>> rose: welcome to the broadcast. tonight we're in washington for the first day of the sotomayor confirmation hearings. we'll talk to journalists al hunt and nina totenberg. >> there is very little criticism of her 17 years on the bench as a district court judge and appellate court judge. there was a fleeting reference to the firefighters case, but other than that, the only criticism about her personally had to do with the speech she gave. >> there are senator kyl, the republican whip, senator cornyn, who's head of the republican campaign committee, they're both from southwestern states with big, big hispanic populations. i was actually sort of surprised that they were as tough today as they were because this is sort of suicidal to get on the wrong side of the fastest growing portion of the electorate in the country. >> rose: then attorneys walter walter dellinger dell and susan

block. >> the worst kind of judicial law making is one that wasn't recognize, acknowledge, or admit that those policy considerations are playing a role. that is, to pretend you can stare at a few words like "privileges and immunities" or "due process" or "equal protection" or "the right to bear arms" and decide if you think hard enough and logically enough what that means without importing any other values. that's just, i think, a misunderstanding of how law works. >> when thurgood marshall retired, the number of the justices went out of their way to point out how important it was this experience that he could bring. and she clearly will be able to... they don't know what it's like to live in the projects. they don't know what it's like to be poor. so it's not just that she's the first hispanic. >> rose: we conclude this evening with national security and new reports on bush administration security programs

by talking to scott shane of the "new york times" and jane mayer of the "new yorker" magazine. >> he knows... he may be remembered as the president who did or did not reform health care. he'll never be remembered as the guy who, you know, found out that k.s.m. was waterboarded 183 times under his predecessor. so he wants to get congress focused on his own programs and he's also worried about alienating the republicans, some of whose votes he may need on these domestic i can shoes. >> he's also worried about alienating the c.i.a. they don't want to have what they call a rogue c.i.a. they see obama as a young president without much national security experience and the people around obama are worried that he will alienate the c.i.a. by pushing for prosecutions of officers who thought they were doing what was legal at the time. >> rose: a supreme court confirmation process and a look at the c.i.a. next.

captioning sponsored by rose communications from our studios in new york city, this is charlie rose. >> rose: the senate judiciary committee began its confirmation hearings of supreme court nominee sonia sotomayor this morning. sotomayor, a federal appeals court judge, is the first hispanic nominated to the court and only the third woman. in her opening statement, she

spoke of her background and how she viewed the proper role of a judge. >> the progression of my life has been uniquely american. my parents left puerto rico during worldar ii. i grew up in modest circumstances in a bronx housing project. my father, a factory worker with a third grade education, passed away when i was nine years old. on her own my mother raise mid-brother and me. she taught us that the key to success in america is a good education. and she set the example, studying alongside my brother and me at our kitchen table so that she could become a registered nurse. in the past month, many senators have asked me about my judicial philosophy. simple: fidelity to the law. the task of a judge is not to make law, it is to apply the law

and it is clear, i believe, that my record in two courts reflects my rigorous commitment to interpreting the constitution according to its terms, interpreting statutes according to their terms and congress's intent and huing faithfully to precedents established by the supreme court and by my circuit court. in each case i have heard, i have applied the law to the facts at hand. >> rose: but the top republican on the committee, senator jeff sessions, expressed reservations about sotomayor's judicial philosophy. >> i will not vote for and no senator should vote for an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender, prejudices, or sympathies to sway their decision in favor of or against parties before the court. in my view, such a philosophy is

disqualifying. such an approach to judging means that the umpire calling the game is not neutral but instead feels empowered to favor one team over another. >> call it empathy, call it prejudice or call it sympathy, but whatever it is, it's not law. in truth, it's more akin to politics and politics has no place in the courtroom. some will respond that judge sotomayor would never say it's acceptable for a judge to display prejudice in a case. but i regret to say, judge, that some of your statements that i'll outline seem to say that clearly. >> rose: jong me in washington, al hunt of bloomberg news and nina totenberg. she covers the supreme court for npr. i'm pleased to have both of them here on this program. great to see you, my friends, welcome. >> thank you very much. >> rose: sketch for me the political picture of this nomination. >> well, charlie, today was all

about setting predicate. you set the predicate first of all for the real stuff that begins tomorrow with the questioning. so everybody making statements and her opening statement. but i think it's actually even more far-reaching predicate. she's going to be confirmed. the only question is is it 65 votes or 75 votes or whatever give or take a few. and i think what the republicans are trying to do is set a predicate now for subsequent possible nominees. >> rose: and what predicate do they want to set? >> this that the democrats pick activist left wing umpire judges. >> rose: but is she that? >> no, she's not. lindsey graham... i'll refer to nina on that. but lindsay graham looking at her judicial record said she is not a cause driven judge. there's very little criticism of her 17 years on the bench as a district court judge and appellate court judge on the bench. the only criticism about her personally had to do with the speech she gave. and most of it was about

