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tv   Politics Public Policy Today  CSPAN  November 11, 2014 11:00am-1:01pm EST

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reasonable mistakes of law. >> are all the cases that you cite, including riddle, all in the context of a customs statute that didn't permit customs officers to suffer damages? >> yes, your honor. >> for purposes of an error of law, correct? >> that is correct. >> none of those cases involved a violation of the fourth amendment. >> that's correct. the reason those cases are relevant here is because those cases are interpretations of the probable cause standard. >> how is that different in terms of its analysis? those cases? from what we've ultimately applied as a qualified immunity standard with respect to civil damages snowed don't they follow exactly same reasoning? >> i don't think so, your honor. those cases, the probable cause reasoning is followed in those cases is what the court has done at the merit stage of the fourth amendment analysis.
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so this court has routinely cited cases under those customs statutes as illuminating the meaning of the probable cause standard and is therefore illuminating -- >> so you disagree with justice storey when he looked at those cases and made the point i just made? you think he was wrong? >> there's no doubt in those cases the question the court was ultimately answering is are those customs officers liable? but the way it was answering that question was by determining whether those officers had probable cause. and probable cause is the constitutional standard. that's why they -- have subsequently relied on the cases. >> can i ask you a question i'd like you to address for a minute. assume for the sake of argument i agree with you that a reasonable mistake of law is an excuse but what is a reasonable mistake? that's what i would like you to address and in particular would you have objection to, it has to be, one, exceedingly rare, two, objective, three it has to be
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that the reasonable lawyer would think that the policeman was right on the law and only if after your brief a careful scrutiny and serious difficulty in construing the law does it turn out that he's wrong. what do you think about that? >> i think we agree with each of those descriptions of a reasonable -- >> all right, if you agree with those, then what about this case? after all, it does say "a stoplight." what's the difficulty of construing that to mean "a stoplight?" >> we think the north carolina supreme court court and court of appeals was right that they could interpret the statue to require -- >> only after a careful scrutiny and serious difficulty in construing the law does it turn out the officer was wrong. what's the difficulty? there's a stoplight. >> here the difficulty is in the other provision which requires all originally equipped rear
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lamps to be working. >> that includes the stoplight and any other lights, okay? the stoplight, the turn lights, the backup lights. so you had to use the pleural for those other provisions. >> agreed. it's not the pleural, it's the fact that all originally equipped rear lamps need to be working which means if a car was originally equipped with multiple stop lamping as cars now are then when one of them is broken one of the originally equipped rear lamps is not broken. that's why none of the courts that considered this question thought this was anything other than a very hard question of statutory interpretation. >> where do you come out in my hypothetical with the two court of appeals decisions? is that reasonable for the officer to say "i'm going to pick this one and follow that"? >> if the officer is in a jurisdiction whose court of appeals has decided the question we think the officer is bound by that interpretation even if other courts of appeals come out differently. but if the officer is in a jurisdiction where the question
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is undecided and different courts have come out differently in other jurisdictions we don't think the fact that one court has decided it in one way is dispositive. we think the court looks to this question of is it a difficult question. >> i forgot one thing which may be obvious to me. we're not talking about a difficulty in construing the fourth amendment itself. >> that's right. >> we're talking only about a difficulty in construe ago criminal statute where, in fact, the reason for the stop of seizure is based on a violation of criminal law. >> that's right. we think probable cause standard allows for an officer to act when he has reasonable grounds. >> how is your standard different from the qualified immunity standard of reasonableness? >> we think that an officer in order to have reasonable grounds for a stop needs to be able to point to something in the statute that affirmatively supports his view. whereas the qualified immunity standard seems to require essentially the opposite. it seems to require there's a precedent that foreclose what is the officer does in order to
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protect only those who are acting to protect everybody except for those who are clearly incompetent. >> one argument that is in your brief that i didn't follow is that the importance of holding the way you recommend is so that you get this question solved. you tee up the question, what is the rule, one light or two lights? but yet in this case it was consent. the evidence that came in had nothing at all to do with the traffic violation so we wouldn't need to -- the court wouldn't need to decide the traffic violation. there was consent, i think the north carolina intermediate appellate court said it was a legitimate consent. there was consent and this evidence comes in and we never have to deal with what the traffic regulation was. >> this question comes up in two contexts. sometimes it will be litigated in the suppression context and sometimes it will be litigated
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because the officer issues a citation and we are -- our concern expressed in that portion of the brief is that if the court takes the position that whenever an officer is wrong about the law he's violated the fourth amendment it's going deter officers from making stops where there are arguments on both sides. >> do you agree that this consent is the fruit of the poison tree if there is an illegal stop. >> we think that would be a difficult question. we don't necessarily agree with that. this court has said it's not a but-for test so even if the stop was a but-for clause, that doesn't necessarily mean that the evidence was fruit of the poisonous tree but the question wasn't argued below by the state and it hasn't been briefed here so we've addressed this question. >> you started your argument by saying you were going to give us three reasons why this should be a rights question rather than a remedies question. you said history which frankly i
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think your history probably doesn't say as much as you think it says so i want to know what number two and three are. >> sure, the second is an administratability reason. we they is the simplest standard. you ask officers to decide -- ask courts to decide whether an officer could reasonably think a person had committed a crime and you don't need to separate was this a question of law or fact and treat one in the rights section and one in the remedies section. the third is that we don't think there's a normative reason to treat mistakes of law and mistakes of fact differently. when an officer makes this stop in this situation he can be confused as to what the facts are. if we're going to treats in takes of facts as part of the rights analysis, we could treat reasonable mistakes of law in the same way. >> thank you, counsel. mr. fisher, you have three minutes left. >> i'd like to make four points if i could. to start with the
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administerability question of what would reasonableness mean. i think your hypothetical of two differing court of appeals opinions in a state, i think it would mean it would violate the fourth amendment and half the states conduct the stops and the other half doesn't. each would be binding in its own component of the state. that shows why in wren and many other cases this court has rejected that kind of analysis at the right stage, and only for the remedy stage. >> in this case, didn't the dissenters in the north carolina supreme court say the interpretation adopted by the court of appeals was surprising? so all we would have to say on reasonableness, is that if it's surprising, if the correct interpretation is surprising, then the contrary interpretation is reasonable. do we have to go further than that? >> i think you do. because you have to get a little more teeth to it. what the solicitor general said, it would have to have foothold in the statute. there's a recent d.c. court of
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appeals opinion that holds that a police officer could argue from a foothold in the statute that all license plate frames are illegal. they rejected that under their code. but it's one of innumerable arguments that an officer might make and the reasonableness test would give grave -- >> no, one court one way, another court another way, the officer loses. it has to be unusual. it has to be -- you heard what -- >> well, i think justice breyer, the problem with that is the core presumption that the officer needs to understand the law as it existed. as was later construed. chief justice, you talked about the ignorance canon. the state's response was, if somebody is reasonably mistaken about the law, we would convict him. the reason why is, because we would assume he knew the law. we would assume that somebody -- that the court of appeals split,
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this court divided 5-4, the person is still convicted because we assume they know the law when they acted. and all we ask is the same to apply to police officers. the founding case doesn't help them. they reinforce our point. even when the court has cited those cases, they're all in the context where the courts didn't distinguish rights from remedies. if you want to look a the controlling rule would be the common law rule. and what we said is no disagreement from the other side, the common law rule dating back centuries is the ignorance of the law, even if it was perfectly reasonable, didn't justify the stop. if i could say one last thing, to justice scalia about the colloquy we were having before. with all due respect, i think there's nothing unusual about a party litigating a case up through the courts. may it rise in state or federal court. they can choose the arguments
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they choose to raise. when we got a judgment in our favor from the north carolina court of appeals, it was up to the state at that point to choose which arguments they wanted to pursue further in this case. just like a state, a party may ride the first amendment or second, we think that's all that's happened here. >> thank you, counsel. the case is submitted. veterans for your service. retweet to thank a vet. house speaker boehner sends this out. please pause today and pay tribute to our veterans. ohio republican sends out this. today and every day we salute the brave men and women who served in the u.s. military. thank you for your service. later we will be hearing from arizona senator and navy veteran john mccain as he recounts the
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lives of soldiers who served in conflict. he will talk about his new book, "13 soldiers" at the national press club, live coverage at 6:00 p.m. eastern on c-span 2. c-span veterans day coverage continues tonight at 7:00 eastern with selections from this year's white house medal of honor ceremonies followed by the traditional wreath laying ceremony. just after 9:00 the annual uso gala featuring general martin dempsey and discussions on veterans mental health issues. here are a few of the comments we received. . >> just calling to tell you how much i enjoy q&a.
