>> rose: welco to the brdcast. tonight 're in whington for the first dayf the sotomayor confirmation hearis. we'll talk to journalists al hunt and nina totenberg. >> tre is ry ltle criticisof her 17 years onhe bench as a district court judg d appellate court judge ere was a fleeting reference to the firighters case, but othethan that, the only criticism about her personally had to do with the speech she gave. >> therere senator ky the reblican whip, senator cornyn, who's head ofthe republica caaign commiee,they're both fr southwestern states with bi big hispanic populatio. i was actuay sort of surprised that they were as tough today as they were because this is sor suicidal to geton the ong side of the fastest growi portioof theelectorate in the country.

>> ros then attorneys walter walter dellinger dell and susan block. >> the worst kind of judicial law making is one that wasn't recognize, acknowledge, or adt that those policyonsiderations arplaying a role. that is, to prend you can starat a few words like "privilegeand immunities" or "due process" "ual prottion" or "e right to be arms" and decide if you think hard enough and logically enough wt that means whout importing any otheralues. that's jt, i think, a misunderstanding ohow law works. >> when thurgood marshall retired,he number of the justic went out of their way to pnt out how important it was this experience tt he could bring. and she clearly will be able to. they don't know wt it's like to ve in the projects. they don'tnow what it's like to be poor. so it's not just tt she'sthe first hispanic. >> rose: we conclude this evening with nationa security

and new repor on bush administraon security programs by talking to sco shane of the "n york times" and jane mayer of the "new rker" magazine. >> he knows... he may be membered as the president w dior did not reform health care. he'll ver be rememred as the guy who, you know, fnd out that k.s.m. was terboarded 183 times under his predecessor. so he wantto get congre focused on his own programs an he's also worrd abo alienating the republicans, some of whose ves he may need on these domestic i can shoes. >> he's also worried about alienating the c.i.a. theyon't want to have wt ey call a rogue c.i.a. they see obama as a you president without muc national secuty experience and the people aund obama are worried that he will aliena the c.i.a. by pushing for prosecutions of officers who thought the wer dog what was legal at the time. rose: a supreme crt confirmation process and a loo at t c.i.a.next.

captiong sponsored by rose communications fr our studios in new york city, this is chlie rose. >> rose: the senate judiary committee ben its confirmation hearings of supreme court nominee nia sotomayor this morning. sotomayor, a federal appeals court jue, is the fir hispanic nominat tothe court

and ly the third woman. in her oning statement, she spoke of her background an how she viewed the pror role of a judge. >> the pgression of my life has been uniquely american. my parents left puerto rico duringorldar ii. i grew u in modest circumstancein aronx housing project. my father, a factory wker with a third grade education, passed away when i was ne years old. on her owny mother raise mid-brotheand me. she taught us that the key to success in america is a good education. and she set the example, studying alongsid my brother and me at our kitchen table so that she could become a registed nurse. in the past mon, many senators have aed me about my judicial philosophy. simple: fidelity to the w. the task of a judge isot to ke law, it is to apply the la

and it is clear, i belve, that my record in two courts reflect my rigorous commitment to interpting the cstitution accordg to its terms, interpting status accorng their terms and coness's intent and huing faithfully to precedents establishedy the preme court andy my circuit court. in each case i have heard, i have apped theaw to the facts hd. >>ose: but the top republican on the cmittee, senator jeff sessions, expressed reservations out sotayor's jicial philosophy. >> i will not vote for and no senator should vote r an individual nonated by any president whoelieves it is ceptable for a judge allo their person background gender, prejudis, or sympathies to sway their desion in favor of or against

parts before the court. in myiew, such a phisophy disqualifyg. such an approa to judng mes that the umpire calling the game is not neutral but instead feels empowered to favor one team or another. >> call it empath, call it prejudice or call it sympathy, but whatever it is, it'snot law. in truth, it's more akin to politics and potics has no place in the courtroom. somewill respond that judge sotomayor would ner say it's acceptable for a judgeo display prejude in a ce. but i regret to say, judge, that some of your statements that i'll outline seeto say that clearly. >> rose: jong in washington, alunt ofloomberg news and nina totenrg. she covers the supreme court for npr. i'mpleased to he both of them heren this program. great to see you, my friends, welcome. >> thankou very much. >>ose:ketch for me the

political picture of this nomination. >> well,harlie, today was all about setting predicate. you set the pdicate first of l for the real stuffhat begins tomorrowith the questioning. everybody making statements and her opening statement. but think it's actuall even more far-reaching predicate. she's going to be confirmed. the only qstion is is it 65 votes or 7 votes o whatever give or take a few. d i think what the republica are tryi to do is set a edicate now for subsequen ssible nominees. >> rose: and what pricate do they want to set? >> this tha the democrats pick activisteft wing umpir dges. >> rose: b is shehat? >> no, she not. lindsey gham... i'll refer to nina on th. but lindsay graham looking at her jicial record saishe is not a cause driven judge there's very little criticism of her 17 years on the bench a strict court judge and appellate court jue on the bench. e only criticism out her peonally had todo with the spee she gave. and mo of it was aut