refighting why democrats voted against sam alito and john roberts and even people obscure to the public like janice rogers. >> rose: does it in fact, as somebody has said, the republicans say it will be a victory for them if they can get as many votes against her as democrats got votes against john roberts? >> charlie, i've covered politics for a long time in america and i have never heard.... >> rose: when he says that to me i know i'm going to learn something. >> i've never heard a voter in waterloo, iowa, say "i give the republicans credit because they got as many against her as they did against john roberts." no. >> rose: all right. so set up her judicial profile for me and what to expect from her in these hearings. >> well, you know, she gave this opening statement today that was... it struck me as the ultimate in defense. when i heard that statement, it was pretty thin gruel. i thought to myself, she's not going to tell them anything.

nothing. >> rose: can you get away with that if you've got the kind of judicial record she has? i mean, this is not coming with a clean slate. >> she has a pretty... you know, for a democrat, she has a pretty conservative record. very much in the mainstream record. they don't have... in fact, on a lot of criminal law issues, you could say that she's more conservative than some members of the supreme court, including justice scalia, perhaps. so i think that's why they're hooking so much on her speeches, on what they view as racial identity politics. a little bit the firefighters' decision. and the judiciary committee, let's face it, it's like a dysfunctional family. they're fighting... t last ten fights they had and the rest of the world doesn't know what they're talking about. >> rose: most people say about her that the only thing they have to go on really beyond the

firefighters case is that speech and the word that the president used, "empathy." >> again, waterloo, iowa. i don't think it resonated. and i think smart republicans are aware of this. there's a careful game to play here. they can play that identity politics but let's not forget, this is a woman who i think without question is generating a great deal of pride in the latino community across america. the fastest-growing population, fastest-growing electorate. there are a number of republican senators who have to be sensitive about this. charlie, i'll give you a good example. richard burr, it looks like, in north carolina, where we both lived for a while, it looks like he won't have a strong opponent. if he did have a strong opponent i would guarantee richard burr would vote for this because of that growing latino vote in places like north carolina. you have to be sensitive to that. >> even look at this committee. there are senator kyl, the republican whip, senator cornyn, who's head of the republican campaign committee.

they're both from southwestern states with big, big, hispanic populations. i was actually sort of surprised that they were as tough today as they were. because this is sort of suicidal to get on the wrong wrong side of the fastest-growing portion of the electorate in the country. and george bush carried, what, 40% of latino population? and it was down to 30% for republicans in the last presidential election. i mean... >> determinative in a number of states. >> yes, put a gun to my head, duh. you don't shoot yourself in at head. >> i think nina would agree with somebody who i think is demonstrably qualified. you can say she's good, bad, i don't like her philosophy. but you can't say she's not qualified. so to vote against her is going to cause real, real problems about republicans. >> rose: talk a bit about the speech she made. i heard senator hatch today talk about some criticism he thought went way too far and i assume we

all know who he's talking about. >> well, the speech she made that's so controversial, the wise latina speech. she didn't just make that statement once, she made it at least five times. for those of us who are reporters, she is great at retreading material. and she spoke a lot to minority and womens groups and when she did, she had a line that was-- this is not an exact quote but-- i believe a wise latina sometimes makes better decisions than a white man. now, she would go on to say, it's not that white men judges can't get it, witness "brown v. board of education," it's that they have to work very hard at that understanding and not everybody is willing to make that effort. >> rose: justice ginsburg on strip searches... >> that would be the classic example. strip searching a teenage girl. >> rose: when you look at her record, what are the three or four most important decisions that she has....

>> well, you know, it's interesting, because the firefighters case you would not.... >> rose: that's the most prominent. >> but not the most important. it was a one-paragraph decision in which the court upheld the panel on... the panel on which she served upheld a 45-page opinion by a district court judge. >> rose: and then the supreme court... >> reversed it 5-4. and what's interesting when you look at her record is there are not these huge blockbuster cases. there are not big national security cases. there is no big abortion case. there is no big gay rights case. you have to look at a pattern. and the second circuit doesn't have a lot of those decisions. it tends to have a lot of business cases, a lot of criminal law cases, a lot of immigration cases. and on none of those can you show that she's some sort of a lunatic liberal. >> rose: from a media coverage, what stories are getting played for example, health care. clearly the president is worried

