Transcripts For CNNW CNN Newsroom With John Berman And Poppy

And your personal views about the precedent have absolutely nothing to do with the good job of a judge. Let me ask you about citizens united. In this case, the Supreme Court held the government cant restrict independent political expentdature by a nonprofit organization. Do you agree with that decision . Senator, id give you the same response. I know people have their views, personally, about lots of Supreme Court decisions. And about a lot of other things. Were all human beings. I get that. Im not an algorithm. Theyve hasnt yet replaced judges with algorithms, but maybe ebay is trying. And maybe successfully. Were all human beings but the judges job is to put that stuff aside and approach the law as you find it. And thats part of the precedent of the United States Supreme Court that im sworn as a sitting judge to give the full weight and respect to due precedent. Those two cases were 54 decisions so let me ask you about something that was unanimous. Hosanna tabor. The Supreme Court ruled 90 that the Obama Administration couldnt tell a church who its ministers can be. The only thing controversial about that case was that the Obama Administration actually tried to convince the Supreme Court that a bunch of government bureaucrats could tell a church who its ministers could be. Like i said, that case was 90. Can you tell me if that case was decided correctly . Respectfully, senator, i give you the same answer. Okay. Those are relatively recent cases. Lets talk about cases thats been around for a while. Gideon wainwright. It was decided 50 years or more. It says a criminal defendant has a right to an appointed attorney if he cant afford one. Everyone who watches cop tv shows know that this law does that make a difference . Can you tell me if you agree with the principle of gideon . Is it the same answer . The same reason . Mr. Chairman, it certainly say seminal decision of the United States Supreme Court. No question about it. A very old decision of the Supreme Court now. Its been reaffirmed many times. Theres a lot of reliance built around it. So i can talk to you about the factors that a good judge considers in analyzing precedent and the weight due of precedent. But im not in a position to tell you whether i personally like or dislike any precedent. Thats not relevant to my job. Gideon is a seminal precedent and it deserves respect on that basis. Precedent is kind of like our shared Family History as judges. It deserves our respect because it represents our collective wisdom. And to come in and think that just because im new or the latest thing and no better than everybody who comes before me would be an act of hubris, inappropriate to the judicial role. What if i ask you about bush versus gore . I know some people in this room have some opinions on that, im sure, senator. But as a judge, its a precedent of the United States Supreme Court. And it deserves the same respect as other precedents of the United States Supreme Court. When youre coming to it as a judge. And it has to be analyzed under the law of precedent. Well, lets go to a kind of more controversial issue, but along the same lines ive been asking you. I think the case that most people are thinking about right now and the case that every nominee gets asked about, roe v. Wade. Can you tell me whether roe was decided correctly . Senator, again, roe vs. Wade decided in 1973 is a precedent of the United States Supreme Court. Its been reaffirmed. The reliance interest considerations are important there and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the United States Supreme Court. It was reaffirmed in casey in 1992. And in several other cases. So a good judge will consider it as precedent of the United States Supreme Court, worthy as treatment of precedent like any other. What about griswold which was decided a few years before roe, the case where the court found constitutional right to privacy. Can you tell me your views on griswold . Senator, its a precedent thats now 50 years old . Griswold involved the right of married couples to use contraceptative devices in the privacy of their own home. Its 50 years old. The reliance interests are obvious. Its been repeatedly reaffirmed. All very important factors again in analyzing precedent. Well, i think im going to stop questioning but to sum up what you and i just talked about in regard to precedent, so everybody understands the principles that are at stake here. There are two reasons why you cant give your opinion on these cases. One, i believe is independence. And the other one is fairness to future litigants. Is that the way you see it . It is, senator. If i were to start telling you which are my favorite precedents or which are my least favorite precedents or if i view precedent in that fashion, i would be tipping my hand and suggesting to litigants that ive already made up my mind about their cases. Thats not a fair judge. I didnt want that kind of judge when i was a lawyer. And i dont want to be that kind of judge now. I made a vow to myself i wouldnt be. Thats the fairness problem. And then the independence problem. If it looks like im giving hints or previews or intimations about how i might rule, i think thats the beginning of the end of the independent judiciary. If judges have to make effectively Campaign Promises for confirmation. And respectfully, senator, i havent done that in this process, and im not about to start. Thank you. Ill yield back eight seconds. Senator feinstein . Thank you very much, mr. Chair. Welcome, judge, and good morning. Good morning, senator. Good to see you again. Since were on roe, i wasnt going to begin with this, but