refightinghy democrats ted agnst sam alito and john berts and en people obscure to thepublic like janice rors. >> rose: doeit in fact, as somebody has said, the repuicans say it will be a victory for them ithey can get many votes agast her as democrats got votes against john roberts? >> charlie i've covere litics for a long time in america and i ha never heard.... >> re: when he says that to me i kn i'm going to learn somethin >> i've never hrd a ver in warloo, iowa,ay "i give the republicans creditecause they got as many against h as they did agnst john roberts." no. >> rose: allight. so set uper judicial prole r me and what to expect fro her these hrings. >> well, you know, she gave this opening statement today at was... it stru me as the ultimate in defense. when i heard that statement,t waspretty thin gruel.

i thought to myself, she's not gog to tellhem anything. nothing. >> rose: can you get away with that if you've got the kind of judicial recd she has? i an, this is notcoming with a clean slate. >> s has a pretty... y know, for a democrat, she has pretty conservative reco. very much the mainstream record. they don't ve... in fact, on a lot of cminal law issues, yo could say that she's more coervative than some members of the supreme court, including justice scalia, phaps. i think tt's why they're hoing so much on herpeeches, on what they view as rial identity politic. a little bit theirefighters' decision. and the judiciary committee, let's face it it'sike a dysfunctional fami. they're fhting... t last ten fights they hadnd the rest of the world esn't know what theye talking about. >> rose: most peoe say abou

hethat the only thg they have to go on reay beyond the firefighters ce is that speech and the word thatthepresident used, "empathy." >> again, waterloo, iowa. i don't think it resonated. and i think smt republicans are aware ofhis. there's a reful game to play he. they can playthat identity politics but les not forget, this is a woman who i think without questionis generating a great deal of pri in the latinoommunity acro america. the fastest-growg population, fastest-growin electorate. there are a number of rublican senators who have to be sensive about this. charlie, i'll give you a gd example. richard burr, itooks like, in north caroli, where weoth lived for a while, it looks ke he won't have a strong opponent. if hdid have a strong opponent i would guarantee richard burr would te for this because of that growing latino voten places like north carolina. you have to be sensitive to that. >> even look this committee. thereare senatoryl, the republic whip, senatorcornyn,

who's head of the republic campaignommittee. they're th from southwestern states with big big, hispanic poputions. i was actually sort of surprised that they we as toughoday as they were because this isort of suicidal to get on the wrong wro side of the fastest-growing portion of the electorate in the country. and geor bush carried, what, % of latino population? d it was down to 30 for republicanin the last presidential election. i mean... >> determinative in a number of stat. >> yes, put a gun to myead, duh. you don't shoot yoursel in at head. >> i think nina would ree with somebody who i think i demonsably qualified. you can say she good, bad, i don't like her philosop. but you cat say she's not qualified. so to votegainst her isoing to cause real, real problems about republicans. >> rose: talk a bit abt the speech she made. i heard senator hatch today talk

about some criticism hthought nt way too far and i assume we all know who he'salking about. >> well, the speech sheade that's soontroversial, the se latina speech. she di't just make that statement onceshe madet at least five times. for those of us who are reporters, she isreat at retreadi material. and she spoke a lot to minority and mens groups andwhen she did,he had a linehat was-- this is not an exauote but-- i beeve a wise latina sometimes makes betterecisions an a white man. now, she would go to say, it's nothat white men judges can't get it, witness "brown v. board of education," it's that they have to work very hard at th understanding and not everybody is willing to ke th effort. >> rose: justice ginsburg on strip searches... >> that uld be the class example. strip searching a teenageirl. >> rose: when y look at her

record, what are the threer four most importan decisions that she has.... >> wl, you know, it's interesting, becausethe firefighte case you would not.... >> re: that's the most prominent. >> but not the most important. it was a one-paragraph cision in which the court upheldhe panel on... the panel on which shserved uphel a 45-ge opinion by a district court judge. >> rose: and then the sreme urt... >> reversedt 5-4. and whas interesting wn you look at herrecord is there are not these huge blockbuster cases. there e not big national security cases. there is no big abortion se. there is noig gayrights case. you have to ok at a pattern. and the secondcircuit doesn't ve a lot of those decisions. itends to have aot of business cases, lot of crimal law cases, a lot o immigration cases d on none of tho can y show that she's some so of a lunatic liberal. >> rose: from a media coverage,

at stories are getng played for example, heah care. clearly the president isworried about tting a billbefore augustnd what it'sgoing to look ke. clearly senator keedy is not here. >> huge voice. >> rose: huge voice. >> the thingthat people don't reale, to some peopleted kennedy is the gre liber li, which he has been for sure. he ao was the greatest legislator in the senate. >> ros because he couldind common ground th anybody? >> he could find commonground. he knewe had a wonderf way of dealing with his colleagues. right wing republicanss well aseft wing democrats. he upd the issues,he had the best staff on the history of capitol hill always. >> and timing. rose: and he could putll sorts of deals together there's no one that can do that rht now, charlie. that's why think white hous, whicis ually quite a joy at these thin, have made a mistake. th have been too a abovehe fray. they're in danger of letting this thing get away. they can probably recor but they have recover today.