about getting a bill before august and what it's going to look like. clearly senator kennedy is not here. >> huge voice. >> rose: huge voice. >> the thing that people don't realize, to some people ted kennedy is the great liberal lion, which he has been for sure. he also was the greatest legislator in the senate. >> rose: because he could find common ground with anybody? >> he could find common ground. he knew he had a wonderful way of dealing with his colleagues. right wing republicans as well as left wing democrats. he upd the issues, he had the best staff on the history of capitol hill always. >> and timing. >> rose: and he could put all sorts of deals together there's no one that can do that right now, charlie. that's why i think white house, which is usually quite a joy at these things, have made a mistake. they have been too a above the fray. they're in danger of letting this thing get away. they can probably recover but they have to recover today. >> rose: it would have been fine to be above the fray if senator

kennedy was here... >> you can afford to be above the fray in the house because there are people who can put things together. >> and the double whammy is they don't have daschle. they thought they had had daschle who had written a book about this and devoted a good deal of his life to this issue. now they don't have daschle, either. >> rose: was she admired by her colleagues on the court of appeals, on the district court? >> well, you have to say in all candor when she... that once somebody's nominated to the supreme court, it's very hard, charlie, to find somebody who say... who knows them to say anything negative. but i got judges, republican appointees, to go on tape with me and say wonderful things about her, which is most unusual. so she was very well liked as far as i can tell by her... by a great many of her colleagues. >> i can say this, and i have a very dear friend on that circuit who was the "wall street journal's" counsel for many years, bob sack, one of the great first amendment lawyers in america, who i spoke to about her well before she was ever

nominated because her name had been circulated. he is very... he likes her a lot. he says she's an incredibly solid judge. she's very collegial, all these stories came out about how she doesn't get along with people he said "i get along with her great." >> one of the reagan appointees said she has a sparkling personalities. she organizes dinners. when things get too you have to, she's the person who diffuses it. so if she's prickly, i wasn't able to find people who say that on the record. >> she's prickly with lawyers, which is not exactly something that's going to hurt her in any political... >> uh-uh. >> rose: thank you very much. when we come back, we'll talk more about judicial philosophy and later on we'll talk about the c.i.a. which is getting a lot of attention in washington these days. back in a moment. >> rose: we continue with our

look at the sotomayor confirmation with two people who know the supreme court very well. walter dellinger, who served as assistant attorney general during the collation and was also acting solicitor general and is a leading constitutional law authority. susan block joins us, she's a law professor at georgeup to university law school on constitutional issues. she has testified before congress and she once clerked for justice thurgood marshall. i'm pleased to have both of them on this program to talk about what it is that we ought to think about in understanding the judicial philosophy of judge sotomayor. tell me what it is that's worth noting. >> well, as a trial court and as a court of appeals judge, she's been incredibly meticulous in terms of looking at the record and focusing on facts and i think she'll do that also on the supreme court. not all the justices pay as much attention to the facts. and i think that, as she said today, a judge's job is not to make the law but to apply the

law. and i think that's what she'll do. >> rose: now there's an interesting idea i saw expressed i think in the "washington post" today, it is this notion that someone was saying that in conversations in chambers when they decide these cases, that her experience, that she will bring some experience that a lot of these people have not had. >> this ability to bring to the conference table the experiences that she has, that thurgood marshall had, that these justices never experienced. and when thurgood marshall retired, the number of the justices went out of their way to point out how important it was this experience that he could bring and she clearly will be 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 just that she's the first hispanic. but, you know, the fact of her poverty is really important. >> rose: but does that... by

definition your life experiences affect how you see the world. >> that's right. >> rose: and that's a good thing? >> that's a good thing and it's a good thing that you have that kind of variety among the nine 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 bring into it. i think the way... the contrast that i see is when judge bourque was asked why he wants to be a... why he wanted to be a supreme court justice, he said "i think it will be an intellectual feast." and i think a lot of people were turned off by that. they wanted answers like "justice, fair." >> rose: help us understand, walter, how people look at this

idea of the law is the law is the law or the law is what i say it is. >> well, you know, the notion that law is some kind of mechanical process like proofs and euclidian geometry is the great mistake that is behind so much of the criticism of judge sotomayor. this notion that judging can be done well without drawing upon experience or sense of social culture, your sense of history, your understanding of how different rules will affect different people, that's just crazy. because if you actually look at the constitutional phrases, we're talking about phrases like "equal protection." we're talking in, say, the second amendment about what constitutes a reasonable regulation of guns, the most ardent advocates of the right to bear arms understand that some regulations are reasonable.

