'This Week' Transcript: Leahy and Sessions

Transcript: Leahy and Sessions

May 16, 2010 — -- TAPPER: Hello again. Breaking this morning, the White House has sent a letter to the National Archives, urging immediate release of 160,000 pages of documents from Supreme Court nominee Elena Kagan's time in the Clinton White House. This comes as she heads to Capitol Hill this week for another round of meetings to shore up her support as Republicans increase her attacks against her.

Joining me this morning exclusively, chairman of the Judiciary Committee, Democratic Senator Pat Leahy. He's at Lyndon State College in Vermont, where he will give the commencement address later today. And here with me in the studio, the top Republican from the Senate Judiciary Committee, Senator Jeff Sessions of Alabama. Thank you both, gentlemen, for joining me today.

Senator Leahy, I'll start with you. Just a quick question of timing. When do you expect these confirmation hearings to begin, around the end of June?

LEAHY: Well, I'm going to sit down this week with Senator Sessions. We'll work out a time. I think her questionnaire will probably come back in the next day or so, the questionnaire we sent from the Senate Judiciary Committee, and we'll work out a time.

Her predecessor, of course, was confirmed in two and a half weeks from the time he was nominated, Justice John Paul Stevens. I don't anticipate that, but we have a pretty good track record. Chief Justice Roberts and Justice Sotomayor ended up taking exactly the same amount of time, and we can follow a schedule roughly like that, we'll be done this summer.

TAPPER: While I have you, Senator Leahy, I want to ask you about an essay that Elena Kagan wrote for the University of Chicago Law Review in 1995, in which she criticized Supreme Court confirmation hearings. She said, they are, quote, "These hearings have presented to the public a vapid and hollow charade in which repetition of platitudes has replaced discussion of view points, and personal anecdotes have supplanted legal analysis."

Didn't she have a point? Haven't these hearings become in the last few decades a way for nominees to avoid answering questions on how they will rule on a specific issue?

LEAHY: Well, for one thing, I talked to her about that essay. She said I think I'm probably going to hear that quoted back to me a few times during the hearing. I said, starting with me. But you know, it's a doubled-edged sword. If you ask a nominee about certain burning issues of the day, they are issues that are probably going to go to the Supreme Court, and they have to be very careful not to say how they might rule on a case that's coming up. Otherwise they're going to have to recuse themselves and not be able to hear that case. On the other hand, there's only 100 people who get to vote on this lifetime nominee. We have to represent 300 million Americans, and so we have to ask as good questions as we can to make up our mind just how we're going to vote.

TAPPER: Senator Sessions, what do you want to ask her? What are you most interested in hearing from her?

SESSIONS: I think we'd like to know in a real honest sense whether her philosophy of law is so broad in her interpretation of the Constitution that you are not faithful to the Constitution and law. In other words, a judge under their oath says you serve under the Constitution, not above it. But we want to know whether she's faithfully will follow it even if she doesn't like it. And she did criticize a lack of specificity in some nominees. I thought John Roberts struck about the right tone, perhaps even more open -- was more open than Sotomayor, for example. So she's criticized the nominees and the process for not being more specific. I think we'll be looking at her testimony, because she has so little other record. This is going to be a big deal. It's so important how she testifies.

TAPPER: You have expressed concern about a step she took when she was dean at Harvard Law School, and she continued the policy of Harvard Law School of keeping military recruiters from using the Office of Career Services, although she did change that policy later in her tenure there.

The White House has said she had great relationships with veterans and with the military while dean. What's specifically your concern about this issue?

SESSIONS: I have great concerns about that. That went on for a number of years. It was a national issue. People still remember the debate about it. She -- she reversed the policy. When she became dean, they were allowing the military to come back on campus and had been for a couple of years.

TAPPER: But they were always on campus, right? They just weren't using the Office of Career Services.

SESSIONS: Well, look, yeah, this is no little bitty matter, Jake. She would not let them come to the area that does the recruiting on the campus. They had to meet with some student veterans. And this is not acceptable. It was a big error. It was a national debate. Finally, we passed the Solomon amendment. They really didn't comply with it. Eventually, she joined a brief to try to overturn the Solomon amendment, which was eventually rejected 8-0 by the United States Supreme Court, and she was not in compliance with the law at various points in her tenure, and it was because of a deep personal belief she had that this policy, which was Congress and President Clinton's policy--

TAPPER: Don't ask, don't tell, right.

SESSIONS: -- not the military soldiers' policy--


LEAHY: Could I have a word?

TAPPER: Yes, Senator Leahy, you're shaking your head. Do you disagree with Senator Sessions?


TAPPER: This is no itty bitty matter, he says.