>> re: it would haveeen fine to be above the fy isenator kennedy was here... >> y can afford to be above the fray in the hous because the are people who canut things together. >> and the double whammy they don't have dasce. they thought they ha had daschle o had written a book about this and devoted a good deal of hislife to this issue. now they don't have daschl eith. >> rose: was she admiredy her colleagues on e court of appeals, on the disict court? >>ell, you have to s in a candorhen she... that once somebody's nominated to the preme court,t's very hard, charlie, to find sebody wh say... who ows tm to say ything negative. but i got judges, republican apintees, to goon tape with me anday wonderful things about her, whi is mt unusual. so she was very well ked as far as i can tl by her... a eat many of her cleagues. >> i c say this, and i have a very dearriend on that cirit who was the "wall street journal's" counsel for many years, bob sack, one of the great fir amendment lawrs in

america,ho i spoke to about her well before she was eve nominated beuse her name had been circulated. he is very... he likes her a lot. he says she's anincredibly lid judge. she's very collegl, all the ories came outbout how she doest get along with people he said "iet along wi her great." >> one of the rean appointe sa she has a sparkling personalities. she organizes nners. when things goo you have to, she's e person who diffuses it. so if she'srickly, i wasn't able to find people who say that on the recor >> she's prickly wi lawyers, which is not exactly sothing that'soing to hurt her any politica.. >> uh-uh. >>ose: thank you very much. when we come back, we'llalk more about judicial philosophy and later on we'llalk about the c.i.a. which is getting a lot of attention in washington these days. back in a moment.

>> rose: we continue wit our look at the sotomayor confirmaon with two people who know the sreme court very well. lter dellinger, who served as asstant attorney general during the collatio and was alsocting solicitor neral and a leading constitutiol laauthority. susan block joins us, she's a law professor at georgeup t unersity law school on cotitutional issues. she s testified before congress a she oe clerked fojustice trgood marshall. i'm pleased toave both of them onhis program to talk about what iis thatwe ought to think abou in understanding the jucial philosophy of judge sotomayor. tell me what it is that's worth noting. >> well, as trial cou and as a cot of appeals judge, she's been incredibly meticous in terms of lookinat the recd an focusing on facts a i think she' dohat also on the supre court. not all the justices pay as much attention to the facts. and i think that, as she said

today, audge's job is not to make the l but to apply the law. and i ink that's what she'll do. >> ros now there's an interesting idea saw expressed i think in the "washington post" today, i is this notion that someone wasaying that in conversations inchambers when they dece these cases, that her experience, tt she will ing some experiencehat a lot of theseeople have not had. >> this abily to bring t the conferce table the experiences that she has, that thuood marshall had, that these justices nev experienced. and whe urgood marshal retired,he number of the justices went out otheir way to poi out how important it wathis experience that he could bring and s clearly wl able to... they don't know what it's like to live in a project, they don't know what it's like to be poor. so it's not jus that she's the first hispanic. but, you ow, e ft of her

povertis really important. >> rose: b does that... by definition your lifexperiences affect how you see the world. >> that' right. >> re: and that's good thing? >> that's a gd thing and it's a good thinghat you ha that kind of variety among the nin justices. i don't think it tells you how the person-- either soepl or whoever's up there-- how they will decide a case, but it does tell you the factors that they can brininto it. i thihe way... the ctrast th i see is when judge bourque was asked whye wants to be a... why he wanteto be a supreme courtustice, he said "i think it will be a tellectual feast." and i thk a lot of people were turned off by that. they wanted swers like "justice, fair."

>> rose: help us understand, walter, w people look at this idea othe law is theaw is the law or the law is at i say it i >> wel you know, the notion that law is some kind of mechanical process like pros and euclidian geomey is the great stake that is behind so much of the criticism of judge sotomayor. this notion that judging can be done well whout dwing un expeence or sense social culture, your sense o history, your underanding of how different les will affect different people, that' just azy. because you aually look at the constutional phrases, we're talking out phrases le "equal protection." we're talking in, y, the second amendnt about what constutes aeasonable regulation of guns the most ardent aocates of the right to