you need a sense of how different regulations would affect different kinds of people. so that judges... i think there's this notion that somehow with a dictionary and a logic book you can answer questions and therefore for someone to take into account their experience, no matter what that experience is, or their sense of how other people will react means you can't do law right. take, for example, this lewville and seattle school desegregation cases a few terms ago where the folks in those towns were trying to make sure that there was some cross racial experience for kids in the school system. the question was is this like or not like the jim crow resupreme of segregation in the south? the low low jigss on the court said "this is just like that. the other judges said no, it arises an entirely different social context. this idea is as radical as

oliver wendall holmes who said "the life of the law has not been logic it has been experience." and experience forms almost every decision judges make. and to pretend that judges don't make law or policy when particularly in the constitutional air yaw yah but in statutes as well they take very broad principals. >> rose: are you saying that even those judges who would argue that it's not... legislation is for the legislative branch, even those who say that in fact, by their decisions, create law? >> in fact, yes. and i think the worst kind of judicial law making is one that doesn't even recognize, acknowledge, or admit that those policy considerations are playing a role. that is, to pretend that you can stare at a few words like "privileges and immune tease" or "due process" or equal

protection or "the right to bear arms" and decide if you think hard enough and logically enough about what that means without importing any other values, that's just, i think, a misunderstanding of how law works. and to pretend that you find some magic, logical formula is then not to take responsibility for candidly explaining and acknowledging the real bases of the wellsprings of... for the decisions that you're actually making. >> rose: so if you look at her, what has... how can we say that this life experience from the south bronx to the district court to being a prosecutor for... in new york, all that, how has that shaped her? how has that influenced her? what do we know about her values because of that? >> well, i think we can't be totally sure. i mean, there are groups on the left who are worried about

obama's selection of her, would have felt better had he picked someone that they could count on more. >> rose: they that they felt was more predictable. >> and certainly in the area of criminal law, people are wondering which way she'll come out. >> rose: what can they say about where she's been already on criminal law? >> i think from her record on the court, it's hard to say much. i think the reason people wonder think that maybe she'll be for con sfshive the, for example, than souter was, is because of her background as a prosecutor. less so than her actual decisions >> she made a point today of noting how she felt. she didn't use the word "empathy but she understood in cases that came before her the plight of victims of crime and how much those victims and their families had suffered. and so she realizes how important it is to get these decisions right in the criminal

justice area. she's a person who really digs down into cases that 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 on the court of appeals. so she'll be quite active. >> rose: where will she fit in terms of that? >> it's hard to say. her record is not one of voting for every sort of person that you would think liberals favor. far from it. she voted against 80% of all the asylum claims brought in immigration cases. she voted against 80% of all the people who said they were victims of discrimination in those cases, as did most of her colleagues. she's very much on the mainstream of that court, the second circuit, and has been for 17 years. >> rose: so both of you know the supreme court well. what is going to be surprising for her? even though she's been an

appellate judge, even though she's been in the judicial process since she got out of law school, what will be different for her now? >> many of the justices that have gotten on to the court have said that the biggest surprise, even from the court of appeals, is how the conference-- there's not really a conference. it's not a debating society where they just all... it's... certainly under rehnquist it hadn't been... rehnquist went in order, didn't want people to speak out of order and scalia had said when he first got on the court that being the last with the least seniority when he started he was really upset that by the time they got to him-- because they start with the chief and go downward in seniority-- by the time they got to him it didn't really matter anymore. he knew what everyone was going to say and he didn't feel he had much to contribute.

so i think that's very different from the way most courts of appeals work. they only have three, not nine, but they tend to really interact and not have this sort of formal pattern. and i don't think... i don't know exactly how roberts is running it now. but my impression is it's not that different from rehnquist. it's a little looser, he's a little less, i think, strict. but it's not the dialogue that you and i might have or the three of us might have. "well, what do you think? how about this? how about that?" it's fairly structured. >> rose: what did you most admire about thurgood marshall? >> oh, my god, he was my hero. i loved his honesty, his ability to understand what the law... the impact of the law and to really care about it. >> rose: could you argue that he never forgot where he came from? who he was? and this that was part of his

essence of the court? >> yes. a that's exactly right. he never forgot who he was and had no airs. when he retired and they said why are you retiring? he said "because i'm old and falling apart." (laughter) >> rose: and justice o'connor said she learned a lot and felt the other justices did, too, from thurgood marshall. >> rose: who's your judicial hero that's been a supreme court justice? >> i don't have one. i clerked for hugo black and i thought he was a great elemental force on the court, certainly for the first amendment. you know, i have many heroes. i think we're entering a time when people speak of judicial activism without realizing that the issue more and more is conservative judicial activism. the great hot-button issues that we're talking about: guns, property, reverse discrimination cases where those who favor a