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i turn off my phones, get my cup of coffee and it is the most enjoyable hour on television. >> the guest today was very informative. i enjoyed listening to him and the comments that was done today. he was very accurate and on point. he was not using his own personal inuendos. i greatly enjoyed it. i hope you have more guests like that. it was right on target this morning. >> i'm calling to say that i think like many people c-span is wonderful, but as to criticisms i almost have none and i am a very partisan kind of person. the reason i have none is because i think you all do a tremendous job of showing just about every side of everything and the way people look at things in d.c. and elsewhere.
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i take my hat off to you. >> call us at 202-626-3400. e-mail us at join the conversation. like us on facebook, follow us on twitter. the russian ambassador to the u.s. says that american and russia need to work together in fighting terrorism and isis militants. he spoke recently at the baltimore council on foreign affairs. his comments are about an hour and 15 minutes.
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members of the council, guests and friends, on behalf of our board of trustees it is a great pleasure to welcome you this evening. let me thank the sponsors of this evening's program, first of all, mccormick company. [ applause ] mccormick has been a wonderful supporter of the council. as many of you know and also one of our most loyal and strong trustees, carol nor doff and his wife, ellie. [ applause ] thirdly, lockheed martin corporation. and our dear friend anonymous.
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[ applause ] our topic tonight, as you all know, is the state of u.s.-russia relations. an enormously important question immediately because of friction and danger and in the long run because of the importance that relationship is to international stability. certainly, we have had a foreign policy which for years has rested upon accommodation, desire that the great nations get along well and the united states has certainly wished to have russia have its place in the sun. the definition of place has been put to question at times but nevertheless that has been the endeavor and continues to be. as all of you know paralleling that are some real frictions today centered on eastern europe
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and the ukraine in particular. the issue of that place in the sun which should be, of course, commensurate with russia's unique strong role in the economy of the world as well as military power. the definition exactly of that place is somewhat open and certainly has caused great frictions. we are very, very fortunate to have the ambassador with us this evening to address the status of that relationship. the ambassador was good enough to speak to this council when he first became ambassador early 2009. some of you remember he is a graduate of the moscow engineering physics institute. he also graduated from the ussr academy of foreign trade. his diplomatic career which
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began in 1977 has included being on the delegation to the united nations and then to the u.s. embassy as a first secretary. he spent a decade in the foreign ministry as a deputy director of the department for international organizations and then as deputy director and director of the international scientific and technological group. and then thirdly at the ministry he was the director of security affairs and disarmorment. following that he went to belgium as his country's ambassador. while there he was also the permanent representative to nato. and following that he became deputy minister of foreign affairs and then came to the
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united states as the ambassador of the russian federation. it's a great pleasure to present to you his excellency. [ applause ] >> thank you very much for a generous presentation. it is a real pleasure to be back. i think when i came to the united states in my current position it was one of my first public appearances here in this room. i still remember how interesting and somewhat surprising to me it was because i came to work in the united states in 2008 immediately after the war that
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georgia launched against south asia. you might remember the quality of relations between us wasn't very good, to put it mildly. and i came and my job was to see to it that relations do develop in the right direction. and i spoke here in 2009. it was march, i think, and it was the beginning of the reset. reset wasn't announced yet, but it was kind of boiling up. and later on there were a lot of expectations that russia and the united states can build truly significant and positive relations at least taking them from where they had been in a different and positive direction. as the ambassador whose job is to see to it that relations improve i have to confess.
