>> schieffer: today on "face the nation," is the justice department about to open a new investigation into allegations of torture during the bush years? and a preview into the hearings on the nomination of sonia sotomayor to the supreme court. attorney general eric holder is leaning toward appointing a prosecutor now to investigate whether the c.i.a. tortured terror suspects after 9/11. an idea the white house originally opposed. it's sure to set off a furor, but we'll get the first congressional reaction from two key players. the democratic chairman of the senate judiciary committee patrick leahy and ranking republican on that committee jeff sessions. then we'll talk about the rest of the week's events with syndicated columnist kathleen parker and kevin mirada, national editor of the "washington post." i'll have a final word on michael jackson week. but first investigating torture on "face the nation."

captioning sponsored by cbs "face the nation" with cbs news chief washington correspondent bob schieffer. and now from cbs news in washington, bob schieffer. >> schieffer: good morning again. senator leahy, the chairman of the judiciary committee and the committee's ranking republican senator jeff sessions are in the studio with us this morning. we invited them here, of course, to preview the hearings that open tomorrow on the nomination of sonia sotomayor to the supreme court. an will get to that. but first gentlemen to the top of the news. two big stories this morning. one in the "new york times" that says vice president cheney ordered the c.i.a. not to tell congress about certain still secret programs. that would be against the law. and that the administration is now considering appointing a special prosecutor to investigate allegations of

torture during the previous administration. attorney general eric holder, now said to be leaning toward doing that, even though president obama has said he didn't want to go there, that he wanted to look forward not backward. let's start with you, senator leahy. what about this? should a special prosecutor be appointed? >> i've always preferred my idea of a commission of inquiry to look at all these issues, whether people broke the law or whether as some feel some in the past administration actually wrote memos telling people that they could break the law, that somehow they were above the law. >> schieffer: that's different than appointing a special prosecutor. >> here's about the point. the inquiry would go into everything. special prosecutor is said to be very narrowly focused. we have one now looking into the obstruction of c.i.a. tapes but this would be, at least as i read the stories, very specific and focused.

obviously eric holder is a superb attorney general. he's going to make up his mind what is the best thing to do. i just don't want to see an instance where if the higher-ups gave the order to break the law that the ones who get punished are the people basically on the front line, the lower-level troops. >> schieffer: what does that mean? does that mean you're for a special prosecutor or not? >> i'm not going to interfere with the special prosecutor. that's entirely up to the attorney general. >> schieffer: would you advise him to do that? >> i would love to see... my advice to him i keep private. usually it's more worthwhile. but i will... i would like to see the inquiry... i that i this they may have some problems because the commission of inquiry i talked about would have given immunity to go into all this. obviously we won't want to do that if there's criminal prosecutions being looked at. maybe some of the people were opposed to the commission of inquiry now facing the

possibility of criminal prosecution may find it a more acceptable idea. >> schieffer: all right. senator sessions, what about you? a special prosecutor? >> bob, i don't know. we've had probably in my committee a judiciary and armed services 30 or more hearings on this. the intelligence committee has has great numbers of hearings and written reports on it. the military has done a series of independent reports. i believe that that is sufficient. i don't believe a special commission is necessary. i would hate it and it would be so sad to me that if the attorney general felt he had to do a special prosecutor. the president said-- there's no doubt about it-- he said i want to use every power i have to defend the american people. the american people said yes. these soldiers, these intelligence officers all over the world-- i met won who a year after 9/11, he said at 8:00 at night for dinner

that's the earliest he had left work in the entire year. they were in a dangerous personal circumstance. so we were facing some real challenges. now people try to do the best they could. i don't think i see the evidence yet to justify any prosecution. >> that begs the question because i have a great deal of admiration for the c.i.a. agents who are out there working on the front line. like jeff, i've talked with them and met with them in after sgan stan, in iraq and elsewhere. as well as our soldiers. remember what happened at abu ghraib. who gets punished? mostly the corporals and the lower echelon not the people who condoned that. if as the "new york times" said we have the vice president of the united states telling people to break the law that's a pretty serious matter. either he did or he didn't. if he did, that's something we ought to know because i've been here with six administrations. usually if something is done