LEAHY: Well, this is like in Shakespeare, sound and fury signifying nothing. She -- the recruiters were always on the Harvard campus. She's shown her respect for the veterans there. She every year on Veterans Day, she had a dinner for all the veterans and their families who were there at Harvard. Recruiting went on at Harvard every single day throughout the time she was-- she was there. She was trying to follow Harvard's policy. She was also trying to make sure that students who wanted to go in the military could.

Scott Brown, who is a Republican U.S. senator and a member of the Active Reserves -- he's still in the military -- he met with her and left and said he thought she had high respect for our men and women in uniform, and he had no qualms about that.

I think, let's, you know, I realize you have so many special interest groups on the far right or the far left who have points. Ignore those. We ought to make up our own mind. We should be bright enough to do it.

This recruiting thing -- if somebody wants to go in the military, they usually find a recruiter. I mean, I don't think there was a recruiting station on the campus when my youngest son went and joined the Marine Corps. He wanted to join the Marine Corps. He had no trouble finding a recruiter. And I think in this case, the recruitment went on at Harvard all the way through. This really is trying to make up something out of whole cloth.

SESSIONS: Jake, I don't agree. This is controversial at Harvard. That's one reason she began to try to meet with military to try to assuage their concerns. She disallowed them from the normal recruitment process on campus. She went out of her way to do so. She was a national leader in that, and she violated the law of the United States at various points in the process.

TAPPER: Well, let's talk about the legal aspect of it, because Chairman Leahy, Senator Sessions points out that when she was dean, she joined a friend of the court brief suing the Pentagon effectively, challenging this law, and it was rejected. That point of view and the friend of the court brief were rejected 8 to nothing by the Supreme Court. That includes Justice Ginsburg, Justice Breyer, Justice Stevens saying Elena Kagan, you're wrong, your side is wrong. Now, it was just a friend of the court brief, but doesn't that unanimous verdict basically show that Kagan was expressing her political beliefs and not looking at the rule of law?

LEAHY: You know, if we had -- if we said that any lawyer who ever filed a brief at the Supreme Court, that they couldn't serve on the Supreme Court because the case lost, half the members who are on the Supreme Court today would not be on the Supreme Court.

She stated a position. She challenged the law. The law was upheld, and she said we will follow the law at Harvard. I don't know what else you could ask for.

TAPPER: All right, I want to move on to--


LEAHY: Laws are challenged all the time. That's why we have appellate courts.

TAPPER: I want to move on to another matter. When -- during the Bork hearings, Robert Bork, Senator Sessions, was asked about his personal views of God, whether or not he believed in God. A lot of people thought those questions went too far. In the last few -- in the last week, we were told by the White House that after a blog post went up at CBSnews.com that incorrectly said that Elena Kagan was not straight -- and again, that is not true -- but Elena Kagan went to the White House, said this is not true, I am straight. How far is too far when looking into a nominee's personal life?

SESSIONS: I think you've got to be careful about that. I don't believe that is a fundamental judgment call on whether a person can be a good judge or not. We need to know how able they are to ascertain the real legal issues in a case and deciding it fairly and justly. Will they restrain their personal political views and follow the law faithfully and serve under the Constitution? That's the fundamental test in personal integrity. So those are questions that go to the heart of whether a person will be an able judge or not.

TAPPER: OK, we only have a couple more minutes. I want to ask you both about separate issues. Senator Leahy, on this program last Sunday, Attorney General Eric Holder said that the administration was going to push for changing Miranda rights. Are you concerned at all about the civil liberty implications about delaying the time before Miranda rights have to be read to a terrorist suspect?

LEAHY: Well, I sat down and talked with the president about this. The question is not whether -- centered (ph) so much on civil rights one way or the other, it's what a court will agree to. After all, it's the Supreme Court that set down basically the rules of the Miranda. Whatever changes might be made have to be made within the confines of what the United States Supreme Court has already said. I think the president and Eric Holder understand that.

Certainly there is an emergency doctrine which allows you if you had taken somebody into custody who is a terrorist to continue to question him for a period of time without them being presented to a magistrate or being given the Miranda warning. And certainly in the last several cases of people who have been apprehended, we have gotten tremendous and are continuing to get tremendous information from those people.

TAPPER: Do you think the Miranda warnings and do you think these rules need to be changed? It sounds like you don't.

LEAHY: I'm not saying that. I think you have to have maximum flexibility within the rules, but the idea that you're going to be able to pass a statute to change a constitutional ruling of the Supreme Court, you can't do that.

TAPPER: Senator Sessions, I'd be remiss if I didn't bring up the BP oil spill, given the fact that you represent one of the Gulf states. Democrats are pushing legislation that would lift the cap on how much BP has to pay for damages, not including the cleanup costs. They want to lift it from $75 million to $10 billion. Republicans have been blocking it. What is your position on this?

