Most striking thing to me when i talk, sit in rooms in lebanon or turkey or jordan and talk to refugees, sit in Community Centers and meet, you know, ive got in my mind 35 women who are in one of our health centers, they will tell you unbelievable stories of horror and loss. And the only time they will smile is when you ask them do you ever think youll go back . And extraordinarily strikingly, their face changes s and they say, yes. And thats someone who 30 seconds before was talking about her house being bombed and her husband being lost and her son being lost. But that, none of them expect to go back anytime soon. I think thats the other side of the coin. And i dont its a very technologicallyenabled and connected population. Theyre reading the ruins in the same way that we are. They see the news reports. They know that president assad is not going to be toppled tomorrow. They can see the war lengthening. They go backwards and forwards, by the way, a point that hasnt come up very much. Theres a lot of traffic back and forth. People go back and check out whats the situation with their house or with their family, and then they come out again. Theres more of that than i would have guessed. But i think that if to one is expecting i think that no one is expecting a quick resolution. And the question of what it means to reform the state has not even started. Just in terms of the next what weve been so good at predicting the last three years that were, obviously, in an excellent position to predict the next three. I think that a couple of things that i can reflect. One is that the dangers of communicable disease, obviously, rise in the length of time that you have a crisis like this. There was an article by a Public Health researcher which explained i think she was from Umass Amherst or Something Like that, she was estimating there were 90,000 polio carriers. This was in a february article. So although only the official figure was that 15 had presented to the who, she estimated there were 90,000 carriers. That is a i dont know the right metaphor, sort of a tinderbox really. And frankly, when i looked at some of the conditions in lebanon of these tented settlements where people talked openly about the rats who are around, this is within shouting distance of towns, the Public Health risks are massive even if you can manage to get Food Supplies and other 130r9. I also support. I also think its worth pointing out to people this is a different refugee population not just because its connected. The thing about a middle class refugee population is it has savings to draw on, and over the last three years Syrian Refugees outside the country and also inside the country, theyve been drawing on those savings. Those savings run out. And so you can see the obvious dangers of humanitarian explosion. I mean, the second thing is, obviously, the dangers of a political explosion even greater than has happened. And thats, obviously, something that people follow very carefully in the neighboring countries. I mean, what is if you ask yourself whats the capacity of lebanon to hold more and more refugees, its now got a million, and its being added to by, i cant remember the figures, 750 to a day or something. And so lebanese are asking themselves the question what gives. And i think that in the billions of dollars figures that are inevitably thrown around, its important to remember the world banks estimate is the hit on the lebanese economy is 75 billion. The hit on the jordanian economy is 6 billion. So when we talk about the aid thats going in, its got to have a sense of whats the magnitude of the hit. My final point, i dont see any incentive either for the regime with the upper hand or the opposition in a struggle at the moment to make the compromises that are necessary. And that is a very, very bleak situation, and it speaks to the necessary debate that the ambassador has talked about, about whats the role of regional and global powers. Robert . Let me run through a couple, let me run through a couple of points real quick. Yes, we did think the days of the regime were numbered, absolutely true. In 2012 the regime was in retreat, lost control of turkish border, and what changed that was a big increase in hezbollah assistance. Frankly, i did not imagine hezbollah was going to send 57,000 soldiers. And then now tear all the way up to aleppo and into damascus. This is just not something we expected, and that has certainly bolstered the regime. Iraqi militia are going in in larger numbers from shia communities in iraq, and russia has increased its assistance as well. So what that has done from my point of view is it has given the regime a longer lease to hold the space between damascus up to homs and over to last kia. And i cant see circumstances in the short or medium term where the armed opposition is going to be able to change that. In the short to medium term. And what that means, what were seeing is the country is little by little being cantonized. The armed groups that hold control of most of the northwest are the armed groups that control aleppo are not necessarily the same groups and so we are getting a situation where different factions hold different territories. That also applies to the east. I was just reading about a city on the iraqi border, and there are six opposition factions that divide control. So i cannot foresee circumstances where hezbollah is going to march hundreds of miles across the Syrian Desert to go fight. And so the de facto result is were seeing a cantonization already. But at the same time, if you think long term about this,you zoom way up, this is still a war of attrition. Its a war of attrition inside syria between, basically, minority and majority. And its a war of attrition regionally between sunni and shia states. And i dont think that Bashar Al Assad is on the majority side in either of those. So with respect to answer your question about whats going to happen to state structures and extremists, with respect to extremists, this cantonization effect that i mentioned is a real problem because it leaves vast areas of the country governed either by no one in particular or by bad guys. And were very happy that elements of the Free Syrian Army have chosen to fight the very worst of the alqaeda groups, the Islamic State of iraq in the levant. But if moderates in the armed opposition do not prevail against them and the regime is basically not fighting them, theyre just letting them go, its a huge headquarters for the state, the regime drops barrel bombs all over aleppo, the damascus suburbs, its never bombed that big headquarters. If Syrian Intelligence needs help finding it, i wish theyd contact me, and i could point them to it. [laughter] so if the moderates dont prevail in that fight, dan, then were going to have a more serious extremism problem such as weve seen in places like afghanistan in the past. So well, hopefully the folks get the message. Youd be surprised who watches these events on live streaming, so perhaps someone from the Syrian Military intelligence is watching. Lets hope. In any case, im sorry, i have to end. Mr. Miliband has another appointment immediately after. I want please, join me in thanking both of our guests, ambassador ford and david miliband. [applause] coming up this evening, booktv in prime time continues with a look at conservative political ideology. At 8 eastern, paul kenninger, author of 11 principles of a reagan conservative. Then amy binder on becoming right, how campuses shape young conservatives, and the book the conservative turn. Lionel trilling, whitaker claimers and the chambers and the lessons of anticommunism here on cspan2. Tonight on cspan, anna navarro and david bender talk about the 2014 midterm elections and the 2016 president ial race. Specifically, the two discuss potential president ial candidates like Hillary Clinton and jeb bush as well as the potential for a power shift in congress. Heres a preview. Jeb bush. You all want to know about. A longtime friend of mine. Hes also my tenant. I saw him yesterday, in fact, at lunch does he live in new hampshire, by any chance . [laughter] no, he doesnt. He lives in coral gables, florida. And i think, you know, i suspect that thats part of what shapes his immigration views. The fact that its an immigrant community, and a lot of times the immigration debate can be about faceless government statistics. How many people cross the border, how many depor tees, how many children of undocumented born here. It can be all about faceless numbers. But when you live in an immigrant community, when you speak spanish fluently, frankly, when you watch spanish tv, you know these story, and you know stories, and you know that theres people, theres mothers who, women who get raped by human smugglers when theyre crossing the border. And risk their lives maybe swimming across a river or taking a raft to the United States. And a lot of times leave children behind that they may not see for a decade. And its in the hope that they can come here and find work and help support those families and loved ones theyve left behind. Have they broken the law . Yes, absolutely. Is it an act of love . I would tell you its hard to argue. When i tell you those circumstances, that its not an act of love for those families. So i think where he is, where he lives, the stories he knows shapes some of that perception. I dont think you have to read many tea leaves when it comes to jeb because with i know its surprising, but, you know, hes pretty much told us what hes thinking and where his head is, and hes a very disciplined guy. And i think hes going to stick to his timeline even when it comes to his own internal Decision Making process. He has said what his criteria is. It needs to be okay with his family, and by that i dont think it means mama bush as much as it means the woman hes been married to for 40 years now and his children. What effect its going to have on them. Running for president today means doing it as a family. Its not just one person. It affects the entire familys life, the entire familys privacy. Hes also said he wants to be able to do it joyfully. He wants to be able to offer a positive vision. He wants to be able to offer solutions. He has said hes going to sit down, think about it over the summer, think about it later this year and make a decision. The guy, i know him, he means what he says, and he says what he means. I dont think hes doing this, you know, weve gotten accustomed in politics to the art of the political teeth. People who are trying to propoet the sale of a book promote the sale of a book or maybe trying to get a gig on cable news which is not a bad gig. [laughter] you know . Get themselves on dancing with the stars, who knows, you know . Trying to find themselves some relevancy. Frankly, i dont think jeb