the statute should be upheld and i want to make a clear distinction between my views as an advocate and any views that i might have as a judge. i do think, citizens united is settled law, going forward, no question that it is precedent and entitled all the weight the precedent usually gets and i want to make clear in any of my cases as an advocates and this is citizens united necessary which i've argued. you know, i'm approaching the things, the cases as an advocate, from a perspective of first the united states government interest, and also, it's a different kind of preparation sproas. you don't look at both sides in the way you do as a judge. >> i got that. i got that. i don't have any problem with that. all i'm saying is that we've had arguments right here in this committee that this is a terrible case that upset 70 years of precedent, and i've heard all these arguments, and they're just inaccurate, and that's what we're establishing. when president obama criticized the citizens' decision in the state of the union address with the supreme court justices sitting there, he said that it would allow foreign corporations to fund american elections. now, this has said the same thing. do you agree that this case involved an american nonprofit organization, not a foreign corporation, that this case involved independent political speech, not campaign contributions, and that the separate laws regarding political spending by foreign corporations and campaign contributions by anyone are still enforced today? >> senator hatch, this case, as you say, these parties for domestic nonprofit corporate -- was a domestic nonprofit corporation. >> okay. well, there was no foreign corporation involved. that's one of the points i'm trying to establish. and it was a misstatement of the law. i'm not here to be -- to beat up on president obama, i just want to make this point. and yet, -- in first national bank of boston versus balante, the supreme court held, more than 38 years ago, that quote the identities of the speaker is not decisive in determining whether speech is protected, corporations and associations contribute to the discuss, debate and dissemination of informs, ideas the first amendment seeks to foster, unquote. well, balat esm was decided two years after the landmark case of buckley versus bavia, in buckley, they recognized corporations have the first amendment right to engage in political speech, in that decision, chief justice burger wrote a concurrence to raise questions likely to arise in the future, unquote. these questions concluded that large corporations would have an unfair advantage in the political process, he had some amazing insight there i think because some people are making just such arts today. that case also involved the first amendment protection of the press that burger noted how the government historically has tried to limit what may be said about it. he concluded, quote, in short, the first amendment does not belong to any definable category or persons or entity. it belongs to all who exercise its freedoms, unquote. do you agree with that? >> i'm sorry, senator hatch. >> do you agree with justice burger's comment there. >> read that again, please? >> i'd be glad to. he said in short, the first amendment does not belong to any definable category of perps or entities, it belongs to all who exercise its freedoms. >> senator hatch, the first amendment protects all of us and grants all of us rights. >> right. and they're important. in citizens united -- i get a little tired f people on the left side saying it was a terrible case, when frankly, let me make this point, in citizens united, the court listed at least 25 precedents dating back almost 75 years. here's a list of them right here. quote be generally the first amendment protects corporate speech, and specifically, that it protects corporate political speech. now, i'd like to split these cases in the record. on the other side of the precedential skills, a 1990 decision in austin versus michigan chamber of commerce, as the court said in citizens united no other case held that congress may prohibit expenditures for political speech based on the identity of the speaker, in other words, austin the aberration, the exception, the break in the court's consistent pattern of precedent, and many folks have -- and mr. chairman, give me 30 seconds -- just to finish here. >> 30 seconds more, okay. >> many folks have attacked the decision, saying it is a prime example of, quote, conservative judicial activism, unquote, because it ignored precedent by overruling in austin, that by overruling that one precedent, wasn't the court really reaffirming a much larger group of previous decisions bug balate, that as we discussed, affirmed that corporations of a -- have a first amendment right to engage in in political speech, that includes all the small corporations. that sounds like the court is committed to precedent, not rejecting it. now i thank my chairman for allowing me to -- me to make that last comment but i get a little tired of people misstating what citizens united is all about diswhroo senator hatch -- >> and i'd appreciate your comments here today. >> senator hatch, i think there was a significant issue in the case about whether austin was an anomaly, as you quote it, or whether it was consistent with prior precedent and consistent with subsequent press department as well. and certainly the government argued strenuously that austin was not an anomaly, although the courts disagreed and held that it was. >> senator feinstein -- >> jon: ay two in front of the senate judiciary committee for elena kagan, the president's nominee to sit on the supreme court of the united states. she got pretty tough grilling there from senator orrin hatch, republican of utah, who has during his decades in senate spoken to and been involved in the questioning of more than a dozen supreme court nominees. our chief political correspondent carl cameron is live in the hearing room sky box at the hart office building in washington. what have we learned so far this morning, carl? i know the subject of military recruiters on the harvard campus, that was a pretty controversial subject, and we learned something about that. anything particularly new there? >> reporter: we did. and first to orrin hatch, the exchange we just watched, that was really very important and we talked about the citizens united court case just recently, in which many of the nation's campaign finance rules were essentially tossed out. the important rhetoric that we heard from the supreme court nominee in the last half hour questioning under orrin