Transcripts For CSPAN Online Voting 20141012 : comparemela.c

out of terrorists hands. washington journal on span. >> here are just a few of the comments we've received from our viewers. >> i'd like to speak to that i am regulation and a man named atta who had a visa that had expired and on 9/11 she took -- he took one of our planes and crashed it, one of the two towers. you know, he should have gone back and we still would have had the gs that were built on our land, that were our landmarks. and something we were proud of. that is a good reason, i think, why we should not let people who are not legal, my grants, in this nation. i'm -- >> i'm calling with regard to the catholic charities you had n span with regards to the representative from texas. i came to the united states from at least -- with the catholic charities. everything that that young lady said was wrong. dd she does not know the procedure. she t me so mad that doesn't know what she's talking about. > joe crowlly, congressman crowley, and goo terse mentioned that the justice -- or justice would say or justice is being given to the illleels who have come here illegally and broken our i am regulation laws is to punish them. that's what justice is about. to send them back and have them come back in through proper channels. obviously congressman gutierrez is not worried about diseases coming to our country like ebola. we've had our first experience with here in this country, in texas. so i think he should get off his emotional high horse and start to think a little rationly about the rest of the citizens of the united states and helping protect us from these diseases that are prevalent in other countries because their people were not inoculated. >> continue to let us know what you're thinking about the programs you're watching. or us at 202 hch 626-3400 send us a tweet. join the c-span conversation. like us on facebook, follow us on twitter. >> this five-member panel met friday to look at the statues in the military code of justice to determine whether they're clear of need to be updated. this portion of the hearing is about an hour and 10 minutes. >> ok. e will -- morning again. we're now ready -- sorry to be a few minutes late -- to deal with the panel that's going to focus on military rules of evidence 412 and 415 and court molecular sham proceeding. we have three -- i see, two witnesses before us. olonel john baker, u.s. marine core and mr. william bartoe, army highly qualified expert attorney/advisor. welcome to both of you. we'll start with you, colonel baker. thank you for your presence. >> thank you, ma'am. good morning. as you noted i'm colonel john baker, the deputy director of [inaudible]. mr. bartoe and i are here to discuss 412 and 513 and how they're litigated at article 32 hearings in courts martial. to give my comments perspective, i'll note that i've litigated issues as a trialaged as a defense counsel. i've ruled on them as a military judge. i've taught class toss subordinate trial and defense counsel on how to litigate these cases in court. most recently bive been a policy maker as a member of the joint services committee where we recommended a revision to rules that would apply the protection of the articles is at hearings but would eliminate the constitutionally excepted. they've recommended changes to m.r.e. 512 to clarify that a victim's right to be heard at an m.r.e. 513 hearing includes the right to be represented by counsel. i'd like to offer a couple of observations and an anecdote before i turn the microphone who will walk you through the prorlede rules. i'll offer as a general proposition that when the rules are applied, that the rules strike the balance between protecting a person's privacy interest and finding the fact nder the innocence of an accused. i've seen an increase in 412 litigation and an even larger increase in mre 513 obligation and i've seen a increased concern in protecting the privacy of victims. please take into did new role that victims' legal counsel play in protecting a victim's privacy rights. in marine corps our victim legal counsel provide our victims a significantly improved right to be heard in article 32 hearings and article 39 a sessions and m.r.a. 12 and 513. to be honest, i was surprised this morning when i looked at the agenda of speakers and didn't see someone from the victim legal counsel or a special victim counsel to address this issue. i'll close -- >> -- [inaudible]. >> yes, ma'am. >> this lasts the whole day. >> ok. >> you can be at ease on that. >> ok. i'll close with this anecdote ifment served as a military judge in okinawa, japan from 2001 to 2013. in the earlier days of m.r.e. 5123 obligation. i remember my first encamera review of a treatment record. it was a sexual assault allegation and the defense had proffered that the victim had made numerous inconsistent statements regarding the alleged assault. i approached this hearing thinking that it would be like any other motion session that i'd presided over. i was wrongs about that. the victim was notified about the hearing and she appeared and she made a pretty telling argument that i did not review her records. the defense counsel who was representing a young marine made an even more convincing tharget the records could contain material that were constitutionally required and at the conclusion of the session i ordered the records be produced under seal for me to review encamera. i think this was the first time that i really had appreciated how personal and private the communications are between the victim and her treatment provider. during the course of my review i discovered a piece of critical information that i thought needed to be disclosed to the accused and eventually to the fact finder. as i balanced these competing interests of these two young active duty marines, i really became mindful of the discretion that i had as a military judge and that i needed to have in order to make the proper decision. so with that, i'll turn the microphone over to mr. barto you and i look forward to answering your questions. >> thank you. madam chair, members of the panel, good morning. it's a privilege to speak with you this morning about the military rules of evidence that apply the rain shield role and the psyche they were pist privilege. my particular emphasis is going to be on the various ways in which the system safe fards victim privacy at pretrial hearings and during the court martial. i speak to you as someone who has served in almost every position in the military justice system. i've been a prosecutor, defense counsel, law professor, policy official, staff judge advocate and a military judge at both the trial and appellate level. i also speak to you as someone who has worked outside the military system, having spent the last five years with the federal judiciary as the senior attorney and court executive. so i'm very confidence and comfortable when i echo colonel baker and say that the military justice system effectively provided due process for those accused of crime, while safeguarding privacy interests of victims of crime, particularly concerning their previous sexual behavior, their sexual predispositions and sessions with psychotherapists. i want to begin with an introductory note. it's important to remember that when dealing the the military rules of evidence, we're dealing with a body of law that's created by executive order. the president has been authorized by congress in 10 u.s.c. 836 to promulgate rules of evidence, and this is the language of the statue "so far he considers practicable, applying the principles of law and the rules of evidence recognized in the trial of criminal cases in the united states district courts." as such, you'll notice a fair similarity as we consider these two provisions with those in the federal rulings of evidence and many state and common wealth standards as well. now, if i could have the first substantive slide, please. military rule of evidence 412 implements a rain shield rule in the military justice system. it is a rule of relevance and it excludes as irrelevant two broad categories of evidence, evidence that's offered to prove that a victim engaged in other sexual behavior than that charged and evidence offered to prove a victim's sexual predisposition, that is, her dress, speech, or lifestyle. now, it's important to note that this is, as i mentioned, a rule of relevance. it is not a rule of privilege. as such, there are three exceptions barred from the federal rule that you may find very familiar. the first is that the military judge may admit into evidence not evidence of specific instances of sexual behavior by a victim that are offered to demonstrate that another person, a person other than the accused, was the source of seemen, injury, or other physical evidence. this exception is quite frankly, far less encountered today than when i first began practicing due to the advent of sophisticated forensic examining and d.n.a. evaluation as well. the second exception is that a military judge may admit evidence of specific instances of sexual behavior by the victim with the accused that is offered as the madam chair noted earlier to prove consent by the alleged victim in the case. this exception is criticized in the literature under the -- on the basis that consent at some past point does not mean consent today, but it remains a part of federal and military jurisprudence, but some states and common welts have limited the application of this provision almost with the statue of limitations, that the sexual activity with the accused must be within a certain period of time in trollings the charged offense, like one year or less in some state systems. and finally, the last exception, and the exception about which there's the greatest amount of obligation. this is the exception that would allow evidence in the words of the rule "the exclusion of which would stroilt constitutional rights of the accused." what does that mean? the rule does not define that moo means for the prack tissue -- what that means for the practitioner. evidence usually falls into one of several readily recognizable categories, in my experience. for example, evidence of previous sexual behavior that establishes a bias, prejudice, or motive to fabricate on the part of the alleged victim in the case. similarly, this exception is used in military practice to admit evidence of demonstrably false allegations