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i do not have anything to report to you that satisfies. unfortunately, the state of relations today is unfortunate, isn't exactly what we wanted and there are a number of reasons for that. and i will dwell on some of them. before i speak to the reasons i would like to give you a very brief picture as to where we are. currently russia and the united states are still partners in a number of programs and a number of endeavors that are very important regardless of the difficulties that we have on other issues. just today a couple of hours ago
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there was another meeting between administers of foreign affairs. i haven't seen the full briefing on the meeting, but as far as i understand from what i have the chance to see it was serious and productive. and i think both sides agreed that there are challenges in the world that irrespective of other difficulties we have to face together. one of them is terrorism and the problems that do exist in the middle east including the threat that isil presents is something that we have to work on in parallel. i would add to that that there are a number of other things irrespective of the difficulties that we have are still working. one obvious example that sometimes goes unnoticed is that the space station is flying over
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our heads and our american friends getting there with the help of russian space boosters. and whenever i see and speak to the astronauts i always think that that is the quality of relations that we would like to have at some point. it's honest. it's partnership. it's equal partnership. it's very respect ful and something that brings people together on a human to human basis, as well. at the same time the challenges that have existed in the past like proliferation of weapons of mass destruction and we do work on these issues in parallel or together and i think it's still a very, very substantive effort that we are mounting and will be
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mounting in concert. i would like to add to this that russia and the united states are permanent members of the security council and as a result of it whenever we do cooperate and work together the international community, large international community has a much better chance to win over the challenges that we all face rather than when we work against each other. and it's something that everybody understands. if you go to a number of countries and speak to them about the russian-american relations most probably the majority of them would say we want you to be on the same page. we want you to work on the current issues because we all face basically the same problems like international terrorism,
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like religious intolerance, like ebola, a very new issue to all of us. and we do have also a pretty significant body of -- >> louder? is it better? you should have told me earlier. but i'm not going to repeat everything i have said with due respect. i will try to do my best. so what i'm suggesting that the challenges that we all face together with a number of countries at some point in the past i sat with my friends and drew a list of challenges that russia and the united states face together. and the challenges are very important and very much the
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same. i also drew a list of the things that pulled us apart. i always believed that they are not as numerous and not as important to the well being of russia or the united states. at the same time in the past years what we saw was that russian-american relations were haunted by the stereotypes of the past, stereotypes of the cold war and we saw a number of events that happen in previous years that made our relations more difficult. some would suggest that our differences of what is happening in ukraine brought relations almost still which is not the case but the difficulties came
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much earlier. and you might remember we had significant differences over syria which at that time the secretary of state chose to call for putting russia in isolation since it wasn't supporting the view of the united states. we also saw the rising number of criticism of russia internalize especially after the elections in russia. with due respect to your views we have our own political life that we are proud of and live in. and sometimes understand better than people in countries outside of russia. we also saw significant worsening of the atmospherics in the relations with canceling of the summits, if you remember,
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with the snowden affair, something that we were not soliciting, something we were not organizing when we saw a gentleman coming on a transit to russia on his way from hong kong to somewhere in latin america, his passport was cancelled by the state department exactly when he was in the airport of moscow. so not a single company would put him on board to fly further. and we got a problem. the united states wanted him delivered to the government of the united states but at the same time united states had never agreed with us, had never agreed with us to have an agreement that allows such things top happen between us. it was a conscious decision by the united states and several administrations because you
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still provide safe haven for a number of people who are sort of by russian law enforcement. now ukraine. ukraine is a very, very difficult issue. it is very painful to many russians especially taking into account how much we are all intertwined not only economically because we are products of the same economy that was of the country but intellectually, religiously, ethnically. we are so close and so intertwined. you can hardly find a family in russia that doesn't have relatives in ukraine and vice versa. i'm one of those. and we certainly see what happened in ukraine with a lot of pain. but at the same time what is
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most important in russian american relations is that we kind of found ourselves on different sides of history using the american term where the united states always wanted to stay on the right side of history. and in this particular case and this very telling moment to us the united states chose to support forceful overthrow of a legitimate government. and it supported the new government that came. as we say in russian on the shoulders on extreme nationalists and almost sometimes profascist forces. i'm not suggesting that people in the government are exactly harboring the same views, but what was happening in the country certainly wasn't acceptable if you are talking
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about the country that is seeking european association that is professing to support the western and european values. what was happening in ukraine was absolutely against anything that would be compatible with the goal of ukraine in becoming a country supporting european values. even today what we see that is happening is also reminding us each and every day how difficult things are in this country and most probably are going to be difficult for a significant time. what happened then, the government in kiev came by force to power. but not everybody in the country
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were joyful about that. not many people didn't share the goals of the group of people who took over in kiev especially taking into account that one of the first steps that the government in kiev took was to introduce a draft law to abandon the use of russian language and russian culture in the life of ukraine, at the same time there are nationalistic forces that came to power at the time were insisting that ukraine needs to be for ukrainians, that russia even has to be prohibited to be used in ukraine. mind you, in the final stage of all of the debates these proposals haven't become law and i understand that the reason for
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that is not only our vocal disapproval of that kind of stuff most probably wasn't important, but also the european partners of ukraine and hopefully the united states, as well, certainly made known to them that the values of a democratic state wouldn't support that kind of draft laws but what happened the newly established government sent a signal as to what they wanted. and in parts of ukraine that population of which is mostly russians, not only russian speakers but russian ethnically, semi russians, for them to be able to speak the language to teach their children in the same language, to maintain the culture that they have felt
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associated with was very important. but they were threatening to have [ inaudible ] and people were rejecting everything that was happening in kiev. people in crimea and people in the east were not accepting the forceful overthrow of the government with the new government trying to impose on them the values that they were not sharing. what happened in crimea i will remind you there was a referendum where total majority of people and mostly the majority of people are not only russian speakers. everybody in ukraine is a russian speaker. whether in the east or the west, but people who felt that they
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are russians historically being part of the land, they wanted to get back to russian federation. if you want i can at some point describe the history of this part of the country. but they voted independence and voted for requesting russia to accept them as a part of the russian federation which russia did. in the eastern part people didn't ask for independence or they were talking about was some extended autonomy because east of ukraine is first one of the most developed parts of the country and people complained there that they produce national
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wealth that is taken by capital. and they get back on the tiny portion of the money they earn for the country. so they wanted some more just redistribution of what they produce in this particular part of the country. they also wanted some more autonomy to be able to protect their ability to speak russian and run russian language schools and things like that. but what they saw in response from newly established or self-proclaimed government at that time were only threats. and we saw what was happening and they were threatened by force to -- they were called
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terrorists. that is something very difficult to understand because people are still in their houses and they were defending the way of life where they have lived. they were called terrorists by the government. they were called separatists. they wanted autonomy within ukraine that would be negotiated between them and the government in kiev. we have always been saying to people in kiev and elsewhere is what is needed is all-inclusive dialogue in the country, all-inclusive dialogue. the problem is that it was something that was included in the so-called agreement that was reached between the the then-opposition and the previous president of ukraine over the settlements of dispute in the
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country, peaceful settlement. it was with the european countries, france and german and poland witnessing and signing with the draft agreement on the work plan to reach a political settlement. that included among other things inclusive dialogue on the future of the country. it never happened. kiev never did it. we did succeed to have the idea of national dialogue included in document together with the united states and some europeans in geneva i think april 17. it never happened. no dialogue was conducted in the future of the country as a whole. instead, we saw the use of fo e force, first threat of force and
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then use of force. the more kiev was throwing forces on those who didn't agree with the government in kiev the more they created volunteers to fight against them because people were protecting their way of life, their families, their land. we are insisting even today that together with the cessation of antiviolence it was almost agreed with two agreements between ukrainian governments and the leadership of the opposing forces in eastern ukraine. and the cease fire by and large is more or less working except for a number of sites where like
