i was intrigued by senator hatch's questioning you on the citizens united case, really an extraordinary case characterized by what justice stevens had to say in dissent. you have congress constructing a detailed record. 100,000 pages, and congress has structured mccain/feingold based upon the standards set by the supreme court in austin versus michigan chamber of commerce, and then as justice stevens noted, the court pulled the rug out from congress, affirming the

constitutionality that had been in effect for 100 years, and as justice stevens conclude showing, quote, great disrespect for aco-equal branch. i will try to make my questions as pointed as i can. to the extent that you can answer them briefly, i'd appreciate it. we don't have a whole lot of ti time. what is your thinking on the disrespect for theongress when we take a supreme court decision and we structure a law based on those standards with the customary deference due congress on fact-finding. isn't that really what justice stevens calls it, disrespect? >> well, senator specter, as you know, i argued that case. as you know, i filed briefs on

behalf of the united states in that case, and in those briefs the government made a similar kind of argument, that great deference was due to congress in the creation of a quite voluminous -- >> i know what you've said. you've talked about that a great deal. my question i very pointed. wasn't that disrespect fful? >> senator specter, as i suggested before, en i walked up to that podium as citizens united, i thought we had extremely strong arguments. i was acting as an advocate, of course, but i -- i thought we had very strong arguments. >> i'm going to move on. i know all of that. the point that i am trying to find out from you is what deference you would show to congressional fact-finding. >> well, may i -- may i try

again because i think that the answer to that is great deference to congressional fact-finding. >> well, was it disrespectful or not? >> well, again, i don't want to characterize what the supreme court did. >> i want to move on. if you don't want to characterize, i want to ask my next question. in u.s. versus morrison involving the issue of violence against women we had a mountain of evidence assembled, as justice s 0 ter pointed out in dissent, and the court rejected congressional findings because of our, quote, method of reasoning. you haven't crossed the street to the supreme court yetu but do you think there's some unique endowment when nominees leave this room and walk across the

street to have a method of reasoning which is supior to congressional method of reasoning so that we can -- so that a court can disgard voluminous records because of our method of reasoning? >> to the contrary, senator specter. i think it's extremely iortant for judges to realize that there is a kind of reasoning and a kind of development of factual material more particularly that goes on in congress. >> then you disagree with chief justice rehnquist. >> i think that it's -- that it's very important for the courts to defer to congressional fact-finding, understanding that the courts have no and the to do fact-finding, are not -- would not legitimately, could not legitimately do fact-finding. >> well, i know all of that, but what do you think of our method of reasoning? >> as i -- as i saidarlier, senator specter, i have enormous respect for the legislative process, and part that have respect comes from working in

the white house and working with congress on a great many pieces of legislation. >> i'm going to move on to my next question. justice scalia attacked the stan dand of congruence and proportionality saying that this court is acting as congress' task master. the court is checking on congressional homework to make sure that it is identified sufficient constitutional violations to make its remedy constitutnal and proportional. i've picked out three instances. citizens united where justice stevens says great disrespect nd the attack by rehnquist on our method of reasoning and

scalia talking about proportionality and congruence, and that brings me to the question for you where you have been very explicit in the now famous university of chicago "law review" article about dealing with substantive issues. we had the standard for determining constitutionality under the commerce clause from maryland versus wertz, 1968. justice harlan who acquired the standard where they have a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. in the city of bernie case,

1997, the court pulled out of thin air a new test, and the test is whether the legislation is pportiona and congruent, and that is the test which justice scalia so roundly criticized saying it was flabby and it was an excuse for a judicial legislation. now, would you take harlas test as opposed to the congruence and proportionality test. >> senator specter, justice scalia is not the only person who has been critical of the test. a number of people have noted that the test, which is, of course, a test relating to congress' power to legislate under section 5 of the 14th

amendment, that the test has led to some apparently inconsistent results in different cases so you have a case like garrett on the one hand and a case like tennessee versus land on the other >> i know those cases very well. 5-4. o'connor went the other way, but they used proportionate congruity. what i want to know from you is whether you think that is an appropriate standarto replace the rational basis test of wertz. >> well, it is the standard of the court right now. it is precedent, and it is entitled to weight as precedent. now as you very well know, senator specter, there are times when the court decides that precedent is unworkable. it just -- it produces a set of chaotic results.

