Transcript: Joint Chiefs of Staff Chairman Adm. Mike Mullen

May 24, 2009 — -- ABC'S "THIS WEEK WITH GEORGE STEPHANOPOULOS" MAY 24, 2009 SPEAKERS: GEORGE STEPHANOPOULOS, HOSTADM. MIKE MULLEN (USN), CHAIRMAN, JOINT CHIEFS OF STAFF

(BEGIN VIDEOTAPE)

STEPHANOPOULOS (voice-over): Good morning, and welcome to THISWEEK. On this Memorial Day weekend, our exclusive headliner, themilitary's top man.

MULLEN: I have actually been supportive of closing Guantanamo.

They want Afghanistan back. We can't let them or their al Qaedacohorts have it.

That Iran getting a nuclear weapon is calamitous for the regionand for the world.

STEPHANOPOULOS: The chairman of the Joint Chiefs, Admiral MikeMullen, only on THIS WEEK.

Then...

DICK CHENEY, FORMER VICE PRESIDENT: In the fight againstterrorism, there is no middle ground and half measures keep you halfexposed.

PRESIDENT BARACK OBAMA: We must leave these methods where theybelong, in the past. They are not who we are. And they are notAmerica.

STEPHANOPOULOS: Who won the great debate? Who is next for theSupreme Court? That and the rest of the week's politics on ourroundtable with George Will, Donna Brazile, David Brooks of The NewYork Times, and E.J. Dionne of The Washington Post.

And as always, the "Sunday Funnies."

JAY LENO, HOST, "THE TONIGHT SHOW": Hey, President Obama hasfound a way to quickly close Guantanamo Bay. He's going to turn itinto a Pontiac dealership. Yes.

(LAUGHTER)

ANNOUNCER: From the heart of the nation's capital, THIS WEEKwith ABC News chief Washington correspondent George Stephanopoulos,live from the Newseum on Pennsylvania Avenue.

(END VIDEOTAPE)

STEPHANOPOULOS: Hello, again, I hope you're enjoying thisMemorial Day weekend. We're going to begin today with the president'stop military adviser, Admiral Mike Mullen, the chairman of the JointChiefs of Staff.

Welcome to THIS WEEK.

MULLEN: Thank you, George.

STEPHANOPOULOS: And we have a lot to cover today, but I want tobegin with the debate that really consumed Washington this week.Guantanamo Bay, whether to close it, how to close it, what to do withthe detainees. Weigh in from the perspective of the U.S. military.

MULLEN: Well, I've advocating for a long time now that it needsto be closed. President Obama made a decision very early after hisInauguration to do that by next January. And we're all working veryhard to meet that deadline.

It focuses on very difficult issues of what you do with thedetainees who are there. There are some really bad people there. Andso figuring out how we're going to keep them where they need to be,keep them off the battlefield, as well as close Gitmo itself is a realchallenge.

STEPHANOPOULOS: Let's talk about keeping them off thebattlefield, because a report -- a Pentagon report was released thisweek -- or leaked this week that said about 14 percent of theGuantanamo detainees have gone back to the battlefield.

I'm trying to puzzle that out. Does that mean it was a mistaketo let them go? Or that somehow they were radicalized insideGuantanamo? That something happened to them there?

MULLEN: Well, there has been an increasing number of those whohave returned to the battlefield over the last year or two. There hasbeen hundreds and hundreds who have actually been released both fromGuantanamo over time as well as other detention facilities in Iraq andin Afghanistan.

And I think individuals make their best judgment about where theyare. And certainly from a military perspective, my advice is to focusheavily on making sure that these individuals don't return.

It has gone up in recent weeks -- or I'm sorry, in recent months,from a single digit number of 5 or 6 percent to the low teens, as faras my understanding of those who have returned.

STEPHANOPOULOS: For those detainees that have to come to theUnited States eventually, if indeed they do, would the best option befor them to be held in military prisons here in the United States?

MULLEN: We're working hard now to figure out what the optionsare and what the best one would be. And that really is a decision thepresident is going to have to make, certainly in meeting this deadlineof what we do.

But I just want to reemphasize how -- you know, the challengeassociated with that, the need to really keep the bad guys off thebattlefield, and to properly detain these individuals as determined inthis process.

STEPHANOPOULOS: But that is everybody's big concern, at least itwas expressed in the Congress this week that somehow detainees wouldcome to the United States and they would pose a danger. And the FBIdirector, Robert Mueller, said this week they could pose a risk.

MULLEN: Sure. I listened to all of that and I thought SecretaryGates also captured it well. We have terrorists in jail right now,have had for some time. They're in supermax prisons. And they don'tpose a threat. So that's certainly an option. But again, it's notone for me to decide. STEPHANOPOULOS: The Republican leader of the Senate was quotedin The New York Times today saying there's actually a very slimpossibility now that the Congress will allow Guantanamo to close.