SESSIONS: Well, I've offered legislation -- supported legislation to expand it also. But the BP people repeatedly stated at the hearing and have told me personally, they are going to be responsible for all legitimate claims that are made against them. So I think we need to watch that closely. They signed as the responsible party. In other words, when they got the privilege to drill in the Gulf, they said we will be responsible for all damage to the beaches, all cleanup costs. Then the question is, how far beyond that do they go and other consequential economic or other damages. They have said they will be responsible for paying them. They should have more than enough money to pay them, and we expect them to pay every cent.

TAPPER: Senator Leahy, to sum up -- yeah, go ahead.

LEAHY: Jake, when the Democrats tried to put into law to make sure they could be -- they'd have to pay for it, and that big oil everywhere would have to pay for cleanup, Republicans filibustered and blocked that. Frankly, this is something where Republicans and Democrats ought to come together and not allow big oil to call the shots, but allow the law to call the shots.

TAPPER: All right. That's all the time we have. Senator Leahy, good luck with your commencement address. We'll all be watching. Senator Sessions, thanks so much for joining us.

LEAHY: Thank you.

SESSIONS: Thank you. Good to be with you.

TAPPER: As our roundtablers take their seats, here are some highlights from recent confirmation hearings, examples of what Elena Kagan called, quote, "the real confirmation mess."


CHIEF JUSTICE JOHN ROBERTS: I'm just absolutely prohibited from talking about it.


JUSTICE SONIA SOTOMAYOR: It's difficult to answer that question.

ROBERTS: My ethical obligation not to comment publicly.

SOTOMAYOR: I understand the seriousness of this question.

ROBERTS: But I can't address that.

ALITO: That would be a disservice to the judicial process.

ROBERTS: Senator, again, that is a question I can't answer for you.


TAPPER: And joining me now, our all-star roundtable as always. George Will, former Obama White House counsel, Greg Craig. Glenn Greenwald of Salon.com. Former Bush White House Counselor Ed Gillespie, and Helene Cooper of the New York Times. Thanks one and all for being here.

George, I want to start with you with Elena Kagan. Is it safer these days to pick a Supreme Court nominee who does not have much of a paper trail?

WILL: Yes, that's the lesson that was learned from the Bork hearing in late summer of '87, when in effect it was a constitutional moment. Because after that, the meaning of advise and consent was changed by the practice of the Senate.

Now, her paper trail, which hitherto had been five law review articles, suddenly got an awful lot longer with access to the papers she generated as part of the White House counsel. It won't matter because when the same extension was made to bring Justice Roberts' papers from his service in the White House into play, all he said when something got controversial was, that was then, this is now. Then I had a client. It was the president. As a judge, I won't have a client.

TAPPER: Greg, you've known Kagan since 1989 when you both worked together at Williams & Connolly, the law firm. But you also helped shepherd the Sonia Sotomayor confirmation hearings successfully, and Ed, you successfully did John Roberts. So I want to ask you, would you give any different advice to her, other than keep it quiet, don't answer questions as much as possible?

CRAIG: I think she'll try to answer questions as honestly and as completely as she can. There is this rule, which I think should be respected, that you don't comment on issues that are likely to come in front of you. And that is the right way to have it, because people that come before a court, litigants before the Supreme Court or other courts, don't want to have the feeling that the judge that is ruling on their case have already made up their minds.

So I think that response, which we saw with all those nominees, declining to answer the question, it's a little bit stacked, Jake, because that answer was the appropriate answer for many of the questions that were asked about this or that issue. You don't want to appear that you're prejudiced or predisposed to a decision. Rather than coming to the court as you should, taking every case and every different dispute for its own -- on its own terms.

TAPPER: Glenn, you've been one of the more critical voices from the left about the Kagan pick. You want her to reveal as much as she can.

GREENWALD: I think she absolutely should, and she herself said that that ought to be the obligation of anyone who wants to acquire the rather extraordinary power of being on the Supreme Court for the next 30 to 40 years. And the really troublesome aspect is that this is really a nominee about whom shockingly little is known. I mean, we know less about Elena Kagan's beliefs and views than any successful Supreme Court in recent -- Supreme Court nominee in recent memory. And the reason is that she's advanced her career ambitions by essentially avoiding taking any positions on most of the great political and legal questions of the day. As the New York Times said, she spent decades hiding her beliefs and her philosophy from public view.

And I think that before you put somebody on the court and vest them with the extraordinary power that she would have if she's confirmed, the American people, regardless of where you fall on the political spectrum, ought to demand that she divulge what her beliefs and opinions about these great constitutional and legal questions are.

TAPPER: Greg, you look like you wanted to say--

CRAIG: That's totally -- she's lived a career that's really extraordinary, that's been available for all people to watch and to admire. She's a real trailblazer. She was the first woman dean of the Harvard Law School, the first woman solicitor general. She has performed this career in all three branches of the government. And so, she has got experience and qualifications that are beyond reproach. I mean, I cannot imagine a more qualified nominee in my lifetime than Elena Kagan.