>> what was unworkable about the wertz test for a reasonable basis contrasted with congruent and proportional which nobody understands? >> i wasn't -- i wasn't suggesting that the wertz test was unworkable. i think that the question going forward, and it is a question, i'm not stating any conclusion on it, but i think that something that juste scalia and others are thinking about is whether the congruent and proportionality test is workable or whether it produces such chaotic results and gives -- >> do you think it is workable? >> senator specter, i've -- i've not really delved into the question in the way i would want to as a judge reading all the briefs, listening to the arguments, thinking through the issues from both sides, but i do know that the court needs -- that congress needs very clear guidance in this area. it's not fair to congress to keep on moving the goal posts. it's not fair say, oh, well, you know, i you do is, this time, it will be objection but

if you do that the next time it won't, so do i think -- >> ms. kagan, this is an issue we discussed weeks ago. this is an issue i raised in a series of letters which i'll put into the record. this is a standard which has been around for a long time, and you know a lot of law. senator grassley established that. is it a satisfactory test? let me move on to another question. i don't think i'm making to much progress. one of the grave concerns which has risen out of the -- out of recent confirmation proceedings with chief justice roberts and justice alito, and i've spoken about this subject extensively on the floor citing how emphatic chief justice roberts and justice alito were on deferring to congress. it's a legislative function. it's not a judicial function,

they say. if you engage in fact-finding, if the court does that, the court is transgressing into the congressional area. and then you have a case like citizens united and others, and you have the declarations by the chief justice of modesty. you've adopt that had standard. his more emphatic citizen was not to jolt the system. is there any way you can look at citizens united oter than being aremendous jolt to the system? >> senator specter, as an advocate this is one i've taken a strong view on which is that it was a jolt to the system, that there were -- there was a great deal of reliance interests involved, that many states had passed pieces of legislation in reliance upon austin, that congress had passed legislation after accumulating a voluminous

record. >> ms. kagan, you have said that many times today about your advocacy in the case, but what i want to know is as a prospective justice, do you consider it a jolt to the system? >> senator specter, it's a little bit to take off the advocate's hat and put on the judge's hat, and one of the things that i think is important is that i appreciate the dference between the two, and i have been an advocate with respec to citizens united, and that's the way i came to the case. it's the way i approached the case. i hope that i did a good and effective job in it, and i believed what i was saying, but it's a different role and it's a different thought process, and the role and the thought process that one would use as a judge. >> well, what i'm interested is what you should use as a judge,

but let me move on again. there's a lot of concern in the senate about the value of these hearings when we have the kinds of declarations at that table, your predecessor nominees on deference to congress, and then there's none given, not toolt the system and be modest. there's a 180-degree u-turn, and we wonder what we can do about it. judicial independence is the bull wart of this republican and it's our most highly prized value and while the congress and executive branch fumbled on segregation for centuries the court came along and acted on the subject in a progressive way, a very progressive way and

a very activistic way. nobody challenges it on either side of the aisle today, so we we willy have the highest respect for judicial independence, but what do we do when we confirm nominees and they don't follow through on very flat commitments? this is not just my view. the view of richard posner, very tough in his book "how judges think" and this is what he has to say about the subject i'm addre addressing. quote, less than two years after his confirmation, referring to chief justice roberts, he demonstrated by his judicial votes and opinions that he aspires to make changes in significan areas of constitutioal law. the tension between what he said at his confirmation hearing and what he is doing as a justice is

a blow to roberts' reputation for candor and furs debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings, close quote. now, we're trying to raise the level of that currency. i don't believe you want to make a comment about that, but if you do you're welcome to. >> senator specter, i assume the good faith of everybody who sits in this chair, and i -- there's no reason in my mind to think otherwise. >> madam solicitor general, i agree with you as to good faith and raising these issues in a series of speeches on the floor i have plicitly sailed i'm not challenging the good faith of chief justice roberts or justice

alito, and i understand the difference between sittinat that witness box and deciding a case in controversy that comes before the court, but that still leaves us with a problem. the best answer that a group of senators, and we talk about this with some frequency, to come up with is to put some sunlight on the court. as i said in my opening statement the disinfectant that brandeis talked about, sunlight, the best disinfectant. it's not quite a disinfectant, but i think if the public understood what was happening there would be a strong temptation to stand by what had been said in these confirmation hearings. and i was really glad to hear you say in response to senator ole's questions that you favor televising the supreme court. i think we may be getting

