Senator Graham Questions Supreme Court Nominee Elena Kagan

so I grabs all yours thank you so far has the hearings been what you thought they would be I'm not sure I had I'm not sure I exactly pictured it so let's try to go back in time and say you're watching these hearings and you were critical of the way the Senate conducted these hearings Oh are we improving or going backwards and are you doing your part I think that you've been exercising your constitutional responsibilities extremely well so it's all those other guys that suck not us there's all those other witnesses that were - Katie all right fair enough now do you know Greg Craig I won't say one thing senator Graham which is it just feels a lot different from here then it felt from that I bet it does and it feels a lot different when you're the nominee - doesn't it and if it did not really be worried about you um do you know Greg Crick I do who is he he was previously the counsel to the president do you know him well pretty well you know okay yeah well he's a good guy I'm not trying to trick you honey no I don't have anything on Greg I can find he said on May 16th that you that you're largely a progressive in the mold of Obama himself do you agree with that Senator Graham uh you know in terms of my political views I've been a Democrat all my life I've worked for two Democratic presidents and those are you know that's that's what my political views are and would you consider them your political views progressive my political views are generally progressive generally compared to mine for sure right yeah yeah okay that's fine I mean there's no harm in that Ness makes the hearings a little more interesting I would be shocked if President Obama did not pick someone that shared his general view of the law in life and so elections have consequences do you agree with that elections do have consequences it would be hard to disagree that elections have consequences is a president gives to fill a nomination for the Supreme Court that's a power the president has right yes sir so it'd be okay from your point of view if a conservative president picks someone in the mold of a conservative person I would expect that there we go good we'll remember that okay we may have a chance to bring those words back do you know Miguel Estrada I do how do you know it so Miguel and I were classmates at Harvard Law School but we were more than classmates at Harvard Law School Harvard Law School has a way of has required seating in the first year and Miguel and I we're bust me I don't know because I could have never gotten there but I trust you okay Miguel and I were required to sit next to each other in every single class in the first year and I can tell you Miguel takes extraordinary notes so it's great every time you missed something in class you could just kind of look over and but that's how I know Miguel and we've been good friends ever since push her general opinion of his legal abilities in his character I think he is a great lawyer and a great human being he wrote a letter on your behalf and you had a chance to read it I did can I read part of it I write in support of lame Elena Kagan's confirmation is Associate Justice of the Supreme Court of the United States I've known Elena for 27 years we met as first-year law students at Harvard and where we were assigned seats next to each other so you're consistent for all our classes we were later colleagues as editors of the Law Review and as law clerks to different Supreme Court justices and we have been friends since Elena possesses a formidable intellect and exemplary temperament and a rare ability to disagree with others without being disagreeable she is calm under fire and mature and deliberate in her judgments Elena also would also bring to the court a wealth of experience at the highest levels of our government and of academics including teaching at the University of Chicago serving as the Dean of the Harvard Law School and experience at the White House as a current Solicitor General United States if such a person who has been who has demonstrated great intellect high accomplishments in upright life is not easily confirmable I fear we will have reached a point where no capable person will readily accept the nomination for judicial service we think about those comments senator Graham I think that those comments reflect what an extraordinary human being Bedell estrada is and I was deeply touched when I read that letter deeply grateful to him of course and all the nice things that he said about me I would say back about him double well I'm going to give you that chance because Miguel Estrada as most people know maybe not everyone was nominated by President Bush to the court he never made it I think it's one of the great tragedies for the country that he was never able to sit on an appellate court but that's the past and I do think it reflects well of him that he would say such things about you and quite frankly I think it reflects well of you that you would say such things about him in your opinion miss Kagan is he qualified to sit as an appellate judge he's qualified to sit as an appellate judge he's qualified to sit as a Supreme Court justice your stock really went up with me so what I would like you to do since you might one day be on the court yourself is to if you don't mind it my request write a letter to me short as long as you like it about Miguel Estrada would you be willing to do that next couple of days I would be pleased to do that senator Graham thank you now let's talk about the war as Solicitor General of the United States you represent the United States government fourth Supreme Court right identification getters here and you had to get confirmed before this body for that job do you remember that confirmation process hey do you remember me I do remember you okay good do you remember when I asked you are we at war and you said yes okay now that is a bold statement to make but an accurate statement what does it mean who are we at war with and what does that mean in terms of this nation's legal policy well we're at war with al-qaeda and the Taliban and under the AUMF the president has a wide range of authorities with respect to those groups now under domestic criminal law as we know it today is there any provisions in our domestic criminal law that will allow you to hold someone indefinitely without trial uh not that I know of senator Graham and quite frankly they shouldn't be should there no sir now under the law of our fellows though we're doing this again there we