TAPPER: Ed, You're laughing. But I want to say you shepherded one successful nominee, John Roberts. And you were also there for Harriet Miers, not so successful.


TAPPER: She was also from outside the judiciary.

GILLESPIE: That's correct.

TAPPER: Faced a barrage of criticism, although she's no former Harvard Law School dean. What similarities do you see with Elena Kagan and either Roberts or Harriet Miers?

GILLESPIE: Well, Harriet Miers had a record of litigating. And so we saw her, you know, representing clients. And one of the things I think that we don't know about Elena Kagan is does she have capacity to set aside her personal views and impartially apply the law or represent the law? We have never seen her represent someone, for example, in the way we saw Chief Justice Roberts during his time as a trial lawyer, represent people who may not and cases that may not jive with his own personal views, so we know he was able to put the law and the rights ahead of that.

We have not seen that with Elena Kagan. And the fact is, she's -- it's pretty thin gruel, in Reagan terms.


GILLESPIE: For, what, a year? And she was accredited for the Supreme Court for that job, hadn't been there (ph) before that.

CRAIG: That's the number one litigating position in the United States of America. She's litigating--

GILLESPIE: And (inaudible) she's the most qualified Supreme Court nominee in your lifetime?

CRAIG: Well, certainly.

GILLESPIE: OK. Here's the fact is, I think she's going to have to face a lot of questions because she's been in largely political and policy advocacy roles, not really judicial roles.

GILLESPIE: And I think there are legitimate questions as to whether or not her policy views; she's going to continue to try to make policy from the bench. I think that's what Senator Sessions was alluding to as the primary concern, I suspect you'll see, is President Obama looking to put a political ally on the court to sustain a lot of his agenda that's going to come before the court, likely, over the next many, you know, five years, six years, seven years.

TAPPER: Helene, I want to play for you some sound. First is a commercial from the Judicial Crisis Network.


ANNOUNCER: Elena Kagan, who, as the dean of Harvard Law School, kicked the military off-campus, incredibly, during a time of war. When Dean Kagan...


TAPPER: There's that, and then there is also this sound from former House speaker Newt Gingrich, speaking last night at the NRA convention in Charlotte, North Carolina. Here's Speaker Gingrich.


FORMER REP. NEWT GINGRICH, R-GA.: She, as dean of the Harvard Law School, took an effort to block the American military from the Harvard campus, all of the way to the Supreme Court, during a war. And that is an act so unbecoming an American that she should be disqualified from the very beginning.



TAPPER: Whoa. Now, I know the White House feels like she's going to be confirmed. But it looks like Republicans are getting ready for a big fight.

COOPER: I think we should be bracing for another version of, you know, Hollywood on the Potomac. This is what we do here in this town. And there's going to be a lot of Washington-produced drama in the next few weeks, as Elena Kagan goes before the Senate.

But, at the end of the day, the reality is, there was no mystery about this pick at all. People expected President Obama to go with Elena Kagan and he did. She's been so thoroughly vetted. The White House is feeling pretty confident at this point.

And you talk to people and they -- you know, they didn't -- they feel like they didn't go with, you know, somebody who's way out there on the left or anything like that. And they've been already passing around e-mails and that sort of stuff to people like Scott Brown and Susan Collins.

And they think they -- they pretty much seem to think they have it in the bag. And I think, you know, we're going to hear a lot about the gays in the military and Don't Ask, Don't Tell and what she -- you know, her position at Harvard there. But, at the end of the day, the reality is, you know, she's going to be going through.

TAPPER: George?

WILL: It is unfair to say that she kicked the military off Harvard's campus. Harvard did that. It is as unfair for her to say, as she repeatedly has done, that this is the military policy that she's objecting to.

She's objecting to the law of the United States, passed by a Democratic Congress and signed by a Democratic president in 1993. Eighteen currently sitting Democratic senators voted for Don't Ask, Don't Tell, including Harry Reid, John Kerry, Mr. Leahy, who is here today, and no longer a senator, the vice president, Joe Biden.

GREENWALD: Let me just -- I mean, there are real questions about Harriet -- about Elena Kagan.



GREENWALD: No, to compare her to Harriet Miers is ludicrous. Her achievements -- Elena Kagan's achievements are vastly more impressive, as are her abilities.

And this Don't Ask, Don't Tell controversy is a complete side show to the real questions that are -- that should be asked. Because many universities have as a policy that they don't allow employers onto campus and use resources to recruit who can't certify that they refrain from discriminating against some of the university students. And that was the general policy that Dean Kagan applied in that instance. It was a perfectly appropriate thing to do.

But let me just say, about her achievements, if you look at what Democrats have said in the past, I mean, Patrick Leahy, when Sam Alito was nominated, said, of course nobody contests his qualifications, but a good resume is not enough; we have to know what his beliefs are.