If he's right, and Guantanamo doesn't close, what would that meanfor your military mission?

MULLEN: Well, the concern I've had about Guantanamo in thesewars is it has been a symbol, and one which has been a recruitingsymbol for those extremists and jihadists who would fight us. So andI think that centers -- you know, that's the heart of the concern forGuantanamo's continued existence, in which I spoke to a few years ago,the need to close it.

STEPHANOPOULOS: You know, former Vice President Cheney took onthat debate this week. He was speaking about Guantanamo, but alsospecifically the enhanced interrogation techniques, and he took onthis issue of what he called the recruitment tool mantra. Take alisten.

(BEGIN VIDEO CLIP)

CHENEY: This recruitment tool theory has become something of amantra lately, including from the president himself. And after afamiliar fashion, it excuses the violent and blames America for theevil that others do. It's another version of that same old refrainfrom the left, we brought it on ourselves.

(END VIDEO CLIP)

STEPHANOPOULOS: He's taking issue with your judgment.

MULLEN: Well, again, it's my judgment that it has had an impact.And it's time to move on. And the difficulty of doing that iscaptured in the complexity of the issues. But I think we need to.

STEPHANOPOULOS: Let me move on to the issue of Iran. You saidthat Iran is on a path to building nuclear weapons. But the 2007National Intelligence Estimate concluded with a high degree ofconfidence that Iran had halted its nuclear weapons programs. So doyou believe that intelligence estimate is outdated? Is it no longeraccurate?

MULLEN: Well, I believe then and I still believe that Iran'sstrategic objective is to achieve nuclear weapons, and that that pathcontinues. Their leadership is committed to it. They conducted amissile test this last week that was successful, which continues toimprove their missile delivery system and capability. Their intentseems very clear to me, and I'm one who believes if they achieve thatobjective, that it is incredibly destabilizing for the region. And Ithink eventually for the world.

STEPHANOPOULOS: You said it's their intent. But do you believethey've restarted their actual nuclear weapons program?

MULLEN: I haven't seen -- or I wouldn't speak to any detailsabout what they are doing with respect to that. Although, I remainconcerned that while intelligence estimates focus on what we know, I'mconcerned about what Iran might be doing that we don't know.

STEPHANOPOULOS: Let me also press the question of theirstrategic intent. "Newsweek" has a cover story out. Let me show you.It says that everything you think you know about Iran is wrong. Andone of the points that Fareed Zakaria makes in "Newsweek" is he pointsout on several occasions over the last several years, Iran's leadershave said they're not interested in having nuclear weapons. They havesaid that nuclear weapons are immoral. The Supreme Leader, AyatollahKhamenei actually issued a fatwah saying that these weapons are,indeed, immoral.

And I guess, it's possible they could just be lying. But it doesseem odd that a country that the Islamic Republic that bases itslegitimacy on being a guardian of Islam that would develop weaponsthat it considers immoral. That would seem to undercut their ownlegitimacy.

MULLEN: Well, I think that speaks to the importance of thedialogue that President Obama has stated he wants to initiate and toreally wring out, whether that's how the Supreme Leader feels.Certainly from what I've seen, Iran on a path to developing nuclearweapons.

STEPHANOPOULOS: So you don't believe it? That they don't wantnuclear weapons.

MULLEN: At this point no.

STEPHANOPOULOS: And the chief of staff to Israel's defenseminister, General Michael Herzog, has said that Iran could actuallyhave its first nuclear weapon by the end of 2010 or the beginning of2011. Do you agree with that?

MULLEN: Well, I think you make certain assumptions about whatthey can do. Most of us believe that it's one to three years,depending on assumptions about where they are right now. But they aremoving closer, clearly, and they continue to do that. And if youbelieve their strategic intent, as I do, and as certainly my Israelicounterpart does, that's the principle concern.

STEPHANOPOULOS: And you just said that you believe that anuclear Iran would be calamitous for the region. But last year, SyHersh in the "New Yorker" reported that you pushed back very hardagainst any notion of a military strike during President Bush'sadministration. And you've spoken publicly about the unintendedconsequences of a military strike by Israel. So what worries youmore? A nuclear Iran or war with Iran?

MULLEN: Well, they both worry me a lot. And I think theunintended consequences of a strike against Iran right now would beincredibly serious. As well as the unintended consequences of theirachieving a nuclear weapon.

And so that's why this engagement in dialogue is so important. Ithink we should do that with all options on the table. As we approachthem.

And so that leaves a pretty narrow space in which to achieve asuccessful dialogue and a successful outcome, which from myperspective means they don't end up with nuclear weapons.