are but instead of doing an instant yeah yeah yes we're going to do this again and I hope we get the same answers that will help you a lot if we do and if we don't we'll have a problem under law of armed conflict is it permissible to hold an enemy combatant as long as the holding force deems them to be dangerous under the traditional law of war it is permissible to hold an enemy combatant until the end of hostilities and right idea behind that is that the enemy combatant not be enabled to return to the battlefield that's a that's a good summary the problem with this war is there will never be a definable in to hostilities will there that is exactly the problem senator Graham and Hamdi very briefly discussed this problem the court in Hamdi suggesting that perhaps if this war was so different from the traditional law of war that there might need to be alternative procedures to put in place for example one could imagine system in which because of the duration of this war it was necessary to ensure the enemy combatants continuing dangerousness that is a question that I think has not been answered by the court do you believe it would serve this country well if the Congress tried to work with the executive branch to provide answers to that question and others what senator Graham let me take the question and make it into a legal question because I think it's directly relevant under the Youngstown analysis whether Congress and the president do work together when the tour together the courts find more power not less right that is correct okay now you're still Solicitor General United States from that point of view would you urge this Congress to work with the executive branch defines to create statutes to help the courts better answer these questions Senator Graham I think I don't want to talk as a as Solicitor General as to legal policy here okay but I will say Gregg as to the legal matter that it makes a difference and whether Congress and the president work together that courts should take note of that the courts should when when that occurs the action is at you ought to be given the most deference and that there's a reason for that it's because the courts are basically saying Congress and the president have come together Congress and the president have agreed upon a policy jointly and there should be deference in those circumstances are you familiar with judge Lamberth and judge Hogan I don't know either of them I know who they are well fair enough their DC judges federal district court judges who are hearing habeas appeals from Gitmo detainees and I will provide you some of the comments that made it is unfortunate according to Judge Hogan is unfortunate my view that the legislative branch of the government in the executive branch have not moved more strongly to provide uniform clear rules and laws for handling these cases and I've got other quotes that I will provide you what I'm trying to do here is lay the foundation for the idea that our laws that exist today do not recognize the dilemma of the country faces the administration has determined that 48 people held at Gitmo are too dangerous to let go but are not going to be subject to normal criminal proceedings in other words we believe the evidence suggests they're members of al-qaeda they've all gone before a habeas judge and the judge agreed but they're never going to be tried in a traditional fashion is the administration's decision in your opinion consistent with the power under the law of war to do that well as Solicitor General Senator Graham I have argued the position that I think is really well very well you have argued for the proposition that this president and all future presidents has the ability to detain an enemy combatant with sufficient process if the executive branch believes that they're dangerous and not require them to go through a normal criminal trial and what we have to do is find out what that process would be this hybrid system you argued against expanding habeas rights to Bagram detainees held in Afghanistan is that correct it did senator Graham this matter that you want in the initial irk it and you probably won't be able to hear that case if it comes to Supreme Court will you well that's correct and there in the the reason that's good because we can talk openly about it I mean if I said if I could just say in general the Solicitor General only signs her name two briefs in the Supreme Court authorizes appeal but does not sign appellate briefs but I determined that I should be the counsel of record on our brief because I thought that the United States interests were so strong in that case based on what the Department of Defense told our office well I don't write I want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the United States when it came to that case and you said previously that the first person you have to convince when you make when you submit a brief or take a case on as yourself that correct well I said that in reference to the cases that I argued specifically of course when I when I write briefs I write from when I sign briefs when I'm counsel of record on briefs I'm taking the position of the United States that I'm representing the position that I believe and that our office believes is most consistent with the long-term interests of the United States government have you convinced yourself as well as representing the United States government it would be a disaster for the war effort if federal judges could intervene and require the release of people in detention in Afghanistan under military control senator Graham I chose to put my name on that brief as I said which is a very very rare thing in the appellate courts because I believe that there were very significant units let me read a quote the federal court should not become the vehicle by which the executive is forced to choose between two intolerable options submitting to intrusive and harmful discovery are releasing a dangerous detaining do you stand by that statement senator Graham can I ask whether that statement comes from that brief yes it does I know I I mean that statement is my best understanding of the very significant interests of the United States government in that case which we tried forcefully to present to the court and as you said before the DC Circuit a very mixed panel of the DC Circuit right upheld our argument you also said the courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones of course however to take that radical step they should do so only with explicit blessing by statute standby