wrong by one and it's exposed the next one tends to behave themselves. >> i would just say on that abu ghraib there was no evidence that the higher-ups participated in any way. in fact one of those defendants that was tried and convicted and went to jail said that, no, they didn't know. if they had, they would have been held to pay. in other words it wouldn't have happened. it was an unusual event. the military did the right thing and prosecuted the people who were responsible. >> schieffer: what about this whole idea though, senator sessions, that the vice president is now... the people are saying, i mean, sources are saying that he told the c.i.a. not to tell the congress about it. now that's pretty serious stuff. >> the sources sources. i mean we've had so much.... >> schieffer: shouldn't that be looked into? >> i'm sure it will be. but i would just say that sometimes leaked stories from unnamed sources don't turn out to be quite what they appear to be. maybe they don't know the full facts and so forth in these matters. some of the intelligence committee people are pushing

back on those stories. i don't know what the facts are. but i believe that vice president cheney served his country with as much fidelity as he could possibly give to it. he tried to serve us in an effective way. i hope that nothing like this would impact on his outstanding record. >> schieffer: what about that though, senator? should we just leave that lay? >> i think it's impossible to just leave it lay when you have something like this. it's either true or it's not true. i'd like to know if it's true or not. i mean, nobody in this country is above the law. if you don't like what the law says, then get the law changed but you can't have somebody say, well, if you're vice president, you don't have to obey the law. but if you're the soldier out this in the field or if you're a civilian, you better obey the law. you can't do that. democracy can't do that. >> schieffer: all right. let's turn to the hearings that open tomorrow on the nomination of sonia sotomayor. she's visited now with over 89 senators over these past weeks.

there is also an overwhelming democratic majority. there's an overwhelming democratic majority on the committee that you chair, senator leahy. some people are saying it's already a done deal. she's going to be confirmed. there's nothing senator sessions and the republicans can do about it. is she going to be confirm snd. >> i suspect she will be& confirmed but i would hope that it does not turn into a partisan fight for the good of the court. and for the good of the supreme court. chief justice roberts is not somebody i would have recommended as a nominee to president obama. but i voted for him when he was nominated by president bush because i felt chief justice of the united states should not be on a party-line vote. i just want to read something about... there's a profile today of judge sotomayor. says she was inspired by the ideal of knew trality.

she said i won't be playing for the democratic team, the republican team, the hispanic team. i'm going to be playing for the continues constitution team. she's been a judge longer than anybody who has gone on the supreme court in almost 100 years. >> schieffer: let's ask senator sessions. what more can you ask? >> i wish she had been saying that in her speeches over the last ten years rather than what she's been saying. it's absolutely critical that whoever sits on the bench-- and no one should sit on the federal bench who is not committed to the principles of the oath, which is that you should be impartial and do equal justice to the rich and poor alike and not respect persons but do justice every day. in her number of her speeches, for example, she has advocated a view that suggests that your personal experiences, even prejudices-- she uses that word-- it's expected that they would influence a decision you

make. which is a blow, i think, at the very ideal of american justice. every judge must be committed every day to not let their personal politics, their ethnic background, their biases, sympathies, influence the nature of their decision- making process. it's the core of the american system. >> schieffer: would you oppose her because of that? >> well, i think she's going to have to answer that. because this is a mature judicial philosophy she's stated. she has criticized the idea that a woman and a man would reach the same result. she expects them to reach different ruments. i think that's philosophically incompatible with the american system. >> i totally disagree. >> i've read her speeches in great depths. i'm convinced that's what she said. it wasn't just a one line a latina will do a better job than a white male. >> schieffer: she has used that in five different speeches i think, senator leahy. >> that's grasping at straws.

i'll tell you why. here's a woman who is a mainstream judge. she deserves respect as a judge. during her time actually for the days that she was a very tough prosecutor to her days as a trial judge to a court of appeals judge, that's what we base it on. she has a track record. she has shown to be a mainstream judge. you don't have to guess what kind of a judge she's going to be. i've asked her about her speeches. she said ultimately and completely the law controls. as a judge, she's shown over and over again ultimately and completely the law controls. we've had a lot of judicial nominees of both republicans and democrats talk about the background, how that has influenced them. former president bush talked about empathy when he nominated a republican to the supreme court. you know, the fact is her

answers are these. ultimately and completely the law controls. and she has the experience and the cases to be a mainstream judge. anything else is nitpicking.... >> schieffer: nitpicking? >> and it gives the impression that a lot of people were going to oppose anybody, anybody that president obama came up with. >> i am really flabbergasted by the depth and consistency of her philosophical critique of the ideal of impartial justice. i think that's a real expression of hers. i think it does not show up as much on the lower court where you're supervised by your circuit in the supreme court. it can show up much more on the supreme court. she's advocated international law, criticized to the a.c.l.u.in april of this year justice scalia and thomas for expressing concern about judges citing foreign law and