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in donetsk where ukrainian armed forces are bombing their own people, bombing civilian population, even in the most outrageous situation was on october 1 when the school year started with the delay of one month usually in russia ukraine school year starts september 1. and the current circumstances started october 1. at the moment of opening classes they bombed a school. luckily they haven't killed children but they have killed teachers. and it was done on the back drop of the agreement to cease. that's another problem that is very difficult to agree for the
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opposing forces with kiev government and to implement the agreement in full. we are still hopeful. we certainly understand there is going to be difficult especially after 3,000 lives lost and a number of cities destroyed because the forces of ukraine were using multiple launch rocket systems against their own people, against cities and the systems for those who know something about military capabilities, they are not known to be designed to be very precision-oriented. they cover surfaces with enormous, enormous destructive
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power. what is happening we are trying to see if the latest agreement works and very encouraged that today after the meeting between our foreign ministers and secretary kerry and minister lavrov in paris they both seemed to be confirming the commitment of both countries to see that the agreements implemented by the two sides. i'm still hopeful that however difficult it is it will be moving to more normalcy in this part but it certainly will take a lot of time and a lot of effort to make the sides talk to each other and to make sides to agree how they want to live together or side by side. it is for them to decide, not for the united states and not
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for us. having said so, i would like to address, once again, the russian-american relations. we came from different positions for this issue. but the united states also chose to try to attempts to isolate russia in the international arena, something that is certainly workable. we hear less about isolating russia and more today from the secretary of state about the need for russia and the united states to work together on the challenges that we face including isil and iraq. and also economic pressure. something that is widely discussed both in the united states and even more so in russia because we don't like the
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idea to be under pressure. we do run some difficulties in economic development because we are very much integrated now in the international economic life. it is no longer the soviet union that was kind of claustrophobic set of incidents. it is a country that is widely integrated in international economic sphere. we have very developed relations with the european union. our trade is about $400 million a year to compare it with yours it's your trade with the european union i think it's about 500 or 6$600 billion a year. very much comparable numbers. and the same time the quality of
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our economic relations with the united states is significantly less important and less developed. today the last year i will give you numbers for the trade between united states and russia were $38 billion both ways according to the united states statistics and $28 billion according to russian statistics. statistics differ not because people are trying to hide something. we count things differently. our statistics includes direct trade. yours include trade to third parties, third countries. but one way or another, 28, 39, it's minuscule. try to imagine it's less than 1%
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of the overall foreign trade of the united states. remember last year you saw a drop of your foreign trade by 2%. has anybody noticed this? in our trade is less than 1% of your trade. for us the united states doesn't appear even in the least of ten most important economic partners. it's mostly europeans, chinese. even ukraine i think better at times were greater than the united states. that in turn shows that overall relations between our two countries have never achieved a level of real intertwined partnership that we enjoy with a number of other important countries or europeans as
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unified eu market. but what i'm suggesting is that even under current pressure that we see applied to russia our trade this year doesn't seem to be dropping too much. for eight months of this year there is a drop of half a billion if you compare it with eight months of the year 2013 which shows that real business is still interested in working in the markets of each other. and i have spoken to a number of american companies who are very successful in russia and they are willing to continue to be willing to be successful. we also have a number of success stories here in the states because a number of russian companies have invested in the
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united states. we have one company to name a few, but one is enormously successful called -- they are making business on providing you with the best industrial tubes in the world. those tubes are used for shale gas, shale oil production, helping you to compete with us on oil markets. but before they joined the american market they were i think number three or four in the world. now they are number one. so what i'm suggesting is that we do have political difficulties. sometimes they are greater, sometimes they are less so, but at the same time there are a lot of interests in the rest of the world or in relations between
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our two countries that can and should bring our countries, our people and our business people together. something we want to happen, we believe that political difficulties shouldn't make business hostages. we also believe that russia and the united states can do a lot if we work together and not against each other. at the same time we are ready to work with the united states on the basis of equality, mutual respect of interests and certainly significantly more positive way of addressing each concerns, something that is still missing in our relations. at the same time talking about sanctions i would be remissed if
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i don't explain to you that sanctions do not help russian economy, but if you listen to the debates among the russian m russian business people. concerns are different. sanctions do make foreign borrowing more difficult but united states is not the only place where money can be found. we also have some money in our own country. we also have a number of partners that do credit you, like some countries in asia, who are also interested in russian market, who are also looking for opportunities in the market where there are voids of presence by western companies and they want to take the initiative.
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what is the most important is russia is, i would say, part of the extended european space. not normally defined but in general terms. i wrote some numbers, which i found myself, very interesting. and i will try to help you also to understand what russia is economically and what it is not. for example, in this year, 2014, the economic growth of russia would be very low by russian aspirations and standards because for consecutive years we had improet every growth of
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economy around 7%. now it's 0.5%. to compare it with france, significant economic power in europe, great partner of russia, they're enjoying growth today of 0.4%. germany, 1.4%, but today i saw reports that the run-off is recession because there is a significant drop of gdp of germany italy is negative side. spain, 1%. unemployment in russia is 4.8%. to compare with france, 10.3% italy, 12%. spain, 24%. i tried to compare it with
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countries with significant economic stand in europe. it's also important we run a budget with run with profit, even today. it's 2.5% on the positive side for us. this year. whereas in france it's minus 4.5%. in germany it's only 1%. in italy, minus 3%. in spain, minus 5%. also if you take reserve currency, goal reserve, we enjoy reserves today of about $455 billion. to compare with france, $155 billion.
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germany, great german economy, $250 billion italy, $150 billion. and spain, $42 billion. what i'm suggesting is irrespective of the difficulties and economic development we are discussing with such vigor now in russia, russian microdata specialist, they call it in russia, are pretty solid. and we do not run any significant foreign debt. i can give you, i think, data
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that russian state debt, if you compare it with the gdp of the country, it's only 10%. only 10%. just try to remember how much you owe as a state. if compare -- you compare it with your gdp. in france it's 97%. in germany, 77%. and all the european countries are in much worse position on this issue because we have run the economic development with a very conservative -- the use of budget outlays to promote stability of the economy. and when difficult challenges come we seem to be better prepared than a number of other countries. having said so, i would also need to say that we are not satisfied with the level of our
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economic sanctions, that's secondary, because one of the biggest difficulty that we are still haunted with is the curse of a country being so rich in oil and gas. it's something that provides a significant component of our gdp, but at the same time, it -- it leaves less of an incentive for people to develop other industries. something that is important to us. so who have embarked on an economy that does not rely so much on oil and gas. and using the technological that we enjoy.
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what is still missing is the ability to put in the market needs in an efficient way. that is the push that the government is trying to do now. unfortunately with less success than previously. difficulty sometimes can create opportunities. because of the sanctions there is a very significant drive among business people, among our neighbors, who see niches in russian market, it's a big market, 150 billion people -- million people with rather developed ability to tapay for e goods and services they get.
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we are working in order to create incentives for companies that would be building our own products that they currently import. the current crisis, the current economic pressure that the united states and some european partners that are joining you in, showed to us that you cannot rely on the current circumstanc circumstances, as the freedom of flow of goods. it's very shaky. it proves to be very vulnerable to political decisions.
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it also in somewhat disappointing fashion shows that the united states is significantly less reliable economic partner to us as we had expected. we also with diversification of our own economy, are working together to diversify our economic ties. we are working with the asian countries. we are an asian country. sometimes people forget that wherever united states give to europe or asia, we are there and we have significant economic partners in asia and we would have been doing it irrespective of sanctions. but under the sanctions we understand much better that working and putting more accent to cooperating economically with countries other than the united
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states and europe serves our long-term interest, which is not to say that we want to abandon operation with the west. no. in no way we are interested in developing, but we have learned that it's -- even in the area where economic interests seem to be bringing us together, for example, a wonderful project that we were launching together with the u.s. oil companies, developing oil in the northern seas, it's all put on risk because of political reasons, political decisions. if that is the case, most probably you are better served by diversifying cooperation and relying more on capabilities that do exist in russia. we want them to see developed. so, that's where we are. if you ask me, are we back in the cold war, i would say, i hope not.