STEPHANOPOULOS: They don't end up with nuclear weapons, butcould they have as Japan does a full nuclear fuel cycle program that'sfully inspected?

MULLEN: I think that's certainly a possibility and this isn't,at least, from my perspective, from the military perspective, thisisn't about them having the ability to produce nuclear power. It'sabout their desire and their goal to have a nuclear weapon.

STEPHANOPOULOS: Finally, if it comes to this, do you believeit's possible to take out Iran's program, militarily at an acceptablecost?

MULLEN: I won't speculate on what we can and can't do. Again, Iput that in the category of my very strong preference is to not be putin a position where we -- where someone -- where Iran is struck interms of taking out its nuclear capability.

STEPHANOPOULOS: OK. Let me move to Iraq then. U.S. combatforces are scheduled to complete their pullout from Iraqi cities byJune 30th. But in recent weeks, we've seen an uptick again in theviolence. Does that rise in violence mean that the deadline forpulling American forces out of the cities might not be met?

MULLEN: Oh, I think we're still very much on a track in terms ofpulling the forces out of the cities, which is the end of next month.We're on track to decrease the number of troops down to 35,000 to50,000 in August of 2010.

We've had an uptick in violence, but the overall violence levelsare at the 2003 levels. It's still fragile. There's an awful lot ofpolitical positioning and political debate that's going on right now,and I think that in great part becomes the essence of how Iraq movesforward.

I'm actually positive about what the Iraqi security forces havedone, their army and their police in terms of providing for their ownsecurity. They've improved dramatically.

So the path, I think, is still the right path. These ticks,upticks in violence are going to occur. We said that going in, eveninto -- as we talked about coming down in force. So we just have to,we have to constantly keep an eye on that.

Al Qaida is still active. They're not gone. They're verymuch...

STEPHANOPOULOS: Al Qaida in Iraq.

MULLEN: Al Qaida in Iraq is very much diminished, but they stillhave potential to create these kinds of incidents. STEPHANOPOULOS: And the president has said that his overall goalis to have all forces out of Iraq by 2011.

(BEGIN VIDEO CLIP)

OBAMA: Under the status of forces agreement with the Iraqigovernment, I intend to remove all U.S. troops from Iraq by the end of2011.

(END VIDEO CLIP)

STEPHANOPOULOS: That is pretty unequivocal. Yet I was readingthe proceedings of the U.S. Naval Institute. They had an interviewwith Tom Ricks, the U.S. military historian, where he says he worriesthat the president is being wildly over-optimistic. He says we may beonly halfway through the war. And he talks about a conversation hehad with the commanding general in Iraq, General Ray Odierno, who toldhim he'd like to see 35,000 troops in Iraq in 2015. Is that what youexpect, as well?

MULLEN: Well, certainly the direction from the president and thestatus of forces agreement that we have with Iraq right now is that wewill have all troops out of there by the end of 2011. And that's whatwe're planning on right now.

STEPHANOPOULOS: But can Iraq be safe with all U.S. troops out ofIraq in 2007 (sic)?

MULLEN: Well, we're on a good path now. And we'll have to see.I mean, the next 12 to 18 months are really critical there in thatregard, and I think that answering that question will be much clearergiven that timeframe.

The other thing is, we have -- this is a long-term relationshipwe want with Iraq, and Iraq has stated they want with the UnitedStates. And part of that is the possibility that forces could remainthere longer. But that's up to the Iraqi people and the Iraqigovernment to initiate discussions along those lines, and that hasn'thappened yet.

STEPHANOPOULOS: It's up to the Iraqi people and the Iraqigovernment. It's up to the president, of course, as well. But from amilitary perspective, General Odierno says that he would like to see35,000 troops in 2015. Is that what you all believe is necessary tosecure Iraq from a military perspective?

MULLEN: There's no definitive number right now beyond the end of2011.

STEPHANOPOULOS: But it's not zero?

MULLEN: Well, I mean, when I'm engaged in other countries aroundthe world, I have very small footprints of military personnel in thatengagement. You know, and I would hope long-term, that we would havea great military-to-military relationship with Iraq.

STEPHANOPOULOS: That could include U.S. troops there?

MULLEN: Well, I mean, we've got small numbers of troopsthroughout the world that conduct training activities, exercises, andthose kinds of things. So long-term in Iraq, I would look to be ableto do something like that.

STEPHANOPOULOS: We're also increasing our troop presence, ofcourse, in Afghanistan, and that's raised a lot of concern in theCongress recently. Some members of Congress -- leading members ofCongress, like Dave Obey, the chairman of the AppropriationsCommittee, saying he's willing to support funding now, but he's onlygoing to give you a year to show progress.

Here's also what Congressman Jim McGovern of Massachusetts saidon the floor.