bear armsnderstand that some regulations are reasonable. you need a sense ofow different regulations would affect different kds of ople. that judges... i think there's this notion that mehow with a dictionary and a logic book you can awer questions and therefore for someone to take io account their expeence, noatter at that experience is, or thei sense of how other ople will react means you can't do law right. take, forxample, this lewlle and seattle school desegregion cases a few terms ago wherehe folkin those towns re trying to make sure that the was some cross racialxperienceor kids in the school stem. the question was ishis like or not like thejim crow resupreme of segregati in the south? th low low jigssn the court said "th is just like that. the other judges saido, it aris an entirel different

social context. this idea is as radical as oliver wendall holmes who said "the le of the law hasot been logic it has been perience." and experience forms almt ery decision judges make. and to pretend tt judges don't make law or policy when particularly in the constitutial air yaw yah but in statutes as well they take very broad princals. >> rose: are y saying that even tse judges who would argue that it's not... legislation is for the legislative bran, even those who say that in fact, by their decisions, eate law? >>n fact, yes. and think the worst kind of judicial law makg is one that doesn't even recognize, acknowledge, or admit that those pocy considerations are pling a role. thats, to pretend that you can stare a few wds like "privileges and immune tease" or

"d process" or equal protection or "the right to bear armsand decide if you think hard enoh and logically enough about what that means wiout importing any her values, that's just, i think, a misunderstanding ofow law works. and to pretd that you find some magic, logical formula is en not to ke respsibility for candidly explaing and acowledging the rl bases of the wellrings o.. for the decisions thatou're actually making. >> rose: so if you look ater, what has...ow cane say that this life experience from the south bronx to the distric court to being a prosetor for... in new york, all that, w has that shad her? how s that influenced her? what do we knowabout her values because of that? >> well, i think we can't be totally sure. i mean, there are groups on the

left whore worried about obama's selectionof h, would have fel better had he picked someone that they coul count on more. rose: they that th felt was more prectable. >> and certainly in the area of criminal law, pele are wondering which way she'll come out. >> rose: wha can they say abt ere she's been ready on criminal law? >> i thinkrom her record on the crt, it's hard t say much. i think the reason peoe wonder think at maybe shll be for con sfshive the,or example, than souter was, i because o her background as a prosecutor. ss so than her actual decisions >> she made a point today of noting how she felt. she dn't use the word "empathy bu she understoodn cases tha came before her thelight of victims crime and h much ose victims and theamilies had suffered. and so she realizes how important it is to get these

decisions right in the criminal justice ea. she's a person who rlly digs down into caseshat come before her. she really wants to really master all of the facts and get intensely involved and i looked at one transcript where she asked 50 questions o the court of appeals. so shel be quite active. >> rose: where will she fitin termof that? >>t's hard to say. r records notne of voting for every sort of person that you would think libals favor. far fromt. she voted against 80% o all the asylumlaims brought in immigration cas. she voted again 80% of all th peop who said they were victs of discrimination in the cases, as did most o her colleaes. e's very much on the mainstreamof that court, the second cirit, and has been for 17 years. >> rose: so bot of you kw the

preme court well. what is going to be surprisin for r? evenhough she's been an appellate jue, even though she's en in the judicial process sie she got out of law school, what will be diffent for her now? >> many the stices that have gotten on to the court have said that the bigst surprise, evenrom the court of aeals, is how the conrence-- there's not reay a conference. it's t a debang society where they justll... it's... certainly under rehnquistit hadn't been... rehnquist went in order, didn't nt people to speaout of ordernd scalia had said when he first got o the court that being the st th the least seniority when he startehe waseally upset that by the time the got to him-- because theytart with the chief and goownward in seniority-- by the time they got to himit didn't really maer anyme.

he knew what eveone was going to say and he didn't feel hehad ch to contribute. so i think that's ver different from the way st courts apals work. ey only have three, notine, but they nd to rlly interact and not have th sort of formal pattern. and i don't thi... i don't know exactly h roberts is runng it now. but mympression is it's not that difrent from rehnquist. it's a little looser, he's a little less, i think, strict. bu it'sot the dialogue that you d i might hav or the three us might have. "well,hat do you think? how about this how abouthat?" it's fairly structured. >> rose: what did you most admire about thuood marshall? >> oh, my god, he was my hero i loved his honesty, his ability understand whathe law... the pact of the law and to really care about it. >>ose: could you argue that he never forgot wre he came from?