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and, again, i assure you that we in moscow are not interested in another addition of the cold war. we want to see normalcy restored in our relations, but normalcy restored on mutual respect and partnership on the basis of equality. so, i will stay here and i will be open for q&as. thank you. [ applause ] >> well, we thank you for that positive view of russia today. and we certainly share your interests in long-term bonds between the two states. the floor is now open for questions. there are microphones on both
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sides of the asooisles. >> some time ago bush told ukraine wasn't a nation? is that still your position? i would like you to ee lab rate on that. >> i'm not sure that i can confirm the quote you are referring to. and what is important to understand what a nation means. of course, ukraine is a nation. we have a lot of ukrainians in ukraine that represent a nation. however, historically ukraine developed in a very difficult way. because as a country within current boundaries, it exists basically up the composition of the soviet union. because prior to that, it was part of the bigger country, the soviet union.
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and prior to that, during hundreds of years, current ukraine was divide between lithuanian polish government -- kingdom and eastern part was largely part of the russian empire. historically culture and even religiously because all the orthodox -- the eastern part is orthodox. western part is orthodox plus catholics. what is happening in ukraine, they are forming a well established nation and we hope they will do it in a very peaceful way. >> the microphone on the left, please. >> i think you --
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>> let me warn everybody about succinct question. >> russia does not have right to chechen or other minorities. now, second question is that you -- from the breakup of yugoslavia, seven countries, all slavic states are recognized by russia and by constantly secretary consulate, kosovo -- what principles is rush shall be defending now? >> well, kosovo was taken by serb, that's the biggest problem. there was a big history of this land. kosovo, most possibly you have some roots somewhere there.
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kosovo was part of the serbia that serbs maintained was land of theirs. because of history cal and other process, the number proportion of people of albanian descent has grown very fast and they felt they became majority there so they had a problem with the serbs. serbs had a problem with them. so there was a lot -- there were a lot of hostilities. and afterwards, there was a came pain against serbia to accept what albanian population was telling. if you ask me whether the serbs did everything in the best way one can do, i'm not sure i know. but i've been in kosovo after the war.
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and i saw the results of devastation that the bombing campaign brought serbia and everywhere. so, it was kind of self-determination, as you put it. it was forceful process of taking part of a country out of them and that's how we see it. we had said to them at that time, our american friends and others, that we are not accepting the legality of it. and as you most probably know, the issue was brought to the court in hague. and there the united states presented a paper which was suggesting that there is no violation of international law because international law doesn't regulate the process of self-determination of people.
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so, so united nations was outlaid in hague because of kosovo was significantly different from what we've seen so far afterwards. >> professor, please. >> you've helpfully touched on a number of subjects, but i wonder if you would describe for us what the number enroll of russian troops in ukraine has been in recent months. >> well, there are -- there is no russian troops in eastern ukraine. [ laughter ] >> no matter what you laugh about. no matter what you laugh about. there are no troops sent to eastern ukraine. >> speak up, sir. >> what i'm suggesting, there is no russian troops sent to eastern ukraine. there are russian citizens there, as certainly we know it.
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however, on the other side, we know there are citizens from many other countries as well. and there are a lot of indications, but the people who are fighting for the people ukrainian, ukrainian citizens. most probably you haven't seen the reports of the events. i see it each and every day on russian tv. and you look at the faces of people who are fighting there. they are not even universally young. they are people who came from all walks of life. some of them have a lot of military background from soviet union times, from afghanistan, some time people have served together in ukrainian components
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in iraq. so, there are a lot of people who know what the military job is. and do it professionally. >> yes, sir. >> good afternoon, good evening and welcome. faith is worldwide. i just want to make a statement. you don't have to respond. matters of holy -- >> would you kindly speak up. >> on matters of holy matrimony, may russian orthodox church and the roman catholic church meet, pray we invite and schedule some religious classes so to enhance their religious skills of some of our very own united states supreme court justice. thank you. >> i understand it's more statement than question and it saves me because i'm not religious myself. and it's difficult for me to
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give any educated view on these issues. >> next question, please. >> you mentioned before certain issues in international law. i was wondering if i could ask you, where does russia see problems or development in international humanitarian law or law of armed conflict and where, if anywhere, do you think there should be any changes in the international law in this regard or do you -- or do you think the law should stay as it is? if i could get the russian perspective on this, thank you. >> well, that kind of question requires another lecture. and certainly better specialist on law. i'm not a lawyer. while the humanitarian law and the law of the warfare, i think is there and has to be at least
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fully complied with. and here i would i cannot -- once again returning to the situation in neighboring ukraine. i'm surprised sometimes, watching cnn or other american channels, reporting on the situation. and comparing it with what we see in russian reporting. we are biased you are biased. sometimes i feel like we see different planets. what is missing here in the united states, despite all --
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that we're in eastern ukraine. there are mass graves discovered there. civilians killed in indiscriminate way by military, the most powerful weapons military have. there are lootings, cases of lootings. in this part of ukraine, we see as active fighting force the so-called volunteering battalions. the status of those is largely misunderstood because they have sometimes no status. so, what you see the armed forces, real armed forces, shelling these cities, but these people entering the settlements. and when they left, if you hear
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people who survived this, with beatings, torture, some have video recorded. i'm surprised. it's 21st century in a country that aspires for european membership. yes, sir. >> mr. ambassador, your comments relative to the ethnic russians in ukraine, i also think probably parallels those that could be made for georgia. every nation that was previously part of the soviet union has a large ethnic russian population. taking those comments and extrapolating them out, that gives you cause to meddle in every country's affairs that border russia. how do you respond?
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i will respond very simply. it's not true we meddle in affairs of other countries. we have a number of countries where the russian population is well represented. take kazakhstan. do we mingle in their affairs? kazakhstan is one of the most trustable partners that we have. we just signed an agreement to create the asian union. look at bella russia. are we mingling in their affairs? look at baltics. are we mingling in their affair? we speak out when we see nazis reglorified in that country. do we mingle in their affairs? it's something -- the statement based on very, very preconceived notion of what russian policies
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is, which i cannot agree with. >> i point to this because you're not close enough to your microphone. >> oh, i apologize. i apologize. >> thank you for your answer. and time will tell. >> thank you very much. yes, ma'am. >> thank you, mr. ambassador. between the mid-1990s until recent years there were many thousand children adopted from russian orphanages by u.s. citizens. that's now come to a stop. i'm wondering if there is any movement in reopening adoption between united states and russia? i'm also wondering if russia has made any progress toward adopting the hague conventional and intercountry adoption. thank you. >> well, first of all, i do not know exactly where we are on the hague document, but i will look
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up, and if we have a chance, i will give you an answer. when it comes to the adoption, i do not see anything happening in russia that would bring it back. and the reasons are very simple. we saw a number of cases here in the united states where kids from russia were abused, were tore toured, some of them lost their lives. some would say, oh, that's statistics. look at the kids in russia. they also get killed and tortured some time by their parents, too. look at american statistics. how much cruelty towards minors is happening in this country. that's human nature. the difference being that
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russian kids here in this country are unprotected. we were trying to bring the state department and even the justice department to work with us to pursue the cases when we saw russian citizens. and remind you, these kids are russian citizens. they also get american citizenship the moment they cross the border. but they continue to be russian citizens. and wherever we are trying to help justice to be served, we were very much left alone, at best. sometimes we saw that the sentences that were given to people were unjustifiable, unjustifiably mild. we also felt that if you compare
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the punishment people would get for torturing kid of american origin, it would be significantly different. all of this was very much of concern to us. we had been raising kids with americans call it -- so many times but largely we're getting a response that the federal government cannot do much because these issues are regulated by state laws. which we also learned the hard way. i will tell you that we had the case -- there was a legal procedure against one family that was believed to be abusing a minor from russia. and i send legal expert from the embassy just to be there and to hear the proceedings.