And Barack Obama, when Harriet Miers was nominated, said we know remarkably little about what she thinks about the great constitutional issues of the day, and therefore she has to tell us what she thinks before she should be confirmed.

And let me just ask Mr. Craig, who's a defender of hers and says, well, she's one of the most qualified nominees ever, look at the great legal issues that have confronted the court, Roe v. Wade; the issue of gay rights, in terms of Bowers v. Hardwick; affirmative action; the president's authority in the war on terror; even the efforts by the administration now to reduce Miranda rights and other rights that American citizens have.

Can you point to anything that she has said or written in the past that would let Americans know what she believes about those issues, how she views past Supreme Court rulings on those questions?

CRAIG: What you're arguing for here is a judge and only judges should be on the Supreme court. And she's not a judge, so she doesn't have the 17 years of writing opinions that Sonia Sotomayor does.

GREENWALD: But lots of law professors have written numerous things about those questions. Has she?

CRAIG: She's written five or six law review articles. She taught classes...

GREENWALD: So what has she said that would enable people to know about those great issues that have confronted the country and the court, anything?

CRAIG: Yes. She's...

GREENWALD: Well, what is it? What are those things?

CRAIG: Every day, Elena Kagan has taught students, administered law professors.

GREENWALD: What has she said about those issues?

CRAIG: Well, she'll answer questions about that when she's...

GREENWALD: But you're defending her. Can you tell Americans what she thinks about those things?

CRAIG: She's -- she is largely a progressive in the mold of Obama himself, President Obama himself.

TAPPER: Let me ask a question. Because Glenn brings up -- we only have a little bit of time left in this segment, but it seems like, much like other -- perhaps John Roberts is a good example -- she has been cautious, preparing for this day, and not taken big stances.

Of course, I -- you know, when she was dean of Harvard Law School, maybe there were political considerations, being in that job. But has she not been cautious, perhaps hoping for this day?

WILL: Well, it's the job of senators to chip away at her caution.

Let me show you how they can do this. One of the questions would be -- we're all interested -- what would she rule on the constitutionality of the health care mandate that's being actively litigated around the country?

I'd just ask her, "Ms. Kagan, is it constitutional, under the commerce clause -- would it be -- for the federal government to require people to take calisthenics? If not, why not?"

And I think, either the commerce clause is infinitely elastic or it's not. Now, you can -- she couldn't dodge that by saying, well, I can't -- that's currently being litigated. It's not, but it really is, in another sense.

TAPPER: We have to take a quick break. We're going to have a lot more on this. The roundtable will continue in a moment. And later, the Sunday funnies.


DAVID LETTERMAN, HOST, "THE LATE SHOW": It looks like the next Supreme Court justice could be a New Yorker. Her name is Elena Kagan. She has never -- here's the catch -- has never argued before a judge before, but -- but, living in New York City, you know, she's argued in cabs; she's argued in subways.


She's argued in delis. She's argued in her apartment.


TAPPER: Coming up next, more of the "Roundtable" and the "Sunday Funnies."



DIANE SAWYER, ABC NEWS HOST: Crews moved into place with their latest best hope for containing the spill. But even the experts say they don't know if it will work.

UNIDENTIFIED MALE: How much work this environmental catastrophe gets is riding on how well that huge steel containment dome works.

SHEPARD SMITH, FOX NEWS HOST: A giant dome experiment ended in a giant failure.

UNIDENTIFIED MALE: Their solution for this is to try a smaller dome.

DOUG SUTTLES, BP: In a way, there's sort of multiple plan "B's."

UNIDENTIFIED MALE: If that doesn't work, later in the week, they'll try the hot tap. Next week, they'll try the junk shot, literally firing debris, golf balls and tire chards into the leaking pipe, hoping to clog it.


TAPPER: Scenes from the environmental disaster in the Gulf, one of the many topics we'll talk in this segment with our "Roundtable."

As always George Will, former Obama White House counsel Greg Craig. Salon.com columnist Glenn Greenwald, former Bush White House counselor Ed Gillespie and "New York Times" reporter Helene Cooper.

One of the issues that Elena Kagan might face, if she is confirmed to the Supreme Court, Helene, is the fact that the Obama administration seems to want to rewrite the Miranda rulings and how much time they can have before they read the terror suspect his rights or bring them before a judge. Why are they doing this?

COOPER: There are two reasons. There's political and then there actually is the legal reason. On the second part first, the Miranda -- the trying to rewrite Miranda, is really, I think not as big a deal as the second thing, which is the presentation.

You know, there's only so much you can do with the Miranda rights before the Supreme Court would become involved. You can twiddle around with them a little bit but then at some point it would end up at the Supreme Court and they would make a decision.