of briar sexual behavior by the alleged victim or sexual behavior or predisposition that's so distinct active and so similar to the sexual offense at issue that it explains or provides context for the instant ealings. -- allegationles. interestingly, many states codify these commonly encountered circumstances in their own rules of evidence for criminal casings, but in military practice, these are adjudicated on an ad hoc basis by the military judge upon request by defense counsel in a given case. we'll return to some issues that are encountered by plaque tissuers in and judges a little later on in the presentation. before i turn to the procedural requirements, it's helpful to look at what this rule of evidence is intended to do. as madam chair could probably recite from memory, this draft analysis points out, this rule is aimed to safeguard the victim against an invasion of privacy, potential embarrassment and sexual stereotyping that's associated with the public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding pros. it goes on to say "by affording victim protection, in most instances, this rule also encourages victims of sexual offense to participate in legal proceedings against the alleged offenders and under circumstances without which the victim might be temperatured to not go forward with her allegations." i could have the next slide, please. the procedural requirements under military rule of evidence 412 are similar to those in the federal rule of evidence. i won't read the slide to you, but i will point out two differences in military practice. whereas the federal rules of evidence allow a 14-day period in which the typically defense counsel muss submit a written motion giving notice of an intent to use one of these exceptions to admit evidence of prior sexual behavior, the military justice system typically applies a shorter decline. only file a motion five days ahead of the plea instead of 14. this is because of the slightly more rapid pace of military trial work than federal or state criminal trials. like the federal system, it also requires this -- this rule requires that the victim be notified by defense counsel or the government of an intent to use prior sexual behavior or sexual disposition evidence and allows notification to be provided to the victim's representative or counsel. when a military jidge receives a motion like this indicating an intent by a party to use evidence of prior sexual behavior or sexual predisposition, that judge must hold a closed hearing, a hearing that is closed to the public. the rule refers to it as an encamera proceeding. it's held in the courtroom but without the public present. only the parties and necessary court staff are present. the jurors are never present for this hearing, and the military judge must act to seal the pleadings, any evidence that's received during the hearing and the transcript of the hearing and prevent its review unless ordered by the court itself. usually military judges enter an order that allows the exhibit to be opened by the reviewing court, but not necessarily the convening authority or other counsel during the post trial process. and any order issues by the -- issued by the military judge must under this rule specify exactly what evidence is going to be offered per missably and which areas may be explored on direct and cross-examination. i've summarized the judicial decision making under military rule of evidence 412 in this graphic. the first -- this chart depicts -- and i chose a particular perspective of a defense counsel seeking to admit evidence of prior sexual behavior or skull predisposition under this rule. there are at least four hurdles that must be jumped by the defense counsel in order to -- in order to obtain the admission of such evidence. the first is they must demonstrate evidence of the victim's exull behavior or sexual predisposition. if not, the ordinary rules of evidence control the cailings. that's not much of a hurdle. we proceed to whether one of the three exceptions apply. is the evidence -- in this circumstance; that is, other source evidence, previous consent, or is the evidence constitutionaly required. and if it fits into -- if the evidence fits into one of those three categories, then a military judge must perform a balancing test that may not be familiar to those of you who have practiced in federal jurisdictions but may be familiar to those of you whoover practiced in state venues. this is requires the military judge to exam the evidence that's tendered by the defense and determine whether the value of this evidence, the probative value outweighs the danger of unfair prejudice to the victim's privacy interest. madam chair may recognize this provision from a civil codge text in federal rule of evidence 412. the president in 2007 added this layer of protection for victims' privacy to military rule of evidence 412 and military judges do this threshold analysis, a comparison of the value of the evidence sought to be admitted against the danger of unfair prejudice to the victim's privacy interest. the judge can proceed only if she finds that the probative value outweighs the take of unfair prejudice to the victim. the next step is familiar to any litigator, and it is found in military rule of evidence 403, which is identical to federal rule of evidence 4 3. the probative value must not be outweighed by the danger of any of the factors identified in military rule of evidence 403, confusion of the issues, undue delay, waste of time or confusion of the jurors in this case. the circumstances frequently used by judges to exclude evidence in these circumstances, the mini-trial, the trial within a trial over the victim's sexual behavior or predisposition. if and only if the defense meets these four hurdles relevance, exception, probative value, and 403 analysis, may the military judge admit the evidence at trial. i'd like to make a bit of an observation here concerning a practical difficulty in the case law and in practice right now for military justice practitioners. it involves this decision making process. and i direct the panel's ttention to the unique balancing test that was added in president in 202007 which they compare the probative value of the evidence with the danger of unfair prejudice to the victim's priversy. the court of appeals to the armed forces has recently in a ine of cases and their progeny cast out as to the stult of this provision as applied in a criminal setting. the court of appeals has in a rather expansive dicta said that notwithstanding, the plain text of the military rule of evidence, which requires the judge to do this balancing test, that the privacy interest 06 a victim, the danger of unfair prejudice to a victim's privacy interest will never trump the introduction of evidence that is material to the defense and favorable to the defense at trial. that is, the constitutional right to present a defense will always trump the members -- the victim's privacy interest. this case, united states versus gattis is found in volume 70 of the military justice reporter beginning, i believe, at page 248. and the court, although divided in that opinion, is united in its skepticism towards the applicability of this provision and whether the victim's privacy interest is every relevant to the determination foff admissibility of the evidence in a court martial setting. i do not speak for the judge advocate general in this next observation but i don't believe that that result is either necessary or appropriate under the military rules of evidence. but i do believe -- and this is based on anecdotal evidence by military judges and practitioners -- that it has created a great deal of uncertainty about what the state of law is concerning military rule of evidence 412 and whether the victim's privacy interest and the danger of unfair prejudice to the victim may ever be considered by a military judge. this puts judges in a bit of a conundrum, because if they follow the law as promulgated by the president, then they risk an ad hock evaluation of their decision by the court of appeals and their action being deemed unconstitutional. the incentive might be for perhaps an inexperienced judge not to mention the fact that she's considering the privacy interest but reach the same outcome, anyway, or to disregard the military rule of evidence and obey the dicta in the court of appeals decision. none of these options are desirable. i would suggest that it may be -- i'm going back on the record here -- that it may be profitable for your panel to explore other state and common wealth jurisdictions in which that battling test has been successfully incorporated in their criminal jurisprudence without constitutional objection, because i believe that balancing test is important to protecting the victim's privacy interest and guarding against unfair prejudice. remember, that's the only thing we're look for in this case. in the case of evidence it might e minimally probative. the next slide i'd like to consider is the psychotherapist privilege under military rule of evidence 513 but i'd like to pause and give colonel baker or any panel members to ask any questions about 412 or any of my observations. >> i would like to echo something mr. barto talked about. our courts martial -- our cases usually come up in relatively -- i -- es where the that the population is relatively small and there's -- i think that there is the -- the reason why we have the -- kind of the added -- we borrowed the civil part of 412 from the f.r.e. into the military rules of evidence to account for the fact a that in our mall environments, getting -- getting private sexual behavior out on the record in -- into that community really does have a danger of affecting the victim's privacy. and so that's why the -- that's why i think that the balancing test is there and that we do need -- i think it is important that we provide our practitioners a little more guidance in this area. >> thank you, colonel baker, and i would agree with that. twin purposes of the military justice system is described in the preamble to the manual for courts martial, for example, are note only justice but discipline and good order and discipline within the armed forces and i think the unique nature of military communities and service may justify the consideration of victim privacy interest which perhaps in a federal setting or elsewhere might be