bush needs that, nor its about that for him. Hes a very serious guy whos doing very well business wise whos got a pull filled life fulfilled life. And so i think it is about that vocation to service, and is it the right thing for the family and for the country. Watch the entire event from this years World Affairs conference tonight at 8 eastern over on cspan. This sunday on newsmakers our guest is former minnesota governor tim pawlenty who currently serves as the ceo of the Financial Services round table which represents banks, insurance companies, Credit Card Companies and other financial institutions. Among the topics we discuss, credit card security, banks capital structure and the volcker rule. Newsmakers airs sunday at 10 a. M. And again at 6 p. M. Eastern on cspan. Whether its an award for Good Journalism as a politician, i declare an interest in not wanting to make a judgment on that. [laughter] but an award for Public Service for possibly the greatest betrayal of our National Secrets of all time strikes me as quite bizarre. And i do think that theres a real danger of a very cozy media without fully understanding the consequences for the dangers that we face in a very dangerous world. So i think theres a dangerous disconnect there. As for the Guardian Newspaper itself, my view was that if i as an individual gave the names of operatives outside a u. K. Jurisdiction, that would be in breach of the 2000 terrorism act in the united kingdom. That would apply to me as an individual, why would that not apply to a newspaper . This weekend onc cspan, former British Defense secretary liam fox ond ward Snowden Edward snowden, government surveillance programs and privacy issues, saturday morning at 10 eastern. And on booktv, from texas the san antonio book festival including authors and panels on the stories that shaped san antonio. And the nsa, big brother and democracy saturday starting at 1 p. M. Eastern on cspan2. And on American History tv, tour the Nsas National crypt logic museum and learn about the making and breaking of secret codes and their role in u. S. History, sunday at 6 and 10 p. M. On cspan3. A threejudge panel of the tenth Circuit Court of appeals in denver earlier this month heard a constitutional challenge to utahs samesex marriage ban. In 2004 utah voters passed an amendment to the states constitution recognizing marriage as only between a man and a woman. A lower federal court in december ruled the amendment violated the 14th amendments equal protection clause. The arguments in this case run just over an hour. Were here this morning for one case, 134178, kitchen verse herbert. Counsel, you may proceed. Thank you, your honors, and good morning. Im honored to appear on behalf of the state of utah, its governor, its attorney general whos here with us today and its people. And just for the courts information, im going to try to reserve seven minutes for rebuttal. You are the master of your own time. Thank you, your honor. The issue before the court is obviously not how the emotional and difficult issue of samesex marriage should be decided, the issue is really one of authority; that is, whether under the federal constitution the states definitional authority over marriage allows them not only to redefine marriage in genderless terms as the Supreme Court in windsor held that it does, but also to retain the traditional man woman definition of marriage and to do so through democratic means as new york had done in the opposite direction in windsor. So before i discuss the state interests that are served by utahs man woman definition and what we see as the serious risks posed by the District Courts redefinition of marriage, let me first address why this fundamental question of state authority is governed by the rational basis standard. All of the Appellate Court decisions that have addressed the federal question presented here include ling the eighth circuit in bruning, the Supreme Court in baker v. Or nelson which we think is still binding on the lower federal courts by virtue of the Supreme Courts summary affirmance of that decision, all those decisions have applied rational basis scrutiny rather than heightened scrutiny. And theyve done that because rational basis is the standard thats appropriately deferential to democracy. The District Court and the plaintiffs have nevertheless offered four arguments for some form of heightened scrutiny, but none of those is sound. Indeed, as the District Court itself recognized, the plaintiffs argument for heightened scrutiny based on Sexual Orientation is foreclosed by this courts decision in price cornellson. And, in fact, most of the plaintiffs other arguments would imply a right to such things as polygamist marriages which, as the court may know, is a significant issue in utah. Now, one example is the argument that the plaintiff has a fundamental right to marry the person of their choice. The Supreme Court has never recognized such a broad fundamental right to marriage despite being urged by the United States in the windsor case to adopt that very position. But they declined to do that in windsor. And, in fact, cotton tear to the contrary, windsor really destroys that argument as to samesex marriage by noting that until recently most people considered a man woman union, quote, essential to the very definition of the term marriage. And that, of course, means under the Supreme Courts decision in gluxberg, that means that the alleged right to samesex marriage is not, in fact, already so embedded in our laws and our traditions as to be required by ordered liberty. Before we get to that, lets focus on loving for a second. Sure. In loving you had a classification that the state argued, they made an argument of equal application in that case as well as it relates to the man and the woman involved, but there is a classification. What barred them from getting married was race. And in this instance, why is that any different . You have a man who wants to marry another man. The only thing that bars him from getting married is sex, gender. So why is that any different than loving when youre drawing a line that is based upon a protected classification . Why shouldnt this be a situation of value waiting the gender evaluating the gender for intermediate scrutiny . Well, a couple of answers to that, your honor. First of all, the Supreme Courts decision in loving did not intrude into the state of virginias definitional authority over marriage. The exclusion of mixed race couples was a regulatory exclusion. In fact, when you look at the statutes that are laid out in the Supreme Courts opinion, they made clear that marriage was defined as union of a man and a woman, and then in a separate provision the court made it or the state made it a crime for a mixed race couple to marry. Which made that mixed race couple, in fact, sort of an other for purposes of marriage. And why isnt that any different than this situation where with, essentially, were saying that this is an other classification, and consequently, it is barred from marriage . Well, your honor, for one thing loving was, obviously, based on a racial classification which is subject to higher scrutiny but right now im not talking about whether it should get a heightened level of scrutiny. What im talking about is it relates to the question of whether it gets strict scrutiny. Why does it matter that, why does it not matter that it all turned on this protective classification . In loving it was race, in this case its gender. I think the answer to that, your honor, is because in loving the Supreme Court found that the statute was designed to maintain white supremacy; that is, it was designed to give whites an advantage over africanamericans. And by the way, even the way the classification worked, it was inherent, it was racially discriminatory because it treated different races differently. It wasnt just whites versus blacks, there was also discrimination among other races as well. Well, the question of whether marriage is a fundamental right yes. And whenever the court has spoken whether its cleveland board of education, whether its in kerry, whether its in may in order v. Hill maynard very hill, it always speaks of marriage as a fundamental right. Yes. And we start that as a first principle, can we agree that then marriage is a fundamental right . Marriage, as traditionally understood, is a fundamental right. Thats correct, your honor. Now, in your brief you argue that the question is not whether marriage here is a right, but whether samesex marriage is a right. Why does it mattersome. Raises the wholevns questi7f of] marriage extends, this youve decided. This fundamental clash of different can visions of marriage. That was the whole point of windsor. Thats not a proper federal function, thats a proper state function. The states have, as the court put it, virtually complete authority over the definition of marriage. Turning to windsor, i mean, let me tell you what causes me concern. Okay. Because theres no question, and i think Justice Scalia in his dissent, i mean, really highlights it that when the court was speaking in windsor about marriage, that it very clearly indicated and gave a direction that it was going to be talking about federalism. Are yes. But yes. But, in fact, when it came back to the dispositive language of windsor, it essentially not even essentially, but directly disavowed a decision that would be predicated on federalism and instead turned to equal protection and due process as the deciding elements of that case. Could you address your view of and you assert it this your brief, but i was not fully persuaded that your view prevails. That is to say that federalism is the only touchstone of that case. I agree with you, federalism was not the only touchstone, but the federalism premise that the states have virtually complete authority to define marriage was the premise of the courts analysis of the individual rights involved. I mean, windsor was very much like the takings case, right if where its state law that determines the scope of the relevant property right, and then you determine under federal law where there has been a taking. That was actually the style of analysis that windsor undertook. Didnt it bracket this case of states right to define marriage with the qualifications subject to Constitutional Rights, and in one place in particular cited loving for that proposition which would lead us to belief that, yes, the state has this authority that, yes, everybody acknowledges defined marriage but subject to not violating the the individual rights of those people involved, right . Thats absolutely right. But also to the loving point, your honor, its significant that the court in windsor did not draw an analogy to loving of the sort that the plaintiffs have done here and the District