i well recall the time we spent in my office and we talked about precedent. And in my opening remarks i indicated that if anything had superprecedent, roe did in terms of the numbers. And ive put that in the record. Heres why it becomes of concern. The president said that he would appoint someone who would overturn roe. You pointed out to me that you view precedent in a serious way in that it added stability to the law. Could you elaborate on the point that you made in my office on that. Id be delighted to, senator. Part were going to have a real winner. Was a great meeting. Terrific people. They want a tremendous health care plan. Thats what we have, and there are going to be adjustments to it. But i think well get the votes. What was the closing part of the deal, mr. President . All right. You just heard the president say that he thinks the Health Care Legislation which comes up for a vote on the house floor on thursday will pass. Were going to assess that. Were also standing by for a News Conference. The Speaker Paul Ryan is going to be holding a News Conference shortly. In the meantime, gleelets go b to the Senate Judiciary committee. Dianne feinstein is asking questions of neil gorsuch, the Supreme Court nominee. What was once a hotly contested issue is no longer a hotly contested issue. We move forward. And the value of that is the United States Supreme Court takes Something Like 70 or 80 cases a year. That is a tiny fraction of all the disputes in our federal legal system, right . My law clerks tell me its Something Like 0. 001 . And they are unanimous in those cases which have divided circuit judges. Thats why the Supreme Court larmgly takes those cases because its divided us. Its one of the rare cases where we disagree. Theyre unanimous 40 of the time. One other question. Sure. Do you view roe as having super precedent . Senator, i super precedent in numbers. It has been reaffirmed many times. I can say that, yes. Yes, dozens. All right. I would like now to go to to take you back to 2005 when you were in the justice department, and i want to explain to you why im going here. This has to do with torture. The Intelligence Committee was informed in 2006. And attorney general gonzalez played a role in this, the nature of the enhanced interrogation techniques. And you were given a very selfview. Senator rockefeller became chairman of the committee in 2007 and began a study of three detainees. And the enhanced interrogation techniques. When i became chairman in 2009, i added that. And we took all of the major detainees and looked at them in a sixyear study. The staff spent long hours analyzing every cable, every email, looking at more than 100 interviews. And essentially putting in a 7,000page report, 32,000 footnotes, documenting where the information no conclusions, just facts. That 7,000page report has remained classified. I have read it. We have put out a 450page summary which is public. And in that summary, we indicate that those cases that the administration spelled out were tortureproduced operable intelligence was simply not so. We elaborate on that in the big report, and my hope is that one day, not too distant, that report will be declassified so the American People can see. I want to ask you some questions along these lines. Its my understanding that the set of talking points were prepared for a press conference for the attorney general on november 22nd, 2005. The talking points asked whether, and i quote, aggressive interrogation techniques employed by the administration yielded any valuable information, end quote. In the margin, next to this question, you hand wrote one word. Yes. What information did you have that the bush administrations aggressive interrogation techniques were effective . Senator, id have to see the document. I dont recall all right. Thats fair enough. Why dont we do this. Id be happy to share the documents with you. I took these pages out of my binder so i wouldnt have to pause, but let me just hold up that answer and well get you the documents on that thank you. Because let me do the next question. In december 2005 after the passage of the detainee treatment act, you advocated that president bush should issue a signing statement to accompany the law. In an email you sent to Steven Bradbury and others you said the signing statement would, and i quote, help inoculate against the potential of having the administration criticized some time in the future for not making sufficient changes in interrogation policy in light of the mccain portion of the amendment. This statement clearly, and in a formal way, would be hard to dispute later. Puts down a marker to the effect that mccain is best read as essentially codifying existing interrogation policies, end quote. To be clear, the context was that earlier in 2005, the justice Departments Office of Legal Counsel had concluded that cia interrogation tactics like waterboarding and sleep derivation did not amount to cruel, inhuman or degrading treatment. I read your email as an advocating a continuation of these interrogation techniques. And worse, saying that senator mccains amendment actually codified them, which it did not. Is that true, and doesnt it mean that when you wrote this in email, you were condoning waterboarding as lawful . Senator, i want to see the email again. I dont feel comfortable commenting on documents that arent in front of me. But i can say this. I do remember my staff has the documents here. They can bring them down to you. That would be great. Thank you. That would be wonderful. And ill put aside this part. Youll have the documents because there are more. And ill go on to the next subject. No, thats fine. Im happy to i want