constitutionaly suspect. but in connection with the skike therapist privilege, this is an area -- yes, madam chairman. >> do anyone else want to ask questions on 412. i don't want to let that slip. maybe you'll retract it. does any member of the panel have any questions on 412? >> yes. thank you both for your testimony. mr. barto you said that in describing the judicial decision making process under 412 that even if the proposed evidence to be offered passes the 412 scrutiny, that then there's still this 403 examination that tapes. do you know of cases where it passes -- the evidence passes scrutiny under 412 but is excluded is under 403 and can you comment on that? >> it expressly requires military judges to nlize otherwise admissible evidence under 403, the last sness i believe of 412-3-c. so it happenings in every case. i think the most common scenario i can recollect from my own time as a military judge and even my reference to gattis, it doesn't necessarily result in a exclusion of an entire incident of prior sexual behavior or sexual predisposition on the part of the victim, but what it frequently results in is a narrowing the -- of the evidence tenders, narrowing of the scope of cross-examination rrks perhaps. and in gattis, the judge narrowed the scope of cross-examination to prevent the prosecution from going too far -- the defense from goltoofer into the victim's exull history. i hope that addresss at least initially your question. >> thank you. >> sir, if i could offer -- i've seen it apply the 403 balancing test apply when there's going to be some sort of -- some sort of delay where while the evidence ay come over the hurdle of unfair prejudice in victim's privacy rights, it's still going to take a while to get the evidence in. the evidence, it's not worth delaying the trial to get that evidence into court, particularly -- i told you about the judge in japan and we'd frequently have witnesses that would have to come out there. if i could -- >> [inaudible] just under 403 now? right, yes, ma'am. >> in fact, in a particularly troubling aspect of the concurring within in gatis, former chief judge efron proposes a methodology where military rule of evidence 403 would even be overcome by material evidence that's favor able to the defense. he would propose that that constitutional imperative to present a defense would even prevent the operation of 403. there's really no logical constraints on the reasoning of that case. why stop there? why not allow hearsay? y not do away with authentication? i present that as a worth-case scenario but the lawyer in me can't aextraordinary slippery slope problem. i don't think the court meant what it said in gatis, but it's andrettiing uncertainty as to how not only 412 but 403 apply in this new universe. >> you have any questions? >> no. thanks. >> i know that i am -- let me start by saying i'm speaking from public record from what i read in the newspapers at that time naval academy involving the cadets there. i was not under the impression that the military judge in that case bothered with any of your four hurdles. i didn't see anything about an encamera hearing. i didn't hear -- i understand that it was the constitution required it without explaining how the constitution required it. and when, as i understand it, resort ecution tried to to the specific appellate court over that judge. they did not take the case and there were petitions filed with the court of appeals 40's armed forces and they did not take the case, so basically you're telling me about the four hurdles. doesn't sound like it's being followed and i'd like to know if you have some comment on that or if you can tell us as a panel how we can get and review the very in that case as a good example that upset a lot of people. >> we'd be happy to defer to the naval services as to 40u that 3r0es would work. but i would give colonel baker by saying bad cases make bad law. every day throughout the world udges are routinely applying 412 and 513 without media attention and with slisstuss concern for for the due process rights of the accused and the privacy interest of the victim. and with that, i'll turn it to colonel baker to discuss the particular instance of the naval academy case. >> sir, i've not reviewed the record of that case and my knowledge of that is like -- is based upon what i've read in the newspapers, so i -- i can't provide you a comment on whether the rules were or were not follow that case. certainly, our procedural rules do require the judges to make a very difficult decision and that very difficult decision is to balance the priversy interests of the victim with the writes of the accused. i'm confident in the cases that -- i'm confident that this happens properly a lot. >> are there cases where it doesn't? >> yes. but i don't think it's because there's a problem with the rules. it may be a problem with the folks that are applying the rules. i'm not trying to say that the judge in that case improperly applied the rules. i just don't know enough about e case to comment on whether they properly replied or not. i just noticed the judge that presided over that case i believe was the chief trial judge and a very well respected jurist and i would assume that he did properly apply the rules. so i -- that's kind of the best i can do, sir. s there -- i think that m.r.e. do allow for 413 it to be applied with clarity as we discussed in the added prong to the probative value and the danger of unfair prejudice. >> correct me if i'm wrock. let's turn to the rules for a second. you opened talking about what i thought was a proposed rile to allow victims a right to be heard through counsel. i guess i don't understand currently what the point is of having a closed hearing is it is -- if it is not currently the practice that victims can be heard through counsel. the victims of the people with the privacy interest during that hearing, the prosecution may care about it, but they're -- they have a broader concern, which is to get a case to trial and they're not going to have to live with the adverse publicity about their sex lives that the victim will, and if there's going to be a hearing, you certainly don't expect the victim to be representing themselves. so why is it that the military needs to propose a rule that victims be heard through counsel, why isn't that already a matter that's accepted across the board? victim has always had a right to be reasonably heard at these proceedings. the purpose of the joint services committee proposing that we clarify that that right occurs through counsel, there's frankly been some question about it. the case of kastenburg went up to the appeals court and we wanted to make sure there was no question about whether the victim's right to be reasonably hird at a 4 12 or 513 hearing including the right to be heard through counsel. i guess i don't see why that -- providing clarity to me is a good thing. >> i think it is a good thing. i guess i'm pointing out the fact that you have to provide that clarity is evidence that there's an awful lot of military judges who are not allowing victims to be heard through their counsel and they're pecting young military reduties to speak for themselves -- recruits to speak for themselves on legal issues and not to be heard through the counsel, which the services are providing to argue on their behalf about their priversy, and i just think that that's long overdue, frankly, but i think it's an indication that there's something wrock. >> if i could jump in on behalf of the army, in the military rule, the victim must be afforded a reasonable opportunity to attend and be heard. so there is, as colonel baker noted, a fundamental right for the victim to be present and be heard. what is recent is the advent of special victim counsel or victim's legal counsel have which have now been provided by congress through statue in the national defense authorization act, i believe, of 2013, that now create a specific attorney position to advocate on malaysian of victims. the joint service -- behalf of the victims. the change that's being contemplated is in response to this new fom of the special victim's counsel that are now a part of the legal landscape and which need to be accounted for in the rule. assuming that junction everywhere are not respecting victim rights in the face of a clear mandate from the commander in chief that they do so, that's just not supported by my own experience, and i would venture to speak in colonel baker's as well. >> i guess my response to that is that victims' right to counsel have not only been around for decades, but they were enshrined into federal law governing every federal court in 2004. in the crime victims' rights act. so all you're telling me is that recently congress made victims' counsel freely available to victims but they -- counsel's been available to victims for 10 years, and it's long overdue that military judges didn't expect the victim who has counsel to have to get up and make the claim about privacy him or herself and not through counsel. >> any other comments? >> i was just going to say it's true that the victims rights act talks about counsel, but the reality is, most victims do not have counsel in the civilian world or any other world, because they can't afford them. it's -- it is a relatively just phenomenon both in the states and not -- so it doesn't surprise me that it's also now a new phenomenon, and a good one, in the military and actually, in he military, you get counsel automatically, if you want it, and you don't pay for it. so it's gone beyond most of the programs that exist in the civilian world. i was interested in how article 32s are working now. and i think colonel baker, you started to talk a little bit about -- and did you say something about eliminating the constitutional aspect of the rule? i'm interested in that, two. that's two different questions, i recognize. >> i'll start with the second one first, because it's easiest. -- the other way, if you could. the -- one more. proposal that's currently before -- that's out for public comments on the joint services committee is specifically exclude the constitutional exception. i have article 32 here. 412, 513 and 514. article 32 preliminary air hearing, the first two exceptions would apply in the -- an the third exception would not. and then -- did that answer your question on that issue, ma'am? >> and your staff can get you a