closer. i've been at it for more than a decade with a whole series of bills, and recently the juciary committee voted out a bill to televise the supreme court 13-6, and we did it a couple of years ago 12-6, and i know it's going to be something the court is going to have to come to perhaps on its own, but the public views are increasing. a poll which was releasedby c-span just yesterday shows that 63% of the american people favor televising the courts, and amng the 37% who opposed, when they were told that people can only be in the supreme court chamber for about three minutes which

accommodates only a couple hundred people, 60% of those 37% thught the court should be televised which brings the total to about 85%. i know we don't run the court by public opinion polls, but isn't that fairly weighty as to what the american people would like to -- like to know? we talk about a living constitution and about tte constitution expressing the changing values of our society, as cardoza said so eloquently in palco. if the people of this country knew that the court was deciding all of the cutting edge questions, a woman's right to choose, who lives, death penalty cases for juvenile, who dies, affirmative action, who gets into college, freedom of speech and religion, the american people rsponded in a poll to

citizens united, 85% thought it was a terrible decision. 95% thought that corporations made contributions to influence legislators. one of the gat problems of the skepticism of the american people about congress, and is it heavy out there. it's open season on congress because of so much of what people think about. well, coming back to the court, wouldn't it be -- well, you've already said you're in favor of televising the court, but wouldn't televising the court and information as to what the court does have an impact on the values which are reflected in the american people? >> i do think, senator specter, it would be a good thing for many perspectives, and i would hope to --if i'm fortunate enough to be confirmed, to

engage with the other supreme court justices about that question. i think it's always a good thing when people understand more about government, rather than less, and certainly the supreme court is an important institution and one that the american citizenry has every right to know about and understand, and i also think that it would be a good thing for the court itself, that that greater understanding of the court i think would benefit from its own advantage. from all perspectives i think that televisingwould be a good idea. i realize some justices have views to the contrary, and would want to hearhose views and to think about those views but that's sort of my going in thought. >> i will put into the record what the justices have h to say. i've questioned almost everybody about this subject, and i've had the opportunity to question all of the peoplen the court now,

but there's a lot -- there are a lot of those who have been favorably disposed to it or at least acknowledge its inevitability and remind them if they all appeared on television this year on c-span, and many of them have appeared over the years selling books and being -- in a variety of situations. >> it means i'd have to get my hair done more often, senator specter. >> let me commend you -- let me commend you on that last comment, and i say that seriously. you have shown a really admiral sense of humor, and i think that is really important, and as senator schumer said yesterday we're looking for somebody who can moderate the court, and a

little humor would do them a lot of good. in the case of richmond newspapers versus virginia, the supre court said that a public pril belongs not only to the accused but to the public and press as well. people now acquire infoation on court procedures chiefly through the print and electroni media. that's a 1980 decision which upheld the newspapers' rights to be inourt and observe a trial. isn't that some pretty solid precedent to say that as a matter of law the court ought to have television to have public access because that's the way most people get their information these days? >> that's very interesting, senator specter. i had never considered the relevance of that case to the -- to the televising question, but i think that certainly the

princies in that case, the values that case are about -- about the public's ability to know how our governmental institutions work which is what's critical to this issue as well. >> let me move on to another subject which i consider to be of great importance, and that is the agenda of the court, the number of cases the court hears. in 1886 the court decided 451 cases. in 1987, a little more than 20 years ago, 146 cases. in 2006, 67. 2007, 75, 2008 -- 2006, 68, 200767, 200875, 2009, finishing

yesterday, 73. the court leaves a lot of circuit splits unresolved. the court does not hear a great many critical questions, and i discussed this with you in our meeting severa weeks ago and wrote you about it as well. and that is the case involving the terror surveillance program. on the foreign intelligence surveillance act which arguably poses the sharpest conflict between the congress legislating fisa and the president asserting article ii powers. the federal court in detroit found the terror surveillance program unconstitutional. the sixth circuit duck it had 2-1 with a very strong dissent on standing grounds which is traditionally a way of avoiding a case and the supreme court

denied cert. congress has the authority to tell the court what cases to take. we've legislated givingou discretionary authority, but in cases, many cases, illustratively the flack burning case and mccain/feingold and federal labor standards act, we directed the court to -- to hear the case, so i think it's fair to ask if what you would have done, not how you would decide that case, but whether you would take the case. had you been on the supreme court, would you have granted to grant cert in the terror surveillance program case? >> senator specter, justify might to your first point which was the point about the court's declining docket, i do generally agree with that. i clerked on the court in 1987 which w pretty much at the high point of what the court was