you to look at the documents. Id like to just know what im talking about. I my recollection generally, i can, from 12 yearsing eric, bring him the documents, please. Thank you, eric. My recollection generally working on the detainee treatment act, senator, was that at that time, after rasul was issued by the Supreme Court, there were a lot of habeas petitions coming in from detainees at guantanamo bay. Some brought by my friend neil kochel. And there was an effort by some in the administration along with many on capitol hill to try and provide a regime for the processing of those claims in a way that would conform with the youngstown ideal of congress and the president acting together in unison. And that senator mccain and senator graham put together legislation that emphasized that not only was torture unacceptable, which it always had been under u. S. Law. Let me help you here. I know from the documents that you workod the graham effort. Yes. For example, a selfassessment that you wrote said that you helped coordinate the legislative effort on the graham amendment within doj and in consultation with dod and others. Thats absolutely right, senator. I sure did, and im proud of it because we managed to come up with a bipartisan bill that i think passed this body with over 80 or maybe 90 votes. I dont remember, which did two things. One, affirmed this countrys commitment to prevent cruel, inhuman and degrading treatment and second which provided a regime that was agreed by the congress and the president on how guantanamo detainees should have their claims processed. Except after you read the documents, just so you know, the conclusion that we come away with is that when the bill on the mccain amendment was about to be voted on, you forwarded press articles explaining what having these two provisions together meant. That was the mccain amendment prohibiting torture and confining it to the Army Field Manual and the graham amendment which would bar habeas. In other words, a detainee could not use the habeas corpus right to file in a court of law and challenge their conditions of detention. So that was looked at as offsetting mccain bibasically prevent be habeas corpus from being used. Of course it was overturned by the court. Senator, youre absolutely right that it was eventually litigated, as all these things are. It was a bipartisan effort, and it was between the department of defense, department of defense wanted congressional approval for something. So that they knew what the rules would be. They were desperate to have some congressional involvement in investment in this process. And as a lawyer, thats all i was. I was a lawyer for a client, right . I was advising them on how to go about doing that legally in conjunction with senator grahams office and others. And it was a bipartisan effort, and we put together our best effort. The d. C. Circuit upheld it. The Supreme Court of the United States eventually many, many years later, found that the process was insufficient. And thats the buomeddiene case, as you know, senator. But to say there was no process would be inaccurate, too, because the detainee treatment act had a long list of prescribed processes and the question was simply they were adequate enough under the s suspension clause. That was a close case that divided the court very closely, and i respect that decision as a precedent of the United States Supreme Court no less than any other, senator. One last question on this. Sure. When president bush signed the detainee treatment act, he issued a statement that basically said he would only construe the law consistent with his powers as commander in chief. According to press reports, Administration Officials confirmed, and i quote, the president intended to reserve the right to use harsher methods in special situations involving national security, end quote. In other words, the signing statement reflected the president s belief that he had the power to not comply with the law he had just signed. According to emails, and this youll verify, you were involved in preparing that signing statement, and you advocated for the issuance of the signing statement. They even showed you saying to the Top State Department lawyer that harriet miers, the white house counsel, quote, needs to hear from us, otherwise this may wind up going the wrong way. Senator, i can tell you what i recall. My loose recollection of something that happened, i think, 11, 12 years ago, is that there were individuals that wanted a more aggressive signing statement along the lines you described and that there were others including at the state department who wanted a gentler signing statement. And my recollection sitting here, as best i can give it to you without studying the email, is that i was in the latter camp. John bellanger, among others, i would have associated myself with. I dont know what was in the president s head when he wrote the signing statement. I dont know. I can only tell you what i remember and i certainly never would have counseled anyone that they could disobey the law. No reason not to believe you, but if you will read those sure. And then in my second round, well go back to it. Sure. Id be very happy to baize i think youll see that we didnt make this up. Senator, im not suggesting you are. And there was a there was a tugofwar among parties in the white house. Im sure of that. I wanted to know which side you were on. Well, count me in with John Belanger most of the time on these, okay . And thats my recollection and matt waxman would be another one. And so thats my recollection, senator, sitting here. Ill study these. Okay. Let me ask you a question on wiretapping. In december 2005, new