who was? and this that was part of his essence of t court? >> yes. a that's exactly right. he never forgot who he was and had no airs. wh he retired and they said why are youetiring? he said "beuse i'm old a falling apart." (lauter) rose: and justice o'coor sa she learned a lot a felt the other juices did, too, from thurgood mshall. >> rose: who's your judicial hero that's bee a sreme court justice? >> i don't have one. i clerke forhugo black and i thought he was a great emental force on t court, certainly for the first amendment. you know, i ha many heroes. i thin we're enterg a time when peoplspeak of judicial activism withoutealizing that the issue mor and mor is conservati judicialctivism. the great hot-button issues that we're talkingabout: guns, property, reverse discrimation

cases ere those who favor a conservative view int want jues to set ide decisions made by congressnd state legislatures andocal gornments, the elected representives. so more anmore, that's th issue ishether traditional power will bused to invalidate what popularly elecd governnts have done and to do so in the name of certain conservative values. >> rose:hat, walter, should the puic learn from this? >> well, i think that,you know, the cstitutional proce is working. they'll learnthat elections matter. that she's going to look somewhatdifferent. that judgeohn roberts and judge sam alito did and that's because that's a different president elected, i think actually. but like them, she's court of apals judge who's extremely well respected b her colleagu on the ben, both republicans and democrat colleagues rpect her as a highly professional judge. rose: i was ving you an

opportuny to "t" up your mary mcgry comments. (laughter) >> o well. mary mcgrory was concerned that... she was a "whington post" columnantitrust who wrote at one confirmation heari she heard senors talk and talk and talk and she wted to learn about the ninee. so she proposed tt at confirmati hearings a banner be posteon the back wallf a hearing ro facing the senators that would say his is t about you." (lghter) rose: on th note, thank you. it's beea pleasure. walter, thank you very much. >> thank you, charlie. rose: we'll be right back d we'll turn to the i.a. rose: we now turn nationa security. president obama s been reluctant to investate bush-era security ograms saying we should b looking forward annotackwards. but a ries of fresh reports on those ograms have increased presre on the president. the "new york times" reports that a secret c.i.a program was

withheld from congressn the ordersf former vice president di cheney. some democratic senators have called for annvestigation, while republicans e cautioning against an inquiry that would underminentelligence erations. senator jo cornyn, republin of tas, saidn fox news sunday "this is high-risk stf because i we show the ability or the willingness of our intelligce operatives a others to get informatn that's necessy to protec america, ere could be disastrs consequences." attoey general eric hder is said to be close to appointing a criminal psecutor to vestigate whether c.i.a. agents tortured terro suspects. he's expected to mak a dision within weeks. joining me now, scott shanef the "n york tes" and jane maye of the "new yorker" magazine. i'm eased to have them both on is program. so, wt is the sto swirling around about the c.i.a.? sort ts out for me. first, the eric holder questi. >> well, i mea, there are so many fronts bubbling up at once

here. i mean, so hold is one piece this where he is... it his job to figure out if crimes were committed and... major crimes, whictorture is one . and so he's been haed documentarevidence in the form of an inspector general's report from the c.i.a. that's fied withhe possibili tt there were cris in the bush years that deinees were tortured. >> rose: let interrupt you. reading "newsweek" this week, ere's a storyhere about him whicsays that he was ructant too this but wa.. but came to the conclusion from reading some of ts stuff that it turned his sck ma'am. >> rht. one the reports in particular. this inspectoreneral's report that was done by the c.i.a. itself, is filled whdetails that have reallypset the people who hav read it. anholder is justhe latest of people to have read thrgh this report and thoht, oh, my god, we really may have to prosecute someone. so he now talng about appointing some kind of special prosecutor, which isbout the

last thing tha the white house would really like him todo. >> rose: because it distracts from health care andverything else and... >> well, a they see it as potentially so kind ofulture warhat's going to alienate republics on the hill who support the needor various things and also independent voters who they want t keep in their cumn. you've gotahm emanuel in the white house and david axelrod, theolitical advisors to oma are saying "don't look back,ust fix it, move forward." but what we're sing ishen it comes toorture, it's ally hardo sweep it under the rug. all over the world when there have been probms with torture, they get a life of tir own. they ruire some kind of inquiry. rose: okay. one point out tha- many points aut that, but one. what are th talking aut? because there we legal definitions and the bush administration wt and got some gal authority from its own lawyers before it could do this. >> right. >> rose: they'reot talking about where th had gal auority? >> the busadministration defined most of whatwas done in

this program as legal and not torture. but this repor--to-get back to thisarticularly upsetting report done the c.i.a.'s own inspector genal said-- uh-oh, i think some o this was crinal and it also violate our own bounries here potentially. you're talki about some of the interrogators who went beyon what even th bush juste partment had anticipated. they waterboarded pele not once or twi but, as we know, 183 times in one case. 83imes in another ca. they subjected pple to kind of a long course of treatnt which the red crosin its own report defineas torture the problem is when there e credible allegions of toure der u.s. law, the government has to investigate them. >> rose: and who do th want to prosute? >> well, i think wha we're seeings-- and, again, this is just fromiecing this togeer-- it appears to that they'rtalking about going after the actual interrotors