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REP. JIM MCGOVERN (D), MASSACHUSETTS: I'm not advocating for animmediate withdrawal of our military forces from Afghanistan. All I'masking for is a plan. If there is no military solution forAfghanistan, then, please, just tell me how we will know when ourmilitary contribution to the political solution has concluded.

(END VIDEO CLIP)

STEPHANOPOULOS: That's a great question. How will we know whenthe military contribution has been successful?

MULLEN: Well, I think as we move more forces into Afghanistanthis year -- literally, we're doing that as we speak -- that'sabsolutely necessary to provide to turn the security situation around.

But the military solution is not enough. We've got to havegovernment, governance capability increase dramatically. We've got tohave development, economic development. We need more civilians fromour government and civilians from other agencies and other countries,as well.

So it's the three-legged stool. It's development, it's rule oflaw and governance, as well as security. And I think not unlike Iraq,we get security to a point where these other -- these other aspectscan be developed much more fully, and we'll know at that point in timehow far we've gone and what our next step should be.

STEPHANOPOULOS: Specifically, what can be achieved in the nextyear?

MULLEN: I think with the troops that we put on the ground there,that over the next 12 to 18 months, we have to dramatically change thesecurity situation and stem the tide. We've had an increasing levelof violence in the last three years from in '6, '7, and '8, and Ithink in '9 and '10, we have to start to turn that around.

STEPHANOPOULOS: Let me talk about the issues of gays in themilitary. The president has told you that he wants to repeal the"don't ask, don't tell" policy so that gays and lesbians can serveopenly in the military. And the Pentagon said this week that youpersonally, along with Secretary Gates, are working to address thechallenges associated with implementing the president's commitment.

What exactly are you doing? And what exactly are you worriedabout?

MULLEN: The president has made his strategic intent very clear.That it's his intent at some point in time to ask Congress to changethis law. I think it's important to also know that this is the law,this isn't a policy. And for the rules to change, a law has to bechanged.

STEPHANOPOULOS: And there's legislation introduced in theCongress.

MULLEN: And there is. Exactly. And so I've had discussionswith the Joint Chiefs about this. I've done certainly a lot ofinternal, immediate staff discussions about what the issues would beand how we...

STEPHANOPOULOS: What are they? What are the challenges?

MULLEN: Well, it's my job as the senior military adviser toprovide best advice, best military advice for the president. And whatI owe him is an objective assessment of what these changes would be.What they might impact on. And there could be speculation about whatthat might be, but my goal would be to achieve an objective assessmentof the impact, if any, of this kind of change.

In addition, you know, I would need some time for a force that'sunder a great deal of stress -- we're in our sixth year of fightingtwo wars -- to look at if this change occurs, to look at implementingit in a very deliberate, measured way.

And what I also owe the president, and I owe the men and women inuniform, is an implementation plan to achieve this based on a timelinethat would be set, obviously, after the law is changed.

STEPHANOPOULOS: One of your predecessors, General JohnShalikashvili, who was the chairman of the Joint Chiefs back in theearly '90s, has said he has second thoughts on this whole issue now.He was against opening up service to the gays and lesbians then. Nowhe's written, "I now believe that if gay men and lesbians servedopenly in the United States military, they would not undermine theefficacy of the armed forces. Our military has been stretched thin byour deployments in the Middle East, and we must welcome the service ofany American who is willing and able to do the job."

Is he right?

MULLEN: He's certainly entitled to his own personal opinion.And certainly, I have the greatest respect for him.

There are also lots of retired generals and admirals on the otherside. STEPHANOPOULOS: What's your opinion?

MULLEN: And what I would hope to do in this, George, again,given the strategic intent of the president, is to avoid a polarizingdebate that puts a force that's very significantly under stress in themiddle. And to get this, get to this, assuming the law is going tochange, and, again, a measured, deliberate way. And that, as thesenior military leader, is what I consider my principalresponsibility.

STEPHANOPOULOS: Measured, deliberate way. So it sounds like ifthe Congress calls you up to testify in this, you're going to say nowis not the time to repeal?

MULLEN: No, I actually -- I'm going to talk to the process thatwe have in this country, which is we follow the law, and if the lawchanges, we'll comply. There's absolutely no question about that.

STEPHANOPOULOS: We have a couple of minutes left. I want to askyou about working with President Obama as the commander in chief.You've been doing it for about four months now, a little bit more thanfour months. What have you learned about the president as commanderin chief? And is he performing as you expected?

MULLEN: It's very rare with any kind of major issue that thepresident doesn't initially ask, OK, where are we going here? What'sour end stake? And then developing a strategic view of how to getthere and the major pieces with respect to that. That he isdeveloping policies and policy objectives that the military cansupport, and the policy and the strategy are very clear.