praises justice ruth bader ginsburg for doing so. on issue after issue she indicates an advocacy position or her position in the firefighters' case was consistent with her series of rulings of lawsuits filed when she was.... >> schieffer: let me bring up something about the firefighters' case. this was the case where she ruled against the firefighters who claimed they were discriminated against because they didn't get a promotion up this in connecticut because minorities did not score high enough on the same test and the whole test was thrown out. the supreme court reversed her on that case. but people for the american way, which is a liberal group that supports sonia sotomayor, is calling attention to what they call frank richy. he's the central character in this. his litigious and... background. they say and point out that that he has been fired from another fire department, that he claimed discrimination

because he was dyslexic. did they have a point here? >> no. that's just typical of the personal attacks of people for the american way and the hard left that is supporting this nom thags. ... nomination. these were 18 firefighters who filed this lawsuit. not just frank richy. his name was the first one on the case but 18 of them. when you show empathy for one party, bob, you necessarily show a bias against another group. i just want to say i think pat and i would agree on this. we need to think through how we handle these cases today. and do it in a way that is effective legally and her opinion was rejected by the supreme court. it was a very important opinion. >> schieffer: will you try to stop this nomination or will you just use this as what some have said will be an educational moment? >> i hope it is is an educational moment because i think we are moving at a cross roads in american jurisprudence. are we going to adhere to the

classical view of the role of a judge as a neutral arbitrator not out to promote an agenda on ideology or are we going to have a restrained judge who follows the law in case after case? >> schieffer: i'm sorry. we're going to have to end it here. >> she simply followed what the supreme court rulings were at that point. again five members of the court changed their position afterwards. she did what a judge is supposed to do. she followed the court. >> all nine reversed the opinion. >> no, five did. >> all nine. >> 5-4 decision. >> schieffer: we've got to go. thank you. we'll be back with a little round table in just a second. sí@

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front page today, that eric holder may actually appoint a special prosecutor to look into he's torture allegations. i would also point out that "newsweek" which is owned by the same folks also had the same story to give them credit where it's due. how big a story is this? >> well, i think it's part of this ongoing development of whether you look into the past and spend time looking into the past and move forward. that's been a very difficult line to walk for the obama administration. >> schieffer: they didn't want to do this. they didn't want to look back. at least the president didn't. you know, he worried that it might be like some banana republic where one group gets elected and they put the guys that came before them in jail. do you think this is really going to happen? is this a split between eric holder and the white house? >> there's certainly splits in the white house which will have to be resolved but eric holder has demonstrated that, you know, the more that they look into some of these abuses of the bush era, the more that they think particularly those who carried out some of the

interrogation tactics should be held accountable. >> schieffer: if you had to guess right now, do you think he will do this? >> it looks like he's leaning toward doing it. he could change his mind. >> schieffer: kathleen, what do you make of this. >> i think it's a real big problem for president obama because he really has said quite specifically he wants to not look back. one of the reasons he doesn't is because the republicans will, you know, they'll assume a defensive crouch. this will start a whole new partisan bickering, a war really. and that's a problem for his domestic agenda. it's very tricky for the administration. >> schieffer: it's not like things are going swimmingly for the domestic agenda right now. it looks like health care may be in big trouble. >> definitely not. obama's own party is losing courage. you know, i think what's happened... well, i shouldn't say courage. they're becoming very skeptical of this huge huge huge debt. i think friday... i think it was friday or saturday the

post ran a story sort of a little fyi story that i think has not quite been acknowledged yet. that, you know, we're going to raise taxes $355 boil i don't know in tax increases on people who earn $280,000. >> schieffer: i noticed that. >> this is huge. i think once people really start focusing on that, things are going to get very, very difficult. >> schieffer: let's talk about this whole deal on sarah palin. what in the world is going on here? >> well, you know, i don't know if she's maybe just clever like a fox. i mean, you know, she's the one consistent drawing card for the republican party. they've had some great stumbles with some of their new leaders. she gets out from under, you know, the pressure of being governor. governors are not having a good time. it used to be the incubator. states used to be the incubator for reform. now all states are having

difficult problems budgetwise. she has ethics investigations. this allows her to get out, raise money. it remains to be seen what she'll become and how far she'll go nationally. >> schieffer: do you think she's going to run for something, kathleen? >> i think sarah palin is always running for something. two things. number one, she's very tired of being under this harsh scrutiny. she was very hurt by the attacks on her children. but, listen, this woman is poised to make lots and lots of money. you know, when you're juggling those choices you can either govern and deal with ethics violations charges and deal with, you know, hostile media or you can hit the national stage and make millions and millions of dollars. while kind of building your base. she has said she'll go out and campaign not only for republicans, some of whom have not invited her to join them on the stage, but she's willing to also campaign.... >> schieffer: i find that kind of interesting. >> i mean, is is she thinking

