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tv   Today in Washington  CSPAN  November 25, 2010 6:00am-9:00am EST

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>> i have a great opportunity to watch mike's work as when he assumed the role of dci. i don't think yes a bigger fan from what was a skeptical member of congress. he can certainly share that over a cup of coffee i bet. but i really come to admire the work you have done there. i wish you well. i want to talk about this cultural changes. as an agent, when i was in it was about guns and handcuffs and cooperating witnesses. that's how you judge your work as an fbi agent. if you didn't fit in that matrix
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you probably were one of those better agents in that office. this notion of a counterterrorism squad, wasn't really something that you really wanted to aspire. think about this organization, it's by far the largest, some 35,000 people in the fbi. it is certainly the most public of our intelligence units. and, of course, they certainly have a large criminal aspect of that. so they have both the good fortune and misfortune of being the most watched, probably the most criticized in their ability to try to change from guns, handcuffs, cooperative witnesses to intel reports, and analysis and confidential sources or assets that may never testify. that is a cultural change for the bureau. they done some amazing things. the agents on the ground for doing their work out in the field have made the transition, given the large number of the new agents less than five years in service. have been able to make that
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transition. it doesn't come without difficulties. if you think about what congress did is we set all right, 9/11 everybody has to change, there was a discussion of mi5 versus mi6, should we do same with the bureau. they went to all of those suggestions along the way. so congress in our wisdom, we came up with just a few pages of suggestions. for the community to live up to, we've added more committees for them to have oversight over so they can spend a lot of time doing that, and then we threw money at this problem including the fbi. i say that, i want to read from nine 9/11 to today, and why this is important for the fbi's transition. at the cia the counterterrorism center, cia di office of terrorism analysis, the national counterterrorism center at dia the joint intelligence task force for counterterrorism, the fbi joint terrorism task force, the 72 fusion centers to
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integrate cd information around the country. at the nsb, the national security branch, counterterrorism division is now there. at dhs they have a homeland counterterrorism division. at state department now they have the i in our office of terrorism. at treasury the office of intelligence and analysis and terrorist financing. the department of defense have a criminal investigative search services job was to investigate fraud against the government and contracting also now as a counterterrorism mission. the reason they did that is because that's where the money was. just on counter proliferation, it has been in a over weapons of mass destruction proliferation, the cia has a ei win back on counter. the ncs, the national counter proliferation center. at dhs the domestic nuclear detection office. at the fbi, nsb, weapons of mass
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destruction directed. at doe the nuclear materials division state department, goes on and on. then we decided afghanistan and pakistan, it was pretty important. we better pay attention to the. so what happened? odni of afghanistan and pakistan. also mission managers assign. cia di office of south asia analysis to focus on afghanistan and pakistan. they also have mission managers assign. cia, near east division, they have analysts and director assigned afghanistan-pakistan. the council now created the in il-4 near east focus on afghanistan and pakistan, state department, dia afghan-pakistan task force at the fbi, nsb, and di, the afghan-pakistan and else's office so they created fix, fusion centers and high-value interrogation group at the new rendition of how we do this. lots of money and a lot of
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confusion. if you pick up the book and say, did they do everything that was in this book that represents the laws that were passed by congress, the answer is yes. have begun to where they need to go, the answer is absolutely not. they have had their problems. the nsls letter problem was a cultural problem that they ran into along the way. there's something called a virtual case file. the fbi in or to get an intelligence, and you get into technology of using an information technology system that addressed the issues and allow people to talk to each other. that it's been a disaster. hundreds of millions of dollars, from 2003 to today, they still don't have a functioning system. they just brought it back in has to try to come up with i think about their third rendition of this. and here's the problem with that. they're making their fighting, this transition. i think they're doing an exceptional job on the ground level. policy profusion -- confusion.
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to hire 2800 analysts. by the way when you talk to those analysts, some are used appropriately, the majority have yet to be integrated into the system of two analysts -- true analysts, who are an equal par looking to determine a piece of actionable intelligence. not even close. numbers good, actions not to get. and here's the other problem the fbi has and it's been why it's so difficult for them to get over this. and it started about two years ago. there is a real cultural problem here in washington, d.c.. warfare or lost there? this is a decision that we're going to have to make and we'll have to make us policymakers. we told the fbi we want you to change. we want you to go into intelligence business. we also tell them gee, by the way we want you to read parental rights, collect evidence and put them in jail.
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we want to have -- it's been a schizophrenic message at best. if you're that agent who meets the airplane in detroit, michigan, and you believe your mission is to get information to prevent further damage or find out if there's any other bad guys are what else is going on, you are told by washington, d.c., that you need to mirandize somebody, you can imagine how confusing that is. christmas day bomber, and i'll do this quickly, to me the perfect example about why we have to get this right. someone shows the criminal aspect of that case, i could go back today and probably get a conviction. you had witnessed -- that's saying a lot. ask sean. you have some event shows of his pants are on fire. lots of witnesses. there are people on the plane who engaged in securing that individual. he is removed from the airplane,
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clearly immediately in the hands of law enforcement where the bomb is removed from the person, and he is secluded in another room. think of the criminal aspect of the case. it is not hard to prove that he was on the plane with a bomb with the intent to kill innocent civilians in an act of terror. that part is pretty easy. so you ask these agents to stop the intelligence collection inside when you ask them to say you have the right to remain silent. that has a whole different set of rules. and this was the most disappointing to me about the bureau. the people who are asking him questions before he was mirandized had been determined dirty teens. they are language. the people who come in after the mirandize in are considered clean teams. if you have anything about fbi culture, if you're going to address any of these agents as
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dirty team members, i guarantee you you'll get very few people interested in going along. the cultural messaging of this is horrible, and i think this has been one of the biggest challenges of the bureau. and think about what happens along the way. going through this investigation, as you're an agent you take great pride in finding all of the information. someone calls and tells you that they're going to need to disclose that the family members are cooperating. now anybody who knows anything about intelligence, that is the kiss of death. and it happened. if you look at what happened there deal jason involvement in the fbi's transition, i think that's what the problem was. they disclose the family member. they disclose other things about the case. even the russian spies source was disclose prior to the russians a green to the spice while. are we intelligence officers or are we law enforcement officers?
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you can't have the fbi headed up by doj with this set of beliefs and to still be held accountable by the dni for collection reports and better information itself we will have a chance to talk about how we can get through that today, and hopefully we'll have a chance to talk about how the finest law enforcement agency in the world can also be the finest domestic collection agency in the world as well. thank you very much. >> thank you. i think congressman rogers copied my homework. i will be echoing a few things you've heard already. number one is the new cyberthreat that we are facing. mike rogers was very articulate about this in front of the committee. in which he drew the picture of lower threshold, self radicalized as being the new flavor of the al qaeda danger. that puts a premium on some things that have not been at the top of our list, and very
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important, but it shifts our way. it ships await for example, in the direction of homeland security as opposed to foreign operations. it ships await in the direction of law enforcement. it also shifts our weight in the direction of domestic intelligence. i wanted to describe it that way because i want us to think about this function of domestic intelligence as not law enforcement and our homeland security. it a separate function from a function that the 9/11 commission said that we needed to do more of in this country. it's kind of an unnatural act inside the american political culture, domestic intelligence. prior to her current efforts am looking back at history, when did we last do this? the best example are the pinkertons during the civil war. this is a very unusual thing. it's a doable do. if you look around the neighborhood of interest became democracies, our four best friends all have one. whether there's mi5, or others.
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so it is doable. but our good friends have not judged it wise to put their domestic collection organization inside their federal peace force. we have done that. the federal police in australia are different. i understand why we did that. i think is all that is all our political culture, but we have set out on a bit of a different course than the other english speaking democracies have when it comes to domestic intelligence service. i'm a cynical about our success. i made skeptical. for a while i decide i'll just because i'm from missouri. and see how this works out. let me talk about how i know you're awfully with this come about fisa and the wall. remember that longer two but i don't want to talk about that as an issue. i want to talk about it more as a metaphor.