copy of the proposed co. it's on the web. the third g away exception? >> the practical impact of taking away the third exception of the the -- kind ebate at an article 32 hearing that bill things talked about, bias -- >> bias, things that are raised under the constitutional prong would not be available at a hearing whose only purpose now is to determine probable cause, whether the accused should be court molecular shaled for a particular offense. >> and the first two exceptions could provide information to the preliminary hearing officer that could make it -- that there wouldn't be probable cause, that there was valid evidence that somebody else was the other source of the exception. >> also, removing that exception also had reflects the tchining article 32 which narrowed the riment and scope of the hearing, so it made it so that it's not a discovery tool. your other question, ma'am, was how are 32 -- how is 412 being applied another 32 hearings now? >> yes. i mean, do they -- were there always 412 hearings at article 32s or were there always supposed to be? >> there were always supposed to be. certainly i think anecdotally they weren't always done right. i talked last evening with colonel joyce and her counsel are involved in filing -- they're not calling them motions because it's a preliminary hearing, but they're actively involved in litigating 412 issues at article 32 hearings. you know,nd we are -- and we -- we certainly are applying them now, frankly, i think better than we have in the past. >> the other change, judge jones, is that judge advocates are now serve is as article 32 officers. a military attorney is now presiding over the preliminary investigation/preliminary hearing as we transition terminology and purpose. and the presence of an attorney in the room that's sensitive to these issues makes the system better able to protect victim rights while reaching this probable cause determination as well. >> and i think i understand this now, because if you eliminate the constitutional an circumstances you're really eliminating those types of evidentiary rulings that you may need to make if it goes to trial or woofment but you you would not -- would not be relevant to just to look at the facts in a probable cause determination. is that the idea? >> may have asked you this already. you opened your remarks, colonel, by saying that these two rules of evidence, when the procedural rules are properly applied, work well, to that effect. are there some repeated issues with regard to the proper application of procedural rules, perhaps they've been addressed by article 32 changes? >> one of them kind of historically frankly had not been very good at applying them at article 32 hearings. a lot of it, because of the wide open nature of an article 32 proceeding, that has really focused on discovery. with a judge advocate presiding over an article 32 hearing and a counsel representing the victim, i think that you have a much better chance at an article 32 hearing if the procedures are followed properly. at an session with the military judge, i think those have traditionally been done well. are there exceptions as mr. stone brought up? yes. i mean, i can't say that we've done it right every time, but i think that in the vast majority of cases, coverts martials, our military judges do a fantastic job of balancing the interests of the victim against the interests of the accused. >> if i could gently tug the presentation toward the military rule of evidence 513 as well and the psychotherapist provision, i could tell you that this is a challenging area for investigators, -- investigators, for counsel, and for military judges. and this is -- given the supreme court's decision in jaffy v redman several years ago and the advent of this military rule of evidence, there is no federal rule of evidence, for example, describing a psychotherapist privilege. this is a relatively new rule nd proper sensitivity to the psycho logical counseling records of victims is something that everybody is learning as we move forward from investigators, who in the past might have just been to to the hospital and obtained those records, from counsel, who might review them before submitting them to the military judge, to the judge, who didn't have guidance in the past but now has a relatively strictly constructed rule of evidence. all three of the participants in the process are learning, and it's getting better, but it and it's getting better. but it places a premium on the ability of military judges to monitor the progress of that learning and to intervene with protective orders when appropriate to safeguard victim privacy concerning her psychological or mental health counseling records. for example, much like judge baker, after this rule was enacted, i found myself, as a trial judge, reviewing the health counseling records of a child victim of sexual abuse. and not only was it psychology, it was pediatric psychology. not only was it pediatric psychology, the person writing the notes was a master of social work as well. how they got time to do all these degrees, i don't know. but i, as a layperson, more or less, am attempting to screen psychological counseling records in my chambers, on the road without expert assistance and the like. i know now that i could have appointed an expert to assist me in reviewing those records and making sense of the medical and sociological notations that were in the record. but i think we, as a community, need to realize that judges' discretion is key and judges are not -- may not be all-knowing. if we're to be properly sensitive to protecting the right of the privacy interests of the victim and ensuring that potentially exculpatory information is released to the defense counsel. >> i'd like to go back to 412. first of all, mr. bartow, you talked about the relevance of sexual predisposition of the victim. why is that a standard? >> ma'am, it's a standard that was taken from the federal rule of evidence, i believe. >> would you point out where it says "predisposition"? >> i would have to investigate that and look at where that language came from briefly. but -- >> let me just suggest it's not in the federal rules. the federal rule exactly was to, having been the author, to eliminate the idea of predisposition, that and the logical fallacy that if a woman ever said yes or said yes five times or said yes 50 times, she might say no the next time. that was the whole point of that statute. so i find myself troubled, to say the least, at the use of the term predisposition to sexual behavior, as a standard for anything under 412. and i would urge you, sir, to reconsider your use of that terminology. >> but it's an explicit exception, i mean, so that it is excluded. evidence of predisposition is excluded. >> but you were saying, as i heard you -- maybe i misunderstood -- that that could be introduced. >> that is not what i intended to communicate to you. >> i apologize then. >> the military evidence excludes as irrelevant evidence offered to prove a victim's sexual predisposition. >> i'm glad to see that we're on the same ground on that. okay. now, the second point you make is about how well the rule is working, and i must say that i found myself quite astonished -- i'll just use that adjective -- at the decision of the court of appeals for the armed forces in the case of u.s. v. ellerbrock. and if that's the position of the court of appeals, then i don't know how we can more clearly state what 412 and the military rule of evidence was designed to accomplish, because i think the court misunderstood that. i mean, going back to the point i just raised before, in this case, i'm sure you're familiar with it. >> yes. u.s. v. rock follows gattis. different judge writing the opinion, but same issue. >> right. and here we go again, as i see it, where the court -- i thought the dissent made a very good point. both dissents were much more persuasive to me. but basically the court said that since she -- i mean, basically that she didn't want her marriage to end, and that showed that she had a motive to fabricate. and so if you have done fabrication before, then that seems to me to be relevant. but just because -- even assuming that that in fact was the case, that she didn't want her marriage to end, i don't know that that shows she had a motive to lie about a rape. and so i'm very concerned about how the courts are interpreting this and particularly because i think if we go back to the underlying purpose of 412, and going again to this constitutional point you've raised, that the reason it's, quote/unquote, favorable to a defendant to raise the prior sexual history of the victim, it's because that's a huge what i would call smear tactic. and that is -- i mean, not just prejudicial to the victim but prejudicial to the truth-finding and fact-finding ability of the jurors or the court, because it is so prejudicial, given the stereotypes and the cultural attitudes we have in this society. so i'm just wondering. you're asking us to look at that specific issue about how other states handle this. but i'm wondering what we have to do to get judges in the military to understand that just because a woman had said yes before doesn't mean she's going to say yes again. is this a training issue? is it the statute isn't clear enough? >> interestingly, ma'am, the court of appeals for the armed forces is a five-judge panel of civilian jurists appointed from civilian life, specifically excluded until recently from the military ranks, in order to provide oversight to the military justice system. i cannot defend and in fact have brought it to your attention, that gattis and ellerbrock, represent a real curiosity at best and perplexity at worst to the practitioner in the field, because the plain language of 412, as judge effron says, until the rule is changed, it remains in effect, subject to our obligation to interpret the rules in accordance with the constitution and applicable legislation. in the absence of any meaningful justification for the court's actions in gattis and brork, that puts practitioners and judges alike in a difficult situation, and i don't think many of us would jump to the defense of what you just described in gattis and ellerbrock. it's inexplicable to this practitioner. >> i can't speak to gattis, because i haven't read that case, but i can speak to ellerbrock, and i just find myself -- perplexing isn't the word