct. >> how many citizens have been stopped or one brake light and asked to have their cars search? is that something we as a society should be encouraging? >> innocent people are stop quite often because of mistake. -- mistakes of fact. for instance, that is part of the whole -- citizens have not committed any criminal offense
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and yet they were stopped. this is another example of that in which an officer acted reasonably just as was the reasonableness take of act. it turns out this was not actually a violation. >> i would like to hope is on your definition of reasonableness. let's say you have two court of appeals decision. one says you need two brake lights and the other says you need one. is it reasonable to pull an officer over when one of their brake lights is burned out? >> it would be reasonable than for the officer to decide which he felt was the better rule. if there were two different decisions from the court of appeals, which is not supposed to happen, if it did come it would be reasonable for the officer to rely on one of those.
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>> maybe this looks like a remedy question. it doesn't look like a rights question. it focuses on the officer when we think about immunity or the exclusionary rule. why isn't that exactly right that they should be upheld on remedy reasons rather than rights reasons to fit in with our basic understanding of what remedies and rights do and do differently in our law? >> our court looks at different things when it looks at the rights versus the remedy. reasonableness -- that might he considered, but also the culpability of the officer and whether he was deliberately disregarding the law. this court has addressed mistakes of law both in the right and the remedies stage.
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it would be important to address the right stage in this particular case because we don't get into the source of things that would be necessary in the remedy stage. >> what about the dissent in the north carolina court of appeals? case in north carolina has [indiscernible] all this decision does is it allows the police to get around the absence of a good-faith exception. wasn't that the decision of the dissenter? allowing for a reasonable mistake of law it is a , functional equivalent of a good-faith exception. >> that was the position of the dissenting justices at the north carolina supreme court. again, this gets back to the reasonableness as the standard
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for the fourth amendment. that is what this court has said is important at that stage of whether an officer's acting reasonably. there are other considerations that take place. the state was asking for nothing more than the weather this violated the order amendment and not about remedy. >> counsel, maybe you have the answer to the questions i was asking mr. fisher. if the answer is you haven't argued that point, right? you did not assert in your brief and haven't inserted it in oral argument thus far anyway that even if it did constitute a violation of the fourth amendment, the remedy did not have exclusion of the evidence
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and that remedy is indeed subject to reasonable mistake of law. therefore the decision -- you want to put all your eggs in the basket of whether it is a violation of the fourth amendment. am i right? >> that is right. >> we didn't make that argument -- mr. fisher is correct in that it is our state constitution that says there is no good-faith exception. if a defendant had only raised a fourth amendment question in our courts, the good-faith exception would still be available if that defendant didn't make a claim under the state constitution. >> i'm not too sure it makes sense to allow north carolina supreme court what is an
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abstract question. to give an answer without reference to the fact that part of the fourth amendment the good-faith exception. it bears unreasonableness. >> that is correct. this court has in cases like rodriguez that in the right stage rather than the remedies that has been briefed in this instance. >> that is correct. >> one of the things that is different is that we are not talking about -- >> excuse me. in other cases we decide -- this is a case in which unless the remedy these exclusion, there is no basis for us to set aside the
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judgment of the north carolina supreme court. unless the remedy is exclusion. if we cannot say that -- if it hasn't been argued, i guess we could do that. >> that is correct. the difference between this case and another he is this involves a mistake of law rather than a mistake of law as to the fourth amendment itself. the difference in that is that a reasonable violation of the fourth amendment is still a violation of the fourth amendment.
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if there is a statute that gives an officer the opportunity to make a seizure or less than what is required by the constitution and less than probable cause or reasonable suspicion even if officer is reasonable, that is still a fourth amendment violation, which is why the court would have to go to the remedy portion to decide whether the exclusionary rule applies. this case was a mistake as to a statute that was used by the officer is part of the facts and circumstances of this case. the officer considered what he thought was the correct law. >> why is there a line drawn between the fourth amendment is violated -- if the statute is wrong, then the fourth amendment is not violated? if he gets the statute wrong, then the fourth amendment is not violated? >> the fact that he gets the statute wrong doesn't mean that he acted necessarily unreasonably. >> the fact that he made a
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mistake of what the fourth amendment requires could also be reasonable. >> in another case that this court decided, there was a situation with a statute that was found unconstitutional and void for vagueness. yet this court found there was probable cause in that case for the officer to make an arrest based upon that statute. that was one case in which this court look at the right stage as a mistake of law rather than the remedy stage. >> do you think we would conceptualize it now as a remedies question?
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>> i think the court would decide it the same way. this court said that that cases are still liable in terms of the fourth amendment. >> what kind of mistake of law did the police officer make? the law said exactly what he thought it said. what do you classify as a mistake of law question? he asked according to a statute. you do not ask police officers to ignore the law. >> that is correct. >> this is a mistake of law. he was not following the law, presumably. >> that is right. the case is important because you had some and who is acting innocently. he was not committing an offense at all. in this case, you have some and
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whose acting innocently and not violating the law. even though the conduct was innocent, there still is probable cause despite the mistake of law. that is all we are saying. >> isn't there another difference between those two cases? they talked a lot about there was a presumption of constitutionality for any statutes. we do not want officers to go around questioning the constitutionality of statutes? here, there is a statute. an officer is not supposed to read as broadly as possible. qs poster read it fairly. there's no presumption -- he is supposed to read it fairly. there is no resumption. they do not want officers to inquire into this area.