Court did below. The court simply cited loving for the proposition that the states authority is limited by the federal constitution. But again, if were asking is there a fundamental right to marry that includes same sex couples, you have to first decide what marriage is. And new york in windsor had decided that marriage, was, that they were going to adopt the more modern adult relationship model of marriage such that marriage could be a union of any two people who love each other, essentially. But judge shelby, and his decision is under review, he said that the issue is not the definition of marriage, whether the federal court should impose a definition of marriage, but rather whether in its exercise of its authority the state of utah may properly deny a samesex marriage without violating the federal constitutional principles. And thats really the issue before us. Well, i agree. And i agree that the District Court said that, your honor, but then the court went on and did exactly what it said it was not going to do. If you look at page 28 of the courts opinion, the court gives its own definition of marriage for purposes of the fundamental right. It defines marriage as, quote, a public equipment to form an exclusive relationship and create a family with a partner well, were under de novo review. I understand. Really its not particularly relevant to the ultimate determination, is it . I understand, your honor. But it discuss illustrate the point that you cant answer the question without first deciding what marriage is, and thats a decision thats fundamentally left to the courts subject to some constitutional limits as in loving and other cases. But the states have virtually Plenary Authority to decide what vision of marriage, what model of marriage are we going to adopt in this state . Could i just shift your attention to a somewhat mundane point for a moment . Yes. When you got up, you said that you were representing the governor and the attorney general of utah. Yes. The [inaudible] of Salt Lake City was sued below, right . Right. And she is not before us on appeal. Shes a party, i believe. I believe she is technically i believe that she has not appeared. Okay. She has not appeared. And what is the authority of the governor and the attorney general of utah with respect to enforcement of these particular provisions, the ban and the nonrecognition clause . What authority beyond being general Law Enforcement officers of utah does the governor and the attorney general have . They have the authority to determine the policies, for example, of State Government agencies toward marriage, whether those agencies will recognize marriages or not. And, of course, thats become a big issue in light of the absence of a stay in this case, that there were a number of couples that were married and then its under the governors and the attorney generals authority to decide how the agencies of the state are going to treat those marriages. But can they stop, do they have the authority i mean, the two allegations are here are, one or there may be more, but the two principal ones are, one, the plaintiffs want to be married and are being denied the right to be married, two, one marriage exists, and they want it recognized as a marriage. What direct role does the governor or the attorney general have in doing either one of those things . Issuing marriage licenses or recognizing foreign marriages that have been established . They set the policy for the agencies of the State Government with respect to, for example, with respect to marriages that are undertaken outside the state. People will go to the state agencies, for example, the state taxing and revenue authority. And that authority will have to determine are we going to recognize this couple as married for tax purposes or not . And the governor and the attorney general control those matters. Will let me while were on that broad, it seems to me that the governor and the attorney general would have broad Plenary Authority with respect to the enforcement of amendment iii. But let me ask you this, because our time will run short. The children of gay marriage couples whose marriages have been recognized in another state such as iowa yes. How will the state treat the children of those couples given amendment iii in its statutory scheme . And how can that treatment be squared with your argument of a marriage, the Marriage Institution being a childcentric institution . Well, to answer the more technical question first, your honor please. Well, let me answer the second question first. Okay. In fact, that there is to question that the children of samesex couples would likely be better off if their guardians or parents were allowed to marry just as the children of the some 40,000 polygamist people in utah would be better off therell be plenty of time to talk about polygamy some other day, but lets talk about gay marriage today. But the state has to worry about both of those things at the same time, your honor, and thats why i mention it. But as romer said, virtually all legislation classifies in some way with resulting disadvantages to some groups and individuals in this case, children. And the question is are the states interests, are they legitimate, first of all, and is what the state has chosen, the policy that the state has chosen, does that policy adequately advance those interests . Children are able to get federal et al. But the state does not allow them to recognize. So doesnt stigmatize those children, wasnt it precisely the concern Justice Kennedy expressed to some degree but it is a bit of a decision in that case . I think the stigma that he was talking about specifically was the stigma of being in a secondclass marriage. That is the couples that were in windsor were actually married person went to the state law that section two or three of doma told you even though you are married under State Government we are not going to recognize your marriage and that made them participants of secondclass marriages and that the court held that that demand them for that reason areas but there is no question that there are tradeoffs in policies like this and so the question is what are the states interests and or those interests sufficient to justify the traditional man and woman definition of marriage, and again under the rational basis standard because of this deferential to democracy that standard would invalidate the classification only if it doesnt serve a legitimate interest and here there are at least four state interests i would like to discuss briefly that pertains to the parenting and are some of the main reasons that the state of utah recognizes and gives benefits to their eager couples in the first place and those interests also give rise to the risk. Are there any ad adjudicated facts that are controverted in this case as it sits before us today ask i dont think so, your honor. The facts are relegated to. You dont think this is an ad adjudicated facts . Theyve rejected the argument, so obviously we are not disputing that the first effort i would like to discuss briefly is the states interest in the gender diverse parenting which reflects justice brennans commonsense view in the case that the best situation for a child is to have both an involved mother and an involved father. Gender diversity in parenting is as legitimate in the governmental interest as gender and racial diversity in education which the Supreme Court has held a compelling interest. Indeed, gender diversity is one of the reasons the new york court ocourt of appeals pluralid her band as concluded man has c, woman, marriage definition have a rational basis. In johnson versus robertson is a classification that includes one group and not another is rational if the included group is in general differently situated with respect to a legitimate governmental intere interest. The state of utah may have legitimate points to make. Let me say parenthetically and my colleagues did as well the amicus briefs in the case to be helpful in a broad range topic. To the first point that utah has these policies what i dont understand is how pursuing those policies somehow is contradictory to allowing a stable relationship between law and heterosexual couples. Why is a heterosexual couple more likely to get married if gay couples are not about to get marrieallowed toget married whye relationship between a heterosexual couple and their children likely to be stronger if gay couples are not able to have the relationship. I do not understand the connection between the two. Talking about amicus briefs by the professors hawkins and carol that addresses that point with regard to the children for heterosexual couples lets take for a moment the states interest in the gender diverse parenting. To answer that question we believe the terms moving from the man and woman definition coming into the man and woman definition inherently although suddenly conveys a message and Justice Kennedy said the law is the teacher the man, woman and them non and data are important. When you define in the genderless terms, you dilute the message and that warm in the law. So as the professor says, one of the messages of that is we really dont need you to have a happy marriage or productive marriage and we really dont need you for your children because we now set up this alternative arrangement where two women can get married and they can be impregnated artificially and they can create your own family without a man and that sends a message that teaches in Justice Kennedys words that gender is just not that important and that dads are not that important and in that regard i just want to share with the court something that i found in one of the record materials that we submitted. I dont think we highlighted in our brief but its on page 983 of the appendix, and this is an explanation from a commentator by the name of Maggie Gallagher about why fathers especially are important in the lives of their kids, why they play a unique and valuable and important role. She said what a boy he gets from experiencing the love of a father is a deep personal experience of masculinity that is pro social, pro woman and without this personal experience, a boy is deeply driven to seek masculinity and is vulnerable to a variety of care and marketdriven alternative definitions of masculinity and those are often grounded in aggression, physical strength and sexual proclivity. They are giving a sense of his own masculinity. It may be one reason why one Large National study found that raised outside of intact marriages were two or three times were likely to commit a crime leading to an imprisonme imprisonment. Were those marriages of couples were are you talking to the divorce of the problem were getting marriage is . We are pointing to the fatherlessness in general as the problem. And