What the Obama administration really wants is more time before they have to take a terror suspect before a court or before a judge. There's the belief, among many people, in law enforcement that if that interrupts the flow of getting a confession, it interrupts the flow of getting information out of a terror suspect, actually physically taking them to a court and taking them to a judge to become arraigned. And that's where the administration would like to get a lot more time.

But then there's also the political which is, we've seen in the past few months, two terror attacks on -- attempted attacks on American soil with Abdulmutallab and now with Shahzad. And the administration is very, very worried about after coming in to office, saying that they are going to shut down Guantanamo of actually having something actually happen here in the United States, looking as if they haven't done enough about it. And I think that's a big part as well.

TAPPER: Greg, why are they doing this?

CRAIG: Well I think there's concern that everybody has that when you have a terrorism suspect in hand, the first thing you want to do is to gather as much information from that individual as possible to protect the public, either to find out if they are co-conspirators working with them or plans for the future. So there's no dispute about that.

The real question in my mind is whether the public safety exception to Miranda is adequate, is flexible. Is there a real need to change the Miranda rule in order to accommodate that requirement? Let's just make it a given that you do want to have that interrogation first and you don't want to be bothered by courts or Miranda rules. And their only question is whether the public safety exception which now exists is sufficiently flexible to accommodate that requirement.

TAPPER: Do you think it is?

CRAIG: I don't know what the administration is planning to do. If the administration is planning to say we want 15 to 30 days without any kind of due process, then I think that's going to be a hard sell.

GILLESPIE: I agree there's a legal and political calculus here that's going on. The legal calculus I think is an understanding by this administration which they should get some credit. They won't say it out loud, but the fact is what they're doing is recognizing that the handling of Abdulmutallab, the underwear bomber on Christmas Day was not well done. And that they faced a problem in Mirandizing him too soon and that hurt their ability to get information. So they are trying to address that.

But the political problem they have is they don't want to embrace the Bush regime and the Bush policies of setting up the enemy combatant system. And you can prosecute or can hold a U.S. citizen as an enemy combatant. We saw that upheld in the fourth circuit in the Padilla case. But they don't want to accept that.

So they're looking for a political calculus here that somehow addresses the problems they faced on Christmas Day but doesn't accept the legal parameters of the Bush administration. That's a real problem for them.

TAPPER: Glenn, what would the reaction be by the Democratic Party if Attorney General Ashcroft had said he wanted to revise the Miranda rules?

GREENWALD: That's the real issue. I mean, the Democrats, including Barack Obama spent the last decade screaming and yelling that what the Bush administration was radical and destructive because they were rewriting our system of justice and our political culture in the name of fears of terrorism. And what you've seen since Barack Obama has been inaugurated is essentially the continuation of many of those very same policies that he himself spent the campaign vehemently condemning. But what's happening now is really quite remarkable, which is those Bush policies that were so controversial were largely aimed at non-citizens.

But the most recent terrorism controversies are now being aimed at American citizens and the rights of American citizens. You have the president authorizing an assassination program to target American citizens.

TAPPER: One American citizen.

GREENWALD: There are three confirmed, one of whom we know. You have the effort by Joe Lieberman and others to strip American citizens of their citizenship, to deny them all rights. And now you have the administration, the Obama administration, wanting to rewrite our core protections of Miranda and being brought before a judge. And at some point the American people are going to have to say, is the response to every terrorist attack, attempted terrorist attack to ask which rights do we need to give up now.

TAPPER: George?

WILL: I think you're right which is we don't actually know what the Miranda doctrine means, particularly with the public safety exception. Obviously there's an extreme here, 15 days, 30 days. There's two hours, here's too little. There's play in the joints as you like to say. Why don't we just let it play out?

TAPPER: All right, well let's move on -- speaking of playing out, let's move on to politics, because we have great races for political junkies playing out especially as a former Pennsylvanian, I know Ed, you as well, there's I have to say a bizarre race going on in Pennsylvania right now.

Here is a fun little mash-up from the Web site "Talking Points Memo." It is a combination of Arlen Specter's TV ad, who used to be a Republican in 2004 with his ad now in 2010.


UNIDENTIFIED MALE: President Obama and newspapers across Pennsylvania agree, Arlen Specter is the real deal.


GEORGE W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: Arlen Specter is the right man for the United States Senate.

OBAMA: He came to fight for the working men and women of Pennsylvania.

BUSH: I can count on this man. See, that's important.

OBAMA: He's going to fight for you regardless what the politics are.

SEN. ARLEN SPECTER (D), PENNSYLVANIA: I'm Arlen Specter and I approve this message.

SPECTER: I'm Arlen Specter and I approve this message.


TAPPER: First of all, George, why would any Democrat vote for Arlen Specter?