And I'm not a policy and a strategy guy. I'm -- you know, themilitary basically supports what the president wants, the decisionsthat he makes. And he has done that, he has done that in Iraq, he hasdone that in Afghanistan and in Pakistan. And I find that to be -- tobe a method that gives the military the kind of focus it needs forwhere we're going.

STEPHANOPOULOS: Has he surprised you in any way?

MULLEN: No, not really. I mean, I met him before the -- I thinka week or so after he was elected. We had very frank conversationsabout our positions on various issues, in terms of how we saw things.He was very clear about what he wants to do.

He's a very bright, focused individual. He takes a diversity ofopinion, and then he is -- he is as every president is, you know, heknows he has to make decisions. He has made them, he has made hardones, and I think he will continue to do so.

STEPHANOPOULOS: Finally, as you pointed out, the military hasbeen under tremendous stress for the last eight years. Families havebeen separated again and again. The suicide rate has risen prettydramatically in the military.

What do you want on this Memorial Day weekend? What do you wantAmericans to know about what the military is going through? And whatdo you want them to reflect on?

MULLEN: Well, we do have a force that's pressed very, very hard.That said, they're the best military I've ever been associated with inmy 41 years of wearing the uniform. They have performed incredibly.I would like America to remember those who have served and those thatwe've lost and their families.

I would like to -- there's tremendous resolve in our military.We're fighting two wars, and the goal to win and succeed in these warsis resonant throughout our military and the capability to do that.And that we -- and that we are resolved as a country to support thosewho have given so much. Those who have fallen, families of thefallen, and those who have been wounded.

And communities throughout the land reach out to these youngpeople who have gone forward, sacrificed greatly, and have rich livesthat they look forward to even though their path on getting there mayhave changed because they've been wounded, injuries seen and unseen.

But they're great Americans, and we need to take care of them.

STEPHANOPOULOS: And we will remember all of that tomorrow.Admiral Mullen, thank you very much.

MULLEN: Thank you, George.

STEPHANOPOULOS: The roundtable is next with George Will, DonnaBrazile, E.J. Dionne, and David Brooks.

And later, the "Sunday Funnies."

(BEGIN VIDEO CLIP)

DAVID LETTERMAN, HOST, "THE LATE SHOW": The speech went overpretty well. I mean, Cheney was interrupted five times by applauseand 50 times by people screaming, stop, I'll tell you everything!

(LAUGHTER)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA: I want somebody who obviously has a clear sense of ourConstitution and its history and is committed to fidelity to the law,is going to make their decisions based on the law that's in front ofthem. What I want is not just Ivory Tower learning. I want somebodywho has the intellectual firepower but also a little bit of a commontouch and has a practical sense of how the world works.

(END VIDEO CLIP)

STEPHANOPOULOS: President Obama laying out a little more detail,what he's looking for in a Supreme Court justice. That was to SteveScully of C-SPAN on Friday. Here to talk about it on the "Roundtable"I'm joined as always by George Will, David Brooks of "The New YorkTimes," E.J. Dionne of "The Washington Post" and welcome back to DonnaBrazile.

And George, the thing about the president's qualifications arethey could apply to just about anyone on his supposed short list.Let's show the viewers the short list right now. Getting the mostscrutiny from the White House. Elena Kagan, former dean of HarvardLaw School. Judge Sonia Sotomayor of the 2nd Circuit Court of Appealsup in New York. She would of course be the first Latina justice onthe court Judge Diane Wood out of Chicago and the Appeals Court ofChicago and also taught with President Obama at the University ofChicago Law School. George, all three of those candidates havealready drawn a lot of fire from conservatives.

GEORGE WILL, ABC NEWS: If he picks Sotomayor, he'll be in theawkward position, I think, of having her hearings begin in July andshe having just been overturned on an important case, the New Havenfirefighters affirmative action case. Let me just set the scene bysaying what worries me about what he said and what worries me aboutwhat the conservatives are saying. He has said the court has to standup if no one else will. Now, that's a view of the court that if thepolitical system is failing to solve social problems, the court mustdo it in its unresponsive and hence more liberated exercise of power.

He's also said he wants justices with a broad vision of whatAmerica should be. Combing those two you have approximately the wayJustice Taney decided the Dred Scott case. He said, I have a visionof America in which black people have no rights that whites are boundto respect. And I am going to solve the secession crisis because noone else will.

Now conservatives are saying we don't want activist judges, wewant judges who will defer to the political branches of government.The problem is the worst case since Dred Scott arguably was deferringto Franklin Roosevelt as a wartime leader in interning 110,000Japanese-American citizens. The case that offends most conservativesrecently came out of New London, Connecticut, wherein thedemocratically elected City Council using its eminent domain powertook property away from people, gave it to businesses because theywould pay higher taxes and that was deference again. What theconservatives really wanted in both cases was more activism.