about a third-party approach? i don't know. she's certainly running for something. >> schieffer: do you think... and i agree with you. i think you're going see and hear a lot of her. i think she's going to be speaking for republicans around the country. she is a growing card. but my sense of it is that she will never run for anything. >> she'll never be able to run on a national ticket ever again. that's over. i don't think she's planning to run. she has transcended politics at this point. she's a celebrity. she has huge drawing power on a number of different stages. she's got a book. they're talking about tv. she's got lots and lots of options. >> i wouldn't count her out, bob. i wouldn't be surprised to see her run for president in 2012. who knows? who knows if the republican party embraces her, maybe not. you remember ross perot who started an independent effort. who knows if there's a market for that. >> let's talk a little bit about what is going on back home while the president has

been away. i think most people would agree he got pretty favorable coverage with that one picture that he shared with.... >> but that's a fake picture. >> schieffer: you think? >> it's a fake picture. if you looked at the whole video you see that that was not... he was not actually looking at what he appears to be looking at. lots of people have shown it. >> schieffer: i saw the videotape. i don't know what was going on. but i must say i loved the caption in the "washington post" >> i just wouldn't want to be him at the dinner table. >> schieffer: what do these two people fellows share in common? they're both men. >> a little fun there. but the other picture was the picture from africa. he was back in his ancestral home for the trip. you know, he went to see the port where they brought slaves in. he compared it to nazi concentration camp. so that was a big moment. for him. and certainly had his family with him. and then at the same time kind of encouraged the world to spend more money on hunger. >> schieffer: 30 seconds left.

i'm going to just ask you both quickly, will there be a health care bill this year? >> i'll say yes. >> schieffer: you think yes. >> maybe by the end of the year but not before the august break. >> schieffer: all right. thanks to both of you. we'll be back in a minute. trust is at the foundation of how markets work. you have to have trust in the system so that when the investors come to the market and feel confident, they're willing to invest, which then translates to business creation and job creation. that chain is very, very important and frankly in the crisis last september and october that chain was broken. a lot of the markets that got us into trouble in the crisis were not regulated, they were not transparent there was really no accountability. markets like ours are stable, reliable, transparent and highly regulated. we realize that we are going to enter a period of re-regulation that is necessary.

and we find ourselves in a unique position to be part of the solution. so that people feel the resulting business environment is one that is able to instill trust going forward... and gets us back on the path we need to be on. what does that mean to a surfing ceo? ummmm, tsunami in ah... surfing is sort of a thrilling prospect, but, a tsunami in business is ah, kind of terrifying ...

and you have to watch the um, management of your assets very carefully. uh-huh. you know, you have to do things... at the speed of light these days... to stay um ahead of the wolf pack. right. and without technology, we would be nowhere. it helps you to ah, still rip it up. finally today ask any one what their favorite music is and they'll usually choose the music that was popular when they were in high school. for me that meant the likes of elvis and chuck berry and little richard. because i'm from texas ernest tub and hank will yapz and a little later george jones. maybe that's why i never got michael jackson's music. he was long after my days. what i thought of when he died was not his music but the weirdness, the grotesque facial surgery, the halloween costume attire, the drug rumors and all the rest. that's just me, of course. jackson and his music meant a lot to many people. 31 million people watched his

memorial service. it was news all right. but before we declare this some sort of never before seen outpouring of emotion and national affection, just a little context. american idol draws close to 30 million on a good night. more people actually tuned in to see the burial service for ronald reagan than saw jackson's memorial service. a far greater audience watched the presidential debates and while it is true that an astonishing 1.6 million people registered for a lottery offering free tickets to jackson's memorial service, a lot more people-- more than two million, took the trouble to make their way to washington to see in person the inauguration of america's first african-american president. even though it was on television too. somehow i find that reassuring. back in a moment. for the first time in history, more people live in cities than anywhere else.

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that's our broadcast. we'll be back right here next sunday on "face the nation." captioning sponsored by cbs captioned by media access group at wgbh access.wgbh.org >> next, on this weekend in defense news, the commander of air e rcaffo cariplex nsaithe new focus on the continent, plus an update on the disarmment effort.

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