doing, about 140 cases a year, and it is a bit of a mystery why it's declined so precipitously, and i do agree with yo that there do seem to be more circuit conflicts and other matters of vital national significance >> the other issue i raised was much re important and there are only two minutes left. >> okay. >> senator specter, the issue abo the tsp and the constitutionality of the tsp is i tnk one of the kinds of issues i previously set out three categories where the court might gra cert. one which is circuit conflicts and the other is an invalidation of an act of congress and the third is some issue of vital national imrtance. in a case where the executive branch is determinedor is

alleged, excuse knew, is alleged to be violating some congressional command, it is i think one of the kinds of cases that theourt typically should take. now, there is this case the complexity that there is a potential jurisdictional bar and, of course, the court typically decides -- >> what jurisdictional bar? >> well, the question whether somebody has standing? so often the court will decline to take a case when there's a significant jurisdictional issue because the court will thin well, if we take this case we might hold that we don't have jurisdiction. >> well, they can take the case and say they don't have jurisdiction. >> yes, you're exactly right, and i'm just suggesting that that's often a reason why the court doesn't take a case. >> i don't care what often a reason. here we have a specific case. you've had a lot of notice. it's in concrete.

would you have granted to vote cert? >> senator specter, i can just tell you there was this jurisdictional issue. the jurisdictional issuetself was an important one. it was an important one becaus ho-- how is a person going to know whether -- >> the sixth circuit decided there was no standing after they heard the case. well, my time is almost up. ten seconds, and i was 13 seconds over last time. ere a couple of other case, the holocaust survivors and the 9/11 survivors victims which i'll come back to when i have a green light. >> thank you very much, senator specter, and senator graham. >> thank you, mr. chairman. >> and then we will, ju for planning purposes, senator graham, we'll go for you. >> okay. >> and then we'll go to senator schumer and then we'll take a short break. does that work for -- >> that's good. >> okay. >> senator graham. it's all yours.

>> thank you. >> so far has the hearings been phat you thought they would be? >> i'm not sure i had -- i'm not sure i exactly pictured it. >> let's try to go back in time and z say you're watching these hearings and you are critical of the way the senate conducted these hearings. are we improving or going backward? and are you doing your part? >> i think that you've been exercising your constitutional responsibilities extremely well. >> so it's all those other guys that suck, not us. >> i don't think -- >> it's all those other witnesses that were too cagey. all right. fair enough. now, do you know greg craig? >> will say one thing, senator graham. >> please. >> it just feels a lot different from here than it felt from back

there. >> i bet it does. >> it feels a lot different when you're the nominee, too, doesn't it? and if it didn't, i'd really be worried about it. do you know greg craig? >> i do. >> who is he? >> he was previously the will counsel to the president. >> do you know him well, pretty well? >> you know, okay, yeah. >> he's a good guy. i'm not trying to trick you. >> pretty well. >> i don't have anything against greg. i like him fine. he said may 16th that you -- that you're largely a progressive in the mold o obama himself. do you agree with that? >> senator graham, you know, in terms of my political view, i've been a democrat all my life i've worked for two democratic presidents, and those are, you know, that's -- that's what my political views are. >> and would you consider them -- your political views progressive?

>> my political views are generally progressive, generally -- >> compared to mine for sure. okay. that's fine. there's no harm in that, and that makes the hearings a little more interesting. i would be shocked if president obama did not pick someone that shared his general view of the law and life and elections have consequences. do you agree with that? election dozen have consequences. >> it would be hard to disagree that elections have consequences. >> and one of the consequences is a president gets to fill a nomination to the supreme court. that's a power the president has, right? >> yes, sir. >> so it would be okay from your point of view if a conservative president picked someone in the mold of a conservative person. >> i would expect that. >> there we go, good. we'll remember that, okay. we may have a chance to bring ose words back. do you know miguel estrade snarks. >> i do. >> how do you know him?