STEPHANOPOULOS: You've given so much to chew on. Let's startwith the first part first. Your take on the president. Because I sawboth Donna and E.J.'s eyebrows raise as you started to talk about thepresident. Donna, you go first.

DONNA BRAZILE, DEMOCRATIC STRATEGIST: I think the president islooking for somebody with a sharp legal mind but also someone whounderstands how the law applies to everyday people in their struggle.

STEPHANOPOULOS: And there's nothing wrong with that.

BRAZILE: Absolutely nothing wrong with that. I mean all youhave to do is look back at the Lily Ledbetter case to understand youwant someone who understands the law but how it applies to people ineveryday life. Here's Lily Ledbetter working for 20 years not knowingshe's underpaid and the Supreme Court basically looked at her case andsaid, it's your fault you didn't know that you were being underpaid,so I think he is looking for someone who can both crystallize the lawbut understand how it applies to everyday people.

DAVID BROOKS, "NEW YORK TIMES": Well, I would say first we wantsomebody with reverence to the Constitution. And I think that's whatGeorge is getting at. It's not a question of how powerful orunpowerful, we want somebody with reverence for that document. Ithink we're going to have a big fight here. Because what we knowabout what President Obama wants? He believes that John Roberts ismuch more conservative than he led on at his hearings, he thinks JohnRoberts is much more aggressive especially on civil rights issues likeLily Ledbetter than people are aware so he wants someone who is apowerful counterforce like Sonia Sotomayor. So I think that issuewhich brings in the New Haven firefighters case which they studiedhard for a test, passed the test and that had the results of that testoverruled ...

STEPHANOPOULOS: The test was ruled invalid.

BROOKS: Invalid because not enough minorities also cleared thatbar. That is going to set up a big fight. As I talked to senators,Republican senators right now, they don't want a fight but I thinkthey're going to get dragged into it. STEPHANOPOULOS: They want a debate but not necessarily a fight.And E.J., your top candidate, you think is someone who can actuallybridge the differences.

E.J. DIONNE, "WASHINGTON POST": I think Elena Kagan who issolicitor general has a couple of advantages. One is she's beenvetted and confirmed. Seven Republicans have already voted for ElenaKagan when she came up and she's someone who is on the liberal orprogressive side but showed up at Harvard when she was dean that shecould work with conservatives and I think Obama wants somebody whocould persuade people on that court the way Justice Brennan did butI'm so glad that George raised the Dred Scott case which surprised mebecause that is a clear example of conservative judicial activism gonewild and I think that is precisely what the issue here is going to bein this debate. And I think it's totally legitimate for theRepublicans to make a philosophical argument here. I hope we havethat argument.

STEPHANOPOULOS: Well, you know, you're right. What they'rearguing is that the Senate Democrats and President Obama actually gaveup the idea that the Senate should just approve someone if they havethe qualifications and temperament back in 2005 when opposed Robertsand Alito. And George, I do think that means that David is probablyright. That we're likely to see a big fight no matter who PresidentObama appoints even though not only Elena Kagan got support fromRepublicans but both Judge Sotomayor and Judge Wood when they wereraised to the Appeals Court received overwhelming support from bothparties.

WILL: You'll see a big argument, but it is a foregone conclusionthat will lack comic relief because Joe Biden is no longer on theJudiciary Committee and can't ask as he did of Alito an eight and ahalf-minute question, but I don't -- everyone knows that whoever hepicks, unless they haven't paid their baby-sitter taxes is going to beconfirmed.

STEPHANOPOULOS: That's right. And the question is, what is --what points do the conservatives make in this debate?

BROOKS: Right, well, I think -- say it's Sotomayor to take anexample. But there are lots of cases that will follow this model.They hit that New Haven firefighters case and the to these guy, one ofthem had dyslexia, studied hard, passed the test, it's unfair. Thatis a very principled argument that Republican are going to make. Inso doing probably alienating large parts of the minority population,especially the Hispanic population in this country. And that is theweakness he will exploit.

STEPHANOPOULOS: That is another argument in favor of Sotomayor,is the first Latina. Hispanics are the fastest-growing voter group inthe country.

BRAZILE: Grew up in public housing -- you know, a graduate ofsome of the best schools in the country.

As someone who has not only taken on affirmative action but somany other important issues that this country will face, I think shewould make an excellent choice.

But, you know, the conservatives, at this point, need arguments.They want -- they want to fight. They want to raise money. They wantto rally their base. And I don't see them making a big intellectualargument against any of these candidates, except that they might findsome issue to go out there and throw red meat at their party'sdisgruntled base.

