KYL: What if it's a top-secret program? Of course, he and the president would both be responsible for that. Let's don't jump to conclusions is what I'm saying.
STEPHANOPOULOS: Senator Durbin?
DURBIN: I can just tell you, we know that Vice President Cheney played an unusual role with President Bush in the early days of the administration. That seemed to change over time.
But it is inappropriate for the vice president or the president to be ordering that a program be kept secret and not disclosed at the highest levels of congressional leadership.
We have to have a check and balance in our system. To give to the president unbridled power and authority goes way beyond what our Constitution has in mind.
STEPHANOPOULOS: Also, Attorney General Holder, as reported by Newsweek, Senator Kyl, that he's looking at -- hasn't decided yet, but looking at appointing a criminal prosecutor to investigate whether CIA interrogators went outside the law, went outside their guidance during interrogations.
Would you support that kind of an investigation?
KYL: The president himself has said that it's out of bounds to in any way go after people in the U.S. government who were asked or ordered to do investigations.
STEPHANOPOULOS: ... about this is those who went outside of that guidance.
KYL: Well, it's always a question of whether you pursued the orders that you were given. Obviously we don't want to protect people who have broken the law. But the problem with some of Democratic friends is that they simply believe that people who followed the law should be prosecuted.
The president and the attorney general both have said that's not going to happen because of the effect it would have on the morale of our agents, CIA and other agents who are asked in very dangerous situations to get this information to protect the American people.
We don't want them to be afraid to ask questions that can save lives.
STEPHANOPOULOS: Senator Durbin?
DURBIN: And we don't want the attorney general to be afraid to ask questions when it comes to violations of the law. I agree with Senator Kyl, those who followed the law, followed their directions, did it appropriately, whether in intelligence agencies or military agencies, certainly should not be prosecuted.
But those who went beyond it, those who broke the law need to be held accountable. No on is above the law.
STEPHANOPOULOS: Finally, we're at Judge Sotomayor -- her confirmation hearings begin tomorrow to be Justice Sotomayor on the Supreme Court.
Senator Kyl, you've been described in your hometown newspapers as masterminding the Republican strategy for these confirmation hearings. What is the strategy?
KYL: Well, the strategy is to be as thorough as we can in examining her record, what she has said, and to conduct the hearings in a fair, impartial, and thorough way, and then make our decisions. And I think Republicans have done a good job of that.
It's interesting that I just reviewed the Rasmussen poll, most recent poll about American public opinion about Judge Sotomayor. They oppose her confirmation, only 37 percent support it. And I found it interesting that among women, by a majority of 9, they oppose her confirmation. Hispanics and Asians, by a majority of 11, they oppose...
KYL: Oppose her confirmation. This is the Rasmussen survey that ended June 30th. And even independents by, I think, 23 points, oppose her confirmation.