conservative view point want judges to set aside decisions made by congress and state legislatures and local governments, the elected representatives. so more and more, that's the issue is whether traditional power will be used to invalidate what popularly elected governments have done and to do so in the name of certain conservative values. >> rose: what, walter, should the public learn from this? >> well, i think that, you know, the constitutional process is working. they'll learn that elections matter. that she's going to look somewhat different. that judge john roberts and judge sam alito did and that's because that's a different president elected, i think actually. but like them, she's a court of appeals judge who's extremely well respected by her colleagues on the bench, both republicans and democrat colleagues respect her as a highly professional judge. >> rose: i was giving you an opportunity to "t" up your mary

mcgrory comments. (laughter) >> oh, well. mary mcgrory was concerned that... she was a "washington post" column antitrust who wrote at one confirmation hearing she heard senators talk and talk and talk and she wanted to learn about the nominee. so she proposed that at confirmation hearings a banner be posted on the back wall of a hearing room facing the senators that would say "this is not about you." (laughter) >> rose: on that note, thank you. it's been a pleasure. walter, thank you very much. >> thank you, charlie. >> rose: we'll be right back and we'll turn to the c.i.a. >> rose: we now turn to national security. president obama has been reluctant to investigate bush-era security programs saying we should be looking forward and not backwards. but a series of fresh reports on those programs have increased pressure on the president. the "new york times" reports that a secret c.i.a. program was withheld from congress on the orders of former vice president dick cheney.

some democratic senators have called for an investigation, while republicans are cautioning against an inquiry that would undermine intelligence operations. senator john cornyn, republican of texas, said on fox news sunday "this is high-risk stuff because if we show the ability or the willingness of our intelligence operatives and others to get information that's necessary to protect america, there could be disastrous consequences." attorney general eric holder is said to be close to appointing a criminal prosecutor to investigate whether c.i.a. agents tortured terror suspects. he's expected to make a decision within weeks. joining me now, scott shane of the "new york times" and jane mayer of the "new yorker" magazine. i'm pleased to have them both on this program. so, what is the story swirling around about the c.i.a.? sort this out for me. first, the eric holder question. >> well, i mean, there are so many fronts bubbling up at once here. i mean, so holder is one piece

of this where he is... it's his job to figure out if crimes were committed and... major crimes, which torture is one of. and so he's been handed documentary evidence in the form of an inspector general's report from the c.i.a. that's filled with the possibility that there were crimes in the bush years that detainees were tortured. >> rose: let me interrupt you. reading "newsweek" this week, there's a story there about him which says that he was reluctant to do this but was... but came to the conclusion from reading some of this stuff that it turned his stock ma'am. >> right. one of the reports in particular. this inspector general's report that was done by the c.i.a. itself, is filled with details that have really upset the people who have read it. and holder is just the latest of people to have read through this report and thought, oh, my god, we really may have to prosecute someone. so he is now talking about appointing some kind of special prosecutor, which is about the last thing that the white house would really like him to do. >> rose: because it distracts

from health care and everything else and... >> well, and they see it as potentially some kind of culture war that's going to alienate republicans on the hill who support the need for various things and also independent voters who they want to keep in their column. so you've got rahm emanuel in the white house and david axelrod, the political advisors to obama are saying "don't look back, just fix it, move forward." but what we're seeing is when it comes to torture, it's really hard to sweep it under the rug. all over the world when there have been problems with torture, they get a life of their own. they require some kind of inquiry. >> rose: okay. one point about that-- many points about that, but one. what are they talking about? because there were legal definitions and the bush administration went and got some legal authority from its own lawyers before it could do this. >> right. >> rose: they're not talking about where they had legal authority? >> the bush administration defined most of what was done in this program as legal and not

torture. but this report---to-get back to this particularly upsetting report done by the c.i.a.'s own inspector general said-- uh-oh, i think some of this was criminal and it also violated our own boundaries here potentially. you're talking about some of the interrogators who went beyond what even the bush justice department had anticipated. they waterboarded people not once or twice but, as we know, 183 times in one case. 83 times in another case. they subjected people to kind of a long course of treatment which the red cross in its own report defined as torture. the problem is when there are credible allegations of torture under u.s. law, the government has to investigate them. >> rose: and who do they want to prosecute? >> well, i think what we're seeing is-- and, again, this is just from piecing this together-- it appears to be that they're talking about going after the actual interrogators people who may have actually

been in the room using these really brutal tactics. and from what i know about this and what i write about in my book-- is that some of these people are contractors, not c.i.a. officers. >> rose: okay, this is your story today, scott. president obama is facing new pressure to reverse himself and to ramp up investigations into the bush era security programs despite the political risk leaving democrats on sunday demanding investigations about how highly classified counterterrorism program was kept secret there the from the congressional leaders on the orders of vice president dick cheney. tell me more. >> well, last month, on june 23, somebody came to from the counterterrorist center at c.i.a. to the new director, leon panetta, and said basically "boss, there's a program you should know about." and described this program and said "we haven't ever told congress about this." this apparently was deeply upsetting to mr. panetta who had just been through a flap