one of the norms of the current man and woman definition of marriage and the conjugal fish visit of marriage is moms and dads are important and play complementary and important roles and if you change the definition of marriage. Youre necessary also changing the vision that has real world effects on individuals. Or at least, your honor, there is a significant risk that that will happen. Samesex marriage obviously as the justice pointed out for there to be conclusive statistical evidence about its impact. And on that ground, it seems to me something as recently as i guess yesterday it seems that you were backpedaling from that which you took in support of his theory that samesex marriage have them relate to child rearing is that true, what is left of your support for his theory if anything . We want to be sure that the court understands we are not trying to overstate what is studies show. At the bottom line to judge indie chart recognized the same thing the bottom line is that the science is inconclusive. If it is inconclusive and we are about the rational basis, we lose on that point, right clicks i dont think so, your honor because the court can also rely on common sense. It could rely on the fact that this is still new and they could rely on the fact that the state is responsible for the risk and governments are in title to legislate and regulate on the basis of the risk that they proceed further population even when those risks have not been proven to be a problem. I think it worthy and there are cases that say at a minimum that that is a legitimate mode of inquiry under the intermediate scrutiny. Good morning. Do you want to pull the microphone down please. Sorry. Im not quite as tall. Good morning. I am peggy tomsic on behalf of the plaintiffs. As the court knows, the people of the United States in the et and 69 amended the constitution that the 14th amendment. That amendment became part of our federalist system and remains so today. Under the 14th amendment, the people of the nation wanted to ensure that no state could treat citizens within its jurisdiction unequally or deprive them of their fundamental rights and liberty interests. Every state including the state of utah is bound by the guarantees and protections of the 14th amendment for every single citizen and the state. Utahs marriage discrimination law violates plaintiffs and other samesex couples living in utah. Equal protection rights and Due Process Rights guaranteed by the 14th amendment. What is the outstanding to review in this . What is the standard review of . It is a legal issue, your honor. And what level of scrutiny should we apply to this case . Its to the equal protection claims. The court should apply a heightened level of scrutiny either based on the careful consideration, Analytical Framework established in the decision that began or under a gender or Sexual Orientation classification. What do we do about the price case . With all due respect, we disagree with the states and judge shelbys interpretation of the decision. The plaintiff that had inserted below not intermediate scrutiny applied in this case. The language of the court. Fullstop into that strict scrutiny. It has nothing to do with the issue before the court that was being decided at that time. If we disagree with you. Does that speak only to the due process and not equal protection or vice versa. Our reading of the case is that the case speaks the equal protection and not due process because in this particular case, we have made the claim and the District Court found that there is a fundamental right to marriage protected by the due process clause and where you have a fundamental right that is intruded and disallowed, the courts traditionally have applied scrutiny that is the highest level as you know. And on the price case, would you acknowledge there is a distinction between Sexual Orientation as a suspect classification they are two distinct things that could be a basis for and media scrutiny for the Sexual Orientation discrimination, right clicks that is exactly right, your honor, and we have asked the courts to apply heightened scrutiny based on either one of those classifications. And if they are not bound by the judges findings, but he did find that amendment number three in the related marriage discrimination statute violated the right because of the gender discrimination. He was basing it on irrational review, was he not . My understanding of the decision is what he said that while there was a genderbased discrimination, which would require heightened scrutiny, he did not need to reach that issue because the law failed under the review. Under the National Basis review, just because you disagree with the states reasons doesnt make it your rational, does it . No, your honor, and that isnt the argument. The National Basis review was in a number of decisions that acknowledged certainly the Supreme Court in a number of decisions that while it is in a differential standards to the legislature is not a toothless standard and it may not be based on flimsy rationales that have no footing in reality. And our point can we then get to an issue of the fact. Theres a bunch of sociological papers that would present to it. I would like to answer that in three parts if i could. First of all if you look at the state interests that had been inserted here. They found in the trial none of those justifications overcame the purpose or effect to harm the children. We focus on the fact that the state had approved and had adopted a particular standard, they had agreed marriage or samesex marriage is a better term i think would be permitted, and under doma, the federal government was interfering in the states decision and the fact that it may have also impacted children and people it was there certainly. Its a little broader than that and that is while records certainly talked about the states power to govern in this area of defining marriage and regulating marriage the court went on to express we hold that it was striking down speed 11 because it violated the basic process of equal protection, and the court in fact was looking at the violations of the liberty and equal protection interest protected by the fifth amendment when it struck down as p. 11 and the harm it was looking to is the same type of injury that occurs with regard to these marriage discrimination laws. In fact the state of utah has conceded that the harm that the plaintiffs have alleged and in fact we have demonstrated in fact exists as a result of those let me come back to your question on the question of the summary judgment. And the other thing that i think is important, your honor, is second, no party in this case believes there is any material issue of the fact. If anything am of the sociological studies present legislative facts. Youre saying that you can just ignore those. Those legislative facts would not be subject to a trial but even with regard to the social science use all the state backed away and gave its reliance on the study. If there is no study presented to this court that in fact measures the only issue that existed as one of the state primary arguments which was samesex parenting is not as good as what they called a man and woman marriage and there isnt a single sociological study they cited. The mental and physical health of children and adolescents over 40 years of testing we havent had the same gender marriage but for about ten years. Not marriage coming your honor but samesex couples have been forming longterm relationships and raising children for many, many years. Some of the studies have been criticized for having small samples and not having the sort of analytical rigor that would allow us to draw conclusions. So my question is seems to me this will always turn on the standard review. Let me hear your response to this. If we end up in a situation where the best the state can say and right now it appears the best that they can say is that it is inconclusive whether the samesex marriage will result in inferior results and that there is a debate about that and that if we are at a heightened level of scrutiny to the question that i asked it seems that particular point of a lose, do you agree . I absolutely agree. Is seems to me that giving that same question under the rational basis review i dont see how you win because if its inconclusive and they have a valid basis to address it that gets back to the point its a disagreement. So i disagree with you and i want to look at it from this point. If therthere be an independent legitimate state interest and lets assume that they need about because there is an arguable disagreement. We dont agree with that lets s say that is the state of the record. The second part of the test requires. The classifications of the issue indicates the classification is the exclusion of samesex couples from marriage. That you have taken the position that they are wrong on that and if they were correct, if there were some kind of a nexus you cant just say i disagree with your nexus. We have a legislative and a democratic situation. We have people that have voted in a legislature that is legislated. And if they thought that there was something there can we just say youre wrong and if the group stands up and says it loud enough, we would just ignore what the people have decided and what the legislature has done, and example polygamy. Why should we discriminate against people that want to have two or three wives versus people that want to marry same gender . It seems to me it all goes together. The Supreme Court in deciding windsor did not choose to pick a particular label to place the scrutiny it chose to apply. But any reading of that has led every Single Federal Court that has looked at the issue after windsor to conclude that even under the most relaxed of scrutiny, rational basis, that the law does not allow the type of discriminatory behavior that is at issue in these types of cases. My question is, does windsor trump all of judge kelly and all of judge holmes and all of judge luceros questions on this point . Our position is that it is, but ill get to why it doesnt matter even if you go under a rational basis review and ill get back to you, judge kelly, if i could start with judge lucero and kind of run across [inaudible] your questions are very good. Windsor, in fact, trumps any argument that the only level of review that these type of laws are subject to is rational basis. The reason i say that is while windsor never put a label on the scrutiny that it was applying, what it did is it looked to the romer decision where the Supreme Court struck down the Second Amendment to the colorado constitution, and where romer said, where you have a law that categorizes a group of people based on a single straight trade, which in that case was being gay or