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when i arrived at nsa, the very good legal team their described to me, a g.i., not quite my with this world, the difference between law enforcement and fisa and intelligence fisa and the distinctive they drew for me is that although they both squeeze privacy, there are privacy issues involved in both, and a law-enforcement fisa the ultimate of jacob is also to squeeze liberty. purpose of this thing is to convict someone and put them in jail. and, therefore, since it was playing so hard with those fundamental rights over here of liberty, there were much tighter restrictions to get a law-enforcement days warrants than it had been to get an intelligence-based warrants. all right? so the question that i'm echoing with i think the conference and
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is already suggested is, can you kind of get that free ranging more liberated, intelligence approach, not talking about fisa now, just about the overall broad approach, can you get it inside a macro organization that at least historically has view to prosecution as the ultimate measure of success? and that's a very, very difficult question, and i think it is fundamentally remains unanswered. this is not about what sean has already described, which is the wonderful work going on inside the bureau, if this were an athletic team history more athletes that can run faster, jump higher, run faster than ever have in the past that i think congressman rogers suggested this, this has more to do with some extra. let me hit upon two or three extra points that are think might ultimately determine success or failure. of whether we can get a domestic
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intelligence service inside the current model. the first have to do, frankly, with the attorney general. this has to be something the attorney general wants to make happen. this is really hard to do. frankly, i was a little surprised that in retrospect i should not have been. the new ag guidelines that frankly enable the national security branch to be a domestic intelligence service, although we knew we needed them for years, they were only finally published in the last month of the bush administration. again, reflection, this is very, very hard to do. tackling some of the things the congressman said, if culturally the broader department of justice does what he did on christmas day, the default option, prosecution and law enforcement at the expense of information gathering and intelligence, if the department of justice continues to consider
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article iii courts as inherently superior outcomes for any captured terrorist, you now have an intelligence service working inside of a broader culture in which the intelligence service has to ask itself, probably every morning. a second externality that may determine success or failure, and is maybe a bit surprising, and that's the had of the director of the central intelligence agency. they are also by statute america's human intelligence manager. he's actually responsible in law for the coordination, the conflation and evaluation of all that's a powerful role, and i realize the ag of. almost the level of metaphysics in terms of broad approach. the dci a coordinates this problem on a more workmanlike
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level as he begins to create common standards for reporting formats and don't kid yourself, that's important. that these reports have to look the same, not a word in this report on cia means the same thing when you see that word in that report from fbi. in other words, the dci a has an opportunity work at this problem from the other end, one block at a time. to make this more of a truly organization. and then finally the third external actors i was a has a pretty profitable in this is the head of nctc, michael leiter. mike now has a challenge, i think basing it on my testimony two weeks ago that i referred to earlier, it's the flavor of the threat is changing, mike has to change the nctc. he has cut you change that's due out there and begin to put more
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domestic labor into it as opposed to foreign, more law-enforcement flavor into it as opposed to intelligence, more domestic information from the nsb, into this overall mix. i think he will try to do. i think mike knows that. he will run smack and into what the dni, pointed out in his opening remarks. current restrictions, current policies are at least current culture that makes it more difficult to mingle those kinds of information. but i think mike's job in his, the service for both the nation and also the maturation of the national security branch, is to point out those conflicts, to point of this tension and tort points to policymakers. not necessary to win all the arguments, because, frankly, he may lose him because we are going to judge collectively that privacy and other concerns trump
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the security concern. but at least mike can get to the point where he points out to policymakers and to the general public that we are indeed making these trade-offs, that we are not going to a secure place because that other guy over over your we would generally agree is more important. and that's really important because when the next unpleasant thing happens, if we have not been able to do that as a people, we will go spasmodic again and probably do more harm than good to our intelligence and security structures. thank you. >> thank you, general. we have about 40 mins for discussion. i'm going to monopolize the beginning and then turned to the audience for questions. i think the panel has put on the table a very fundamental issue, which is the nature of domestic intelligence of the united states, how do we do that, do we do that adequately? i would note for historical purposes that the country has after 9/11, was explicitly
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addressed by president bush at the time and he rejected it, that we're not going to do something fundamental a different, we will work within the confines of the current system, ask more of the fbi, implement director most reform, and help them out more with some extra laws and legal authorities here and there. the 9/11 commission considered it. and while i called on the fbi to do more into a better, did not advocate for fundamental change in how we do domestic intelligence. so the commission would consider, same thing that executive order when it was finally amended by the bush administration, no fundamental change in the structure of domestic intelligence. that provision basically was identical to the one that president reagan signed in 1981, saying it is subject to attorney general control and the ag guidelines. so it is a fact i think that the country has decided not to do anything fundamentally different, and then put on the fbi's a burden of delivering much, much more without
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fundamentally changing the legal and institutional environment in which it operates. raising very difficult challenges for them as they try to square that. we've seen a number of different ways. what i'd like to do is go into a couple of specific aspects of this and invite the panel to comment on them. i'm going to start with one that congressman rogers put right on the table which is this question of brandeisian individuals who are apprehensive -- apprehended. and start with sean on that and just ask if you could just sort of explain to us what is the current policy on that and practice when we apprehend someone, either abroad, i know it's not automatically determine determine that they will be mirandized ever before titles records, so in practice perhaps it is. so sean, if you could describe it and then i'll ask the other panelists to comment speak lack for someone to say they totally came he was going to be a panelist of my friends.
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[laughter] >> i'm kidding. i welcome the dialogue. i think it's important that we have this dialogue. i think it's important that we exchange these ideas. i configured the miranda issue is an interesting one, it's a challenging one. but i think we're missing a fundamental issue here, and that is when you give someone a miranda warnings, that doesn't mean that gathering actual intelligence stops. and there's a mindset out there that when we read someone a miranda warnings, the intelligence gathering process is over. i can tell you over and over and over again that is not true. faisal shahzad, that is not true. david headley, that is not true. and many, many others. so there's a fallacy out there that because we read someone their miranda warnings, that the
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intelligence gathering stops. it does not. and we consider that a very important part of the intelligence gathering process. it does do it, is it preserves that prosecutorial option, which is very important in some cases. in other cases it's not as important, as congressman rogers noted. but getting back to some of the decision on whether to read someone their miranda warnings, not as complex. we do discuss that with the department of justice and united states attorneys office. we do coordinate with the intelligence community. and we do try to determine whether this is an instance that we want to preserve the prosecutorial option. and that's how we look at it. >> i go back to the christmas day bomber.
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i argue the converse of that is true. that just because you don't give miranda rights doesn't mean that you cannot produce criminal evidence to put someone in jail. but think about what happened on that christmas day event. the agents on the ground wanted more time to debrief. they were just starting to get this person to have some level of comfort. when it came down through the department of justice, through the fbi that they in fact would grant. think of that problem already. they have already sent agents on the ground toward dealing with this in person. we don't care what your belief is. we're going to do. they took him off the plane, as i said earlier, pretty clear they're going to get a criminal conviction. so was more important at that point? we didn't know was there anyone else in the country, whether someone else on the plane? was there someplace else another event scheduled in the united states or somewhere around the world? that to me is far more important
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than stopping a thing of the and guess what happened when they said you have the right to remain silent. he stopped talking. what value is that to the intelligence gathering when we did know what the truth was? so i look at this in a completely different way than the department of justice is currently, and i think fbi leadership is. is that that decision, a, should been made by the agents on the ground, it was not. number one. and, b., the most important thing we're going to do in a case like this, remember, this is an enemy combatant who was born recruit, foreign trained, was foreign equipped, though i decided that as a declaration of war with a group that trained him, he was an enemy combatant, to deny states to kill civilians. so just because the battlefield was in afghanistan doesn't mean that that person isn't enemy combatant we decided we would
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treat them with all the same rights as a united states citizen. i argue not to the finish of the united states, if you're looking for a broader intelligence picture. and again, think of their concern on this. was that maybe he says one or two or three things of value, maybe like yeah, i did it, great. play that with the fact that the evidence we have versus what we did know from an intelligence perspective, i don't know if it comes to the conclusion that was the right decision to make. i think that's been our problem, and you can to with the times square bomber as well. with hasan. if you go down the list of approximately try to interject this law. versus warfare mentality, and what we lose an intelligence. they will say he didn't cooperate. yesterday. but time is actually important when you take someone like that off the battle field or a plane sitting next to you. time is what counts.
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we need that information. we needed it now. that law enforcement procedure of mirandized slowed everything down. that could be, could have been dangerous and illegal to american citizens. >> sean -- sean scott is well taken, these are complex questions in individual case based decisions need to be made. i try to avoid the broad question of brandeisian, look at the christmas day event in terms of the broader culture of the department of justice and does or does not facilitate the growth of domestic intelligence service. the storyline their this road out like as a medieval play. 50 minutes, even in the face of the fact that almost all known al qaeda aviation bockius estates had multiple threads, the and so as a cultural impact
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rather than specific threat environment, as a cultural impact it had to be indestructible to the broader department, into the national security branch. as to the value schema of the department of justice, it seems to tilt very strongly in the direction of law enforcement flavor. that simply makes it more difficult to create to domestic intelligence service inside the broader macro control. >> i would say there's one or position not represent understand right now, probably should be, doj. i think i've something of a student of institutional legal and cultural reform in u.s. agencies since 9/11. and my feeling is doj is one of the entities that is no significant but has struggled most make this transformation. at the end of the day there is often a u.s. attorney or assistant u.s. attorney who really does have to go before a court someday to secure the conviction. his career does rest on his ability to do that.