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he was kicked out of the room. and when he said we had an agreement with the united states that provides for legal help and pursuing such cases, he was told that you do sign agreements with the federal government, work with the federal government here in this state we work based on the state laws. so what we saw was very, very unfortunate. and with largely good statistics for many that have been adopted here. i will tell you that i met many american families who command so much respect, and wonderful people who give their heart, their life to the kids they adopt. at the same time on this backdrop, we saw cases where absolutely outrageous. i would add to this, that we saw
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kids adopted not only by the u.s. citizens, we saw it in spain, in italy. by the way, i think it's italy now, the largest country that adopts kids in russia. but we have never had a single case of this type in this country. nothing of the sort. there was some reported case recently of abuse. i think it was in italy or spain. i do not recollect. but they were fully koomecooper with russian law enforcement and their law enforcement was very, very forceful. that was the main problem we have encountered. and i do not see any movement to reconsider the decision. >> we did get a little bit of a late start so we'll have two
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final questions. we are delighted midshipmen -- >> to questions. >> first, the gentleman from the naval academy and you, ma'am, after him. >> good evening, ambassador. >> good evening. >> my question is with the add vented of the war on terror it's kind of become clear that no country can stand on the sidelines, that russia has had trouble of its own from chechnya, plagued with violent extremis extremism. basically in the modern world today with isis forming in the middle east, as you said we have a mutual interest and a common enemy in these groups who seek to destabilize middle east and commit acts of terror. why has russia not signed on to help with the coalition and give us naval or air assets to help combat isis in the middle east? >> a couple of points -- [ applause ] >> even before united states decided to start building
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coalition, and you remember you were thinking about for three months, i think, or two months, we started supplying aircrafts together with specialists to train iraqis. you were thinking we weren't working. so, we have been in contact with the iraqi government. we have helped and we have continued to be working on these issues. whether we wanted to do within a coalition or outside as a self-sufficient kurngts i think for the time being, we can do a lot on our own working with the people. which doesn't mean that we are going to be on collision course with united states or the coalition it helped to create. but sometimes you also need to
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think about some political connotations. people here in the united states compare russia and isil as comparable challenges to united states and you want us to be in a coalition. it doesn't go well in political terms thinking about that kind of formations. but on substance. that is the most important. we are trying to be helpful. we have been helpful. as i said already today, the ministers, yours and mine who met today, and it's a common challenge we need to work against. >> last question. yes, ma'am. >> hello, mr. ambassador. i understand that a large part of improving u.s. and russia international relations is improving the actions we do in
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order to earn courage our ideals. according to you, the u.s. took the wrong side. according to us, the legitimate government is base on the views of the people. so can you please define to me what a legitimate government is, in your terms. >> what legitimate government is? >> yes. >> where? >> in ukraine? >> within russia. >> within russia? >> yes. >> within russia ukraine -- or the russian government is the government that was appointed by legally elected president. and approved by legally elected parliament. that's the procedure in russia. so, we are presidential presidential republic. not exactly the same way organized as the united states,
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but significantly more -- with more accent on president than western european country that are largely parliamentary. so, in russia the president has the power. the prime minister, the prime minister goes to the parliament and seeks approval by the parliament. thank you. >> thank you very much. >> mr. ambassador, thank you for your patient and your questions. >> on behalf of everyone, mr. ambassador, thank you for what was, i think, on many levels uniquely informative. thank you.
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and endur drils beyond what most of us can bear and they do it for us. the highest calling, greatest place in our society belongs to those who have worn the uniform. senate majority leader harry reid says, i think all of those who have served our country and those who continue to serve in harm's way to secure our great nation and i'm honored to represent the hundreds of thousands of nevada veterans and their families.
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later today arizona senator and navy veteran john mccain will recount the lives of american soldiers who served in conflicts ranging from the revolution air war to the wars in iraq and afghanistan. he'll talk about his new book, 13 sole deshgs a personal history of americans at war. he'll be talking about the book today at the national press club. we'll have live coverage at 6:30 eastern on c-span2. >> c-span veterans day coverage continues tonight with selections from this year's white house medal of honor ceremonies followed at 8:00 by traditional wreath-laying ceremony at arlington national cemetery. after the 9:00 the uso gala featuring general martin dempsey, also discussions on veterans' mental health issues as well as other selections from the white house medal of honor ceremonies.
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>> the 015 c-span student video cam competition is under way. open to all middle and high school students to create a five to seven-minute documentary on the theme, the three branches and you, showing how a law by legislative or judicial branch of federal government has affected you or your community. there's 200 cash prizes for students and teachers totaling $100,000. for the list of rules, go to next a discussion about government transparency from american bar association administrative law conference in washington, d.c. panelists reviewed court cases on the nsa's warrant list surveillance program and they examined important freedom of information cases. this is about an hour and a half.
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good afternoon and welcome. we appreciate you taking the time to be with us today. i'm jim o'reilly from cincinnati, ohio. with me are distinguished presenters who will be each giving their own perspective on privacy and information law. i've been in this field since 1972 when the field was so obscured, so few people cared about it, that when i proposed a book in 1976, the four largest publishers said, nobody's ever going to care about privacy and nobody's ever going to care about freedom of information. the book is still going strong, in its fourth edition. and still a very significant item. but what's occurred in the last year and the background for today's topical discussion about
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developments, what's happened could be boiled down to two words -- ed snowden. this morning at 4:15, as i was driving to the airport in cincinnati to fly for this presentation, i was listening to the bbc, the british broadcasting organization, and bbc had on a discussion about privacy. and to quote specifically, they said what's changed now is the development of big data for spooky uses. big data for spooky uses in the ed snowden era. and rather than trying to create our own topic, that's about it. we'll be talking about big data, who's listening to it, who's generating it, who's, in their word, monetizing it, who's monetizing that big data and
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what the significance is for individual privacy. so way back in 1972 when nobody cared and the freedom of information act was one obscure piece of legislation that was never going to go anywhere, the world has changed to a dramatic extent to now the international awareness of u.s. national security agency listening and the consequences of that privacy issue is being felt around the world.