hatch was her continued insistence that add an advocate for the clinton administration and others, the positions that she took either before a court when she has been arguing as solicitor general for the obama administration, the citizens united case, or recommendations and talking points she wrote when she was working for the clinton white house, were not necessarily her own personal beliefs. this is a very, very common occurrence for nominees, essentially saying don't hold me accountable for the things that i wrote and the things that i said when i was a paid lawyer for somebody else. i will be different, i will be my own person as a judge in the future, and i'm not going to tell you what i would do on these upcoming cases. as for the question about the military recruitment aspect at harvard, jon, this is something that's going to permeate these hearings and has permeated her sort of political and public persona in a runup to the confirmation hearings. when dean of the harvard law school years ago, she supported the removal, the prohibition of military recruiters during wartime from the harvard law school's office of career services, a specific facility, because that particular facility had an antidiscrimination rule that said no employer could advertise for staff in their oppositeo office of career services if they discriminated, because the military has a don't ask don't tell discriminatory policy against gays, kagan and harvard tried to keep the military from recruiting in that office. ultimately, they were told if you don't let the recruiters back in, you'll lose federal dollars and she caved. the harvard gave in and everything was restored. it has been a very, very tough, tough part of the battle. listen to jeff sessions earlier today, really quizzing her about this. >> i know what happened at harvard. i know you are an outspoken leader against the military policy. i know you acted without legal authority to reverse harvard's policy and deny those, the military, equal access to the campus until you were threatened by the united states government of loss of federal funds. >> i respect and indeed i revere the military. my father was a veteran, one of the great privileges of my time at harvard law school was dealing with all these wonderful students that we had who had served in the military and students who wanted to go to the military. and i always tried to make sure that i conveyed my honor for the military, and i always tried to make sure that the military had excellent access to our students. >> reporter: and republicans on the committee have sort of supplied us with a large graph of documentation which includes e-mails from military officials within the government, as well as back and forth to harvard, and essentially, republicans are accusing kagan based on some of the supporting information of having given the military a runaround, arguing that they stalled and did everything they could to keep the recruiters -- reconcrete us off examplessum it came down to a matter of money, as well as court pressure and they restored the ability to recruit in the services office. jon: i don't want to make too much of it but she has been left at sort of a loss for words on a couple of occasions this morning, looking for i guess composing exactly the way she wants to answer some of these questions. >> reporter: absolutely. and i think that she would be the first to acknowledge that. any white house administration watching its nominee tries to coach and prepare for any possible contingency, but the senators are very good at this, as you said, orrin half has been doing judiciary committee hearings and supreme court nomination cases for decades, they look for ways to trip up the nominee and get them to reveal something that might perhaps betray a certain political agenda. jeff sessions today proclaimed kagan a legal progressive, a liberal would-be jurist. they're not holding pulling back any punches here and if she stammers a little bit, it's because she's trying not to be pinned down. so far she hasn't been and if she doesn't make any big gaff, they'll be confirmed fairly easily. jon: carl cameron, overlooking the sky box in the hearings, thank you. fox news alert, andit not a pretty one. if you have money in the stock market, take a look at the dow, down 209 points right now. 9929 is way back under 10,000, after a new report on consumer confidence showing a nearly ten-point drop in june. its lowest level since march. economists forecast only a modest decline. and that number really tanked, as you can see, all this as japan's economy is showing signs of a slow yowfnlt and there are more concerns over labor strike necessary greece. we will have more on all of this, just ahead, fox ins -- fox business network's jenna lee will be along to put it in perspective. >> meanwhile the kagan hearing is not the only hearing going on on capitol hill now. general david petraeus is speaking before the senate armed services committee. he was recently nominated to take over command of u.s. efforts in the war in afghanistan from general mcchrystal. that hearing, just about to take a break and we're going to give you an update of how that's going right after our own break here on fox. pat two high-stakes confirmation hearings are underway right now, the kagan hearing and right next door, general david petraeus is testifying before the senate armed services committee. the general, nominate to take over as commander of u.s. efforts in afghanistan, tells the panel that america's commitment to afghanistan is enduring, and he says it will be years before local security forces can fully take over. mike emanuel is reporting live on capitol hill. hi mike. what have been some of the key issues so far in this hearing? >> reporter: hi patti ann, essentially making the case that the united states is committed to afghanistan, long term, in terms of helping them get on their feet and be able to protect themselves, and he says that our afghan partners in the taliban should not doubt the united states' commitment. he also got into the issue of the rules of engagement in afghanistan. you know, general mcchrystal, his predecessor, was focused on minimizing casualties, hope to go win the hearts and minds of the afghan people. well, some have complain dollars the rules of engagement have hampered the efforts of u.s. troops on the ground, and perhaps endangered their lives. here's general petraeus on that issue. >> i'm keenly aware of concerns by some of our troopers on the ground about the application of our rules of engagement and the tactical directive. they should know that