>> so miguel and i were classmates at harvard law school, but we were more than classmates at harvard law school. harvard law school has a w of -- has required seating in the first year, and miguel and i were -- >> trust me, i don't know, because i never could have gotten there but i trust you. >> miguel and i were required to sit next to each other in every single class in the first year, and can i tell you miguel takes extraordinary notes, so it's great. every time you missed something in class, you could just kind of look over, but that's how i know miguel and we've been good friends ever since. >> what's your general opinion of his legal abilities and his character? >> i think shea great lawyer and a great human being. >> he wrote a letter on your behalf. have you had a cnce to read it? >> i did. >> can i read part of it? >> i write in support of elena kagan's confirmation as associate justice of the supreme court of the united states.

i've known elena for 27 years. we met as first-year law students at harvard where were assigned seats next to each other. see, your consistent for all our classes. we were later colleagues as editors of the "law review" and as law clerks to different supreme court justices and we have been friends since. elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree withous without being disagreeable. she calm under fire and mature and liberate in her judgments. elena would also bring to the court a wealth of experiencet the highest levels of our government and of okay demmics, including teaching at the university of chicago serving as dean of the harvard law school and experience at the white house and as current solicitor general of the united states. if such a person who has been -- who has demonstrated great intellect, high accomplishments and upright life is not easily

confirmable, i fear we will have reached a point where no capable person would readily accept a noination for judicial service. what do you think about those comments? >> senator graham, i think that those comments reflect what an extraordinary human being miguel estrada is, and i was deeply touched when i read that letter, deeply grateful to him, of course, and all the nice things that he said about me i would say back about him double. >> well, i'm gog to give you that chance because miguel estrada, as most people know, not everyone, was nominated by president bush to the supreme court and never made it. i think it's one of the great tragedies of the country that he was never able to sit on an appellate court, but that's the past, and i do think it reflects well of him that he would say such things about you and quite frankly i think it reflects well of you, that you would say such things about him.

in your opinion, ms. kagan, is he qualified to sit as an pellate judge? >> he's qualified to sit as an appellate judge and qualified to sit as a supreme court justice. >> well, your stock really went up with me. so, what i would like you to do since might one day be on the court yourself is to, if you don't mind at my request, write a letter to me short or as long as you like it about miguel estrada. would you be willing to do that for me? >> i would be pleased to do that. >> let's talk about the war. as solicitor general you represent the united states for the supreme court, right? >> i do. >> let's shift gears, and you had to get confirmed before this body for that job. do you remember that confirmation proses? >> i do. >> do you rememer me? >> i do remember you. >> oh, okay, good. >> do you remember when i asked you are we at war, and you said -- >> yes. >> okay. >> now that is a bold statement

to make but an accurate statement. what does it -- who are we at war with and what does tha mean in terms of this nation's legal policy? >> well, we're at war with al qaeda and the taliban and under the aumf the president has a wide range of authorities with respect to those groups. >> now, under domestic criminal law, as we know it today, is there any provisions in our domestic criminal law that would allow you to hold someone indefinitely without trial? >> not that i know of, senator graham. >> and quite frankly there shouldn't be, should there? >> no, sir. now under the law -- >> i feel as though we're doing this again. >> we are. >> we're sort doing an instant replay. >> yes, we're going to do this again and i hope we get the same answers. that will help you a lot if we do. and if we don't, we'll have a problem. under the law of armed onflict, is it permissible to hold an enemy combatant as long as the

holding force dream them to be dangerous? >> under the traditional law of war it is permissible to hold an enemy combatant until the end of hostilities, and the idea behind that is thathe enemy combatant not be enabled to return to the battlefield. >> that's a good summary. the problem with this war is there will never be a definable end to hoslities also, there? >> that is exactly the problem, senator graham, and hamdi very briefly discussed this problem, the court in hamdi, suggesting that perhaps if this war was so different from the traditional law of war that there might need to be alternative procedures to put in place. for example, one could imagine a system in which because of the duration of this war it was necessary to ensure the enemy combatants continuing dangerousness. that is a question that i think has not been answered by the court. >> do you believe it would serve

this country well if the congress tried to work with the executive branch to provide answers to that question and others? >> well, senator graham, let me take the question and make it into a legal question because i think it's directly relevant under the youngstown analysis whether congress and the president do work together. >> when the two are together, the courts find more power, not less, right? >> th is correct. >> now you're still solicitor general of the united ates. from that point of view, would you urge this congress to work with the executive branch to create statutes to help the courts better answer these questions? >> well, senator graham, i think i don't want to talk as solicitor geral as to legal policy here. >> okay. >> but i will say -- >> go ahead. >> --as to the legal matter, that it makes a difference whether the congress and the president work togher, that