lesbian, that is a rare law in our jurisprudence. And where you have been being discriminated against and treated this similarly for the purpose of making them unequal, the court applied careful consideration to make sure that the purpose and effect of those laws are not to harm the class. And in windsor, and looking at the analysis in romer, applied a careful consideration analysis that in reading it does not resemble rational basis. It said the beginning point is to look at the design, purpose, and practical effect of the law. And if you find, even if you just look at the text of the law as you can certainly do under this courts decision to determine if theres an intent to discriminate, and you find that the purpose and effect is to treat this class separately and make them unequal, and you have these kind of farms that the state concedes exists in this case, probably to a higher extent than they existed in goma because it is everyday utah citizens lives that they must face the stigma, the harm, they being treated as second class citizens. The burden shifts to the state. And the state must come forward with legitimate interests that overcome the principal purpose and practical effect that damages these individuals who are the target speed and and legitimate interest, i said i would keep quiet but let me interject. Legitimate interest really language rational basis a guidance critical as i think thats rational basis talk, isnt it . Word legitimate interest comes from rational basis, your honor, but the analysis that the court used in windsor is not a rational basis analysis. The legitimate interest of the Supreme Court in windsor found did not overcome the purpose and effect are the same interests that are being asserted here by the court. But thats a unanimous argument, isnt it . Judge shelby didnt find an us and im struggling to see how that really is applicable here. I think it is, the hernandez case out of the new york court of appeals where the court spoke about the notion that up until, what, 2010 no one even thought of the notion of recognizing the legal matter samesex marriage so what has utah done is invalid it was been an historical practice for ever. How could that be viewed on the same footing as romer where the win in an attempt to essentially say that samesex couples or anybody on Sexual Orientation grounds, far from legal relief quicksilver two different things. They are not, your honor. In romer, what the court was looking at was what does the target to the class do . That is, how are you differentiating between these classes of individuals, and are you differentiating to treat them unequal the . If thats the situation, that is a very rare type of law. You can talk about semantics but there is no question looking at the text of amendment three and the other marriage discrimination laws, is that the only thing those laws did was target samesex couples and make them unequal. None of those laws established the right to marry, gave benefits or gave incentives. Their only purpose and effect was to exclude samesex couples from marriage or marriage recognition. Mike bibby you dissing the only purpose and effect was to validate what has been and historical practice for eons ask why couldnt it be said thats all theyre doing . We want to be clear, this is historical practices, the one you talked support, carried. Because, your honor, when you have a least two statutes and a constitutional amendment that is directed at excluding only one class of individuals from marriage, it is not to reaffirm. It is to exclude. And if you follow the analysis of in windsor, and even let me start with the text of amendment three. If you look at what they did, in the first part with it is they said only men and women can marry, but they didnt stop there. Thats not just the validation. Is based out of there would have uk . No, it would not, because still there treating samesex couples unequally. Whenever you draw a line dont you in some cases, your overinclusive and in other cases you may be underinclusive . Does that make it a rational . Because everybody is not in the same class, if you will. Your honor, let me try to answer that question if i could. First of all theres no question that under rational basis review there does not need to be a perfect fit. But the law is clear, and i think you can look at rome or again, where they found the law both overinclusive and underinclusive. And thats exactly what we have here. It is underinclusive because it doesnt prohibit people from getting married who do not want to procreate or can procreate. It is overinclusive because it keeps out samesex couples who already have children, or want to procreate. And if you look at the case, the court in striking down a state law that kept single people from getting contraceptives, they said when you have a long that is so riddled with exceptions, the court cannot find a rational relationship or a nexus between whatever state purpose, or the state is trying to assert, in accomplishing that purpose. And i want to go back to the second part of amendment three if i could. The state of utah just doesnt treat samesex couples as second class citizens in part a. It goes on to punctuate the point by saying, no legal relationship will ever be recognized that gives the same rights and benefits that opposite sex couples get if they get married. And if youre talking about animus, your honor, youre not talk about people being meanspirited or having ill will or being bad people. Animus is used by the Supreme Court of the United States both in romer and has expressed in windsor. Its talking about an improper purpose. We dont have animus at issue in this case, do we . Judge shelby found there was no animus if thats your question. Our argument is yes, there is a animus because animus is a thats a fact opinion issued. No, it is not, your honor. I beg to differ with you. You cannot take a legislators statement on either side of an issue and tag legislation one way or the other. Weve never done that in the past. What you can do, your honor, is look at the text of the document. And if you simple look at the text of amendment three, the intent to exclude samesex couples and make them unequal is inherent on the face of the document. Is a violation, utah has taken the position is a violation of the Public Policy. To permit same gender marriage. Now, they may be wrong, but does that express from a legal standpoint that they will be meanspirited and bigoted . Your honor, we understand the term animus. It is a constitutional term of art that has nothing to do with how good or bad sure it does. If the legislative body does something deliberately to hurt somebody, thats one thing. If they do something thats for the good of the whole in their opinion, not to hurt anybody, its another thing. We cant just ignore what the legislation has done. Its always we dont like that so your animus is bad. Your honor has Public Policy ever been allowed to overrule Constitutional Rights in this country . Know, your honor. With predictable as to whether free speech is applied in the state of colorado, for example . Absolutely not, your honor. Could we declare as a matter of Public Policy, i think thats what windsor was speaking to, when it said that it violates the fifth amendment, and through the 14th amendment seeking it violates Public Policy. The problem i have with all of these arguments is that these arguments were made in windsor. They were considered in windsor. And Justice Scalia and Justice Alito has spoken very eloquently about what the law is not in their dissent. But we have to look at the majority opinion in windsor, and with all due respect, it seems to me that to argue that Public Policy can trump a declared constitutional right would be a remarkable constitutional proposition. Not just in utah or in colorado, but anywhere in the United States. Tricky it would not only be remarkable, it would be contrary to at least if not more Supreme Court decisions including cleburne. The Supreme Court has expressly held that an individuals Constitutional Rights are not subject to public vote or legislative action. True. But what were trying to endeavor, what is the constitutional right and what right has been violated. I dont think that really answers the question. Before you sit down, i need to raise the ugly head of article iii jurisdiction. And i compare supposed this case ambition. In a nonpanel decision we held that there was not article iii jurisdiction because they only see the attorney general and the governor. And in that situation, those two individuals would not affect causation for purposes of article iii jurisdiction. Why is that case any different than this one in which guesses and the clerk of course below with occur before is not not on appeal, number one. Number two, it would seem to me that creates a fundamental basis of concern about where the jurisdiction lies in this case. Your honor, let me answer this a little broader than mr. Schaerr answered that. It is not just the general power of the governor and the attorney general with regard to these matters. Thats all thats in your complaint. It is what is in the complaint, your honor, but let me just say one other thing. What is also in this record is, because it was in the motion to stay that was before this court, is the state has taken the position that they can, in fact, and it does, direct with the county clerks do. Prohibiting them from granting marriages licenses and allowing them to grant licenses. So it is not simply a question of what General Authority to these individuals have. It is the fact, they exercise that authority within the very realm of the issues which are before your court, which is, does it violate the equal protection clause, and doesnt violate due process . And if, in fact, it does and the attorney general and governor, as they did in this case, basically allowed the county clerks not to issue marriage licenses and take the decision they were waiting for the 10th circuit, its not just simply a General Authority. Thats a reasonable response. What i want to understand an thn on that front is, would it be your position, and im going to dig into this later, but would it be your position then the utah law that would authorize the governor and the attorney general to essentially control the action of the county clerk . Such that the situation would not be in this way like a bishop were essentially they have General Authority and that was it. That is exactly our position which gives this Court Jurisdiction under article iii. I want to just and, if i could, your honors, and ask that you affirm the District Courts opinion, striking down these discriminatory laws that have no basis under any level of scrutiny, for these laws are not the type of laws that our constitution will permit