DIONNE: You know, and I think they've got a problem, which isthey do need to make a principled argument. They do need to rallytheir base. The voters they've been losing ground among are middle-of-the-road young, suburban voters. They don't want a hard-rightRepublican Party.

So it's going to be interesting as to how they frame this. But Ithink Obama would welcome another fight, which is a fight aboutempathy.

(LAUGHTER)

I think that, if the Republicans want to cast themselves asopponents of empathy, that would be a very interesting argument.

(LAUGHTER)

(CROSSTALK)

STEPHANOPOULOS: George, go right ahead.

WILL: Well, I actually don't think empathy is -- is the test.In fact, I think it can be a judicial defect. We all are familiarwith, and are going to hear over and over again, the famous story ofJustice Holmes leaving lunch with Learned Hand. Learned Hand says,"Mr. Justice, do justice." Justice Holmes stopped his carriage andsaid to Learned Hand, "That's not my job, to do justice. My job is toapply the law."

(LAUGHTER)

DIONNE: And if reading the Constitution were like reading acookbook, we wouldn't have so many 5-4 decisions.

(LAUGHTER)

BROOKS: If I could just speak up for the Oprah wing of theconservative movement...

(LAUGHTER)

... I am, sort of, pro-empathy. I don't think we can haveautomatons. I don't think there are automatons in the universe.People make decisions based on emotional reactions, even peoplewearing black robes.

And to me, the Republican Party would be in a lot strongerposition if they framed the argument -- say it's on civil rights --this way. We can either lower the standards for some groups or we canempower people to meet those standards through education, through 8million policies I've already -- already suggested.

The problem is the Republicans haven't suggested those policies.They haven't talked about ways to get groups up so they can meet allthese, say, firefighter standards.

WILL: Let's also remember that the presidents have to besurprised by whomever he appoints. Roosevelt was chagrined by theresults of appointing Felix Frankfurter. David Souter, who thisperson is replacing, was certainly a surprise to the conservatives.Harry Truman when, in the steel seizure case, two of his appointeesruled against him, said, when you appoint a man to the Supreme Court,you lose a friend.

STEPHANOPOULOS: You know, I wonder if that's...

(CROSSTALK)

STEPHANOPOULOS: ... if that's no longer true.

(CROSSTALK)

WILL: Because of the thoroughness?

STEPHANOPOULOS: Because of the thoroughness of the vettingprocess.

WILL: Could be.

STEPHANOPOULOS: You've seen the last four -- the last fourappointees, both Democrat and Republican, have performed pretty muchaccording to form.

Let's switch subjects, right now, to the big debate of the pastweek, President Obama up against former Vice President Dick Cheney.

And it seemed like the parties were really maneuvering forpolitical advantage this week, as well, the president trying to seizeback the debate.

And by the end of the week, both parties had put out ads, theRepublican Party and Democratic allies also putting out an ad onbehalf of the president.

(BEGIN VIDEO CLIP)

ANNOUNCER: To close it, to close it not.

WHITE HOUSE PRESS SECRETARY ROBERT GIBBS: We've made some hastydecisions.

(UNKNOWN): These are the stakes.

PRESIDENT BARACK OBAMA: Guantanamo, that's easy. Close downGuantanamo. (END VIDEO CLIP)

(BEGIN VIDEO CLIP)

ANNOUNCER: Last week, President Obama and the Democrats inCongress cracked down on credit card abuse. Congress said no to thebank lobby and yes to consumers. To their credit, Congress is finallygetting the idea.

(END VIDEO CLIP)

STEPHANOPOULOS: That last ad from the group called AmericansUnited. And, Donna, Democrats were pretty frustrated this week. Thatcredit card bill passed. This hardly gets any attention, given thisnational security debate. And Republicans on Capitol Hill and aroundthe country seem pretty happy that they were front and center withtheir national security arguments this week.

BRAZILE: I think the Democrats should have known that theRepublicans were going to use the entire issue of Gitmo Bay to -- to,sort of, put the Democrats on the defense.

We saw it in the House and then, every day, McConnell went outthere, the minority leader, and hammered the president: no plan, noplan, where is the plan? And clearly the Democrats were caughtwithout a plan, as something to say, hey, we have a response to this.

So the president was forced to go out there and regain the moralhigher ground. But the Democrats really can go home this week andtell the American people that they are still dealing with the economy,dealing with the issues that they care about. Meanwhile, theRepublicans are looking for distractions. And, clearly, this week theRepublicans found something to chew on.

BROOKS: You know the old line that, when two guys fight over agirl, it's the fight they want, not the girl.

(LAUGHTER)

That's what this week reminds me of. We have a bipartisan anti-terror policy in this country. If you take the anti-terror policy ofthe last four years of the Bush administration and stack it up withthe first four months of the Obama administration, you have the samepolicy, with some adjustments on renditions, on secret prisons, onhabeas corpus, even on Gitmo.