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when it goes badly it goes very badly for him personally. i think that comes into. these decisions about mirandizing in a matter of interrogation were questioned of people have been taken into custody, doj is a big part of that conversation. i'm not sure how often one who can trump them. i hope someone can, but have a major voice in that. if you happen to get an unreconstructed rustic your who merely is concerned with the conviction, you have real trouble out in the field. i want to ask about another question that which is homegrown threat referenced in recent testimony before congress, and then mentioned by the panelists. the homegrown threat is complex and may never be completely homegrown, but one of the attribute of it is it doesn't fit the classic pattern of al qaeda been traveling to a camp, being trained, being dispatched on a plot, being controlled and communicate with the people you know about that are running
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operations for al qaeda or another organization. it's more spontaneously with much more limited international connection. one of the things that is comfort to me over the last 10 years of watching this is many of our most important counterterrorism successes, and there have been many, begin with an initial lead that comes with foreign intelligence. either from a liaison service, from interrogation, or from someone else internationally. one of the trouble spots we have is what do you do when the plot has no such signature? how do you find it when there isn't communications, like to tell adjudications estimate you know bought in pakistan or afghanistan? so i want to ask the panel on that one, what is your level of comfort with our ability to find plots that are brought to our attention through normal formal intelligence?
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>> it is very, very difficult for us to do. refer back to what i was trying to suggest that into my prepared remarks about trade-offs and judgments, and all this coming to some level of agreement. it will be difficult inside the american political culture, to get the same level of confidence that we currently have with regard to spectacular, complex attacks organized from abroad, our ability to detect and disrupt them. too, having the same level of success against less spectacular, less complex in lower threshold attacks that emanate from within. and i think in addition to the debate about what more can we do, which i think is necessary to have, we also need to come to a common agreement about what more we choose not to deal. because of competing values, security, convenience, commerce and so when.
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and that we all recognize that we have drawn that line, and that we have agreed to accept a certain degree of risk with regard to certain kind of threats. that is in opposition to the world in which i personally experienced, and don't mean this to be personal whining, but i think it has application to the broader intelligence community. and i spent three, four years after 9/11, arguing the question about why i had done too little because americans didn't feel very safe. and that i spent the next five years answering questions as to what i was doing so much, because americans felt safe again. that's an unfair position to put the national security branch in. it's an unfair position to put any of the intelligence community and. the only way you don't put them in that position if you have we're not going to do more here and here. if we understand implications and we all agree, we agree.
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>> one thing i thing that gets overlooked, i think the fbi does committed torture, it is the radicalization in our prison system, and one threat that really means from a domestic policy front. doesn't get a lot of attention paid to, as i said, but it is a very real and it is growing. and if that's something that concerns us all, and that fine balance between a truly domestic only, one element the christmas day to even the hasan fort hood shooting, times square bomber as well, is that they all did have they all in some way communicated, trained, traveled with al qaeda and terrorist of us around the world. so there still is that fine line. with the general was talking about a minute ago, why we have these arguments and policy
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debates about behind closed doors, and i argued sometimes too much in public about what our capabilities are and should be from an electronics surveillance perspective in other ways we collect information, human intelligence as well. and that's why i think you found, as mr. hayden talked about, he had a rough five years there that i thought was completely unwarranted because of what the threat matrix was and they're basically victims of their own success. they were aggressive, they were able to disrupt plots, and yet been the policy shift came along to say well, maybe we don't need to do all these things because we are safe. it was absolutely a head scratching event. we need to come up with a set of standards and policy that we can agree on in a bipartisan way, and i think we're practically there, not everywhere, but we are practically their, lay it down and let it go and let the intelligence community continue to innovate around the things that we tell them to do and find
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out, clearly within the confines of the law so that we don't have this up and down. today we did it, tomorrow we don't that i would say this is a threat that will be here for all of our lifetimes, and over children's lifetime. so we need to have a policy in place that allows them to do that. from a domestic front i think the fbi has the biggest challenge because if they are going to do any electronic intercepts, it all has to be done through title iii, or a fisa court. and i get into a whole another set of difficulties and challenges that any criminal title iii has very high standards and so that is the challenge the beer is going to have to try to work its way through when you come from a purely domestic let's say it's somebody who's out on parole has been radicalized in prison, gets hooked up to domestic and wants to do something. that is a challenge that i think they will be at a full on sprint to try to keep up with a healthy will get the policy in the tools
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to be successful. >> i agree with congressman rogers comments. and homegrown violent extremism, is an incredible challenge and it is going. and it remains i think for the fbi one of the top of terrorism concerns for us, and we have to be vigilant and look for those indicators that indicate radicalization. but at the same time, we have to protect the civil liberties. so again, it is a challenge to balance the safety of the american people with protecting the privacy rights and freedoms of each and every american. we try to balance this every day, but it requires sometimes very difficult decisions. and i just note that, again, on congressman rogers point about the corrections. we do have an ongoing initiative and is a very robust initiative. we have recognized this threat for some time.
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and we are doing many things to address it and i really can't go further in this forum on the. i wanted to address one of the points that ridge mentioned earlier though about, again, i think there's some misinformation out there about against the miranda warnings and besides and who's involved. the u.s.a. is not making the final decision on that. it is a collaborative approach. ntu j., and i wish they were here, has made many changes themselves. and i can save assistant attorney general is part of an active security division of doj. i talked to each and every day. and we discussed this. i can get its intelligence first, prosecution second. another thing, when mister hayden addressed is the mi5 model better? i say to today it is not better and we've talked our counterparts about this. would be better to have a separate agency.
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what it does is being a hybrid agency is the agility to address these threats using many different tools that agency in the world has. and that has proven successful in many other things that we've done since 9/11. so i say here today the discussion was frequent, post 9/11. but i think that's been put to rest for some of the successes that the fbi, along with other members of the intelligence ave had since that time using all the tools available to us, to help identify further individuals at times, prosecute him, and at times using other avenues. spent one last question and then open it up to the floor. one of the things i've observed about the fbi is that once the investigation is going as something that is truly critical, high authority, it has real awesome investigative powers and can move very fast. but every once in a while you
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run into a block. you went into a particular trick indication system that the targets of investigation are using that you cannot readily penetrate. mostly for technical reasons because you can't get into that. that probably is getting worse with the proliferation of. you. communications technologies. there's a lot of them and we've come a long way of the days of wire telephone and several e-mail accounts and cell phones. there's lots and lots of other ways for the targets of investigation to communicate. weaselly the general counsel for the fbi was quote in your time to sink the fbi is looking at statutory change physically act which means this was a lot forced back to start to address that problem. i want to give sean the opportunity, contact issue. >> thanks, rich. it's very difficult when technology is changing exponentially. and as cited in your times article, and i think very adequately, we're not looking to
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expand our authorities. at all. what we are looking to do is maintain our abilities with the changing technology. nothing more than that. it is, as rich said, with the evolving nature of sort of peer-to-peer networks, there are other services out there that are not covered by a leader which was passed in 1994, and i think it is a very important issue that we need to work with our legislators, and going to ask congressman roger to endorse that -- [laughter] to really give us the ability to keep our existing authorities. >> easy thing to do. think about the technology change between 1994 and today. we in congress have to be much better about trying to keep up with technology. some of the problems that general hayden had in the last
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few years were not because we were following the law, but the technology didn't fit the law. that's where the confusion was. congress have to go back and try to get how do we change law, we tinker a bit to make it fit the technology of the day. and we've just got to be more aggressive. again, the only concern is, as they say, the camel was a horse committee. we can screw this up, too. so what we need to do is put a better framework that is more inclusive of technologies. easier to do, but for whatever reason or issue, we did want to give up that much oversight. but as i told my colleagues and it's easy to go back and change the other way than it is to go back and try to keep up your we just can't keep up with changes in technology. and how people communicate is absolutely amazing, the difference is just between 1994. i still talk about -- the fbi
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looks at men like i'm crazy. i mean, it was changes in our invested techniques, unbelievable. i look forward to the fbi's language on that bill. >> in the foreign intelligence area, i'd gone through this already with the reform act of 2008. simply put, the impact of the statute as it existed try to reform was far beyond the intention of the original draft of the act. because of changes in act was quite different than what you had envisioned when they passed the legislation did so in this sense it was by and large the legislative i was catching up with technology. and pretty much reliable in the playing field, which my understanding is what the beer wants to do know. but the teaching point from our view was that was a two-year effort very bitterly fought impact of the consumed, mike
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mcconnell as director of national intelligence, that's about all he had time to work on. in terms of major issues. >> can i ask a follow up real quick? we have to get it as americans i think, if it was okay to go through a court system and provide enough probable cause that i could have someone's hard line telephone, ruth buzzi on one end and sally on the other, that notion should be applied to every type of technology we communicate on, no matter what your reasonable expectation of privacy because you had that with a telephone line, it should be no different, for whatever form of communicate today, as long as the legal principles in the due process and the ability to reach that standard of probable -- probable cause are met that it shouldn't matter what the technology is. that part will change. that debate i thought was a great policy discussion and will be great for scholars to come, about how we decided for some reason that this piece of technology, i had a high
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reasoned expectation of privacy that i did with this piece of technology. it makes no sense whatsoever. so we made it much harder than it really had to be. >> i'm not going to be neutral on this one that i completely agree with the sentiment, and some who watched investigations first and up close, it's just outrageous we have the fisa court operating weren't after work after one and then you get to an instrument of a guy who you know is trying to blow up your city and you can't throw the switch because technically there is no ability to do with a telecom provider. this is one important. sean is right. the fundamental statutory predicate, you know, the evidence has to be met to throw the switch would be unchanged it would merely be given us the switches for all the different indications that the bad guys use, and some of them are dumb and just keep using the ones that we can do. but some of them are smart. 's. we like the dumb ones. >> i just want to add, as rich said, the challenge though in the difficult is each and every
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day. so we serve these orders on a daily basis on providers that are not covered by the legislation. and we have to work with them for sometimes weeks or months to develop that capability. so we are not able to see sometimes what they're doing. that's important for the american public. it's important for their safety. >> and they are under no strong legal pressure to cooperate and to move quickly. that are instantaneous. others, they're kind of like refer you to some low-level guy ended general counsel office and weeks go by. it's crazy. this is something that it really i hope that fbi gets traction on. it's very important issue. now the floor is open. we have a mic. and we will take questions. >> please identify yourself before you ask a question. >> george chamberlain. i would like to get back to what
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congressman rogers said on technology issues, and ask an analyst with you can apply that same principle to do away with the limitations on what individually agencies are authorized to do in the united states. we have the fbi which does now law enforcement and intelligence in the same place. 1947 act precluded cia from having any law enforcement function. don't get along, i'm not suggesting see a should have law enforcement function. but if there are capabilities be is because in 1968, overhead was used to take a picture of the democratic national convention so the problems at dhs and others. cia cannot do electronic surveillance of united states. we are really going to do with problem, shouldn't all agencies essentially have the same capabilities properly managed and coordinated?