because, as the court has said before, the constitution does not allow classes between its citizens. I thank you for your time. Counselor, your little bit of time left. Two minutes. We will give you an extra two minutes. Thank you, your honor. Very briefly i identified a couple of questions for members of the panel. First of all, judge holmes, i realizrealized i did not finishe answer to you on your question about sex discrimination. The problem was, in loving him was there was an intention on the part of the legislature to disadvantage one class of people, one race of people versus white people. Similarly in the sextus commission context where there is no facial discrimination which is true here on the basis of sex, you have to establish an intent to advantage one sex at the expense of the other and theres a suggestion here that the definition of marriage is designed to advantage males over females, or vice versa. To your questions about winter and this could be a much longer conversation, but, in fact, the plaintiffs interpretation of windsor which has been picked up by all of the federal District Courts to address this issue since winter. I agree with you on that but they are not reading the opinion. Their reading of the opinion does not account for, number one, the fact that at the end of the opinion it says this opinion as well as the conclusion are limited to those couples that have been legally married under state law. Expresso limited. Secondly, the court says in several places that but on that point and had the i hate to get into your time, i would love to give you more time, but ill take it. On that point it is a case, their plaintiffs are from iowa who are badly married and i will but they come to utah and they can never for ever be married. The door has been locked. The key has been thrown away and its been destroyed. I whoever found it. I mean, if that seems to be more like dred scott, or a citizenship even with the obtain citizenship in the wisconsin territory, where ever, and dred scott comes back and says, now i am entitled to this cloak of protection of the United States constitution. And missouri says no. Because utter misery policy, we will never allow you that. Identical to the situation. Heres why its different. Congress expressly young dont without problem in section two which when state and other states. Congress exercising its authority under the full faith and credit clause said that marriage in oklahoma does not have to be recognized in utah. And that provision of doma was not challenged in this case. If that provision had been challenged, this would be a different case as to the people who are married in oklahoma, that it was a challenge. To go back to windsor, theres so many other aspects of windsor that are simply left on the cutting room floor and the instead been written by these various District Courts. The court in winter as we discussed before repeatedly said that marriage and especially the definition of marriage, and the court under a distinction between the definition of authority and regulatory authority. The court said the definition of marriage is virtually the exclusive province of the state. And then at the end of the windsor opinion, the court talks about again the importance of the state as mechanisms for developing Community Consensus about important social issues. Well, if thats true, then essentially what the other side says is that, yes, the federal government, the court in winter was telling the federal government you need to butt out, interfering with the states definitional authority over marriage. But they assumed that by the same, at the same time with a wink and a nod, the court was telling federal courts that they should into fear with and intrude into the states definitional authority over marriage, and that makes no sense at all. Thank you. The case will be submitted. We will be in recess subject to call. Coming up, booktv in prime time continues with a look at conservative political ideology. At eight eastern. Over on cspan3, American History tv in prime time continues. American history tv tonight at 8 p. M. Eastern on cspan3. This sunday on newsmaker our guest is former minnesota governor tim pawlenty who currently serves as the ceo of the Financial Services roundtable. Among the topics we discuss, credit card security, and its capital structure and the volcker rule. Heres a brief look. The Public Policy side we need a number of things. We do need of people and countries have security glitches was problems arise there able to access informatiinformati on for the government and act upon. If you are ceo happen happened e traveling in singapore and something terrible happens and yet respond in five minutes, or he could have your coo or the general counsel also have a secure because an be able to weigh in on the discussion. Number two we need better information sharing but if you think about the array of Government Agencies that have useful and actual information about Cyber Threats including the department of defense, nsa, department of home executed, cia indicates a financial institutions, the treasury, and more, being able to work with them without fear of legal liability or recrimination is important. That kin kind of protection ande types of things you mention is important. And, frankly, the current laws in that regard need to be upgraded, and they are not current state and Congress Needs to act and they are not. Watch our entire newsmakers interview with former governor tim pawlenty this sunday at 10 a. M. And again at 6 p. M. Eastern on cspan. I loved it and am loyal to alone. I didnt do this to her duke. I did this to really try to figure out what had happened in a dispassionate way. Again, tremendous amount of passion about this story can even to this day. All one has to do is go on amazon and see already that ive amassed 25, one star reviews, even the book has been out a week and its a 600 page books on testing not many of those one star review writers have read this book. My last book was about Goldman Sachs and people have a lot of passion about Goldman Sachs but this is another realm altogether. In the price of silence, author and duke alum william d. Cohan looked at the duke lacrosse scandal of 2006 sunday night at eight on cspans q a. Former u. S. Ambassador to iraq said the upcoming parliamentary elections in iraq are the most important yet because an outcome could create sectarian divisions. They heard about the results of recent iraqi Public Opinion survey which the regional divide on opinions about the election and the situation in iraq over all. This is 90 minutes. Thank you but ill just give some brief introductory remarks and then will move to our panelists. Iraq will have come to me on how, its third election coming up at the end of this month on the 30th. This will be an interesting if it, and certainly iraq is at a crisis point, a transition point, or is on a downward spiral depending on who you talk to. But certainly this comes at an important time for iraq. We can all agree about that. It will be interesting, Interesting Data we get from this election about the relative strength of the block, about what the future of iraq might hold, about relations between the sunni and shia, about relations between the arabs and the kurds, and about if theres any possibility of breaking out of the traditional politics that have held iraq since the American Invasion of 2003, is there a future for nonislamistbased parties within the shia, or parties other than traditional on the sunni side, and other than the tdp and the puk up in the north is there a future reform parties in the kurdish areas. To all these questions will be on the table. And with that we will turn to mr. Ali. Thank you very much. Its a pleasure and honor to be with you all today. Very delighted to be with judith yaphe that come with experts on iraq and caroline, thank you for organizing this. I do want to encourage you as an iraqi elections are approaching, there happening the 30s this month. We are writing a report on the elections and i am the one writing the report and i would ask you to go to our website at understanding water. Org to read that report understanding war. Org. For todays discussion and the next 10, 15 minutes i want to discuss three broad ideas. The first one is whether elections mean for the country and what do they mean for the Political Group and for the Prime Minister himself, and then i wont go too much detail but discuss the political dynamic as well, among the Political Parties. How are they performing, why are they performing this way . And are they certain alliances as opposed to other alliances . Finally just provide you with something that has certain prediction by the possible outcome that will take place after the elections. What do they mean, what would it mean for the future of the country . These elections are an important election for iraq. They not only come as the First National elections to take place after the withdrawal of u. S. Forces in december of 2011, but they are also an indicator of the political system, the strength of the political system, the health of the political system. Iraq is very experienced with elections, the pentagon how you count. You have had multiple National Elections and provincial elections. There have always been surprises. There have been predictable outcomes, but they have always produced the dynamic, and we will talk about one of those dynamics very soon. Thats why its important to look at them. Theres a lot of discussion about the shape of the government at the moment. Many critics of the shape of the government say its a National Unity government and as a result you cannot produce a lot or have productive government. So these elections, for example, will be a test of that system of government. Is iraq headed to National Unity government in which the iraqi sunnis and others are all part of the government . Or are you going to have whats called majority government in which one group is much more dominant form a government . The first point is this is about the health of the political system. The second point, these elections are also referendum on Prime Minister maliki. People have forgotten, but only four days ago, five days ago rather, was anniversary of the fall of saddam hussein. The 11th anniversary. And even in iraq its not a widely discussed issue, but throughout those 11 years Prime Minister maliki has been in office for eight years. Throughout those eight years he has had long record of governance. And as a result he does have critics and he has supporters. For his critics, Prime Minister maliki has consolidated power. And he has marginalized the Iraqi Parliament which is the legislative branch of the government, and he has also ensured that his Political Party is much more dominant