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>> thank you. good afternoon. i won't be talking so much about big data for spooky uses but data for use by you and me. so, i'll be talking about public information and access to public documents focusing with a few ancillary matters and one of my co-panelists harry hammitt will be splitting responsibilities for dealing with the public information side of this. so, i want to -- there have been a number of cases. too many to summarize in the talk, so there's a rather extensive summary of many of the cases that were decided this year in la foye yeah area. so i'll just concentrate on a few areas and a few cases. let me start with the definition
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of agency records because only agency records are subject to foia. this year have there have been two noets notable cases on that. course of action versus national archives and records administration. in score county which is on page 10 of the materials, that involved local records a sheriff responded at net first and district court in iowa held the records were federal records and enjoyed county officials from releasing them under the state public records act. first net is an independent authority within the department of commerce and responsible for the nationwide -- aspects of the nationwide public safety broadband network. first net's government consists of three cabinet level officials
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and 12 members appointed by the secretary of commerce. and sheriff -- story county sheriff paul fitzgerald was one of those 12 appointees. first net's organic statute exempts it from foia. so, fitzgerald received and sent e-mails regarding first net business from story county e-mail account. nevertheless the court found fitzgerald was federal official for some purposes and the records were federal records. it didn't matter if fitzgerald had been appointed to the first net board due to his status as a local elected official. the court also reject story county's argument that fits garltd's receipt of officials at his story county e-mail address constituted release to a third party and, thus, voluntary waiver of foia exclusion or
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exemption. the second case involving agency records deals with the national archives administration. cause of action versus national archives records administration. here the d.c. circuit held that records of legislative commissions that are transferred to the national archives are not agency records for foia purposes. and these -- the legislative commission here was the financial crisis inquiry commission. and rather than rely on control test that generally decides these agency records cases, the panel held the transfer of records from an exempt entity, namely any sort of legislative commission does not alter the records exempt status.
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so the court observed that nara does not use archived documents in any operational way and in any way comparable to any other federal agency. thus, any control over such documents consists solely and cataloging, storing and preserving them, not unlike a warehouse. so, the court says, and this is the d.c. circuit, actually, says this makes the tax analyst case inapplicable because it was designed to distinguish agency records from personal materials within an employee's possession. and in the nara context, the court said that the tax analyst case is really divorced from foia's key objective, which is revealing to the public how federal agencies operate and the fcic records, the commission records, don't expose the
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operations of the archives or nara to the light of public scrutiny. i wanted to move on to the exemptions and i'm going to focus on two of the exemptions. exemption 2 and exemption 6. exemption five, quote, would be available by law to a party in litigation with the agency. and em come passes several privileges otherwise known as executive privilege. and there's a case summarized beginning at page 15 of materials. d.c. district judge concluded the privilege did not protect from disclosure president
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obama's presidential policy directive on global development or ppd-6 for short. presidential directives serve as formal notification to agency heads of a presidential decision in the field of national security. generally requiring that agencies take some form of follow-up action. and pbd-6 calls for the elevation of development as a core pillar of american power and provides specific policy, guidance on implementing that approach. the judge concluded that ppd-6 is a wildly publicized nonclassified directive that has been distributed broadly within the executive branch and used by recipient agencies to guide decision-making. in the judge's view, as policy guidance to be implemented by recipient agencies, pbd-6 had the force of law and was the
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functional equivalent to executive order. the judge's reason that the availability of the presidential communications privilege turns on the need for confidentiality to ensure advice and herein found no such need, particularly given that ppd-6 does not involve a uniquely presidential duty. which is a little bit odd reasoning. the court went on to say based on the reading of the document, the judge found it was forward-looking and didn't reveal president's deliberative process. in short, the judge concluded the president's ability to communicate his final decisions privately is not implicated. there are other cases involving
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the deliberative process decision, but i'll leave those to be covered by the materials and gwynn the shortness of our time, i want to move on to exemption 6. exemption 6 allows agencies to withhold records whose closure would constitute a clearly unwarranted invasion of privacy. it's often raised in conjunction with exemption 7-c which says something similar with regard to law enforcement records. there are two cases this year i want to focus on. the union leader case and case called gilman. first union leader versus u.s. department of homeland security, the summary of which starts on page 22 of the materials. the first circuit held that the names of aliens with criminal records arrested in an immigration and kufcustoms
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enforcement or i.c.e. sweep could be held pursuant to exemption says 7 and 7-c. allenes held recognizable interest that no person has an reasonable expectation of private arrest by government. nevertheless, the panel found attenuated given that convictions and arrests are matters of public record and also given that union leader was not seeking to actually contact the arrestees. the court found that there was a substantial countervailing public interest in disclosure and it noted that one of the arrestees remained in new hampshire until 2011, after having been ordered removed from the country in 1988 and convicted of criminal trespassing in 1993. panel explained that the union
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leader could, thus, point to, quote, evidence that would warrant a believe by reasonable person, close quote, that i.c.e. had acted wrongfully or negligent lently in handling its removal duties. redacted names will enable the union leader to investigate public records pertaining to the arrestee's prior convictions and arrests, potentially bringing to light the reasons for i.c.e.'s apparent torper in removing thooiz these ail yeps. gilman versus u.s. department of homeland security, summary begins on page 25, in that case the district court ordered the release of names of land owners whose property would be acquire the for the border fence separating the united states from mexico. a law professor sought the names and addresses of land orndz who would potentially be effected by
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the border wall as well as correspondence among government officials about their contacts with land owners. and the law professor was researching the legal historical property, virmal indigenous community and other impacts of the border wall. so, the agency withheld the information under exemption 6. also i think under exemptions, which i think harry will talk about. the judge concluded that individual noncommercial land owners had a privacy interest for three reasons. first, given the extensive media interest in the border fence, disclosure would expose land owners or might expose land owners to unwanted media contacts. secondly, some of the e-mails between government officials would actually potentially
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reveal the owner's valuation of their land and possibly the landowner's financial situation. and, third, some of the documents might actually reveal some specific statements by some of the land owners about their views regarding the border fence. however, the judge found, quote, a great public benefit to learning the social impact of the government's construction of the wall, close quote. and she revealed -- she agreed with plaintiffs that revealing the identified -- the identities of the land owners might shed light on the impacts of the wall and the placement of the wall on indigenous communities and disparity impact on lower minority communities. that is often an issue when you're talking about eminent domain issues. the judge actually surveyed cases involving the application
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of exemption 6, and essentially concluded that on balance, if the requester can show that there's really some substantial public interest in disclosing the information, then generally the case will come out in favor of the requester and in favor of disclosing the information rather than withholding it on privacy grounds. and this is true even in situations where citizens' financial information might be implicated. such as when the records deal with receipt of government benefits or the value of property and acreage. i want to remove on to reverse foia litigation, which i guess is a lot less frequent than foia
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litigation, but there's an interesting d.c. case. jurowitz versus usa which begins on page 34, the summary of that begins on that page. and reverse foia suits, as you know, are apa suits seeking to enjoin a government agency from releasing documents that foia exempts from disclosure. so, in jurowitz, the d.c. circuit held that the usda had not acted arbitrarily and capriciously in releasing information that dog breeders had submitted regarding their gross revenue and business volume. now, all animal dealers must complete a form 7003 which asks for the number of animal purchases and sales during a given year and gross revenue from regulated activities.