involving the house speaker, nancy pelosi, and whether she was adequately briefed or accurately briefed about waterboarding. >> rose: she accused the c.i.a. of lying. >> exactly. is he had gone to her and tried to be tactful but basically said to congress "on my watch there won't be any ambiguity, we'll tell you everything you need to know." so hear he learns that for eight years there was a secret counterterrorism program that the congress had not been told act and that took place on orders of vch dick cheney. >> rose: not telling took place on the orders of the vice president? >> exactly. so he rushed over to capitol hill. first, he put an end to the program. he rushed to capitol hill and the next day called essentially a special meeting of each of the committees, the house intelligence committee and the senate intelligence committee, told them about this program, told them... essentially said we're sorry it wasn't briefed and did mention that the reason it wasn't briefed was that vice

president cheney back in 2001 when it was started up had advised the c.i.a. not to do that. >> rose: what was the program. >> now, for several days now a lot of folks in washington-- reporters and others-- have been trying to answer that very question. what was this program that caught the vice president's attention that he thought was so important that it not be shared with congress? and we're kind of beginning to get an answer to that for tomorrow's newspaper. we're sort of following up on a story on the "wall street journal." they had said that it came under a presidential order to capture or kill members of al qaeda after 9/11. and we're told that it was to sort of insert teams into countries where high level al qaeda people were located and where other means of killing

them were not acceptable and, you know, essentially execute them. so it would be the equivalent of what we've done with missile fired from drones but this would be up close and personal, with a handgun or something like that, perhaps with a c.i.a. operative, perhaps with a local ally recruited for the purpose or paid for the purpose. but this program in all eight years never got beyond the planning and training stage. we're told that no one was ever killed under this program. >> rose: tell me what's wrong with this. >> a lot of folks, including democrats who were briefed on it think nothing's wrong with this. >> rose: but what do we now think is wrong with it? >> well, i think the focus has really been on whether congress... the debate has been whether congress should have been told. >> rose: this is just a disclosure question, not so much that this was an evil program? >> there's some complications with it. at least according to... there's one report about it in the

british press, the guardian newspaper which suggests that the c.i.a. was planning to keep secret from allied countries that they were going to operate hit squads within these countries. so it creates some diplomatic problems certainly. and i think that might have been one question. >> rose: during the clinton administration they tried to kill osama bin laden. >> they absolutely did and congress authorized the u.s. government to try to kill members of the taliban or al qaeda. but basically usually the order ask s to try to capture first and if you can't capture than kill. that's been sort of understood. >> and, of course, the so-called extraordinary rendition program of c.i.a., which was to capture people, capture terrorists and move them either to a third country where... for the purpose of interrogation or sometimes to the c.i.a.'s secret prisons overseas for interrogation. we've done a lot of that. the c.i.a. captured a lot of people. but in some cases-- such as the

famous case in milan, in italy-- that caused huge upset. there's still a big prosecution going on that involves both c.i.a. defendants and italian intelligence operators. >> rose: they took somebody from milan... >> they picked up a radical muslim cleric and took him to egypt. and some people in italian intelligence knew, others didn't. a lot of the government was extremely upset about this. so the idea that we send sort of hit teams or snatch teams into european countries hasn't gone over very well. and so undoubtedly if they had done killings in countries like that, there would have been political and diplomatic repercussions. and we're told that the c.i.a. ran into so many logistical and legal and political obstacles that this thing just never flew. >> rose: go ahead. >> all i was going to say is the other thing that's really... the

reason it's creating so much controversy, as scott said, there's an issue about oversight. basically, under law, the c.i.a. is supposed to inform congress of any major intelligence operations that it is planning. not necessarily just ones that are already under way. and so the hill... congress was already furious with the c.i.a. for what some members up their felt was not adequately telling them about the interrogation and detention programs of that the c.i.a. rap during the bush years. that's why you have noeps saying she didn't understand or was not told about... was not told about waterboarding. you've had senator white house from rhode island saying that they lied and said that torture was necessary and only done as a last resort and in fact they jumped to it right away and it didn't work. there have been many allegations from the hill, belatedly, that they weren't truly informed. and, of course, there are many people who think that at the

same time the hill... some of these people in congress really didn't want to hear too much about this because it makes them complicit in some way. >> rose: and there are now reports coming out that the waterboarding was not as described. it was much more severe and longer. >> exactly, right. it was done over and over and over again, not ju twice as it's done in u.s. training. the people in the hill were told we're just going to do with the detainee what is we do with our own people in training. we have a training program where we put them through a tiny taste of torture. that's what they were told in congress. turns out, we did things to our detainees that were so far beyond what we do to our people in traininging that they're really on a whole different scale. >> rose: and what were those things? >> well, for instance in our training.... >> rose: beyond waterboarding and sleep deprivations, they were hanging people by... >> by their hands. subjecting them to sleep deprivation for 11 days wrz in training you can only do it for a night or two. in training, again, you can waterboard somebody for... twice for 20 seconds or so each time.