courts should take note of that, that courts should -- when that occurs, the action is -- ought to be given the most deference and that there's a reason for that. >> right. >> it's because the courts are basically saying congress and the president have come together. congress and the president have agreed upon a policy jointly and there should be deference in those circumstances. >> are you familiar with judge lamberth and judge hogan? >> i don't know either of them. i know who they are. >> fair enough. >> they are d.c. judges, federal district court judges who are hearing habeas appeals from gitmo detainees, and i'll provide you some of the comments they have made. it is unfortunate, according to judge hogan, it's unfortunate in my view that the legislative branch of the government and the executive branch have not moved more strongly to provide uniform clear rules and laws for handling these cases. and i've got other quotes that i

will provide you. what i'm trying to do here is lay the foundation for the idea that our laws thatexist today do not recognize the dilemma the country faces. the administration has determined that 48 people held at gitmo are too dangerous to let go but are not going to be subject to normal criminal proceedings. in other words,we believe the evidence suggests they are members of al qaeda. they have all gone before a habeas judge, and the judge agreed, but they are never going to be tried in a traditional fashion. is the administration's decision in your opinion consistent with power under the law of war to do that? >> well, as solicitor general, senator graham, i have argued the position, that this is fully legal. >> and i'm aware of that very

well. you've argued that this president and all future presidents has the ability to detain an enemy combatant with sufficient process if the executive branch believes that they are dangerous and not require them to go through a normal criminal trial. and what we have to do is find out what that process would be, this hybrid system. you argued against expanding habeas rights to baghram detainees held in afghanistan, is that correct? >> i did, senator graham. >> as a matter of fact, you won. >> in the -- >> in the d.c. circuit. >> initially. >> you probably won't be able to hear that case if it comes to the supreme court, will you? >> that's correct. >> that's good, because we can take openly about it. >> if i could just say, in general the solicitor general only signs her name to brie in the supreme court. >> right. >> authorizes appeal but does not sign appellate briefs, but i determined that i should be the counsel of record on that brief because i thought that the united states' interests were so strong in that case based on

what the department of defense told our office. >> well, i want every coservative lega scholar and commentator to know that you did an excellent job in my view of representing the united states when it came to that case, and you said previously that the first person you have to convince when you make -- when you submit a brief or take a case on is yourself, is that correct? >> i said that in reference to the cases that i argued specifically. >> mm-hmm. >> of course, when i -- when i write briefs, i write -- or when i sign briefs, when i'm counsel of record on briefs, i'm taking the position of the united states, that i'm representing the position that i believe and that our office believes is most consistent with the long-term interests of the united states government. >> have you convinces yourself as well as representing the united states government it would be a disaster for the war

effort if federal judges could intervene and require the release of people in detenti in afghanistan under military control? >> senator graham, i chose to put my name on that brief as i said which is a very, very rare thing in the appellate courts because i believed that there were very significant united %-ates -- >> well, let me read a quote. the federal crt should not become the vehicle by which the executive is forced to choose between two intolerable options, submitting to intrusivend harmful discovery or releasing a dangerous detainee. do you stand by that statement? >> senator graham, can i ask whether that statemt comes from that brief? >> yes, it does. >> no, i -- that statement is my best understanding of the very significant interests of the united states government in that case which we tried forcefully to present to the court, and as

you said before, the d.c. circuit, a very mixed panel of the d.c. circuit. >> right. >> upheld our argument. >> you also said the courts of the united states have never entertained habeas lawsuits filed by enemy forces detained in war zones. if courts are ever to take that radical step, they should do so only with the explicit blessing by statute. do you stand by that? >> anything that is in that brief i stand by as the appropriate position of the united states government. >> fair enough. >> the brief needs to be read by your supporters and your critics because some of your supporters are going to be unnerved by it nd some of your critics may like what's in there i'm here to say, from my point view, that this area of your legal life, you rresented the united states well, and i hope that congress will rise to the occasion working with the executive to ovide some clarity so that we'll be able to find a way to fight this war within our value system and

recognize the difference between fighting a war and fighting crime. the battlefield, you told me during our previous discussions, that the battlefield in this war is the entire world, that if someone were called in the philippines who is a supporter of al qaeda and they were captured in the philippines, they would be subject to enemy combatant determination. do you still agree with that? >> senator, i was speaking there as a legal policy matter representing the position of the obama administration. that's obviously a very different role as the advocate role that i played is also a different role. >> let's just stop there. when you were an advocate, you had no problem advocating that position. >> there are certain parts of that that i -- that i think that we have not addressed in the united states government. so the united states government