i would use. i think it violates the understanding of the statute. here we are. federal rules of evidence was in '76. here we are, almost 40 years later, and, you know, the same cultural prejudices are affecting the courts' decisions here, and particularly if you take the gattis decision that anything that's favorable to the defendant has to come in as a constitutional matter, well, smear is favorable to the defendant. it totally guts 412, if that's the concurrence and if that's what the military judges are going to follow. what is left of 412? >> there are those who make the country argument. but i would point out, in ellerbrok, that the judge in that case got it right. by your criteria and by most observers, so it was the superior court to the military justice system that produces the result that's so difficult to understand here today. >> well, what suggestions do you have for this panel, assuming that my colleagues agree with that? i can't speak for them. i'm surprised to find myself in the majority on any issue, but i'm glad to be in the majority on this. in any case, what suggestions do you have for the panel to deal with this problem? >> as i was preparing for testimony today and i was reviewing the rape shield rule provisions of the 50 states and the various commonwealths and territories, i was struck by the variety of ways in which victim privacy was incorporated into their criminal evidentiary codes without raising constitutional issues of the sort that the court of appeals for the armed forces attached that significance to. all i can suggest is to reiterate my earlier suggestion that oftentimes it's the symphony of voices in a state or commonwealth or applying the best of those statutes in a recommended revision to the rules of evidence that might clarify -- for example, the thing that occurs to me, and this is not a proposal to the judge advocate general, but as a former policy official an law professor, i think one of the fundamental flaws of the court of appeals decisions in gattis and ellerbrock is that they view the conclusion that evidence is constitutionally required to be admitted as a static decision. but i think a more coherent way of viewing it is that that is a category into which a defense counsel is attempting to fit evidence. but until the probative value of that evidence is examined, until the danger of unfair prejudice to the victim's privacy interest and until the danger of undue delay, substantial confusion to the members, waste of time and all those other things are considered, the question of whether that other sexual behavior and sexual predisposition could ever be relevant is a dynamic decision that's not finished until we get to the last step of that diagram that i provided for you. you can't start with the conclusion. and that's what the court of appeals for the armed forces appears to be doing in gattis and ellerbrock. perhaps a more dynamic description up front as to what the drafters are intending by evidence that is constitutionally required to be admitted would help clarify for military judges. that's the ongoing determination that's being made. >> would it clarify matters if the definition of consent were changed? >> i think that would have the most affect upon the second exception, the previous interactions with the accused in a given case. but i cannot foresee how that would specifically directly affect the other types of evidence that are commonly introduced under this exception, the constitutionally required exception. i can think that a narrowing of consent -- for example, there's this class of cases in the state law and beginning in military law in which the previous sexual behavior is so distinctive that it communicates to the accused, either because he saw it or because he knows of it, that somehow the victim has given her consent to this same sort of activity in this instance. by narrowing the definition of consent, i think we would exclude a large majority of those cases from ever getting past the initial threshold with the judge, because the consent that is at issue is the consent today, to this particular military service member, and this particular setting and circumstance, not what a person chose today six months ago with other individual or individuals. so i can see how it would narrow or it would ease the judge's burden and clarify the practitioner's lot in certain circumstances. >> it would also help in terms of the, quote/unquote, constitutional analysis that's taking place because of the crime. thanks. i think we took all your time on 412. do you have something you want to say to us on 513? >> i have said what i intended to say about 513. it's important that the judge know when the judge doesn't know, and seek expert assistance. i think that's something we can do better in the future. we have the regulatory authority to do so and it's not often done. but i noticed mr. stone. >> yes. on 513, i thought the point of the proposal, which president clinton authorized in 1999 and 513, was that kind of psychological counseling evidence did not automatically get to the judge in every case to do what he felt like doing, and my understanding is that is exactly what's happening and i think it undercuts the 513 rule, just like you were discussing, how the 412 rule is undercut. as i understand it, the practice has been that military judges tell the prosecutor to go get the military hospital records of the people in question. and they get them. and then the judge decides in camera, without any recognition, that the rule is intended to make that a very narrow exception and a small number of cases and not the standard operating procedure, and that the military hospitals, because they're in the chain of command, turn these records over, and unlike private hospitals, they're not requiring hipaa releases from the patient. and in fact, again, to go back to it, in the naval academy case, the records of counseling on the navy base were ordered and just showed up. and so i'd like your comment as to whether or not -- i can tell you that my feeling is that that rule has also been completely undercut, because it's not the business of the military judge to decide in every case in his discretion whether those records come in but only in a narrow -- a very narrow view kinds of cases. >> sir, i certainly would agree with -- well, there has been, since we developed 513, there certainly has been an increase in the number of cases with which 513 has been litigated. when these cases first began, i don't know if there was a lack of awareness that these records existed or that more people are getting counseling. it may be a combination of the two. in my experience, this is a bifurcated process or almost a trifurcated process. not until the closed hearing is done is the trial counsel ordered to go get the records. so if there are cases where the judge is ordering those ahead of time, i can assure you that's not the process. the rules lay out the process, that they hold the hearing and then make -- to make a determination whether the judge is going to review the records in camera. it's not an automatic. so i can only speak for the cases with which i know about. but in those cases, our judges are properly applying m.r.e. 513. it's not a rubber stamper or automatic. >> but now that the military services have sexual assault counseling, i think it's become uniform that the sexual assault counselors tell the victims that they can get psychological counseling if they feel they've been raped and where to get it. so it's now the rule rather than the exception that the defense counsel are going to expect that there's psychological counseling records. >> yes, sir. that is in fact true. our victims are getting more counseling than they have before. there is a requirement. our trial counsel have an obligation to provide brady materials, and so part of their due diligence is to find out if, upon request from the defense, if there's been records, to find out if the records exist. if there's a motion filed, the victim is notified and the victim is provided counsel. and at a closed hearing, the judge is -- the parties talk about what or whether those records should be provided to the judge in camera. the records aren't provided before the hearing. that's not the way the rules are written. so if there are cases where that is happening, they're not applying the rules properly. again, the advent of the victim legal counsel or the special victims counsel provides the victim another tool to protect his or her privacy rights. i mean, it's hard for me to talk about cases where the procedures aren't followed, because in my experience, the procedures have been followed. >> i guess what you just described to me is not a procedure that i find acceptable. the supreme court said in the jaffey decision that brady is not a reason to invade somebody's psychological counseling records, which you just articulated. and if the records are routinely being obtained as if they're prosecution records from military hospitals on base, then you ought to change your procedures and recommend that people see psychological counselors off base, because those records should not be released, as you just outlined, for reasons like brady. >> sir, i mean, there's a series of cases that talk about a requirement for prosecutors to provide brady material. and i want to make sure that i'm clear. i'm not saying is that the trial counsel, upon a request from the defense, gets the files and starts looking through them. that's not what is happening. but what is happening is, if there's a request, and there's a motion filed, the judge makes a determination. whether or not the judge makes an in-camera review of those records. and they're applying m.r.e. 513 as written. the judge has to weigh the balancing of the privacy interests of the victim and the due process rights of the accused. >> i'm suggesting they're doing exactly what we just heard in the 412 context. they're using the, quote, constitutional exception to order those records in every case. that's all. and that therefore they have completely undercut the rule, as we just heard with 412. >> mr. bartow, did you have a point that you wanted to make in response? >> no, madam chair. thank you for the opportunity, though. >> i have one quick question, please, for you, mr. bartow. one of the reading materials which was provided to us, which was a 2003 article on m.r.e. 513, it was stated that under the army regulation at that time, that trial counsel, cid agents and commanders, could access mental health records if they had an official need for the information. that was contrasted with the air force rule, which did not allow that, because of 513. my question is, has that changed? is the army now changed so it's operating in constance with the spirit of 513? >> i don't want to overstate my knowledge in this area, but i believe it has changed with the advent of hipaa and increased awareness of victim privacy interests. my understanding is that that is no longer army policy. but i will verify that and provide that information to the panel. i will. >> thank you very much. mr. colonel baker and mr. bartow, we very much appreciate your informing the committee of the facts that you have. thanks for your testimony this morning. okay. we'll go to our next panel. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] in his weekly address, president obama addresses the benefits of raising that minimum ways. scott brown talk about threats to the u.s. national security. >> hi, everybody. for the first time in six years, the unemployment rate is below 6%. our businesses have had the longest uninterrupted job creation streak in history. but the typical family has not seen a raise since the 1990's. folks are feeling as squeezed as ever. that is why i will keep pushing for policies that will create jobs faster and raise wages faster. rebuilding infrastructure, making sure women are paid fairly, and making it easier for young people to pay off student loans. one of the fastest ways to help folks get ahead is raising the minimum wage. ask yourself, could you live on $14,500 a year? that is what someone working full-time on the minimum wage makes. if they are raising kids, that is below the poverty line. that is not right. a hard days work deserves a fair day's pay. right now, a worker on the federal minimum wage earns $7.25 an hour. it is time to raise that to $10.10 an hour. raising the federal minimum wage to $10.10 an hour would benefit 28 million american workers. 28 million. these are not just high schoolers on their first job. the average worker who would benefit is 35 years old. most low-wage workers are women, and the extra money would help them pay bills and provide for families. it also means they will have more money to spend at local businesses, which grows the economy for everyone. but congress has not voted to raise minimum wage in seven years. seven years. and when it got a vote earlier this year, republicans voted no. that is why, since the first time i asked congress to give america a raise, 13 states, 21 cities, and the district of columbia have gone around congress to raise their worker'' wages. more companies are choosing to raise wages. a majority of small business owners support the gradual increase to $10.10 an hour. i have done what i can on my own by requiring federal contractors to pay workers at least $10.10. an hour. on friday, a coalition of citizens told republicans in congress to stop blocking a raise for millions of hard-working americans. because we believe that in america, nobody who works full-time should have to raise a family in poverty. i will keep up this fight until we win. because america deserves a raise right now. america should forever be a place where your hard work is rewarded. thanks, and have a great weekend. >> hello. i'm scott brown. weeks in theing 2014 campaign, americans are realizing how much is on the line, especially when it comes to national security. we are at a dangerous moment for our country and for our friends. it is starting to feel like the world is on fire. so many crises getting worse, so many adversaries gaining ground. in iraq and syria, and expense of territory larger the new england has now been lost to a terrorist army, isis. our closest ally in the middle east, israel, faced rocket attacks all summer long. in iran the extremist regime is still intent on building nuclear weapons. in ukraine, america's friends are dealing with belligerence from the russian army. in china, it is bullying neighbors while pressing ahead with a massive military buildup. so many challenges, so many threats and problems, and all at the same time. yet the obama administration seems only more confused as things actually unravel. this is what the world looks like without american leadership. so it is hardly surprising that national security is a central issue in this election. i believe that our state deserves an independent senator who will put party loyalty aside and put our national interest first, each and every time. rather than simply voting in supporting the failed policies of president obama over 99% of the time. like many republicans, i'm running to restore american leadership. how about start by protecting our own borders? isis has been threatening to send people here to kill americans unless demands are met. our porous border is an obvious pathway for terrorists to get in here, but in the administration there is more talk of amnesty by executive decree after the election. let's not kid ourselves. when enemies of our country are planning attacks and leaders in our country are planning amnesty, there is something wrong. we have to get serious regarding this nation's borders and enforcing this nation's laws. second, we need to reverse the direction and drawdown of our defense. we have seen a military reduction that is massive. everywhere, army, navy, air force, marines are affected. we are on track to have a small army then what was before the second world war. at a time when so much is expected of our military, we need to give it all the manpower, all the equipment, and all the support it needs to succeed in each every mission and come back safely. we owe that much at least to the people who defend us. we need to keep faith for those american veterans. the v.a. administration has been an outrageous failure under this administration. even as the federal government tries taking over our whole health care system, it cannot deliver on the most basic promised take care of our veterans. this election is a moment of accountability, not just at the v.a., but all across the federal government. and every part of america, people have deep worries about national security and border security. all this when so many are still worried about jobs and economic security. yet we are asked to believe this is the best america can do. i don't believe it. everything rides on our success. as you know, the president recently said that he's not on the -- i agree with him. that's your invitation to send a message to the house and senate that we will bring that state governed agenda to an end, and we will set this country on a better path. thank you for listening. >> next, c-span's coverage of campaign 2014 continues with the debate for the kansas senate. then a forum on the potential for online voting. captioned by the national captioning institute --www.ncicap.org-- [captions performed by national captioning institute] >> that is a good reason i think why we should not have people who are not legal migrants in this nation. >> i'm calling with regard to the catholic charities. everything that that young lady said was wrong. she does not know the procedure. she got me so mad that she doesn't know what she's talking about. >> i think justice, the reason justice is about is to punish hem. obviously congressman gutierrez is not worried about diseases coming to this country, like ebola. i think he should get off his emotional high horse and start to think a little rathsally about the rest of the citizens of the united states and our health and protecting us from these diseases that are prevalent in these other countries because their people were not inok lated. >> continue to let us know about the problems that you are watching. call us at 202-636-36 hookup hundred or send us a tweet. join the c-span conversation. like us on facebook, follow us n twitter. >> now a debate between the andidates in the u.s. senate kansas race. once considered to be a strong seat for republicans, the race has become more competitive after the withdrawal of candidate chad taylor. >> thank you. 're used to doing these in october. we're not used to competing with the playoffs. i'll introduce the candidates in alphabetical ordinary, and then we will proceed with opening statements. the first candidate i'm going to introduce is greg orman who earned a degree in economics at princeton and then began his successful career in business. mr. orman remains involved in business, including a firm he found in 2013. in addition, he also acted for many years in the american legion state program. our next candidate is mr. pat roberts, first elected in 1996, after serving eight terms in the u.s. house of representatives. senator roberts serving as a chairman during a pivotal time in american history. he currently serves on american finance, health, education & labor committees. welcome to both of our candidates. >> thank you. [applause] >> our opening statements will be three minutes for each candidate, and by virtue of a coin flip, greg orman will lead us off. >> good afternoon. i appreciate the opportunity to be here today. i want to thank all of you for taking time out of your busy schedules to be here as well. i spent my summers as a teenager watching my father run his own business just 10 miles from here in what was once stanley kansas. while i enjoyed spending time with my dad, the experience was really so much more than that. i learned the value of a dollar. i learned the value of hard work and treating your families well. more importantly, it stired in me a desire to run my own business one day. my father aonce said to me, one concrete action is better than a thousand good ideas. when i graduated from college i started the first good business idea i had. with the benefit of great partners, hard work, a little luck, i was fortunate to be able to grow that business to the oint where kansas city parmelite acquired it and asked me to run one of its businesses. i am proud of my track record in creating jobs and opportunities for employees. i'm the only candidate on the stage who has created a private sector job, who has had to deal with increasing government regulations, who knows what the burdenens of run-away health care costs are doing to small businesses, and who understands the