they did it to somebody 183 times over and over again. it was taking the methods and... i kind of remember talking about one point to senator le vin who said "anything can become torture if you do it enough." and they basically may have pushed the limits. >> rose: help me understand, scott, what it is that the president when he came into office... what was his intent and how has he now for whatever reason changed on these questions? what did he shut down? what has he intended to do he's not now doing? >> well, he was obviously on the campaign trail of a vociferous critic of the bush counterterrorism policies and frequently said that they had become a recruitment tool for al qaeda and made the country less safe rather than more safe. in some ways, he sort of followed through on what he promised and what he indicated he might do. for example, he ordered the

c.i.a.'s secret prison program closed. >> rose: these are rendition centers around the world? >> yeah, these are the secret jails where cal cal and the other folks were kept for years... cal lead sheik mohammed. >> rose: where were they kept? >> it's never been officially disclosed but poland, thailand and other places. >> rose: you're smiling because you know. >> it's just that nobody's been allowed to discuss it openly. >> it's still technically.... >> rose: they can tell you off the record but they won't tell anybody publicly? >> i think it's pretty clear, as scott says, that poland was one place. i think they've talked about other eastern european countries >> and he a also has ordered the closing of guantanamo by the beginning of next year. so they have to figure out what to do with those folks. >> rose: of course, cheney waded in and obama clearly wanted to look forward rather than backward, and he clearly said

there was some things going on like closing gitmo and other things that we oughting to do. >> yes. but he tried to keep it to a minimum. he's compromised on certain things such as maintaining military commissions, the prospect of prolonged detention without charges and without trial. those things are still... are still in play and apparently still part of his plan. but i think his overriding priority was not to be the president who who spent his first term investigating his predecessor. and i think there's a real political allergy to the whole idea in the american system of, you know, sort of launching a big investigation into your predecessor. but also from a practical point of view he knows... he may be remembered as the president who did or did not reform health care, he'll never be remembered as the guy who, you know, found out that k.s.m. was waterboarded 183 times under his predecessor. so he wants to get congress focused on his own programs and

he's also worried about alienating republicans, some of whose votes he may need on these domestic issues. >> he's also worried about alienating the c.i.a. frankly, they don't want to have what they call as a rogue c.i.a. they see obama as a young president without much national security experience and the people around obama are worried that he will alienate the c.i.a. by pushing for prosecutions of officers who thought they were doing what was legal at the time. >> rose: okay. now what about this idea that there are people over there who were somehow associated with some of these programs or at least had only in of them and yet they were considered so vital to the future of the c.i.a. that they're still there. >> well, to me it's... because one of the things that obama.... >> rose: because they were very good. >> ...ran on was to try to create... you know, change you can believe in. a clean break with the bush past. yet a number of the key players at the c.i.a. who were there during the worst of the torture program or whatever you want to call it, you can call it an

enhanced interrogation program, during a worst years of brutality are still there. and nobody's been held accountable or asked to pay any particular price. >> rose: they're still there because they're admired for their professionalism? >> they're very good at other things. and they're considered knowledgeable and.... >> rose: and how high up are they? >> well, the number-two person at the c.i.a., steve cap pass, is somebody who was certainly there during those years and certainly apprised of what was going on and then there's a man named john brannon who was formerly the chief of staff to george tenant. he's now at the white house. >> rose: and he was rumored to be a possible c.i.a. director? >> right. >> rose: and didn't get the job because it was considered too hot? >> he was considered too tainted by this torture question. yet he's reemerged as a top advisor to obama on national security. >> but to be fair to the dilemma that obama faced coming in, these are also the guys with the most experience with al qaeda.