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>> know. [laughter] >> you know, think about, i would not want passionate i have complete respect for the cia and the officers and a great patriot. we train them and teach them to go overseas and break the law. that's what we do. that's how they're treated if they are not breaking the law somewhere, they're probably not a very good case officer. you don't want to fbi agent getting go mingle so we decide, should i do they follow the law or should i do they not follow block? know, bad idea. i think they should absolutely be separate. on the issues of fisa, the electronic surveillance which you talk about, there is very good synergy been developed over decades between the bureau and the agency on cases that happen, that may involve a u.s. citizen, are may involve a foreigner who still go through to meet the same legal standards. and i don't think you want to go
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mingle what is confusing. i want my cia trained beside a officers doing great things to prevent bad things and letting us know what's going on around the world. and i want our fbi to collect intelligence in this new realm, but also have the ability to be law enforcement agents around the country i think you start muddling it up too much, you will run into serious serious problems. >> let me just put a plug and that sean sean mentioned was the joint terrorist task force. i lived in one for four years more or less and they really aren't joint. you have every law agency and intelligence agency present in them, at least the big ones, cia, local agencies are there. when they have a big case, although bishop of the agencies come together and they pool their resources. when they work best to have a can of quartet approach. they say you take your this, i will take care of that. they work quite well.
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at the same kind of as a general principle we should use your not allowed to get an agent to do something that you would not otherwise be authorized to do. i'm not a lawyer but i know that's the case. so it turns out a fire marshal can basically enter your home whenever he thinks there's a fire. but you can if you're the ad and you want to search the premises. just go to a fire marshal and say hey, going to ask him a look around and 10 which is the of your story, the fire marshal because i'm not permitted to do that myself. and somewhere that is grounded in the constitution i'm sure. [laughter] >> budget allowed to violate that rule. next question, john. >> i've heard multiple references to radicalization in western countries. this is an issue honestly that would require very -- it would require collaboration among analysts as well as collectors. so how are we doing it today
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parks is there an agency that is a lead agency in bringing all this together? how does it all get together, and we need to do better? >> it does get together in a couple of different ways. first with over 50 detailed these over at the central intelligence agency. we have detailed these over at nsa to help integrate information are talking about. additionally, we have what are called legal address is in over 61 countries around the world who work with their law enforcement and intelligence partners to discuss issues like you mentioned. so i think we have taken a very collaborative approach. we recognize that. here in united states, as you know, the nctc and the nsc has taken a coordination role as far as the policy. so that's how we're addressing that. >> john, the federal government struggles with the fact that it doesn't get community affairs.
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the federal government is a limited government mostly here in washington. local agency do community affairs. they interacted with a different communities. so this is something where people expect the federal government to take a significant role, domestic counterradicalization but the -- just because of what we are. the nypd for four years there's community affairs is a big deal. it's not run by counterterrorism, but we have people interact with every single community and fashionable. one of the things that commissioner kelly did, and we certainly worry about radicalization in certain communities is think about the sports leagues. we had a soccer league baseball league in the baltic but we didn't have a cricket league. we created a cricket league deal he made with the south asian population. it's a huge success in that in queens and brooklyn and the bronx. i think we think about as a country what do we do for committee outreach and kind of radicalization in the area, you have to start looking at the
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local bubble. [inaudible] [inaudible] >> well, i think as mr. joyce talked about there are efforts underway, some of which can we talk about, some can't. and that information comes to a whole bunch of sources for the united states government. for some foremost from the local sources. more closer to the problem and see the problem. of the radicalization efforts better organize would come under the purview of the fbi domestically. if that radicalization had a component of violence to it, and
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i would argue all cases of radicalization has a proponent of violent student. so that part is being done and they're looking at it from every aspect that you might on any, when you look at any organization that might be your to do something that is subversive, how that would come together, it's just the way as any other organization that might be something here. >> sean, you did a nice job of sort of rebutting i think the image of a dichotomy of strict line between law enforcement and intelligence collection. pointing out the prosecution has been very effective intelligence collection, an important part of collection to keep america safe. similarly i think this discussion which we just had about community outreach helps
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explain why there is not this stark dichotomy would talk about balancing national security are keeping americans safe and protecting civil liberties. and, in fact, i wondered if you had some thoughts on the ways in which preserving civil liberties actually reinforces and strengthens our overall counterterrorism efforts and policy. >> thank you for the question. it's a very good question. we do many things as part of our committee outreach program. we have the citizens academy that in vice city community and business leaders to learn about the fbi. in specialized committee outreach teams to talk to these individuals. we explain to them that we are also there to protect their civil rights, and their civil liberties, and to balance those. we want them to be part of the team. and also, if they recognized some indicators, to be able to have that happen of communication to call the fbi so
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we can address those concerns. so i think, as you mentioned, it's been an invaluable way to address some of these emerging threats. >> last question here in the back. >> it's a question for mr. joyce. and the process for determining whether to keep up with the option for prosecution, in individual cases, what is the intelligence group created by the obama administration? can you give us a sense of what how they interact with your particular division and fbi? >> the high-value interrogation group is an intelligence community, not just serving the fbi, but serving all the member of the intelligence community. its makeup is multiagency and contains many subject matter experts that would provide invaluable insights into some of the individuals that have been keen high-value for the united states government.
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as far as that interaction with a prosecuted option, each and every time when we address our threats, it's intelligence first, and do we want to preserve that prosecutorial option. so that is weighed on a case-by-case basis. >> any final comments, congressman? >> i'm not a big fan of high-value interrogation group. i think it is a front with problem. to enjoy their from a law enforcement perspective, are you using what the fbi can do as far as interrogation, or are you using the army field manual to guide people who are under law obligated to the army field manual, when it comes to debriefings? it creates huge amounts of confusion. it has been horribly ineffective in all the places that it has gone. we have created this new play.
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it will get its own place to remember about that list of organizations i want to earlier with just added another one. the folks in doing the interviews on site our people who are not there and have no establish relationships with individuals. i think we should take a very hard and serious look at it, and before it becomes part of the institution that you can never get rid of. i would argue pretty quickly that it needs to be got away with. now, the idea behind that we're going to send these experts out some place that might have geographical knowledge on a particular tribe or a particular region, still holds true. it is always held true. you just don't need this formalized organization to do it. this could have been done in many different ways. and i still have not, and yet, to receive how they deconflict this legal question that can give you a great example. under the army field manual you're not allowed to use psychological techniques in the
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course of your interview. the fbi uses it every single day in america. it is perfectly legal. how do they reconcile it, and he had to dismiss the other interviewers who have shown up if the fbi is there conducting the investigation? because the fbi is there, does that mean that law enforcement is the primary function of that particular interview, or overseas? and what we have found in cases overseas is it's not a welcome into the because it is confusing. so, i mean, everything they talk about patty davis, it is absolutely functioning in the opposite way. and before we decide we will sell this thing and say it's wonderful we ought to really understand what it is doing to us versus what it is doing for us. >> i'm out of government, i do have a detailed knowledge. i would respond first with a question or two. what does it teach us if we didn't have one?