WILL: That's an excellent question. In his fifth term as a Republican senator at age 79, he had an epiphany which was that he's really a Democrat. Now when he did, to his credit, it was agreeably free of any pretense of principle. He said I'm going to lose unless I change.

He's going to lose anyway is what it comes down to because this is the last year that you want to be "A" an incumbent, "B" an opportunist, "C," sort of flagrantly without conviction.

TAPPER: Ed, if you were Pat Toomey, the Republican senatorial nominee in Pennsylvania, would you rather run against Arlen Specter or the legitimately progressive Democratic challenger, Congressman Joe Sestak?

TAPPER: Who is a tougher general election candidate?

GILLESPIE: Tough question. I think Specter is obviously eminently beatable. And I agree with George, he's so eminently beatable, he's about to be beat in his primary. And that will leave Sestak.

Sestak is very much to the left of Pennsylvania, which, for a northeastern state, actually, has a lot of conservative leanings, and I think he's going to have a very tough time in the general election as well.

So I don't think that obviously Toomey is not going to have a choice and I expect it's going to be Sestak at the end of the day, because Arlen Specter is clearly out there, you know, in the middle of the road with yellow stripes and dead armadillos, as they say.

TAPPER: Glenn, you see this, and specifically President Obama's endorsement of Arlen Specter, as a larger institutional problem in Washington.

GREENWALD: Well, Washington basically exists to perpetuate the power of incumbents. And so it's extraordinary to watch. Arlen Specter, who was a Republican, and a fairly loyal and devoted Republican. He helped the Bush agenda in all sorts of ways, be supported by the White House. People who gave money to the Democratic apparatus are having that money diverted or directed to someone who spent their life in the Republican Party and to try to defeat an actual Democrat a real progressive. And that's what Washington does. It perpetuates the power of incumbency, and that's why the American people are so largely cynical about what takes place in the city.

TAPPER: Arlen Specter is not the only one facing a tough Tuesday. In Kentucky, the secretary of state, Trey Grayson, is facing a challenge from Rand Paul. He is the son of Congressman Ron Paul, and even though it is an open seat, Grayson is the secretary of state, so he's seen as the establishment candidate.

Here's the campaign ad he is running against Rand Paul, who is a Tea Party candidate.


(UNKNOWN): We live in dangerous times.

But not in Rand's world. Rand wants to decriminalize dangerous drugs. Rand Paul even questions whether Afghanistan poses a threat to the U.S., and supports an immediate withdrawal from Iraq.

Rand's world. Wild, wacky and dangerous.


TAPPER: George, if Rand Paul wins on Tuesday, I would think, if I were the Democratic candidate, I would just run Trey Grayson's ads. But can Rand Paul win?

WILL: Sure. I mean, look, there's a question as to whether or not they know how to poll in Republican primaries in Kentucky, because they haven't had that many hotly contested ones. The polls are 15 points apart at this point. But it seems to me --

TAPPER: With Grayson?

WILL: Grayson has polls that he says that show him tied. And it's McConnell's poll taker who has been doing these things.

TAPPER: McConnell has endorsed Grayson.

WILL: And the voters will sort this out. But you know, it seems to me when Ron Paul -- Rand Paul says, it's not clear that Afghanistan is crucial to our security, a lot of people in Kentucky probably say, that's not crazy, that's a sensible view.

TAPPER: Do you think this is an example of the Tea Partiers flexing their muscles yet again? What's going to happen, do you think?

CRAIG: Well, it's not my party, and I haven't been following as closely as your other guests here. But it seems to me a repeat of what happened in Nevada with Senator Bennett.


CRAIG: I mean, sorry, Utah, with Senator Bennett, a long- standing incumbent who is thrown out in the Republican convention.

TAPPER: Is that how you see it, Helene?

COOPER: I think the whole -- this whole thing about this is a referendum, and this shows a test for the Tea Party. I think that might be a little overstated, because the reality is Rand Paul, a lot of his backing comes, and a lot of his stature comes from his father. I mean, he comes from a huge political background with Ron Paul, and I think a lot of that might be about Ron Paul and not necessarily the Tea Party.

TAPPER: Ed, you're the Republican here, what's going on here?

GILLESPIE: Well, I wouldn't bet on this primary, but I would bet on the general election in Kentucky. In 2010, who -- remember the nominee that emerges from the Kentucky Republican primary is going to be the next senator from Kentucky. That's the environment that we are in today. There is clearly an anti-establishment sentiment at play, both in the, by the way, the Republican and the Democratic primaries. We see this going on in Colorado and Arkansas with Democrats, as well as in Utah, and with -- you know, if you concede that Grayson is the establishment candidate in Kentucky there.

But the fact is, at the end of the day, the only thing that's more dangerous than being an incumbent today is being a Democratic incumbent today. And that's going to be the case come November.