that anything that is in that brief I stand by as the appropriate position of the United States government the brief needs to be read by your supporters and your critics because some of your supporters are going to be unnerved by it some of your critics may like what's in there I'm here to say from my point of view that this area of your legal life you represent the United States well and I hope that Congress will rise to the occasion working with the executive to provide some clarity so that we'll be able to find a way to fight this war within our value system and recognize the difference between fighting war and fighting crime the battlefield you told me during our previous discussions that the battlefield in this war is the entire world that if someone were called in the Philippines who is a financier of al-qaeda and they were captured in the Philippines they would be subject to enemy combatant determination because the whole world's the battlefield do you still agree with that listen Renault is speaking there as a legal policy matter representing the position of the Obama administration that's obviously a very different role as the advocate role that I play it is also addressed you stop there when you are an advocate you had no problem advocating that position there are certain parts of that that that I did I think that we have not addressed in the United States government so the United States government has argued that the battlefield extends beyond Iraq and Afghanistan Turney General Holder said that the battlefield is the hearts the minds and wherever al Qaeda may reside do you believe that is a consistent statement with Obama policy senator Graham when I was here before you asked me if I agreed with the Attorney General and I said that it would be bad to disagree with the Attorney General given my position and I'm still the Solicitor General and I still agree with the Attorney General but you strike me as the kind of the person that he thought he was wrong you'd say so even though it may cost you your job am i right in assuming I certainly would tell him if I thought he was wrong and I think you would tell me if he thought it was wrong so I'm going to assume he thought he was right because that's the kind of person you are and I and I quite frankly think he's right now as we move forward and deal with law of war issues Christmas Day bomber were you at on Christmas Day senator Graham that is a undecided legal issue which well I suppose I should ask exactly what you mean by that I'm assuming that the question you mean is whether a person who was apprehended in the United States and I just asked you where you're at on Christmas you know like all Jews I was probably at a Chinese restaurant great answer great I know I can almost I can almost see that one coming I thought me too so you were celebrating senator senator schumer explained this to me earlier yeah he did if I knew it no other restaurants are open right you were with your family on Christmas Day at a Chinese restaurant okay yes sir that's great that's what Hanukkah and Christmas is all about now what happened in Detroit on Christmas Day can you recall what was so unnerving about that day well that there was a failed but but only just failed terrorist incident we were lucky as a nation that a bunch of people didn't get killed on Christmas Day or in the middle of Hanukkah whatever holiday it may be our only we're lucky that bomb didn't go off Senator Graham it was a it seemed a close thing and I don't know more than I read in the newspapers about that incident I was not you know involved in in any of the discussions about what I do on that day right the Times Square incident you recall that right yes sir we were lucky that van didn't explode you know every time one of these things happens it is extremely unnerving and and you know makes us aware of the needs to take efforts to make sure that such a thing never tell me about Miranda warnings do we need to read soldiers de soldiers need to read people their rights captured in a battlefield in Afghanistan senator the way Miranda warnings would come up is of course only with respect to the admissibility of evidence in a criminal court so to the extent that we're talking about a battlefield capture and not a criminal trial an article three criminal trial and the Miranda issue would never come up so you agree with me that in war you don't have to read the enemy their rights because you're not talking about in crime you're talking about fighting a war is that correct well the Miranda issue is only applicable in article three courts as a matter of criminal law okay if you catch your person in Afghanistan I should I should correct that I should correct that because I think that the question of whether Miranda is applicable in Military Commissions has not been decided right well you have article 31 rights which are the same thing but that is yet to be decided but under general rule of war you don't you don't read the enemy the article 31 rights when you're in a firefight for these hearings to be meaningful and instructive I think it's good for us to have an open discussion about when we are fighting a war and when we're fighting a crime what's the consequences of criminalizing this war my fear is that if we criminalize this war we're going to get Americans kill for no higher purpose and that the idea that you would take someone off an airplane or in Times Square and start reading them their Miranda rights within a few hours is criminalizing the war because the reason we're capturing these people initially is to find out what they know about the enemy do you have any concerns that reading Miranda rights to suspected terrorists caught in the United States would impede our ability to collect intelligence Senator Graham I've never dealt with that question a Solicitor General and just as Elena Kagan senator Gramm I feel Harvard Law School Dean I'm a part of this administration and I think that you know I should let the Attorney General will let me tell you the administration generally speaking has been pretty good to work with on this issue we have had discussions about having exceptions to Miranda so that we don't lose intelligence gathering opportunities and not criminalize the war what does the public safety exception mean when it comes to Miranda what's your understanding so the public safety exception which is a comes from the florals case it's it's it's right now I think a limited exception it enables very limited that's right very undefined enables the police