people who may have actually been in the ro using these really btal tactics. anfrom what i kn about this and at i write about in my book-- is th some of the peop are contractors, not c.i.a. officers. >> rose: okay this is your story today, scott. president ama is facing new prsure to reverse himlf and to ra up investations into the sh era security programs despite the political risk leaving democrats onunday demandin investigations abou how highly classified coterterrorism programas kept secret there the fromhe coressional leaders on the orrs of vice president dick cheney. ll me more. >> well, las month, on june 23, somebody came to fro the unterterrorist center at c.i.a.o the new dector,eon panetta, and sd basical "boss, there's a program you shouldnow about." and deribed this program and saidwe haven't ever told congss about this." th apparently was deeply

upsettinto mr. netta who h st been through flap involving the housspeaker, nancy pelosi, and whether she was adequatelyriefed or accurately briefed about waterboardin >> rose: she acced the c.i.a. of lying. exactly. is he had gone to her and tried to be tactful but basically said to congres "on my watch the won'be any ambiguity, we'll tell you evething you need t know so hear he lrns that for eight years there was a secret counterterrorism proam that the congress hadot been told act and th took place on orders of vch dick cheney. >>ose: not tellingook place on therders of the vice president? >> exactly. so he rushe over to capitol hill. first, he put an end to the program. he rushe to capitol hill and the ne day called essentlly a spial meeting of each of the commites, the house intelligence commite and the senate intelligence commite, told them abt this program, told tm... essentially said we're sorry it wasn't briefe and did mention that thereason

it wasn't briefed was that vice president cheney back in2001 when it was started upad vised the c.i.a. n to do that. >> rose: what was thprogram. >> now, for several days now a lot of folks in washington-- reporters d other- have been trying to answer thavery question. what was this program that caht the vice preside's tention that he thoht was so important that it n be share with coness and we're kind of benning to get annswer to tt for tomorr's newspaper. we're sort of following up on a story onhe "wall street urnal." they had said that it came under a presideial order to capture or kill members of al qaeda after 9/. and we're told that it was to sort onserteams into countries where hh level al qaeda people were located and

where other means of killing them were no acceptable and, you know essentially execute them. it would be the equivalent of what we've ne with missile fid from drones but this wld be up close and personal, with a handgun or sething like that, perhapwith a c.i. operative, perhaps with a local ally cruited for the purpose or paidor the purpose. but this program in all eight years never got beyond the planning and training ste. we're told that no one was ever killed under this program. >> rose: tel me what wrong with this. >> a l of folks, incding mocrats who were iefed on it think nothing's wrong with this. >> rose: but what do we now think is wrong with it? >> well, i think the focusas really been on wheer congress. the debate has been whetherongress shoulhave en told. >> rose:his is just a disclosure question, not so ch that this was an el program? >> there's some complicions

with it. at least accordingto... there one report about it in the brish press, the guardian newspaper whichsuggests that the c.i.a.as planning to keep secret fm allied countries thathey were going to operate hit uads within these countrie so i crees some diplomatic problems certain. and i ink that mht have been one question. >> rose: during thclinton administration they trd to kill osama bin laden. theybsolutely did and coress ahorized the u. governmento try to kill members of the taliban or al eda. but basically usuall the order ask s to try to cture first and if you can't capturehan kill. that's bn sort of understo. >> andof course, the so-call extraordinary rendition progm of c.i.a, which was to capture people, capture terrorts and move them either to third country where... for the purpose of interrogation or sotimes to the.i.a.'s sect prisons overseas for interrogation. we've done aot ofhat. e c.i.a. captured a l o

people. but insome cas-- such as the famous case in milan, in italy-- that caused huge upset. there's still a bigprosecution going on that invves both c.i.a. defendants and italian inlligence operats. >> re: they took mebody from mila.. >> they picked up aadical muslim cleric and took him to egypt. and some people in itali intelligence kne others didn. a lot of t government was extremely upset abouthis. so the idea that we send sort of hit teams or snatch teams io european countries hasn't gone overery well. and uoubtedly ifthey ha done killis in countries like th, there would have been political and diplomatic repercussion and we're told that the c.i.a. ran into so many logistical and legal and political obstacles that this thingust never flew.

>>ose: go ahea >> all i was goingto say ishe other thing that's really...he ason it' cating so much coroversy, as scott said, there's an issue about oversight. bacally, under l, the c.i.a. is supposed to inform congress of any major intelligen operations that its planning. not necesrily justnes that are alread under way. and so the hill... congress was alrey furious with the c.i.a. for what some members up their felt was nadequately telli th about the interration and detention programs that the c.i.a. rap during the bush years. at's why you have nps saying she didn't undstand or was not told about... wasot told about waterboaing. yove had setor white house from rhode isld saying that they lie and said that torture was necessarynd only don as a last resort and in fact they jumped to it right away and it didn't wor there have beemany allations from the hill, belatedly, that ey weren't truly informed.