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on christmas day. and does it suggest it was just have a really hard to do, which is repeating. or does it suggest it really wasn't important, which is also revealing. but we didn't have one on christmas day. >> well, i want to say that this is one of the most important and most difficult topics in the entire temperatures and landscape we face. and i think we have really, please with a bipartisan commission for putting this panel together. you have selected three really excellent speakers, and i learned a lot from this interaction. so please join me in thanking our panel. [applause] >> all right, thanks. we will take a little coffee break and reconvene at 11 with our next panel. [inaudible conversations] [inaudible conversations]
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[inaudible conversations] .. >> a history of the ratification process of the constitution. ms. m airks er recounts the
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yearlong debates that took place throughout the country following the constitutional convention as the newly-released document was pored over by the citizenry. pauline maier discusses her book at the national archives in be washington d.c. the program is just over one hour. [applause] >> i'm very pleased to be here. thank you very much for havingl me. itto is appropriate with the nhc connection. i've also had an opportunity for a quick tour of the new displayp of our precious national documents. some of you may know at the beginning of american scripture, i describe the previous display, and i have to say this is mucht more appropriate, the documents of the american people are now brought to a level where theyl h are accessible to the american people, and i cheer you on. i am delighted to be here to speak about "ratification," the
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book.atio i have gone around quite a bit in the previous years talking ao about ratification, a work in progress, and to have it finally in book, in book form is a tremendous and you'll understandss that better if i tell you that the contract i signed with simon &tt schuster back in the late 1990s committed me to produce a manuscript in 2004. you may have noticed it is not 2004. in fact, over the years where io would give talks coming out of the work i was doing like inl 2006, 2008 people would say,8, p this sounds very interesting. do you have a deadline on this project? and i would always say, yes,ve 2004. [laughter]th which got a little attention. it maybe useful to start here by asking what took so long, andha there is an obvious answer tog this, that the project is is a huge one, that it involved allha
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13 states which i do cover not in equal depth, but it is, it is the story of ratification in all of the states that participated in those debates and that it is written from the documentary base for the most that is, this is, could not be described as a sipt sis of -- synthesis of previous work since there wasn't with an awful lotwf of previous work on the conventions. i could probably close this part of my talk with that, but i have to confess that really isn't tha whole truth. i should also confess that when i signed that contract, i had no idea how long this book waso going to take because i hadn't thought about it very much. that's a big confession.r the idea for the book wasn't -- i say it with some regret -- the mine, it came from an editor at
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simon & schuster named robert bender who was, obviously, very interested in american history. he noticed that books on earlyy. america were selling well and looked around for a topic thato nobody had written on and came up with the ratification of the constitution. he said there's no goods narrative history for general or i might have added j for scholars or journalists either.te a couple ofmp attempts that didt quite work. so when i was asked if i wouldth do it, i said yes in 20 seconds roughly, give or take one or two. and that wasn't exactly time for deep reflection. so the obvious next question is why did i say yes so quickly? and, again, i have a bit of a confession. the first reason is is probably a little silly. in 1997 i published "american scripture: making the 199 declaration of independence,"m and i noticed something very peculiar was happening
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afterwards starting with a young woman who was collecting books people were finished with in thb office i was working in widener library. they would say to me things like, oh, you're the lady who wrote the book on the constitution. even lawyers would do this. they would say, oh, your book on the constitution. and at first i would correct them and say, well, actually cor it's on the declaration of independence, and i soon learned that wasn't a good idea. they would basically roll their eye and say, oh, another academic peasant making distinctions where none need to be made. [laughter] so why was i quick to say, hey,w that's a good idea? i think i had in the back of my mind an idea that i could becom the lady who wrote the book on the constitution or the lady who wrote the book on the declaration of independence and i wouldn't have to watch peopleh roll their eyes anymore when i corrected them. second, the idea of writing a
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narrative was very appealing. historians aren't really trainei to write narratives. we make arguments. i became -- and i was, i was anxious to try the genre, and i think here i was informed by two masters of that genre, davidda mccullough and barbara tuchman. david read "american scripture," and i think he liked it, butthin when i met him he said, fine book, fine book. of course, i don't do anythingo like that, i tell stories. i thought, i thought i told stories in "american scripture." and here was an opportunity to dedicate my skills entirely to telling a story, a rather complicated one but, hey, a story., and then i remembered that i'd heard barbara tuchman talk, oh, decades ago when i was still a graduate student.cade and one line of hers really stuck in my mind.a she said it was possible to
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build tension in telling a story even if your readers knew how it wouldst come out if you only worked carefully never to mention the outcome or even to allude to it until you came to it at the proper place in your narrative. i thought i wanted to test that. people -- nobody's -- how does anybody not know that the constitution was not ratified?e could i build up tension inkn telling the story of its narrative if i followed barbara tuchman's rule? when i described to somebody what i wanted to try to do, i recall -- this was maybe ten years ago -- they said, so, you plan to write a thriller on the constitution? it seemed so improbable, but i tell you when people now ask me, you know, i hear you've written
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a book about the constitution they immediately say, well, s maybe i'll read the next donna leone book. i have a better answer now. some of the reviews came out, michael mcconnell in the "wall street journal" said it was a gripping story. "the new york times" review -- [inaudible] at least they don't roll their t eyes. of course, the subject was important, and as soon as any hole in the story of american history is identified, that's ao standing invitation for the likes of people like me to jumpr right in and get to work. i had also heardi or knew of, ih guess, james madison's statement in congress in 1796 that if you wanted to know the meaning of
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the constitution beyond its words, the place to to was not the records of the federal convention which only proposedec it, but the state ratifying conventions where the voice of the people breathed life into was only a dead proposal previously. i later came to the -- i don't say much about the significances of that in the book.fica i came to understand i am asoo historian, not a lawyer.d i leave it to others to teasewy out whatever legal implications, but i knew it would be important and it would have audiencesav beyond a handful of historians, and that was certainly an w enticement. finally, i knew -- as i think robert bender did not -- that there was massive project coming out of the university of wisconsin and the statecomi historical society of wisconsin, the documentary history of the ratification of the constitution.
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there are to date 23 -- 21 volumes in print, most of them focus on pulling together the documents of ratification in different states, in individual states, i should say. some, for some states there aren't very many records, but for some they're very rich.ds and certainly i would say the project still has five states to go that it hasn't published anything on, but they have coveredt the major states. there's one volume on pennsylvania, three on virginia, four on massachusetts and five on new york, the last of which t came out only last year. a literally could not have -- i literally could not have toldli the story inform ratification in new york without the work of the ratification on that convention.
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so, you know, i couldn't have written it in 2004. i had no idea. but this is literally the earliest time i think i couldh have completed the book in the form that i have written it. now, if you want to understand the importance of the documentary history of thende ratification of the constitution, i think it's useful to ask another question. that is, why are there shelves of books on the federalbook convention and almost nothing, really only a few historians have even tried their hand at telling the story of thend ratification of theof constitution? and to start with, they are very different events. the federal convention was onec event at one place, of course, philadelphia, with one set of delegates, and it happened over a four month period between may and september 1787. the ratifying process is dramatically different. it occurred in 13 tates, and
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some states had more than one convention. there were maybe a thousand different delegates, and itff happened, well, the core that i talk about with most intensity is roughly a year as i'll say a little bit later. but if you wait until the last of the origin 13 join -- original 13 join, that was two and a half years. one other consideration that i think is anything but insignificant, that the records of the federal convention were published in a professional form in 1913 edited by max verand. the first two delegates -- volumes, there are four d altogether actually five with a supplementary volume published in 1987, the first two volumes are on the debates in the federal convention.