i will look very hard at this issue >> reporter: reassuring military families and our troops in the field he will take a closer look at the rule of engagement there in afghanistan, patti an. -- patti ann. >> senator ben nelson is questioning the general. any signs of conflict so far? >> not so much so far. he was put in an awkward spot by senator mccain when he talked about the july 2011 date that president obama set, when he wants to start withdrawing surge forces from afghanistan. he said did you, general petraeus, or any other military officer recommend a withdrawal date, and he said no. there's also expected to be perhaps some fireworks over ambassador karl eikenberry and the special representative to afghanistan and pakistan, richard holbrooke. one thing that came out of the mcchrystal article last week of the dysfunction between the military brass and the civilian leadership, being holbrooke and eikenberry, and some have suggest fd you're changing out the military leadership, perhaps this is a good time to change the civilian leadership so one could expect that perhaps senator mccain or senator lieberman may push for changing out the civilian leadership there in afghanistan, path i ann. patti ann: mike eman emanuel live on capitol hill, thank you. jon: now back to the other big hearing that patti ann was alluding to, elena indicationan, now taking questions from senator dianne feinstein, democrat of california, after some pretty rough questioning from a couple of republicans, jeff sessions and also orrin hatch. let's listen in. >> -- fight in force, and if so, what kind of support might give rise to a detention. so all of those questions are i think questions that might come before the court in the future. the obama administration has taken views as to some of them, not all of them. in cases that have been litigated over the past couple of years. but there is certainly quite a number of questions that will come before the court about the exact scope of detention authority. >> so if i understand you correctly, you would say that the executive's power in this area is really limited by the specifics of the actual situation, if i understand what you're saying. >> senator feinstein -- >> the president does not have an overriding authority here. >> senator feinstein, the way that the slitter general's office has argued these cases and the entire department of justice has is on the basis of statutory authority, is on the basis of the aums, the authorization for the use of military force. and we have never actually argued that article ii alone would provide such authority. and the question you raised really -- the usual framework that people use when they think about this question, something called young'stown, of course, justice jackson's opinion in young'stown, and he sets forth three different zones, he says well, in one zone, the president can act in accordance with congressional authority, and that is the easiest for a court to validate, to say look, the congress and the president are acting together, the president is acting in specific accordance with what congress told the president to do, the courts should gil reef deference for that. >> let me stop you there, because it's the 3-pronged test and we've discussed this in almost every supreme court confirmation hearing now. the concern is, where there isn't legislation, and or -- or when the third prong, when legislation may say the opposite, can the president exceed that legislation and how strong is his authority. you say it's not the commander in chief's authority, it's the aumf authority that prevails. doy understand that correctly? >> essentially what the solicitor general's office and the department of justice has been arguing in these last two years has been wherein -- is we're in zone one, this is whereo ceo is where the executive is acting with congress' authorization, rather than in zone two, where the executive is acting and congress hasn't said anything, or zone three, where the executive is acting as against congress' statement to the contrary. so those would present very different issues, whether the president has authority to detain where congress has not said anything or still yet, whether the president has the authority to disdain where congress has pacificcle -- specifically deprived him of that authority that would be a very different question indeed. >> let's talk about that for a moment, i had something to do with, expanding the exclusivity of the foreign intelligence act, to say that the executive authority may not exceed in statute the confines of this act. would you find that as binding? senator feinstein, i would have to, you know, take a look at this act, but i would say that the circumstances in which the president can act as against specific congressional legislation, where the president can act despite congress, are few and far between, and i think that that's what justice jackson said in young'stown, and i think that that's what mostly the court has agreed with, few and far between. now, are they nonexistent? suppose congress said something like we're going to take away the president's pardon power, a power that specifically committed to the president by article ii. i think that that would be a hard case. i think a court might say well, you know, notwithstanding the congress tried to do that, congress can't do that. the president has that power, and it doesn't matter what congress says about the matter. but those are very few and far between. for the most part, the presumption is that the president, if told by congress that he can't do something, can't do something. >> okay. let me ask this: does the president in your view have the authority to detain american citizens without criminal trial if they are suspected of conspiring to aid terrorists participating in acts of terrorism? and does your answer depend upon whether the individual is arrested in the united states or abroad? >> well, senator feinstein, this will i think very much be a case that may come before the court, is the question of how detention authority, whether detention authority exists with respect to people who are apprehended in the united states. the court has not addressed that question so far, the court has addressed in hamdi only a person who was actually captured on the battlefield. the court has left open the question of whether detention authority might exist for a person captured outside of the battlefield, but outside of the united states, and also, has left open the question of whether detention authority under the aumf now, i'm talking about, would exist as to a person capt