and,f course, there e many people who think that at the sa time the hill... some of these people in coness really didn't want toear too much about this becse it makes them complicit in some way. >> ros and there are now ports coming out that the waterboarding was noas scribed. it was mh more severe and longer. >> exact,right. it was done over andver and over again, no just twice as it's done in u.s. training. the pele in the hillere told we'rjust going to do with the detaineehat is we do with our own people in trning. have a traing program where we p them through a tiny taste of torture. th's what they wereoldn congress. turns out, w did tngs to our tainees that were so far beyond whawe do to our peoe inraininging that they're really on whole differt scale. >> rose: and wt were those things >> well, for insnce in our training.. >> rose: beyon waterboaing and sleep deprivations, they were hanging people by... >> by their hands. subjecting them to sleep deprivation for 11ays wrz in training you can onlydo it for a ght or two. training, again, you can

waterbrd somebody for... twice for 20 seconds so each time they did it to somebody 183 times ov and over again. it wastaking the methods and... i kd of rember talking about one point toenator le vin who sa "anything can become torture if you do it enough." and they basically may hav pushed the limits. >> re: help m understand, scot what it is that the president when he came io office... wh was his inten d how has he now for whatever reason changed on these quesons? whatid he shut down? what has he intend to doe's not now doing? >> well, he was obviously on the campgn trail of a vociferous critic of thebush counteerrorism policies and frequently said thathey had become a recruitment tool for al qaedand made the country less safe rather than more safe. in som ways, he sort of followed through on what he

promised and what he indated he might do. for example, h ordered the c.i.a.'s secret prison pgram closed >> rose: these are rendition centers ound the world? >> yeah, these are the secret jails where cal cal a the other folks were kt f years... c lead sheik mohammed. >> re: whe were the kept? >> it's never been officially disclosebut polan,hailand and other places. >> rose: you're sling because you know. >> it's justhat nody's been allowed to discuss it only. >>it's still thnically.... >> re: they can tell you off the reco but they won't tell anybody publicly? >> think it's pretty clea, as scott ys, that pold was one place. i think ty've talked about her eastern european cntries >> and he a also has ordered the closing of guantano by the begiing of next year. so they haveo fire out what to do with those folks. rose: of course, chene waded in and obama clearly wanted to

look fward rather than backward, ande clrly said there was somehings going on like closing gitmo and oer things tha we oughting to do. >> yes. but he tri to keep it to a mimum. he compromised on certain thingsuch as maintaining mitary commissions, the prospect of prolonged detention without arges and without trial. those things a still. are still inlay and apparently still part of his plan. but i tnk his overriding prioty was not to be the president o who spent his first term vestigating his predecsor. and i think there's a real political allergyto thehole idea ithe americanystem of, you ow, sort of lnching a big investigation to your predecessor. but also from a practical point of view he knows... he may be remembered as the president o did or d not reform health care, hll never be remembered as the guy who, you know, found out that k.s.m. was waterboarded 183 mes under hispredecessor.

so he wants to getongress focused on his own programs and he's aoorried about alienating republicans some of whosvotes he may need on the domestic issues. >> hs alsoorried about alieting the c.i.a. frankly,hey don't want to he wh they call as a rogue c.i.a. they see obamas a young esident without much national security experience and e people around obama are worried that he will alnate the c.i.a. by phing for prosecutions of ofcers who thought they were doing what was legal at the time. >> rose: okay. now what about this ea that therare people ovehere who were somehow associated with some of these programs or at least had ly in of them and yet they were considered so vital to the fure of the c.a. that they're stillhere. >> well, to me 's... because one of the this that obama.... >> rose: because thewere very good. >> ...ran on was to t to create... yoknow, change you can believin. a clean break wh the bush st. yet a numberf the key players at the c.i.a.ho were there during the worst of the toure

program or whatever you wa to call it, you can cl it an enhanced interrogati program, during a worst yea of brality are still there. and nody's been held countable or asked to pay any paicular price. >>ose: they're stillhere because they'redmired for their ofessionalism? >> they're vy good at other things. and they're consired knowledgeablend.... >> ros and how highp are they? >> well, thenumber-two person at the c.a., steve cap pass, is somebody who s certainly there during those years a certainly apprised of what was going on d then there's a man named john brannon whoas formerly t chief of staff to george tenant. he's now at the white house. >> rose: ande was rumored to be a possible c.i.a. dirtor? >> right. >> rose: and didn't get the j because it was considered too hot? >> he was considered too taied by this torture question. yet he' rmerged as a top advisor to obama on national security. >> but to be fai to the dilemma that obamaaced cominin,

these are also the guy with the most experience with al qaeda. al qae is still out there there are many folks out there who ill want to mou attacks against the united states haven't had much success since 2001 t, you knowbama probably would nohave wanted to sort of fire everybody whoad experience in at realm and s, yoknow, clearly it s a balancinact. >> soasically when you read beeen the lines about what holder is talking about doing-- the attorney general-- and wh targetthey're looking at for prosecution, they're not talking about that top eelon of people. they're talking out the people on the bottom who were in the room who might have been tually physically involved i brutal interrogations. >> rose: and knew ey were going beyond whathey were suppos to do? >> and yes.... >> rose: right? yes? >> maybe not. weon't know if they had criminal inten we haven'teen able to interview these people. we don't evennow the names of the >> rose: nor do we have the