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what verand did was to pull together the official journal which actually is is not veryia good. william jackson, who kept it, did so carelessly, and i've como to think of him as rather a scoundrel. [laughter] madison's notes, which are magnificent, and then colated them with notes taken, much more partial notes, by other members of the conference often, you know, for their own reference. they didn't, i think, have the same mission of madison of preserving these debates for posterity.f but he put them together, collated them so for any one day you can compare the varioused t accounts and figure out what went on. now, editing is not just copyini manuscripts and printing them. take what verand had to do with madison's notes. madison, apparently, changed hin manuscript notes circa 1921c
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after the official journal had been published. he assumed the journal was author tate i have. it was -- authoritative. it was not. so in some ways he thought hen was wrong, he'd fix it. and often what he went was from accuracy to error. what do you do with this? well, verand had to look at theo manuscript and figureok out whee madison made changes in 1921 roughly.g fortunately, as he tells us, it wasn't so hard to do because the ink madison used in 1921 faded in a different way than the ink he had used in the 1780s. so he could pull this out.y ha and then if you look at his version, he has a little device by which a scholar or a veryhe h interested, educated reader can look and see when, which version of the document was written. look, this is a treasure-trove
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for historians and for jurists. it's an easy, regular, authoritative reference on the documents of the federal convention. what about the state ratifyingn. conventions? abo well, in 1987 james hudson who was the chief of the manuscripth division at the library of congress published an article on this, and he pointed out that many states did not even havey published versions of their debates. and that those that existed were flawed, hopelessly flawed as hex would have told us because theye were very biased towards the federalists.c the federal is often paid for their -- federalists often paid for their publication and saw no reason to give publicity to the opposition, as they put it.osit to a considerable amount, i. think hudson is right. pennsylvania was by far the worst. thomas lloyd published only the speeches of two federalists,
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james wilson and thomas peking. you'd think we were debating with ghosts. except for one place a guy from western pennsylvania, john smiley, actually interrupted wilson to fill him in on some point that wilson had alluded to is so you know at least smiley wass there. otherwise, you know, it'st he just -- they purged all the speeches of those who were nonfederallists. in fact, they went further. there was an editor in pennsylvania, alexander dallas who went on to fame in otheri ways, who published the pennsylvania herald, and he took it in his head that he would her publish running debates, basically almost transcripts ofi what was said in the conventionw now, you know, these newspapersp were very small. they weren't like the contemporary new york times. some days they had four pages, youey know, one day at the convention would take more than he had, so it took a lot of
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time, and he skipped around a little bit. he was still publishing these after the convention had adjourned, and unfortunately, some of the speeches by what the federalists called anti-federalists seemed to be ay little too persuasive, so the federalists canceled their subscriptions, dallas was fired, and that was it. what this means is that i had ti piece together what critics of c the constitution said in thee co late part of the pennsylvania convention from the notes of those who took notes so that they could refute them. it's not isle. it's not ideal. wasn't ideal at all. the federalists weren't trying to, you know, rewrite history.yg i think i was the last of their considerations. they were trying to win a very hard fight, and we have to remember that. what they did was not, it was
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done in the course of combat.t now, other states weren't that bad, but i do recall one point the notes on the massachusetts convention where the note taker said essentially the following: oh, it's just like every other day. the anti-federalists made their stupidom points and the federalists fancied them.o i just can't take all this down! [laughter] when you get a note taker like that, you have to wonder how much you can rely on it. but some people were very good. i mean, david robertson took notes on the virginia convention. he produced a 600-page book onea the debates in the virginia convention in the summer of 1788.tion and i think robertson did pretty well. later john marshall, the future chief justice, who was a is delegate at that convention, looked back, and he said robertson did a pretty good jobo with those delegates who gave
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well-organized presentations and spoke very articulately. he had a big problem. the convention wouldn't give him any preferred seating. in the federal convention, madison just went and took notice in the front row so he was between the delegates and washington, and he could hear ha everything, i suppose. and some people gave him copies of their speeches. poor robertson was up in a gallery with people shuffling in and out. it was very hot in the summer op 1788eo in richmond, virginia, ad he couldn't hear everything. he did especially -- marshallhe said he had a lot of troublee with people like, alas, james madison who had a very weak speaking voice. he added, marshall added, thata nobody could captured the to have represent of words --
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torrent of words although i have to say robertson did prettyunt well. the power of both henry's oratory and its incohesion, and that's a good trick. i a wonderful trick. so my hat is off to david robertson.a if it wasn't for his heroic effort, the story, the marvelous story, the moving story of theo, heroic meeting of minds at richmond in the summer of 1788 would be totally lost to we know, also, how well he did by one day he didn't go there. you should see the gibberish that his newspaper published that day. couldn't make sense of only by what robertson recorded later could you somehow read back because people alluded to what was said on that actuallyi rather important day when he was absent. but records are easy enough i
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can reconstruct things that happened on the day that hee da wasn't there.ess god bless the man. okay. but now factor in the documentary history of the ratification of then constitution. hudson said that these books, his point was quite simple, thae if you wanted to recover the original meaning of the constitution in the debates oftg the state ratifying conventions, forget it. it was hopeless. the documents would not sustain it. ha. now you've got the editors ofs o the documentary history of the ratification of the constitution which sent teams of editors into states, they went through one archive after another, they vacuumed all kinds of, basically, pulled out copies of anything that referred to the ratification of the constitution. and they publish with regard to the conventions not just the journals which are oftenwhic interesting, they're probably better kept than jackson's on the federal convention in manyal
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cases.ept they only tell you motions when they need who came. it's the bare bones business ofh a convention.h thank god you can get them online now. and i did that. but they use them. sometimes i wanted to see the whole thing, and i did it, dugts them out. all right. they bring the journals, the published debates -- now, that's kind of like verand -- but then they collated those with newspaper accounts of thecco debates and letters that were sent out by delegates. now, you don't have those by and large certainly not in the samet volume for the federal convention because it wasly n secret. the ratifying conventions were not secret. there were reporters there covering them and individualco delegates were sending letters to their friends back home or te theirer colleagues in other stah telling them what was going on in the convention, and better yet, off the floor.
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now, let it be said the politics of the federal convention is very different than that of thef ratifying conventions, but glori hallelujah, was it wonderful to get some account of what these caucuses were doing. why they were doing what theywe were doing on the floor of the convention.e it allows a much fuller account of what was going on and, indeed, it's impossible to understand what happened at the end of the new york convention without these documents. moreover, the editor's focus was not just the conventions. they wanted to document and did, in fact, document a broad-based, public debate. this, they give us documents that tell us about arguments in homes like one, i guess my absolute all time favorite, maine of all places. a rather energetic debate over the constitution in which women
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were full participants, indeed, one of them provoked the whole argument. women weren't supposed to be interested in politics. yeah. we know better. i mean, how could they not? this was the issue of the year. americans regardless of gender understood their future was going to depend on whatever decision was drawn. they go into the towns, they collected the records, for example, of towns in massachusetts and connecticut and what they did about the constitution. these were not pro forma. there's one town in westernrma. massachusetts that had, if you can believe this, four informational meetings before they came together to see what they thought, and what did theyt think? they said, it's no good as proposed. they also went into the street. they tell us about a wonderfulre fracas.
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you could call it a brawl, i like fracas. in albany, new york. it started when a group of anti-federalists who actually called themselves that in upstate new york celebrated the fourth of july in 1788 by burning a copy of the constitution ceremoniously. c i mean, after all, it threatened everything they'd fought forit w against the british, and for good measure they threw in a -- and the federalists trashed their favorite drinking place.y you know, this was a rough place. what these documents do, in other words, they tell us much p more about conventions. they give -- they tell us about the broad public debate, they give us a picture of in 1787 and 1788. o look, my job -- this gets back,
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what was my job? my job was to pull a story out - of these documents, to find a way of organizing it, and can that was something of a challenge. i mean, how can you tell a clear narrative about an event that happens in 13 different places,e sometimes simultaneously? my solution was to emphasizent four major state and fold the others in at their appropriate place in the chronology. but this was, this was challenging, and there certainll were times where i had the sense that all of the skills i had accumulated over, you know, gray hair, several decades as a historian were being mobilized in telling this story. i will also tell you i had more fun writing this book thanm any other book i've ever written. look, the grunt labor of collecting the information, that
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is going into the archives, mear culpa, going, you know, pulling out the documents, seeing how many you can bring out at a time, can you hold these for tomorrow? the typing them up, getting copies made, i didn't have to do that for most states. it had been done for me. all i had to do was to read these to figure out, you know, what to -- try to figure out whatdo was going on, and the editors gave me some help now and then. goi and then to write it up. and, you know, i think this was where my strong card came in. by the prove department of god -- providence of god, i think i have one weird skill. it is reading historical documents. i've always been able to see more in documents than othersee people could do. it's weird. i thinkot ewe lis seize grant hd a photographic memory ofwa topography in the civil war. imagine, i manage to make my
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living doing this, and i love it. and i could do what i loved.d that's why i think i had such fun writing this book which i thought was such a wonderful story the tell. to tell.tory now, i had five other states toa do that hadn't been covered. i actually found that to be nott such a problem. a lot of the documents were in the harvard's library where i work and where i really got into trouble where i got out. another great benefit of being in this business for manyo decades is you get to know who to ask questions. i'll give you my favorite t example. when i got to new hampshire, i realized how important it was, so i started reading, and i came across a reference to a folder
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at the state archives of new hampshire in concord, and i a wondered -- i didn't know what it was it just, you know, bare bones delegate credentials, you know, the town of whatever was appoints so and so delegate toe the convention, or did it include the instructions of towns? did it tell something about their proceedings as they debated the constitution? and i called the archivist who is a very nice man who pulled i the folder up, and he seemed rather puzzled by it. and i thought, okay. thank you very much, sir. who would know? tha and i remembered a man named gary dan yell who was just ahead of me at the harvard graduate school and had spent his career at dartmouth in new hampshire. jerry would have read that folder. maybe jerry does e-mail. so i e-mailed him and said, jerry, this folder, is it worth a drive to concord? this. [laughter] remember me, jerry? from way back?