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and the humane society saw copies of these forms, 7003s, for all missouri dog breeders. the usda agreed to provide the information. the dog breeders brought a reverse foia suit claiming that those documents should have been with held under exemptions 4 and 6. with respect to exemption 4, which covers confidential commercial information, the court noted that the usda had reasonably concluded that the requested information was unlikely to cause competitive harm. the data on the form was too imprecise and stale for competitors to determine the dealer's current prices for particular breeds. with respect to exemption 6, the court concluded that the usda had properly found a nonnjable but limited privacy income.
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quote, significant public interest in the release of the information. in particular the release of the information would help the public assess whether the department was fulfilling its statutory obligation to charge reasonable and equitable fees and allow the public to properly assess whether fees for being charged in accordance with those regulations. the court found that the usda's balancing in favor of release was reasonable. interestingly, the court also rejected the breeder's suggestion that public interest disclosure in form 7003 information can exist only where there's evidence of agency improprie impropriety. and here in this argument, it referenced the favorage case from 2004, and the court acknowledged such a showing might be required when a foia
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requester seeks documents that would intrude on some privacy interests, but it said in this case, in a reverse foia case, the plaintiffs must show the government was arbitrary and capricious in concluding on balance the public interest outweighs the intrusion on privacy. let me talk about a couple of cases involving government information and accommodation of government information, government acquisition of information that are not foia cases. so, the first is wisconsin airlines corporation versus hooper, in which the supreme court liberally construed the scope and protection offered by a statute that confers immunity on airlines for reporting suspicious behavior. the aviation and transportation security act, atsa, immunizes
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airlines and airplane employees from liability for reporting suspicious behavior to tsa as long as the report is not made with actual knowledge with actu mileage that the discloser was false, inaccurate or misleading or was reckless disregard as to the truth or falsity of the disclosure. consistent with the court's articulation of the malice standard, which congress clearly referenced in the atsa standards, the court held that even reckless statements can give rise to liability only if materially false. materially false statement is one that would have a different affect on the mind of the reader or listener from that which the truth would have produced. for purposes of atsa immunity,
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courts must consider the effect of the alleged false statement on tsa's behavior. thus, a falsehood is material for atsa purposes only if a reasonable security officer would consider it important in deciding upon the appropriate response to the supported threat. just so you know, a little bit about what the case is about, statements that the plaintiff, who was scheduled to fly on a commercial aircraft, was an unstable pilot in the first flight deck officer program who had been terminated that day by his airline, an expression of concern about whether plaintiff was armed were not entirely accurate but were not the court said materially false. the next and final case that i
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will address is a case that the court has granted cert on. it will hear it this term. it's mclane versus homeland security that was decided by the federal circuit and interpret the whistle-blower protection act. the whistle-blower protection act prohibits agencies from taking action against an employee on the basis of any discloser of information by anticipate employee which the employee reasonably believes is a substantial and specific danger to hpublic health or safety if it is not specifically prohibited by law. the first circuit held that mclane -- the whistle-blower's discloser was specifically prohibited by law and thus not protected because it violated regulations issued under the
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aviation transportation security act or atsa which directs the secretary of transportation to prescribe regulations prohibiting disclosure of information if the secretary decides disclosing the information would among other things be detrimental to transportation safety. mclane was an air marshal. he leaked a text cancelling air marshal missions on flights to las vegas even though at the time the department of homeland security was concerned about a potential hijacking plot. subsequently, when mclane actually leaked something else and a fellow employee figured out his identity, the department discovered that he had leaked this first information about the las vegas missions and they fired him for disclosing
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sensitive information. the federal circuit concluded in the absence of any contrary argument from the parties that to fall under the wpa's specifically prohibited by law provision, it must be prohibited by statute rather than by regulation. the court noted that the atsa itself merely empowers the agency to prescribe regulations prohibiting disclosure of sensitive information, it doesn't do so directly. that said, however, the court noted that the atsa does direct the secretary to prom you will gate regulations pursuant to specific criteria, for example, only information that would be detrimental to aviation security. and accordingly, the court viewed atsa as falling into the middle of a con continue ooh um,
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between detailed statutes prohibiting disclosure that fall under the wpa's specifically prohibited by law provision and on the other pole, statutes in which congress delegates legislative authority to an administrative agency without circumcising -- sir couple describing the agency's discretion. the court concluded the given the clarity of the statutory language in the wpa and the legislative intent behind the wpa's specificity requirements, the parameters congress said in the atsa were not sufficient to consider it a statute falling within it provided by law. that's a roundup of some of the highlights.
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obviously, there are more cases discussed in the materials. if we have time, after all the presentations, hopefully we will have a discussion which may encompass some of those. [ applause ] >> thank you. thank you. i would like the c-span editor to clip out the circumcision line. we don't want his students to read that. the other half of this subject is presented by harry hammitt. i have to personally commend harry. harry is one of those heros in the freedom of information act field who has been there, done that, written about it and as editor of access reports for -- how many years? >> almost 30 years. >> almost 30 years, harry and i are the hardy perennials. we are honored to have with us today harry ma'hammitt, the edi of access reports.
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harry? [ applause ] >> thank you, jim. i want to start where jim's first remarks about the snowden case. there were a couple of cases this year -- i'm not going to describe them. but you will see how this all fits in. a number of people who decided to sue the national security agency on the theory that since they collected everything, they must have records on these individuals. so there were several suits that i've read. i suspect there's probably dozens of suits in the pipeline on this issue. it was an interesting theory. of course, generally speaking, these people were really -- the one person named glen carter from canada. it was clear from his litigation that he thought the nsa must have records on him because they had records on everybody.
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that is -- to me, that was an interesting aside as far as the snowden connection is concerned. what i'm going to do is talk about some procedural issues and then end up with a couple of exemption issues as well. the first case i wanted to discuss is a case called state of oklahoma versus the environmental protection agency. it's a district court case from oklahoma. all these cases, the cases i'm going to discuss are in the summary that you've been provided with. this is a case in which 13 attorney generals -- state attorney generals had filed suit against the upa for records pertaining to the agency's non-discretionary dutied to take action under the clean air act. the agency responded to the request -- the attorney generals' request for a fee waiver by saying you can't have
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a fee waiver and your request is too vague and we're not going to answer to it because it's too vague. one of the requirements under foia is that an agency -- a request has to be specific enough that somebody who is reasonably familiar with the records would be able to understand what records you are talking about. frequently, agencies are faced with requests that are often too vague. so this isn't -- doesn't come as any surprise. what the district court judge said was that -- let me see. discussions with any interested organization or other organizations concerning the scope and application of the epa administrator's non-discretionary duty to take certain actions under the clean air act was too vague. the term certain actions is not defined in any way that it could be limited. and a professional epa employee
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would be left to guess what hundreds of actions that the administrator has a non-discretionary duty to perform the plaintiffs were interested in. what the court suggested and what seems like a very common sense way of dealing with the issues is that the parties get together, that the epa and attorney general's offices get together and thrash out request that was -- that was narrow enough and understandable enough so that they could respond to it. i wanted to comment that as i say, this is a relatively common problem. it's a problem that affects both sides of the equation. requesters really don't know much about what the agency's records are like. so they tend to make rather broad requests and often times the requests have do with certain subj


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