has argued that the battled ed extends beyond afghanistan and iraq. >> the battlefield and the hearts, the minds and wherever al qaeda may reside. do you believe that is a consistent statent with obama policy? >> senator graham, when i was here before you asked if i agree would the attorney general and i said that it would be bad to disagree with the attorney general given my position. i still agree with the attorney general. >> but you strike me as the kind of person that if you thought he was wrong, you'd say so even though it may cost you your job. >> i certainly would tell him if i thoughhe was wrong. >> and i think you'd tell me, so i'm going to assume you thought it was right because that's the kind of person you are. i, quite frankly, think he's right. as we move forwrd and deal with law of war issues. christmas-day bomber, where are you at on christmas day? >> that is an undecided legal

issue. the -- i suppose i should ask exactly what you mean by that. i'm assuming you mean whether a person who is apprehended in the united states -- >> no, i just asked you where you were at on christmas. >> you know, like all jews i was probably at a chinese restaurant. >> great answer. great answer. >> i could almost seehat one coming. >> me, too. so you were celebrating -- >> senator schumer explained this to me earlier. >> yeah, he did. >> that's because no other restaurants are open. >> you were with your family on christmas day at a chinese restaurant? okay. >> yes, sir. >> that's great. that's what hanukkah and christmas is all about. now, what happened in detroit on

christmas day? can you recall? what was so unnerving about that day? >> well, that there was a fail but only just failed terrorist incident. >> we were lucky as a nation that a bunch of people didn't get killed on christmas day or in the middle of hanukkah, whatever holiday it may be, aren't we? we're lucky that bomb didn't go off. >> it was a -- it seemed a close thing. i don't know more than i read in the newspapers about that incident. i was not, you know, involved in any of the discussions about what to do on that day. >> the times square incident, do you recall that? >> yes, sir. >> we were lucky that van didn't explode. >> every time one of these things happens, it is extremely unnerving. and, you know, makes us aware of the need to take efforts to make

sure that such a thing never -- >> tell me about miranda warnings. do we need to read soldiers -- do soldiers need to read people their rights captured in battlefield in afghanistan? >> senator, theay a miranda warning would come up is with respect to theed a missability of evidence in criminal court. so to the extent that we're talking about a battlefield capture and not a criminal trial, in article 3 criminal trial, the miranda issue would never come up. >> so you agree with me that in war, you don't have to read the enemy their rights because you're not talking about fighting crime. you're talking about fighting a war, right? >> the miranda issue is only applicable in article 3 courts as a matter of criminal law. >> okay. if you catch a person in afghanistan -- >> i should correct that.

i should correct that. because think that the question of whether miranda is applicable in military commissions has not been decided. >> right. well, you have article 31 rights, which are the same thing, but that is yet to be decided. but under general rule where you don't need the enemy the article 31 rights when you're in a fire fight. for these hearings to be meaningful and instructive, i think it's good to have an open discussion about when we are fighting a war and when we are fighting a crime. what is the consequences of criminalizi this war? my fear is that if we criminalize this war,e're going to get americans killed for no higher purpose. and that the idea that you would take someone off an airplane or in times square and start reading them their miranda rights within a few hours is criminalizing the war because the rson we're captured these people initially is to find out what they know about the enemy.

do you have any concerns that reading miranda rights to suspected terroris caught in the united states would impede our ability to collect intelligence? >> senator, i've never dealt with that question as solicitor general. >> just as elena kagan. >> senator, i feel -- >> harvard law school dean. >> i'm a part of this administration, and i think that, you know, i shod let the attorney general -- >> let me tell you the administration generally speaking has been pretty good to work with on this issue. we've had discussions about having exceptions to miranda so that we don't lose intelligence gathering opportunities and not criminalize the war. what does the public safety exception mean when it comes to miranda? what's your understanding? >> so the public safety exception, which was -- comes from the floros case, it's right now, i think, a limited exception. it enables -- >> very limited. >> that's right. >> very undefined. >> it enables the police

essentially to be able to question, to find the gun, you know, to find something that might pose an imminent risk of public safety. >> now, let's stop there. so the public safety exception is about proteing the law enforcement officers and maybe securing the crime scene. what i'm trying to illustre is that the public safety exception i'm looking for would allow the intelligence community to find out about where this guy came from. where did you train? is there another attack coming? and right now, the law is very -- do you think it would be in the united states' best interest to have clear guidance to our intelligence community, give them the tools and inflexibility when they capture one of these guys, whether it's in times square or detroit, to find out without having to do anything else at the moment, what's the next attack?