viotape. >> and we don't havehe videapes of the terrogation becae the c.i.a. destroyed them. and there is a separate criminal investigation going on of the destruction of tho videotapes. >> rose: so you did a pro, probably, on laept, where does he stand on ts >> it's so complicat for him. he's known as a reformer a man of integrity andot an ideologue. he was formerly a republican, now he's democrat. he is trying t bring the c.i.a. into a new day without lowering its morale by psecuting people for pastrenls you behavior. >> rose: the her thing that cos up, scott,the c.a. received a lot of criticism, obviously because of wpons of mass desuction, also because the neoconservativ didn't trust the c.i.a. have all those things been fixed? whatever t complaints were r whatever reason? is the c.i.a.... despite all

this, operating a a level of more productive, more professional, better? >>ell, that' a very tough judgment call. you kn,ometimes you forget that ty're given very, very difficult jobs too. it's sort of the. it's secret work, often the kind of stuffno one else wants to deal wit and often underintense political pressure fro the white house. somemes from congss. sometime contradictory pressure. but i don't really know. the hasn't been a cleaning of the house at c.i.a. by myeans. i think it's yone's guess as to how the c.i.a. is reall operating athis point. rose: it's a guess. you don't really know. we don'teally know. it'srue theye taken lot of recordor their track record on

intelligce collections for iraq's weans and these controversial progms involving things like ierrogation, renditn. what they're uto now,hether they'll be able give obama the information he needs for ample, about iran, a tgh ca. >> i mea i think one thi you can see is they are.panetta trying to inform the hill more protly than was done during the bush ars. he was a fmer congrsman and it's somethi he cares about. >> ros i assumed that was one of the reasons he got the job. i think so. right. so that seems to beone change. we alsknow they're very much carrying on the program using drones to try to... unmanned aerial vehicles to t to kill al qaeda members infghanistan. >> rose: andhey've bee.. and taliban,oo. >> and talib. >> ros and they'veeen reasonably efftive. they think they've been very effective. the's some talk about whether or not it' had o much o a blowback. >> rose: in afghanistan, kristol has raised that issue in terms

of howe useshem. >> how ny terrorists do you createhen you kill the falies that live around th rrorists that youe trying to kill. >> rose: exactly. finally, dk cheney. >> it's amazing. yeah. mean.... rose: i'm not even going to asthe question. i'm gointo let y answer whatev you thought i was going to s. >> well, what's interestingis during... as reporter who covered a lot of this during the sh years you always had the suspicn that cheney was lurking behi the scenes controlling ny of the sort of national surity policies. and so what we'veeen nowis document by document leak by leak and in thi last story, too it is cheney who was literally tellg the c.i.a. not to infor congress. whicraises all kinds of legal prlems. it's cheney in. there was a recent document thatust came out, inspector general's reports on the warrantless wiretapping program. there wascheney wh was all over i >> ros scott, if lder

appoints a speci prosecut, he le or she have subpoena poweto bring all these people in among many of the names we've mentioned, including the foer vice presint and do they have to answer that subpoena? >> if this is a criminal torture investigation, the ual procedure wod be to dispatc f.i. agents to interview erybody involved about wh ey know. i think theroblem that may be loomin for mr. holder is that if, indeed, focuses very narrowly othe people who terboarded more tim than they were permitted to, you could d up with the perceptn of a situation sort of like abu ghraib where a number of very low-level litary police officers were punishednd sent to jail but nobody up the chain mmand had anything like the same punishment.

>> ros there was neier a firing nor a resignation. >>xactly. and in this caset's very cle and 's totay documented that the c.i.as top officials proposed these methods and th white houspproved them and at least a handful of members of ngress were briefed on them and did not go out o their way to object to try to stop th. so the ia that the people down at the bottom of the totem pole might end up being the only os really held accouable i think will be politically difficult. >> i think it's also probably just legallynot containable. because thfirst thing that those targets will do is say "we were authorized." an i've talkedo some of the people who know about their situation anthe first thing... they've alady prepared charts showing how manyayers of authorizion they had. i think that when left i heard theyere up to eight lays of authorization. they're going topoint the nger straight upwar over their head >> rose: and h high will it

go? >> well, i mean you kn, potentiay... i mean, this was a program that was ahorize bid e president and the vice president of thenited states. >> rose: and their lawyers. >> it gets ry stiy. >>ose: thankou. thank you, scott. thank you for jning us. we'll see you next time captioning sponsored by rose communicaons captioned by media access gup at wgbh acss.wgbh.org