problems -- the business of solving problems day in and day out. i think it uniquely qualifies me to serve in the united states senate. a body we all know is broken. we are sending the worst of both sides to washington. interests. they draw lines in the sand and refuse to cooperate. and we have serious problems to solve. from health care and higher education affordability to stagnant wages, living within our means as a country. if we don't address these issues, our standard of living, our status in the world, and the very existence of the middle class in america is at risk. i've tried both parties, and like a lot of kansasians, i've been disappointed. he will tell you president obama and harry reid are the problem. and he's half right. the other half is mitch mcconnell and -- both parties are failing kansas. that's why i'm running for senate as an independent. i'm a fiscally responsible businessman who believes we need head on. r problems i will focus on solutions, not party politics. i will stand up to the best of them because i am more interested in solving problems than scoring political points. >> mr. roberts. >> thank you, john. thank you to the cory johnson public policy for sponsoring this event. i appreciate the opportunity to be with you today. america is at a crossroads. now it is up to kansas. experience, integrity, someone who will be honest with you and tell you the good and the bad. someone guided by conservative principles. someone you know, who has worked and fought with you, who has won key battles. someone who has been and will continue to be your champion. or someone who tells you only what he thinks you want to hear. someone who won't tell you where he stands, who doesn't have a foundation or a compass. folks, my opponents will do nothing to roll back obama care. he will do nothing to stop barack obama or harry reid, the very people he has contributed to and voted for. in fact, a vote for greg orman is a vote to hand over the fight of the country to harry reid and barack obama. i have fought reid and obama and won. we have stopped their massive aviation fees, i fought the e.p.a. bureaucrats trying to strangle our agricultural industries. and my record of creating real kansas jobs was recognized this week as i earned the endorsement of the united chamber of cons commerce and the national federation of business. does anyone believe my opponent would stand up to president obama? he helped elect him. i tell you this, my first vote would be for a republican majority. we will end the gridlock in the united states senate. that is a vote for kansas. my opponent cannot and will not make that same promise. shooting believe in straight. he has arun out the clock. he can't answer the tough questions. if he can't answer them here, how can he answer them in washington. my friends, who can you trust to represent the best interest of your family, state, and country? i am the only candidate that has the experience, convictions, the ability to break harry reid's stranglehold on the u.s. senate and the courage to stop the obama agenda. i have been your champion. ladies and gentlemen, our republic, our way of life, our future is at a tipping point. just days ago president obama said this election is a referendum on his policies. he's right. a great for -- a vote for greg orman is a vote for president obama. a vote for roberts is a vote for america. >> there will be no specific rebuttal or response. the candidates have not seen the questions. they were prepared in advance by the council, focusing on business related issues. our question first, we'll begin with senator pat roberts. both personal and business related, regulatory uncertainty have shaken americans' confidence in the economy and their own financial futures. what do you believe is the best way to restore their faith in the country's ability to work its way out of this crisis? two minutes, mr. roberts. >> you hit the nail on the head. going corner to corner and border to border in kansas, and that's the number one issue. you can talk about obama care, but the main issue is that people have ploft faith in their government. we will restore faith in government when we restore the leadership of the united states snats. it was just -- i have a record f creating real jobs and a pro-growth economy. when the chamber looked at my record, they said, we're going to endorse you. then they went a little farther and said my opponent is a liberal democratic. that's what they said. not me. that's what they said after looking at our records. i have a record of creating real kansas jobs. i'm endorsed by the u.s. chamber of commerce, along with the farm groups, kansas right to life, n.r.a., about 70% of the kansas legislature on both sides and i m proud of those endorsements. will be the pro-job, pro-growth candidate. >> i think we can all agree that government is broken. i've traveled throughout the state, and what i've heard in places like harvey county is that we need certainty around things like transportation funding. until we get certainty around transportation funding, they feel like they are at a standstill in terms of what they can do in those parts of the state. i've talked to folks in western kansas who say "until we get clarity around immigration policy, we're putting on hold plans to build our facilities because we don't want to find ourselves in an environment where an overallly burdensome immigration policy ends up decimating our industries." i hear senator roberts talk about the farm community, and yet a number of his programs would decimate farming in the state of kansas. i do think we need to get things working again in washington. i think we need to get to the point where businesses have confidence to take their dollars and reinvest them in the united states. one thing i promoted is what we small o as a -- as our business plan. we talked about a number of things we need to do to make it easier for small business. first of all, we need to relax the dotd -- dodd-frank regulations. these weren't the banks responsible for bringing our country to the brink of collapse, yet owes regulations are stopping them. there are real policies that will help get our economy back on track. >> let's talk transportation. federal fund transportation projects could be delayed and leaving completion in doubt. what solutions would you impose to ensure so that federal funds are available to meet transportation needs, including revenue strategies you might have. mr. orman? >> that's a great question. in fact, it is consistent with what i've heard as i've traveled the state. many places say they are at a stopping point because they don't have certainty there is a long-term funding source. as all you people in the awed yention who run businesses know, if you are going to invest in a long life asset over time, you need certainty in the funding source, otherwise you shouldn't start the project in the first place if you don't know you can finish t. i think there are lots of places in our budget that we can find dollars. i think it is harder for the average american to get ahead, and yet paradoxically, easier to do nothing with your life. i think we need to look at promoting pathways to work and look at things like transportation in this country. >> senator roberts. >> one thing is for sure, i don't think we need to raise taxes on the gas tax. i think that would be a very bad thing to do with regard to the economy, and a bad thing to do for people who earn their living and have to travel great distances, more especially in our rural small town areas. and a bad idea for low income folks. there is a move by the party that he would choose with regard to his contribution to those of you who voted for him, that would increase the gas tax. i think at the present time we have to take it out of general revenues. it's been extended six months. we need certainty so we can do this. we have done it before. there are four major transportation projects, just talking to mike over there, that we have done this as a cooperative effort in this area. we need to continue that because this means jobs. that's why we worked so terribly i'm for the hy pipeline. he is not for the pipeline. the pipeline would be 60,000 jobs in terms of infrastructure. the basic problem, yes, is we have to replenish the highway trust fund. right now it is general funding. i don't know if you can just put other programs together and say we're going to give it to the highway trust fund. i think we need dedicated funds over the long hall that we can rely on. >> what are your views on our national tax policy and what would you do to improve the current system? senator roberts, we'll start with you. >> one thing is for sure, you won't have tax reform by harry reid leading the senate. that hasn't happened despite numerous hearings within the finance committee. so you have to change leadership right off the bat. the tax code has to be lower, flatter, fairer. that is why, again, when they took a look at tax reform and my activity with regard to tax reform, number one, i saved the aviation industry from user fees and taxes that were ill advised. 