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jerry did remember me, and he said, answered quickly, said i'm going to oregon, but i'll be back in a few days. hold tight, i'm going to send you some material that'll answer all your questions. what he sent me were copies ofqu articles he had written. of jerry not only read the folder in concord, he had gone to all these towns. he knew who lived next to whom and how that affected the way the town voted. he had the most intimate knowledge of the politics of new hampshire on ratification that was imaginable. and, you know, some of thesekn articles i hadn't thought to look for. they were in new hampshirees history. i suppose i'd have gotten around to it, but i was just sore grateful to him. and then he'd answer my questions, he corrected what i wrote. why would he do this? he was anxious to have his veryo specialized work read into the general narrative. i mean, the amount, the extent to which people came forward to help me, it still just awes me.n
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richard leffler, a retired editor of --lunt [inaudible] volunteered to read the manuscript. i said, somebody wrote notes on massachusetts, would you p read the massachusetts chapters, ricf beaman read those on virginia. you know the way historians reah other people's work is differene than the way editors read others people's work, this is what ihe learned. we say, yeah, good argument. fine, you've got a typo on page 10, ah, you got the name of the town wrong on 15, and you might rethink what you say on 23.n 15 end of consultation. leffler went through this line for line. it took me a while to realize he'd even gone through the notes. and he would give me, you know, he knew the documentary records so well at one point he said you quote john jay, yes, you're right. the book you got the quotation
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from does say what you say, so your note isn't wrong, buty. that's not what jay said. go to the jay papers online on the columbia library site. of course he was right.on i mean, who can give you this information? [laughter] why did he do it? he said, this is going to be a landmark book, and he wanted to be as accurate as possible.ti you get my point. i put the better part of a decade into this book, and of course i was teaching a good bit of that time, only about two years of it was i able to work on it full time. but that's a fraction of what this book took. how much time did those editors put in? i think a century would be modest. i mean, many of them are my age, and they spent their whole life doing it, they're retiring now. a century seems modest enough. then factor in all the time
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jerry daniel put in. look, my name is on the title page.e is ten years is, however, ae fraction of what this book took. it is properly understood a cooperative enterprise. it is built firmly on the labor of others. okay. so what? what did i learn? be what's new? well, a couple of things. first of all, i think i redefined the terms in which the story is told. it's always been told as ain conflict of federalists andlway anti-federalists, and i startedf writing that way.dera i'm sometimes a bit of a slow learner.time by the time i got to the sixth state, massachusetts, i read the documents and said, hey, the only people using the termet anti-federalists ared th federalists. what's going on here? this and eventually i decided that i would not use the term
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anti-federalist unless it appeared in a quotation. and they were almost alwaysst u written by federalists, that iso people who supported ratification of the constitution as written.tuti or, if the people so designated willingly accepted the term. and that pretty much kept me to a group in new york, as i call i them, critics of the constitution in the lower counties of new york preferred to call themselves republicans. and i honor that.nsti once i got away from federalists and anti-federalists, a lot followed from that. i mean, if you -- first of all, to use those terms suggests there are parties involve offed. there was nothing like parties. that brings a lot of baggage. we know how parties work.ol be there weren't parties, then maybe we don't know how it worked. [laughter] also it spurs other, it inspires
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other dichotomies. one side must be for the constitution, one must benspi against it. well, that also turned out to be wrong. in fact, once i got away from the terms i was able to make, i think, i hope and pray clearer that there were far more than two positions on thecl constitution, that, in fact, probably a majority of americans accepted the constitution as better than the confederation. and worthy of being a basis for the new government but a substantial part of people saidh look, as written it just isn't going to work. like my guys in richmond, massachusetts. there's ambiguous phrases, and it's missing things it really has to have. t it needs to be amended before it goes into the other side said, ah, let's see if problems really happen, and then we can amend it using the procedure in article 5.n
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the fight was over amendments. and then, i think, we can start to understand why eventually ita was -- eventually, it was, you know, despite substantial criticism ratified. i however, the heart of my story is in the conventions themselves. it isn't political analysis, and these are just wonderful i've, i take such delight in them. i hope i can share it with you. you have to understand that these were the exciting events of the time. you didn't have the world series.itin what did you do for amusement? you went to church. [laughter] you know? you listened to -- or excitement here was that orators were the rock stars of the days, and the conventions brought together alr the great political and sometoge clerical orders of their day. people crowded in this. they wanted to hear these debates.eopl one of the big challenges that
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were faced was how could they find halls big enough not only for the convention, but for all the people that wanted to listen to the debates?nly now, the federal convention jus closed the door, it met in secret. could you do that for conventions that were making a decision, an important decision the name of we, the people? the of course not. so you couldn't say, sorry, buddy, we're locking the door. people should be able to listeny to this. and they wanted to accommodate them. so there was the excitement and the intensity of it, i hope it comes through in the book. it requires our imagination sometimes, although the documents give us tremendous amount of information about them. and as i looked at the conventions as a whole, i saw there was something of a line o development, that is to say one way of looking at this is that the federalists, whatever else you think about them, learnedr
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from their mistakes, and canem they really did make mistakes. in pennsylvania the firsty convention to meet they went in with a two-thirds majority -- no, 2-1 majority. they understood this because the divisions in the pennsylvania rough liquorlated with divisions in state politics. not perfectly, but pretty closely. so they knew they had the majority.w and then they just rode rough shod over the opposition, and, in fact, they treated them so poorly that in the end they minority refused to accept thetn decision of the convention. they said it did not, in fact, speak for a majority of the people in pennsylvania, and they did not accept the decision. they kept trying to overturn it. there was a lot of chaos inlegi pennsylvania consequently, even some rioting in the town of carlisle. okay. this was not good.sequ and a lot of people got very suspicious as this was published, this story was published they thought, health care a, what are they trying to put over on us?
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you wouldn't act like this if this really was a constitution you could really consider openly. they don't seem to trust open debate. pennsylvania really made ratification much less likely t happen, it was a -- the federalists shot himselfs in the feet. but they learned. washington, you can see it in correspondence see washington, benjamin, lincoln in massachusetts. basically, what they learned is it wasn't enough to win. you had to have a victory that was worth having. that is, a victory in which they minority didn't go away mad.a and you could see them doing that in massachusetts. maybe they had no alternative because in massachusetts they had no idea how the convention was going to divide. but they treated the opposition with consummate courtesy even i when, as you can tell from thenn private letters, they despised them as supporters of shay's
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rebellion. on the floor of the convention, they listened to them, they answered them asey a result, you'll get one of the best and most probing and some ways most innovativet debates on the constitution in i also -- oh, and when that didn't work, they came up with another strategy. i mean, they still weren't sure. federalists said massachusetts would have atr conversation, noa debate. what's the difference? well, if you have a conversation, you don't takeve a votes. they didn't want votes, take a vote until they knew they would win. interesting. all these debates didn't seem to be converting many people, so they came up with another strategy. they would suggest that the convention adopt the constitution without any conditions but recommend a series of amendments for consideration, you know, once it was put into effect. it wasn't going to work unless
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they could get the right people in line, and the person theying needed was john hancock, the very popular governor of and massachusetts. a well, hancock was a boston delegate and, indeed, theor o convention had elected him its president, but he wasn't attending. he was home many his magnificent house suffering from an attack of gout. rufus king, a federalist, said, he'll get better soon enough when he understands how the convention's going to divide. in other words, king thought it was a political disease.onve in any case, what we can see from the documents that these wonderful collections havee brought together, the deal they put together, the emissary theyo sent to hancock, the way they played to his pride and his political smarts, how he responded and then the wonderful scene of when hancock arrived. the guy, apparently, couldn't walk.en they carriede him in wrapped in
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flannel. [laughter] you can imagine the excitement,m i mean, you know, every -- people wouldn't leave their seats when hancock came. they wouldn't leave -- during the noon hour, they had a longst noon hour for what we'd call lunch. they probably ate a bigger meal at midday. theyh were afraid they'd lose their they had to see it, the excitement was intense. l i think i like massachusetts, koo, because there's an account of a delegate who comes from maine, gunner sewall, and there's nothing that gives you a better sense of change over time than to give step by step an account of what it took to come from maine to boston in 1787. it took the man six days. there were ferries, there were bridges, there were snow snowstorms. he had to go to church, you know? [laughter] stop to go to church. you know, we can do this in a couple hours now. it took him six days.
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i loved doing that. but then there was the t the vote is in the federal free church. it is stuffed! we're told there were people, they had galleries that would -- or ball conies roughly that would accommodate 800 people. there were 364 delegates who00 appeared there on the floor of the church, and then there seemed to be people stuffed into every nook and cranny. the so-called cellar was filled. the cellar was not the cellar, the basement, i think, i think it was an upper floor. even a lot of was stanley cupped with people. but -- stuffed with people. but when the vote came, the place was silent except for --, well, let me read you my account. the question was put at 4:00,co would the convention approve both ratification of thet constitution and nine recommended amendments? this -- the names of the delegates were called out one by one according to the counties and can towns they represented, and they answered with a yea or
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a nay. the roll must have gone at a fast clip, some six votes a minute if it was finished by 5 as reported. we can only o imagine christopher gore and othere practiced scorekeepers keeping the vote against the list of l those they expected to vote for or against. meanwhile, sewall noted, the crowded hall fell into a deep quiet except for the litany ofo names and votes. you might have heard a copper fall on the gallery floor, william ridgeway remembered, there was such a profound silence. when the vote was complete, 187 delegates had voted for v ratification and 168 against. nine delegates were absent. massachusetts had ratified the constitution with a majority of
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only 19 out of 355 votes. soon bells all over boston began to ring, and the city's people poured into the streets shouting hurrah and celebrating what was, for them, a glorious victory. virginia. virginia's different. in massachusetts all the people of practiced eloquence, educated, famous orators were for the constitution.ti the other side were, oh, you know, farmers and mill owners. it was a little virginia was also very close. they didn't know how it was going to go. it all seemed to turn on 14as g votes from kentucky which was still part of virginia, and virginia didn't see -- and kentucky didn't seem very happy about the constitution. i really think james madison's - heart was in his mouth through the whole episode. and, indeed, roughly divided, if
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you take oratorical strength, probably the opposition had the edge because they had patrick henry. patrick henry was a magnificent orator. e jefferson, who really hated him, called him the greatest orator of all time. now, to get a complement by somebody who hated him as much a as jefferson did gives it special once in the 780s jefferson and madison were in a fight with henry on the other side, and jefferson said to madison, look, we just have to give up.he the only thing we can do ise ju earnestly pray for his early death. [laughter] henry hijacked the virginia convention, that is, it was supposed to be going through the constitution line by line. no such luck. w he said, he raised big issues and made them debate them. and then there was his thunderstorm speech.