al qaeda is still out there. there are many folks out there who still want to mount attacks against the united states, haven't had much success since 2001. but, you know, obama probably would not have wanted to sort of fire everybody who had experience in that realm and so, you know, clearly it was a balancing act. >> so basically when you read between the lines about what holder is talking about doing-- the attorney general-- and what targets they're looking at for prosecution, they're not talking about that top echelon of people. they're talking about the people on the bottom who were in the room who might have been actually physically involved in brutal interrogations. >> rose: and knew they were going beyond what they were supposed to do? >> and yes.... >> rose: right? yes? >> maybe not. we don't know if they had criminal intent. we haven't been able to interview these people. so we don't even know the names of them. >> rose: nor do we have the videotape. >> and we don't have the

videotapes of the interrogation because the c.i.a. destroyed them. and there is a separate criminal investigation going on of the destruction of those videotapes. >> rose: so you did a probe, probably, on laept, where does he stand on this >> it's so complicated for him. he's known as a reformer, a man of integrity and not an ideologue. he was formerly a republican, now he's a democrat. he is trying to bring the c.i.a. into a new day without lowering its morale by prosecuting people for past grenls you behavior. >> rose: the other thing that comes up, scott, the c.i.a. received a lot of criticism, obviously because of weapons of mass destruction, also because the neoconservatives didn't trust the c.i.a. have all those things been fixed? whatever the complaints were for whatever reason? is the c.i.a.... despite all this, operating at a level of

more productive, more professional, better? >> well, that's a very tough judgment call. you know, sometimes you forget that they're given very, very difficult jobs to do. it's sort of the... it's secret work, often the kind of stuff no one else wants to deal with. and often under intense political pressure from the white house. sometimes from congress. sometimes contradictory pressure. but i don't really know. there hasn't been a cleaning of the house at c.i.a. by my means. i think it's anyone's guess as to how the c.i.a. is really operating at this point. >> rose: it's a guess. you don't really know. >> we don't really know. it's true they've taken a lot of record for their track record on intelligence collections for iraq's weapons and these

controversial programs involving things like interrogation, rendition. what they're up to now, whether they'll be able to give obama the information he needs, for example, about iran, is a tough call. >> i mean, i think one thing you can see is they are... panetta is trying to inform the hill more promptly than was done during the bush years. he was a former congressman and it's something he cares about. >> rose: i assumed that was one of the reasons he got the job. >> i think so. right. so that seems to be one change. we also know they're very much carrying on the program of using drones to try to... unmanned aerial vehicles to try to kill al qaeda members in afghanistan. >> rose: and they've been... and taliban, too. >> and taliban. >> rose: and they've been reasonably effective. >> they think they've been very effective. there's some talk about whether or not it's had too much of a blowback. >> rose: in afghanistan, kristol has raised that issue in terms of how he uses them. >> how many terrorists do you

create when you kill the families that live around the terrorists that you're trying to kill. >> rose: exactly. finally, dick cheney. >> it's amazing. yeah. i mean.... >> rose: i'm not even going to ask the question. i'm going to let you answer whatever you thought i was going to say. >> well, what's interesting is during... as a reporter who covered a lot of this during the bush years you always had the suspicion that cheney was lurking behind the scenes controlling many of the sort of national security policies. and so what we've seen now is document by document leak by leak and in this last story, too it is cheney who was literally telling the c.i.a. not to inform congress. which raises all kinds of legal problems. it's cheney in... there was a recent document that just came out, inspector general's reports on the warrantless wiretapping program. there was cheney who was all over it. >> rose: scott, if holder appoints a special prosecutor, he l he or she have subpoena

power to bring all these people in among many of the names we've mentioned, including the former vice president and do they have to answer that subpoena? >> if this is a criminal torture investigation, the usual procedure would be to dispatch f.b.i. agents to interview everybody involved about what they know. i think the problem that may be looming for mr. holder is that if, indeed, he focuses very narrowly on the people who waterboarded more times than they were permitted to, you could end up with the perception of a situation sort of like abu ghraib where a number of very low-level military police officers were punished and sent to jail but nobody up the chain of command had anything like the same punishment. >> rose: there was neither a firing nor a resignation. >> exactly.

and in this case it's very clear and it's totally documented that the c.i.a.'s top officials proposed these methods and the white house approved them and at least a handful of members of congress were briefed on them and did not go out of their way to object or to try to stop them. so the idea that the people down at the bottom of the totem pole might end up being the only ones really held accountable i think will be politically difficult. >> i think it's also probably just legally not containable. because the first thing that those targets will do is say "we were authorized." and i've talked to some of the people who know about their situation and the first thing... they've already prepared charts showing how many layers of authorization they had. i think that when i left i heard they were up to eight layers of authorization. they're going to point the finger straight upward over their heads. >> rose: and how high will it go? >> well, i mean, you know,

potentially... i mean, this was a program that was authorize bid the president and the vice president of the united states. >> rose: and their lawyers. >> it gets very sticky. >> rose: thank you. thank you, scott. thank you for joining us. we'll see you next time captioning sponsored by rose communications captioned by media access group at wgbh access.wgbh.org

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