25,000 jobs in wichita, $3.5 billion to the economy. you can do that. there are ways you don't want to pick and choose with regard to the obama ad manage mrgs on who you are going to tax. that is why i gotten endorsed by the u.s. chamber of commerce and the national federation of independent business. as they go down your record and say "what would you do for tax reform to make taxes lower, fairer, simpler, and flatter?" they endorse me. they did not endorse my opponent. i think he has to come clean with kansas voters. first and second amendment, keystone pipeline, amnesty, obama care. it proves beyond any reasonable measure that he is a liberal democratic by word and by deed. that's not going to help tax reform. >> mr. orman. >> i've often said we don't live in the information anymore as much as we live in the misinformation age. i think what you just heard from mr. roberts is a lot of misinformation he would like you to believe when you make your decision. the fact is senator roberts and i actually had the same position on things like gun control and how to handle the administration. he just changed that record now because he thinks it's a better way to get elected. as for the tax code, i believe the corporate tax code needs to be significantly streamlined. we need to reduce overall rates and we need to move to a rritory torle -- territorial tax code. it is the tax code the majority of our competitors have. they have modified their tax code for a world that includes global zation and the internet, we have not, and as a result, it hampers our business and competitiveness. on a personal note, i have often said we need to do the same thing. we should not use the tax code to pick winners and losers. we should streamline the tax code, lower overall rates, and ultimately, if someone has a project that they want to spend money on, they should have to argue for that project in the light of the budgeting process and not the darkness of the tax code. that's what we do today. we spend considerably more money in the tax code that really needs to have transparancy brought to it. >> concern about domestic terrorism has aplaced a spotlight on the visa program. in kansas hundreds of h-1 visas have been issued to fill high-tech jobs for which there are not enough american workers. a lot of states are considering their own laws which would almost certainly leave you with a patchwork of policies which are inconsistent. what is your opinion on the need to fulfill these job shortages including changes you would impose in u.s. law and policies toward immigration. mr. orman, you will lead us off with this one. >> first, i would like to make sure everyone is clear on what my immigration policy is. i have said from the beginning of i am not a supporter amnesty. i don't believe people who are ere i will lilly should have a -- here illegally should have a -- what we have here today is that washington doesn't work. both sides have had significant periods of time when they controlled all houses of congress and the presidency and neither party has done anything about it. what do i think needs to be done? i think our policy needs to be tough, practical, and fair. by tough, i think we need to secure the borders. if we double the number of border security agents that we have there in the last ta 10 years? i think we need to keep that commitment. i think we need to keep some of the technology plans. i think as technology advances, there is more of a likelihood it will be more successful, but it also has to be practical. we are not going to find and send home 11.5 million people. nor would it be advisible. senator, the part of the state that you profess to care about would be decimated by that. the meat industry, the service industry in the state would go away. i think if you are here on an undocumented agency you should have to register with i.c.e., you should have to pay a small fine, as anot acknowledgement that you have broken a law, you should have to hold down a job, pay taxes, obey our laws, and then i think you should be able to stay here and work. >> mr. roberts? >> my opponent says he's not for amnesty. at the last debate, he said he was for amnesty. now that's not shooting straight. here's the problem with immigration. the house has sent over to the senate a simple bill. it says we should treat every country like we treat mexico and canada. if there is an illegal immigrant, sorry. it is illegal. go back. the problem was when the president said a couple years ago, if you are 16 and younger, you can stay. central american countries sent a flood of refugees. a humanitarian disaster. the first thing we need to do is secure the border. that has a border secure park that is effective, and it has a change for that law. the senate is where good bills go to die. harry reid will not allow a vote. he is using the immigration issue as a political tool. we're not going to get anywhere with immigration or all the visa programs we're talking about until we secure the border first, and we're not going to get anywhere unless we change that law. and we're not going to get anywhere unless we have a republican majority in the senate of the united states. we keep hearing about this gridlock. we will end the gridlock with a republican majority. this is simple. the road to a republican majority is to get the senate answers on -- et a road run right through kansas. a vote for pat roberts is a vote for a republican majority. so end the gridlock. a vote for greg orman is a vote to continue the barack obama genda. > what is your policy on energy? >> i say yes to the fossil fuels, less yes to the pipeline, and think about what would happen if we actually opened up that pipeline? less energy dependent on mr. putin. energy is the driver of our whole economy. open up the pipeline. export the natural gas to europe. quit declaring war on our oil and depass industries. that is what happens under the obama administration, and that is exactly what i -- what a vote for greg orman would be. to hand the energy industry bhack to barack obama and harry reid. a couple days ago the president agreed that this whole election is a referendum on his policies and program, and that's true. that's what this is all about. a vote for greg orman is to continue the barack obama policies. a vote for pat roberts is to stop them and get our energy ndustry back on track. -- i believe they have been far too partisan for far too long. the senator can say that over and over again, but it doesn't make it so. i'm the only person on the stage that has any experience in the energy industry. i ran a natural gas exploration and production company that produced natural gas out of coal and methane. that industry was the first industry to use horizontal drilling to get at our natural gas resources, which we all know is a big part of the energy renaissance in the united states today. i believe we can have an energy renaissance here in the united states if we look at things like wind energy. we need to look at large scale storage for energy so we can turn wind energy into an economic boon for kansas. i believe we need to support oil and gas development. i believe we need to support a migration to some of these cleaner technologies as part of our portfolio. and as someone who used to work at an electric company, i think we need to look at promoting fuels like cng and lng. if you look at the grid in kansas city, there is a lot of excess energy we can use to power those at night. i think there is a lot to look at in the energy sector, and i think we need to pursue it. >> most people believe the -- will have a shortfall. how will this impact employees, employers scomprks workforce democrats? what are your views on how and when the social security program should be reformed? mr. orman, we'll start with you. >> what i said throughout the campaign consistently is that for those people nearing retirement, for those people over the age of 50 that have planned their retirement around social security, i don't believe we need to make any changes. for people younger -- younger. for people -- i think there is evidence to suggest we can help create longevity in the social security trust fund by getting our checks a little later. the other thing we need to address is the social security disability system. right now 20 cents out of every dollar that social security spends is spent on disability payments. the number of people on social security has gone up over six million since the turn of the century. most of those people have musculoskeletal disorders that are hard to determine if they are actually occurring. i think the social security program is something that needs to be protected, but right now i think it is being abused. i think one way we can project longevity of social security is to make sure other components of the program, like disabilities program, are being used roperly. >> the financial security program has been financially secure to 2034. as you know, social security is the third rail of politics. the problem is, both parties really have not touched that. there is not a social security box behind the speaker's chair or behind the acting presiding officer where the money is. the money is taken out of the general trade. i think we have to get the economy going, and if we get the ideas --and pro-growth may i repeat the senate is in gridlock and it's in one person's hands, that's harry reid. he only allowed the democrats seven amendments, because he doesn't want to vote on the tough issues. social security would be one of them. i want to go back to this situation that my opponent states he will not tell you where he stands or who he will caucus with. he's not going to go for mitch mcconnell. we understand that. now he says he's not going to vote for harry reid. that's going to be of interest to harry reid, because he gave money to harry reid. he also voted for the president and gave money to the president. he ran as a democratic in 2008. he gave money to hillary clinton. by deed and by campaign donation, he's a democrat. who will he vote for to lead the senate? or will he vote for anybody? just hand up a little sign and say, i'm present, i'm here? who will he caucus on? he's just one independent who's going to go and look for people who have good ideas. hat's rather ridiculous. >> our next question has to do with the health care act. do you favor repeal or repair of the a.c.a.? if repair, how would you repair? how would you start? mr. roberts, i'll let you start with this. >> i think we need to repeal. just this month more people losing their insurance, the doctor-patient relationship is threatened. we have rationing and waiting under obama care. taxes with obama care. $1 trillion. many people are not even aware of the taxes that are involved until obama care. i voted against obama care. i think it should be repealed, but i also think it should be replaced. i also think we should have a health care system that moves away from the goals of this administration. barack obama, harry reid, nancy pelosi all said obama care is the first step toward national health insurance. we don't want and don't need national health insurance. we need a system that is market driven. we have health savings accounts. a of things have to be restored. it is that doctor-patient relationship that really has to be restored. so i think we have to repeal it, we have to replace it. we have a considerable number of republican ideas to s -- ideas to do that, first we have to win the senate. harry reid will not -- the house has passed 350 bills. as i said, the senate is the place where good bills go to die. so all of the repeal and

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