what do you know about future attacks? where did you train? would that make us a more secure nation if our intelligence and law enforcement community had those tools, in your opinion? >> well, of course. it's a question that might come before the court in some guise as to whether the public safety exception should apply to -- >> i'm just taking about being an american. forget about the courts. as an american, a patriotic american, liberal or conservative, don't you believe that we would all be better off if we had the oppounity within our values, humanely without torture, to told a terrorist suspect and gather intelligence before we did anything else? because another attack may be coming. not that a gun is in the next room, but somebody else may be coming our way. don't you think as an average, everyday citizen that would make us a safer nation? >> i suppose on this one, senator, i'm reluctant to say how i would think about the question as an average everyday

citizen because i might have to think about the question as a judge and that would be a different way of thinking about it. >> let's talk about what i judge may think about here. if we applied domestic criminal law to the war on terror without any hybrid mix, would that be a good thing? i mean, if we took the -- the war on terror and just made it a crime, would we be limiting our ability to defend ourselves? >> well, as we discussed before, senator graham, i mean, the administration of which i'm -- >> here's what i don't understand. because you said to me previously that you understand why this administration are holding 48 people without trial because they're enemy combatants and that makes sense to you. what i'm trying to extrapolate is if we took other parts of criminal law and applied it to the war on terror, would that crate a problem for this

country, like miranda warnings? >> the question of -- the tension of enemy combatants is ones that i've dealt with as solicitor general, one that i've argued as solicitor general. this is a question that i have not dealt with. i'm hesitant to make any comments about -- in a personal view or a policy view given these questions, i think, are likely to come before the court, the question of the good faith exception to miranda, how it applies to terrorism cases, iis i think, quite likely to get to the court. >> is it fair to say that the letter you wrote to me about the detainee treatment act amendm t amendment, i think you -- you call the graham/kyle proposal, that it would lead to a dictatorship or something. >> no, i didn't say that. >> what did you say? i'm not easily offended. you can say it. it would probably help me in

south carolina if you did say it. >> then i'll say it. >> back home it wouldn't hurt that the harvard law school dean was mad at lindsay. but you wrote a letter that was pretty challenging. what did you say in that -- >> it was a challenging letter. >> i've got it. i'll give it to you. >> i said we hhld disitatctator to high standards. but i did criticize the inial graham amendment. >> and that's absolutely okay. that's absolutely okay. you did criticize the original graham amendment and i didn't take it personally. >> i'm glad to hear that. >> but you did say that's what dictatorships do, and i thought that was a little over the top. but the difference between the graham/kyle amendment and the amendment that passed by 84 votes -- what's the difference between what i proposed and what passed? >> right. well, i think one difference was that military commission adjudications now receive d.c.

circuit review. in fact, the letter we wrote was about that. was saying that military commission adjudication -- >> did you assume that we precluded final verdicts in military commissioners from article 3 review? >> well, my initial understanding of the initial graham amendment -- >> we didn't, but you could have had that understanding. i can assure you that wasn't my goal. the point i'm trying to make here is that the military commission act of 2009 has been a work in progress for many, many years. and we're trying, as a nation, to get this right. as solicitor general, do you have confidence in our military commissions that we've set up? do you find that they're a fair forum to try people in? >> senator graham, i really haven't had any exposure to the military commissions as yet. of course, there's been no military commission proceedings. >> have you had exposure to military lawyer

>> i think that they are absolutely top-notch. >> what if i told you that the same lawyers who will be doing the commissions are also the same lawyers, judges and juries that would try our own troops. would that make you feel better? >> well, i do think that the military lawyers with whom i've had the pleasure and honor to work as solicitor general are stunningly good. >> is it fair to say that elena kagan, whatever day it is in 2010, doesn't believe that military commissions are a miscarriage of justice, or unconstituti unconstitutional? i'll strike unconstitutional. do you believe that this country submitting a -- a suspected terrorist to military commission trial is within our value system? >>

>> day 3 of the lme taken controvert -- -- day 3 of the delay in the kerrigan --elena kagan confirmation continued today at 10:00. "washington5j5nsr journal" is nd the u.s. house will double in at 10:00 eastern. the conference committee reconvened yesterday to make changes to the legislation. >> coming up this hour, we will talk to the alaska senator about legislation and a bp oil project off his coast. after