Political Party. And for his appointment in particular, thats not a good sign for iraqs political system. And its not a good indicator about the direction of where iraq is headed politically. Even for the iraqis, Prime Minister maliki has been in power for eight years now. There have been many developments in many advancements in iraq throughout those eight years but he has also challenges. Last year, escalation in violence. And many people to achieve some of the escalation to Prime Minister malikis governance style, or even his governing tendency. So these elections are an important referendum for Prime Minister maliki. I would extend even beyond that. Its not only about Prime Minister maliki but also about the other political figures, the speaker of the parliament. He has been working through, to cement himself as a political leader. So these elections are also a referendum about him. So with that in mind, theres a large third point about why significance of these elections, which is these elections to take place as the country is undergoing a struggle between the state and between the Iraqi Government and the Islamic State in iraq, isis. Isis, thats why i encourage you to visit our website. We have been observing a lot of activities by isis to discourage iraqis from participating in the elections. And in a lot of cases, even using violence to discourage iraqis from participating in the elections. And thats why these elections are much more different than the 2010 election, because in those elections isis was not significant threat to the process. Nowadays, and its one of those Big Questions at the moment, 16 days from now, what would be the impact of the isis antielection activities on the process itself. I would say that impact will not be limited to the iraqi shia, it will also be extended to the iraqi sunnis in particular because thats the committee that isis is attending ashton attended to discourage from voting in the election. Thats the first part of the discussion. And for my presentation. The second part has to do with the political dynamics themselves. For those of you who dont follow iraqi politics, i just have one thing to say, and that should be your major take away about iraq politics. Its a fast changing environment. What is the case today will not be the case tomorrow. Thats for certain. These elections and the run up to the elections, we have seen similar indications of that dynamic. So, for example, the 2010 election, because elections are held in iraq every four years, you had a unified iraq shiite alliance. All the Political Parties convened and they said we are going to run in the election. Except for Prime Minister maliki in those elections. That a virus was called like the National Alliance because we do have to represent a unified global front when the time matters, and elections moment is that time. These elections, we dont have a plan shiite alliance. You dont have an iraqi shiite alliance. What is happening is the complete opposite. You have all the iraqi shiite Political Groups competing on their own. They want to set their own power. They dont want to be wedded to one alliances or one person of the. Thats a major development, and it will show some effect on the election. You have a similar dynamic. You dont have a unified iraqi sunni group, each group is led by a personality and its seeking to prove itself on the streets and prove itself as an independent power. And that will have an impact on the postelection period are the most interesting dynamic that we have seen with regard to the Political Parties is with the Iraqi Kurdish Political Parties. The Iraqi Kurdish Political Parties normally before elections when they form coalitions, they compete under an Umbrella Alliance because for them, demonstrating unity with regard to relations to baghdad is imperative. And it always takes precedence to internal dynamics. These elections, the two major Political Parties that dont mention, the puk and the kgb, have decided to run separate ktp. Starting inside iraqs kurdistan and also extending to other provinces like kirkuk which is very dear and important for the iraqi kurds. These different alliances, this new competition, uk and kdp, theres party differences, the absence of the iraqi president and leader of the puk. But for the iraq kurds its a complete different dynamic. By competing separately you would waste Iraqi Kurdish votes in the elections as a country and the political system is essentially working to reinvent itself after 11 years of authoritarian system. With all of these issues in mind, you might get the impression that after the election all of these groups will continue to work against each other, or at least not ally and former government together. It is very likely that after the elections those groups, they will represent a unified front. Because, and will come together and negotiate as a block. Thats one likelihood of the other likely it is that will not happen because if the result will indicate that one group is stronger, that group will not necessarily work to form an alliance to go with the government. So you have preelection and the postelection period. Let me quickly touch on the last part of my presentation. And it has to do with the postelection period. In the election, even here in the United States, the postelection period is always much more critical. Its much more significant, and you can have developments that will override and even reverse any gains you have during the election. But first of all it would be very important to have a clean elections state. In other words, free and fair election. If thats not the case, you might have rejection, rejection of the results. And for iraq, any Political Group decided to reject the results, the ramifications will be very serious because you do have isis, waiting in the wings essentially and telling the iraqi sunnis that electoral process is not your means to fulfill your objectives. You have to resort to violence. So free and Fair Elections will be important. Acceptance of the results of course will also be a crucial part. The second important part is, and its one of the Big Questions, will there be a peaceful transfer of power . Prime minister maliki, there is a cloud hanging over the question, whether if he loses and if he doesnt do very well, will he be in a position to easily transfer power and not complicate the postelection environment . For Prime Minister maliki, these elections are much more significant than previous elections, in which he was and his group, were able to easily transfer power. One significant question, and this will be important toward because the possible violence scenarios that will result from it, is the turnout of the iraqi elections. Iraqi elections have always been producing high turnout, and thats always been an encouraging sign. Because that means people to believe in the political process. For these elections, the iraqi sunnis in particular are not, doesnt, the prospects for a higher turnout do not look very good at the moment. As we examine, and this is one of the many elections that iraq has had throughout the years, last year there were provincial elections, local elections. And the turnout was not very high. If that continues to be the case for the 2014 elections, you would consider the possibility of violence to be very high. So bottom line for me is that iraqi elections always have positive and negative sides. And these elections have them as well. But these elections are much more critical for the direction of the company, the spirit of the country and the future of iraq as a nation. So with that, ladies and gentlemen, i look forward to your questions. [applause] thank you very much. Lets go straight to judith yaphe the. Well, thank you all for coming. Thank you, doug. And you, sais for hosting us. Its great to be here. I am not an iraqi, clearly, but its what ive done most of my life. I learned an awful lot from ahmeds description because it is hard to put together what is happening. It is a different kind of experience that weve seen before. The iraqis have that free and Fair Elections. And it is hard to predict. Now, my job is supposedly to explain what the u. S. Policy is going to be. Well, first of all let me tell you, theres nothing new here. If you follow this before, dont expect me to make any dramatic announcements. What i would like to do is to talk just a little bit about inconsistencies in the policy background. I put together a couple of scenarios, which ive since, now i understand my senator since i heard you speak. I didnt before. What could go wrong . As to what was an Intelligence Officer for at least 20 years ive always learned to ask the question in the end. Great, ive given you this marvelous analysis now, what could go wrong . At me so with this. Imagine you are president obama. You were awake at 6 a. M. For your morning briefer with overnight developments. Scotland reportedly votes to secede from the united kingdom. Our strongest ally threatening our Nuclear Defense shield, the russians are about to occupy the rest of ukraine. North korea has conducted another nuclear test, and yes, the iraqis elected a new Parliament Yesterday in a free and Fair Elections according to international observers. Thats the good news. The bad news is that the new Prime Ministers has publicly he will not sign a status of forces agreement but expects the use of troops to arrive within one week to join iraqi forces in the war on terrorism. And please, send help quickly. Oh, by the way, iraq will host the world cup in 2016. [laughter] why not if qatar to do what . Recently died and i had an opportunity to go to baghdad dont laugh. A counterterrorism conference. What i got back i was asked by somebody, in a word how were things in baghdad . Good, i said. Good . My friend said one word, i replied to be come into work. Not good. How would i know that . Youre right, i probably wouldnt. It was so quiet. Security was everywhere. Multiple checkpoints every three feet practically especially around the zone to get around. And nothing was said in the two and half days of the conference over, i was there about nine days, well, things were said privately but you wouldnt have known there was a terrorist war going on, that there probably have been already fighting around fallujah and in anbar. Not a word was said to if you were to ask after this conference what iraqs catechism strategy is, i wouldnt know. I didnt know thered been a huge terrorist incident, a bombing, till i got an email from thomas in an email saying are you safe . Are you all right . Were you hurt . Whats she talking about . There had been a big bomb and i asked the person joining the conference, an old friend, i said isnt true . Yes, yes. Its okay. So as i said, what can i tell you that you dont