essentially to be able to question to to find the gun you know to find something that might pose an imminent risk of public safety now let's stop there so the Public Safety exception is about protecting the law enforcement officers and maybe securing the crime scene what I'm trying to illustrate is that the Moran the Public Safety exception I'm looking for would allow the intelligence community to find out about where this guy came from where did you train is there another attack coming and right now the law is very do you think it would be in the United States best interest to have clear guidance to our intelligence community give them the tools and the flexibility when they capture one of these guys with it being Times Square and Detroit to find out without having to do anything else at the moment what's the next attack what do you know about future attacks where did you train would that make us a more secure nation if our intelligence and law enforcement community had those tools in your opinion well of course it's a question that might come before the court in some guys as to whether the public safety exception should apply this time about being an American now forget about the courts as an American a patriotic American liberal or conservative don't you believe that we would all be better off if we had the opportunity within our values humanely without torture to hold a terrorist suspect in and gather intelligence before we did anything else because another attack may be coming not that a guns in the next room but somebody else may be coming our way don't you think as a average everyday citizen that would make us a safer nation I suppose on this one Senator Graham that I'm reluctant to say how I would think about the question is an average everyday citizen because I might have to think about the question as a judge and that would be a different way of thinking about them okay let's talk about what a judge may think about here if we apply domestic criminal law tool to the war on without any hybrid mix would that be a good thing I mean if we took the war on terror and just made it a crime would we be limiting our ability to defend ourselves well as we discussed before senator Graham I mean the administration of which I'ma but here's what I don't understand is because she said to me previously that you understand why this administration are holding 48 people without trial because they're enemy combatants and that makes sense to you what I'm trying to trying to extrapolate is if we took other parts of criminal law and applied it the war on terror would that create a problem for this country I guess I feel like Miranda warnings yes I mean I the the question of detention of enemy combatants is one that I've dealt with the Solicitor General is one that I've argued as Solicitor General this is a question that I have not dealt with and and I'm hesitant to to make any comments about in a personal viewer in a policy view given that these questions I think are likely to come before the court the question of the good faith exception to Miranda how it applies to terrorism cases is I think quite likely to get to the court is it fair to say that the letter you wrote to me about the detainee Treatment Act amendment I think you you call the Graham Kyle proposal that it would lead to a dictatorship or no I didn't say that would you say I I'm not easily offended you could say that probably helped me in South Carolina so I'm not then I say anything no back home it wouldn't hurt that the Harvard Law School Dean was mad at Lindsey but but but you did you made you wrote a letter that was pretty pretty challenging uh what did we challenge in letters sent about it I mean argue it I think I said that we hold you know dictatorships to high standards and we should hold ourselves to even higher ones but I did I did criticize the initial Graham amendment well that's absolutely okay that's absolutely okay you did criticize the original bram amendment and I didn't take it personally well I'm glad to hear that but you did say that's what dictatorships do and I thought that was a little over the top but the difference between the grab collar movement in the amendment it passed by eighty four votes wasn't a whole plus the two difference what's the difference between what I proposed and what past great well I think one difference was that military commission adjudications now receive DC Circuit review and in fact the letter we wrote was about that was saying that military commission and did you assume that we precluded final verdicts and military commissions from article three review well my initial understanding of the initial grant we didn't but you could have had that understanding proc industry that wasn't my goal the point I'm trying to make here is that the the Military Commission Act of 2009 has been a work in progress for many many years and we're trying to as a nation get this right as Solicitor General do you have confidence and our military commissions that we've set up do you find that they're a fair form to try people in senator Graham I really haven't had any exposure to the military commissions as yet of course there's there's been no chamilitary military commission proceeded have you had exposure to military lawyers I think that they are absolutely top-notch what if I told you that the same lawyers who will be doing the Commission's are also the same lawyers judges and juries that would try on our own troops would that make you feel better well I I do think that the military lawyers with whom I've had the pleasure and honor to work a Solicitor General are stunningly good so is it fair to say that Elena Kagan whatever day it is in 2010 doesn't believe that military commissions are a miscarriage or justice or unconstitutional or I guess I'll strike under constant do you believe that this country submitting a a suspected terrorist to military commission trial is within our value system Senator Graham I'm the part of an administration that clearly has stated that some people you personally feel comfortable with that I do I wouldn't be an administration if I didn't thank you Thank You senator Graham before I go to Senator Schumer

Channel: USSenLindseyGraham

Views: 172,933

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Keywords: Senator Graham, Lindsay Graham, Lindsey Graham, South Carolina, Supreme Court, Judiciary Hearings, Confirmation, Elena Kagan, Nomination, Estrada, Rule of Law, War on Terror

Id: 4ac0AcPQLt4

Length: 30min 10sec (1810 seconds)

Published: Tue Jun 29 2010