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not to push every statute to it -- the furthest it could go without being found utterly unreasonable. >> that is correct. we do want them to act reasonably and enforce the law and not turn a blind eye to what might be a violation. >> what were the exact words of the statue? >> the statute has two parts. it has a subsection b. >> where do we find that? >> the respondents brief. pages 1-5 has all of the relevant portions of the
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statute. that subsection involves rear lamps. every motor vehicle should have all rear lamps or the equivalent in good working order. that is the relevant portion of subsection b. subsection g on page three says no portions shall sell any motor vehicle after a certain date unless it is equipped with a stop lamp on the rear of the vehicle. that is a language the north carolina court of appeals said when it said a stop lamp. that meant only one was required. the confusion comes in in the last sentence of subsection g. it says the stop lamp may be incorporated into a unit with one or more of the rear lamps. where the confusion comes in is that that sentence is that the
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stop lamp is a rear lamp. it could be incorporated into a unit with one or more rear lamps. if you go back to another subsection, that is a section that says all originally quick to a quick lamps must be in good working order. there is some conflicts. >> that applies to all rear lambs and other lamps. >> that is correct. >> if it is going to apply to the rear lambs, of course. >> my time is up. thank you. >> mr. chief justice, and may it please the court, since its
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founding, the probable cause standard has allowed police officers to make stops when there are reasonable grounds to believe a person committed a crime he even if the officer later found not to have been mistaken about the facts of the law. as justice kennedy observed, given the court case has been recognized, there may be a reasonable mistake of law. if i can go to a question that justice kagan asked about why this question has been more perfectly addressed been at the remedy stage, we think there are three main reasons. the first is history. since the founding, the court has treated the probable cause standard of allowing for reasonable mistakes of law. >> of all the cases that you cite, including riddle, on the context of a statute that did not permit customs officers to suffer damages.
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>> yes, your honor. >> for purposes of an air of law, correct. >> that is correct. none of those cases involved the fourth amendment. >> that is correct, they are our interpretations of the probable cause standard. >> how is this different from the analysis of those cases from what we ultimately find is a qualified immunity standard with respect to civil damages today. don't they follow exactly the same reason? >> i don't think so. those cases, the probable cause reasoning in those cases is what the court has done at the merit stage of the fourth amendment. this course has routinely cited those cases as illuminating the probable cause standard and eliminating -- >> so when he looked at those cases and made the point i just made, he was wrong?
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>> no, there is no doubt in those cases the court question was answering was liable, but the way he was answering this question is was determining whether the officers had probable cause. probable cause is a constitutional standard, and that is why this court has relied on those cases. >> assume for the sake of argument i agree with you, that a reasonable mistake of law is an excuse, but what is a reasonable mistake. now, that is what i would like you to address, and in together would you have objection to it has to be one, exceedingly rare, two, objective, 3com has to be reasonable -- three, that has to be reasonable that the policeman was right. and if a careful scrutiny in construing the law as it turned
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out he is wrong. what do you think about that or some other sentiment? >> i think we agree with each of those descriptions. >> if you agree about those, what about this case? after all, it does say a stop light. what is the difficulty of construing that to mean a stoplight? >> we think the north carolina supreme court and court of appeals were right that an officer can reasonably interpret the statute to consider -- >> after careful scrutiny in serious difficulty and construing the law does it turn out the officer was wrong. what is the difficulty? it's a stoplight. >> version requires all originally equipped with rear lamps to be working. >> that includes the stop lights and any other lights. stop lights, the turn lights, the backup lights. >> agreed, it is not the plural.
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it is the fact that all originally equipped rear lamps have to be working. originally equipped with multiple stop lamps, as cars now are, if one of them is broken, one of the originally equipped rear lamps is not working. that is the difficulty. this is very hard question of statutory interpretation. >> so when we come out with the hypotheticals, is it reasonable for the officer to say i will take us one and follow that? >> if the officer is in a jurisdiction whose court of appeals has decided the question, we think the officer is bound by that interpretation, even if other courts of appeals come out differently. but if the officer is in a jurisdiction where the question
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is undecided and different courts have come out differently in other jurisdictions, we don't think the fact one court has decided in one way is -- we think the court looks to this question of is this a difficult question. >> i forgot one thing which may be obvious. we are not talking about the difficulty of construing the fourth amendment itself. we are talking only about a difficulty in construing a criminal statute where in fact the reason for the stop or seizure is based on a violation of criminal law. >> that's right, we think the probable cause standard allows for the officer to act with reasonable grounds. >> what about the qualified immunity standard? >> we think in order to have reasonable grounds for a stop, he needs something in the statue to affirmatively support his view. this seems to acquire a president of what the officer does. in order to protect those who


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