know or get already . First of all, u. S. Iraqi relations have had their ups and downs but they have been mostly down, lets face it. If you look at the past, go back to nixon or reagan or whatever. We made some mistakes about iraq. Basically because we just didnt know what was going on there. Did you know that al baker became a president in the 1968 or 1963 names . Who are these people . What are the backgrounds . How little we knew about the country, its leaders, its revolutions. Or the condition under which iraqis have survived, and i would add, how they might choose their leaders. A lot of mysteries here is what makes iraq so exciting that any permanent job by the way for those of us who love to follow it. I would say this, however, second point, there are consistencies obviously in policy towards, not just iraq. You have to compare our approach to iraq to all these other crises that are going on. Can you remember a time when the region was in such turmoil totally, air bedsprings are still going, the aftermath and air bedsprings. What we do about syria . When we doing about what other russians going to do in their latest effort with you critical giunta about a lot of these different issues. North korea exploded. Theres a lot going on in the presence play. Is iraq the first thing that attracts his attention in the morning . No. Thats good news in a way. Good news and bad news. Many of us would like it to be. We certainly worry that it has fallen off the table. I dont think thats quite true but it certainly isnt as prominent as it once was, and its not as prominent as iraq would like to be. I would like it to be prominent. I think its important because i think that as syria and iraq ago, we are going to be in really bad shape. But in terms of this, remember that we dont have a great track record. Reagan and many of the other president s did what they did in policy against iraq to help iraq, against iran to help iran, for reasons that sometimes have very little to do with iraq or array. And everything to do with u. S. Interests or concerns, whatever. I know we are all very smart in this room, and weve seen administrations makepeace, go to work, go to war for machine change, and true believers i think and the 2003 war, as you may know in this room, still believe that the war in 2003 was about saddams you and i know thats not true. It did have something to do with, can i use the term neocons are . There was a belief in imperial presidency. Remembering was at dean wolfowitz . Believe in not just an imprint presidency but also in explicable urge to remake the region. I just leave it as i own personal comment about how things have gone because i think it reflects a lot of the difficulties we continue to have in our image there. So what do we have . Let me give you some scenarios. Im trying to watch the time. What does all this say about iraq and the u. S. . That thing is youve got a trying to look at. You got to look at relations between washington, baghdad. I put together for some news. Dont worry, they are short. And one of them i dont believe in several didnt spend much time on. But the point is the most likely scenario. Us know i like it its the one i heard him most often talked about which is that malik hed survive. One way or another some kind of coalition, hes able to put together, get the majority which then selects in for his third term as Prime Minister. I counted eight years. Thats long enough. You think by any terms, we survey dont believe in more than that and there is something to be said about term limitations, especially in countries such as iraq where everything is being done for the first time and sets precedent. So with his victory confirmed what will we see . More efforts to consolidate power over institutions of government, contain his rivals. He will have to do something about fallujah in anbar which are under isis, alqaeda, whoever is in control, and the ability to not just take over territory there and recruit, but the ability to attack baghdad. Over the weekend they were able for a short time to take over the road connecting baghdad to kirkuk. Not good at all. [inaudible] what. The point again is that he was successful in 2000 we moved against the shia, lease three different shia militias who were more in basra, shooting in baghdad but it was popular with the sunnis, popular with the shia. And certainly helped him in his election. But at the time something which i never do acknowledged is that he could only do that with u. S. Forces backing up iraqi forces to do, and he didnt ask if you just that im doing it and expected us to be there. This is now what, 2014, is that going to happen again . I dont know. The point is if he cant do it, theyre not going to do anything before the election because the risk is too great. If he thought he could replicate that incident, then he would do it because it would have a huge blowback, a Huge Positive push on his chances. But the risk of losing, of not winning, is huge. The risk of high cost to the Iraqi Military and against the rumors in baghdad when we were there was that there had been fighting going on. Ever coming get up and wouldnt talk about it and they werent doing well. I dont know what the truth is. I suspect thats probably, that there is a lot of truth in it. So what will he do . He has to have u. S. Support. Can he afford to invite other assistance, iranian assistance . I dont think the sunni arabs who he hopes to win over would like you. I dont think about the shia would like it either. Thats the other big secret. A lot of the shia as well thats the sunnis dont like the iranians, like what theyve done and dont want to see a more visible and active presence there. So thats a problem. Second scenario, shia combined collections as ahmed pointed out when the majority of seats and then decide to dump maliki. They dont have to vote for maliki. They could vote for someone else, and you dont hear much about sunnis potential leaders but there are a couple shia who could win votes. One of them i hear also dawa from syria, probably very close to maliki all of that time. Im sure there are others as well but the point vision of some new coalitions. I did want to mention the one that seems be attracting attention which is that the together by the hiking faction. Its the Islamic Supreme Council in iraq. They joined with satirist. I dont know if we look at the sun to come we dont talk about that but they joined able to be a very powerful coalition because if the group did very well in the last local elections which surprised everybody. It is possible that they could have some kind of mature. However, large or small and remember, the kurds will vote with every shia faction wins. Data like maliki . You like a winner and they will stick with issue because they figured thats to their advantage. They will not join with the sunnis. Either way, lets say the likelihood a majority of shia is likely and with the kurdish behavior assumed, this could give the kurds their chance to choose and they will have to choose, either they want the presidency again or they might decide they want to be a speaker but if they think that is more powerful, thats what they will go for. Thats going to be decided as all democratic elections are. The iraqis have learned democracy just like we played it behind closed doors, cut deals and in the end this is who we are going to vote for. I dont think there has been one of kurdish election since 1990. The first one was really 1992, which was fixed as to who would get what percentage. What are they going to do . At the uk is losing a lot of support if they dont like to let them in. A real dilemma. Probably one of the reasons why they are split and cant agree on a cooperation. I dont want to get into too much of that but i would just simply remind you of this. Whatever these first two scenarios as to what the us will do, let me come back to that in a minute. Unlikely scenario number three, that the kurds are in disarray because of syrian fighting, and maybe it will split the vote as well. Unknown how strong that allies will be or what they will do their we havent seen these kinds of crises before so what will happen . Will this election result in a lebanon is nation of iraq . It could innocents that the kurds will think that they have bought the presidency. They own the foreign ministry. And that power will continue to be divided among these six flights. I would hope thats not true but im sure there is some kind of expectation because everyone likes a sure thing. The other thing i would keep in mind is that a lot of the politicians are running for office. Among the sunni especially are talking today that they hate maliki. Use this that and whatever. They love the kurds. They are for democracy and all these wonderful things. Most of them before the recent campaign started had cut deals with maliki to stay in power. Had stayed in when other sunni politicians had walked out of the cabinet. Im thinking of the two who were here and january, speaker of the parliament and the deputy Prime Minister. Both sunnis composed who returned to baghdad, both who cut deals. And in the past have said very unpleasant things about the kurds, and the kurds remember the. The sunnis dont like them selling out going back and forth all the time either. So where is the leadership . You can sort of guess where this is going to go. The last thing, im not going to happen sooner, iraq breaks up. Not going to happen. Now, what will washington do in all this . I think what you have to keep in mind that if you look at our policy towards syria, how we are shaking our fists at the russians and doing a lot of talking of what wasnt Winston Churchill said . We dont do anything. Iraq probably falls into category as welcome in this sense. Weve made commitments to help the iraqis. We recognize that counterterrorism is a top priority for them. It is for us as well. Not our only priority but close to it. Theres a danger in making counterterrorism here only priority. It brings you unpleasant friends and unhappy issues that you might not want to deal with. But what the u. S. Has done in which i think will continue is that we will provide support. We will recognize the elected government of iraq. Now, thats all we recognize maliki. And we like maliki . We are accused of being promaliki. We have made her choice to support them. I do think that United States has a favorite candidate in this. Theres something wrong with all of them. Something that may be unpalatable but you dont have to like the leader you do with. This is politics. Its not by choice. All countries, british politicians used to say this, governments or countries dont have friends. They have interests. We will support the government and we will do it because it suits our policy. It helps us. We want to continue