TAPPER: Speaking of Democratic incumbents, Glenn, you were responsible for forming a group that helped recruit the challenger that Senator Blanche Lincoln, the Democrat from Arkansas, is facing, Bill Halter. What is the dynamic there? Some people are saying this is a Democratic purge of a moderate Democrat in a state where only moderate Democrats can win?

GREENWALD: Well, that's what people always say every time there is a primary. I mean, in Connecticut, when Democratic voters decided they didn't want Joe Lieberman representing them anymore, the claim was, oh, the far left has taken over the Democratic Party.

The reality is that people in Washington, the political class, tend to be very hostile to primaries because they threaten incumbent power. The reality, though, is that it's the ultimate exercise in democracy. And the people of Arkansas should be able to decide whether they want a senator like Blanche Lincoln, who has been subservient to lobbyists and corporate interests her whole career, continuing to represent them. And I think the real issue is that the opposition that the American citizenry has in great numbers to the political class in Washington on a bipartisan basis is justifiable, given everything that the political class has done. And that ought to be the focus, is why Americans so dissatisfied with what's going on in Washington.

WILL: I think we have a recruit to the term limits movement. No, unquestionably, it seems to me, primary challenges are wholesome and healthy. I just don't see anything wrong with this. That's why you have primaries.

TAPPER: But you also think that races like the one we're seeing in Arkansas don't get as much attention by the media class, because --

WILL: It doesn't fit the narrative. The narrative is Republicans are intolerant, not least to one another, and there's a civil war in the party, et cetera, et cetera. It's going on in the Democratic Party as well, for which we have you to thank, I guess.

TAPPER: Let me switch to another actual civil war or potentially in Afghanistan. Hamid Karzai came to the White House this week, and it was after a very rough month that had existed between President Obama and Karzai, but they put on a good face. Here's a little clip from that visit.


OBAMA: With respect to perceived tensions between the U.S. government and the Afghan government, let me begin by saying, a lot of them were simply overstated.

HAMID KARZAI, PRESIDENT OF AFGHANISTAN: It's not an imaginary relationship. It's a real relationship. There are days that we are happy, there are days that we are not happy.


TAPPER: Helene, we're going to probably have some days that we're not happy ahead of us, right, with what's going on in Kandahar, with what's still not necessarily completed in Marjah. Were the tensions overstated?

COOPER: Of course not. A lot of these tensions were generated by the administration itself. And don't forget, you know, for some reason, it didn't seem to come up in the past week while Karzai was in town. This is a man who threatened to join the Taliban a month ago when he said that he was under too much pressure from the West. These perceived tensions that President Obama talked about were coming from his -- well, his own administration, his ambassador to Afghanistan, General Karl Eikenberry, with the famous diplomatic cable saying that President Karzai is not an adequate strategic partner.

So these tensions are definitely real. The White House now is trying to -- because Karzai has responded so poorly to the efforts of pressuring him, are switching now to a more be-nice strategy.

But the underlying -- the fundamental tension remains, which is that even after the U.S. military went into Marjah, which is a pretty sleepy hamlet, to clear out the Taliban, there was no Afghanistan government there to roll out. They talk about this government in a box, and this one administration official was joking with me and saying they opened the box and there was only one guy standing there. There's not really an Afghan government in this point and place.

And so you can't even secure, you know, clear, build and hold Marjah, which is a much smaller place, and now we're talking about going to Kandahar, which is the cultural heartland of the Taliban. It's so much more complicated. You know, you can see some real problems ahead.

TAPPER: We only have a couple of minutes left. But Ed, you've actually been in meetings with Karzai and President Bush. What is Karzai like?

GILLESPIE: He is a very cagey and shrewd person. And look, there's always tensions. We're a country with troops in his country. There are casualties, civilian casualties that occur from time to time. There's going to be tension. And, you know, but in the Bush administration, we kept those in the private channel, or at least below the radar. And you know, this administration, I think, got out there way too far too fast, and they had to scurry back. Because as they look around, you know, as you said, there is not a lot else there in Afghanistan other than Karzai to be helpful.

TAPPER: George, we only have one minute left. Is Karzai our ally? WILL: Yes. We've baptized him that, and that's all we've got is Karzai, which matters. Given the fact that clear, hold and build -- we clear areas because the Taliban clears out. They know that we're going home. They know that they are home. Build, you can't build if you can't hold. You can't hold if you're coming home.

Half of the surge, small surge of 30,000 troops, has now arrived. The full surge will not be there until August. Eleven months after that, we are scheduled to begin the withdrawal. Now, if you're an Afghan citizen and you are asked to side with the Karzai government, what do you do? You are going to side with people who are sponsored by an American forces that are coming home.

TAPPER: All right, well, the roundtable will continue in the green room on ABCNews.com. And later, check out our fact check. "This Week" and Politifact have joined together to fact-check our newsmakers, only on "This Week."