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the honorable gentleman, james madison, tells you of important blessings which he imagines will result to us and mankind from the adoption of this system, henry told the delegates in beginning what might have beenn the high point of his rhetorican performance at the convention. he saw instead the awful per immensity of the dangers with which it is pregnant. i see it! i feel it! he could even see beings of a higher order, anxious, concerning our decision. when he looked beyond the horizon that binds human eyes at the final consummation of all things human and saw those intelligent beings which inhabit the ethereal mansions reviewing -- this is what theyma do in heaven, it seems -- reviewing the political decisions and revolutions which in the progress of time will happen in america and the consequent happiness or miserywl
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of mankind, he understood, how much would depend on what we now decide. at that point a violent storm shook the hall and forced henry to stop. it was asbe the beings of a higher order in this their ethereal mansions screamed out to support henry's thunder. look, i couldn't make this stuff up. [laughter] i'm just not imaginative enough. but these are wonderful stories. and that's why the conventions are at the heart of my book. the book goes roughly from -- well, no, the heart of the book goes from september 17, 1787, when the federal convention b adjourned to september 13,1788, when the congress declared thehe constitution ratified and made arrangements for the firstnts federal elections. there were still two states out
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of the union, but for allor practical purposes i thought that is the ratification controversy. there is a prologue which looks atti the background of the convention, tries to describe why all of this had to happens o through washington's eyes. there is a post, there is an epilogue which talks about what happened to the amendments inye. the first federal congress and t manages to get north carolina fd and rye back into the union -- rhode island back into the union, but, you know, i couldn't stop. that's what i signed up to do. i had sat in the hall with these guys, and i came to like some of them. and, you know, they were -- we know what happened to washington, we know what l happened, you know, boom boom in 1804 to hamilton, we know, youwa know, those weren't really what i was curious about. i18 was curious about some of tt unknowns, the local politicians who performed so brilliantly. what happened to them? some of them were really heroic. for many this this was the high point of their political careeri so i have a postscript called in
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me in memoriam that tells you what happened to some of these. and to close, i will close herep as i close the book w the story of one delegate from western pennsylvania who was really badgered by the federalists in the pennsylvania ratifyingrom convention but who was an impressive -- actually, he bested, he beat so to speak, proved wrong the chief of the supreme court and james wilson,n a leading lawyer, on an issue with the history of jury trials. so i sort of like this guy.wyer his name is william fendly. it turns out he went p to congress, had a long andou distinguished career in congress after ratification of the constitution and was known there as the venerable findley.e but in 1796 he looked back over the ratifying convention and talked a little bit about how
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his thinking had changed. he referred to the pennsylvania ratifying convention with considerable understatement as one where some circumstances of irritation were unfriendly to cool discussion. but later on reflection he decided that, you know, maybe the massachusetts solution of ratifying and recommendingn, amendments made a lot of sense, that we needed to improve theg federal government quickly and to call another federal convention probably -- better avoided. he even thought through his positions and decided that notob all of his objections to the constitution were, as he put it, well founded. after the congress recommended and the states ratified some of the amendments that he wanted,we he became confident thated additional amendments could be enacted when they became necessary. in the end, like so many one-time critics of thenece
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constitution william findley embraced the government as my own and my children's inheritance.he he knew the constitution had defects, and there he had plenty of friends.stit perfection was not to be expected in the works of mortal men. in his matured judgment, the constitution was, however, not just good or maybe good enough,t findley came to believe that ity was capable of being well administered and, on the whole, the best government in the world. and so i'll close saying this was a cooperative enterprise not only with living people, but, oh, i'm so grateful to william findley for giving me a way too end my book so well. thank you. [applause]
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i feel i've talked too long, but we do have questions. >> we've got enough time for about two questions. >> oh. >> hello. >> hello! >> just to clarify, the ratification is purely yea or nay, aye or -- yes or no? >> oh, in the end they had to vote yes or no, right. >> and how long was it before the bill of rights was, basically, kind of accepted that, yeah, we'd accept it, but we all want certain changes andc we'd likeep to -- >> well, what happened is starting with massachusetts the states would ratify and recommend after massachusetts every state but maryland did that. now, tonight assume that what they -- don't assume that what they recommended was the bill o rights. of the states that ratified and participated in the first congress, only virginia formally
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asked that a bill of rights be added to the constitution. what most people wanted was improvement on representation and some restriction on federal taxing powers because they thought, well, this is the major rights -- issue of the americanh revolution, not taxation withouj and they said the representation in congress was inadequate for the purpose of certain taxes. that was the big issue. and that frightened thehe federalists including madison. what we got, that is the amendments that madison proposed, were an effort to parry the tax amendment. [laughter] and he was actually -- i think he believed in what he was doing, but he was also playing a very interesting political game. the amendments that were, of course, madison wanted to change the body of the constitution. we all know that, i trust. his proposals in the first federal congress.
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they got changed into a list to be parissed at the -- pasted at the end because roger sherman of connecticut said you couldn't change the body of the of constitution. the people had ratified it. moreover, you know, it would look -- you had all thosemo signatures, youre know? and if you changed it, it woulds look like what they agreed tog was the changed document, it was going to be very confusing. so we got the list at the end, like the afterthoughts that they were, and nobody called them a bill of rights that i can find between september 1789 and february 1792 when jefferson announced that they had been ratified, that ten of the 12 proposed had been ratified. this is a whole other summit. i don't know if i answered your subject, i seem to be hard toi stop here.f [laughter] am, what would you call it, a board historian? [laughter] >> you used the phrase, original meanings, during your or
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lecture. >> yeah. >> were you suggesting that there was a consensus, part-timely n any one or among the state conventions of the various terms?tion >> i think you will find points where there is an agreement orou at w least a public agreement. i do not endorse the idea -- i don't say anything about whether, what the meaning of this for the contemporary version of the constitution is. as i say, i'm not a lawyer. i'll leave that for the lawyers to fight over. but at least what they have here is a guide to the debates. which reminds me, you must be r good reading public who are out here, i have footnotes or end notes, rather.otno little numbers in the text. this is a big controversial thing, right? a lot of readers don't like them.a i can never understand why. but if you don't like them, just thinkn of some poor lawyer tryt to put together a brief who wants to know where somea quotationbr comes from, and we n
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save her several hours of workme by having a little number there. i mean, if you don't likerk numbers in the text, i urge you to overlook it like other nonlife-threatening annoyances.i [laughter] like, you know, music in elevators, you know? [laughter]ke m sir?rs, >> hi. first of all, i'd like to congratulate, you know, the taxation without representation as being a major factor for sowh many of the state ratifications, and i hope someday the district of columbia gets some justice in that matter. [applause] but that wasn't my question. my question was, did any of the federalists -- excuse me, the feds themselves -- >> yes, they called themselves that. i use that with perfect- confidence. >> i'm talking about congressional people. >> all right.'m t >> other, you know, outside agitators so to speak. in other words, did madison go
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to new york or pennsylvania, or was it, did everybody realize that we best only have local people speaking or else we'll -t >> oh. no outsiders spoke in these conventions, no. >> this okay. >> no, no. only elected delegates. there was one controversy in el bridge gary who had been a delegate to the convention who refused to sign attended, and some people of like mind wantedt him to speak, and there were -- just to give some information. a big fight over this. finally, he went home. [laughter]th no, no. only locals. this is a local decision. it is the people of the state who are making this decision. but you would have sometimes people in the galleries watching what was going on. wat governor morris of pennsylvania went to the virginia convention. a very clever man. you know, not all the founding fathers had a sense of humor. morris did. and he wrote this just
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delightful, poetic jingle about what had happened in the virginia convention. of course, i quote it. [laughter] you'll love it. i loved it. >> [inaudible] >> oh, my apologies. prison. [applause] apology [inaudible conversations] >> this event was hosted by the national archives in washington d.c. for more information visit >> greg mortonson receives the 2010 mason award during the literary event fall for the book presented by george mason university. the author of "three cups of tea" and "stones into schools" received the award and gave the lecture. the mason award was established by the board of


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