STEPHANOPOULOS: President Bush said he wanted to closeGuantanamo, just didn't have a plan.

BROOKS: Right. And Condi Rice and people in that administrationwent around Capitol Hill, went to country after country saying, wewant to close Gitmo, please take the prisoners. It never occurred tothem they could announce the closure first and then figure out what todo with the prisoners later.

It's the same policy. So buy nobody can admit that. Dick Cheneywants to pretend Obama has changed the policy and is making us unsafe.Obama wants to pretend he changed from the dark days of the Bushadministration. It's the same policy.

WILL: Whereas the truth is, according to Professor Goldsmith,worked in the Bush administration, objected successfully to many ofthe Bush administration policies, he says the following.

"The new administration has copied most of the Bush anti-terrorism program, has expanded some of it and has narrowed only abit. Almost all of the Obama changes have been at the level ofpackaging, argumentation, symbol, and rhetoric."

STEPHANOPOULOS: And White House does not like this argument atall, but when you look at keeping preventive detention, restoringtribunals, although a revised form of them, blocking the release ofthe photos, there are a lot of similarities.

WILL: Rendition.

DIONNE: You know, I think it's worth remembering that Bushchanged his policy after three Supreme Court decisions.

But I think the White House was really sending out two signals todifferent groups. They wanted -- they're trying to split the rightand I think they succeeded in doing that. You have got moderateconservatives like David saying really this is more like the Bushpolicy, this is a good thing. And then you've got the Cheneyconservatives on the other side.

And I think Cheney did Obama a huge favor by showing up becausecivil libertarians and liberals have some real problems with some ofthese policies, the idea of unlimited detention in a constitutionalrepublic without any due process is a real problem.

And I think Obama is going to have to revisit that. He arguesand he has got a point that there are some people who can't be triedand can't be released. Nonetheless, this is not POWs in a normal war.

No one is going to come out and say, of the war on terror,"mission accomplished" any time soon. And I think that issue stillsits out there for not just the left, as people say, but a lot ofmoderate civil libertarians.

STEPHANOPOULOS: Well, meanwhile, (INAUDIBLE) that seems to uniteright and left, Donna, at least in the Senate, is the issue ofbringing detainees here to the United States. The president began tomake the argument on Thursday, hey, wait a second, we have gothundreds of terrorists in prisons here in the United States, insupermax prisons, yet it was a real rebuke from Senate Democrats, 90-6. And this is going to be tough to turn around.

BRAZILE: Well, George, they were caught off-guard. They didn'thave a strategy to say, wait a minute, we have a detailed plan of howwe're going to deal with these prisoners. By the way, who are theseprisoners? What's the crime? Will they be charged? Will they not becharged? And then, of course, we have the chorus coming from the rightsaying -- you know, especially the talk show populists saying not inmy backyard. And now they're even having "Club Gitmo" T-shirts. Sopeople are...

(LAUGHTER)

BRAZILE: By the way, they probably don't come in extra large, soI won't be wearing one. But people are out there now, you know,basically going back into campaign mode. And this is all about aserious plan that the president needs to come up with, what to do withthese prisoners.

DIONNE: A friend gave me a solution to this last night,California needs a bailout. And none of the states want the Gitmoprisoners. California agrees to take all of the prisoners and then itgets its bailout.

BROOKS: Hotel Bel Air.

(LAUGHTER)

(CROSSTALK)

WILL: California is going to release prisoners.

(LAUGHTER)

BRAZILE: To save money.

STEPHANOPOULOS: I want to get to California in one second, butlet me just first ask, David, one more question. You point out thiswas a bipartisan policy. Guantanamo was a bipartisan policy. Howdoes the president get John McCain, Lindsey Graham, other Republicansback on board to bring detainees into the United States?

BROOKS: Well, he has quoted them quite liberally in order tosupport that policy. The NIMBY issue is just a tough issue. My sensefrom the White House is they've written off that issue. They're goingto find some way to have a Guantanamo 2. It won't be calledGuantanamo...

STEPHANOPOULOS: Maybe build a military prison here in the UnitedStates.

BROOKS: Build something else here. But his essential problem ishe's running a moderate George H.W. Bush foreign policy and he can'tadmit it to his own base. He had better start.

STEPHANOPOULOS: OK. Let's move on to California then. This isanother tough issue for the president right now. California, $21billion deficit. Could run out of money in July. Has already askedthe federal government for some loan guarantees. President Obama inthat C-SPAN interview said no. So did Tim Geithner, the treasurysecretary, when he was up at Congress this week.

But when he was finally asked, are you going to rule outassistance, here's what he said.

(BEGIN VIDEO CLIP)

TIMOTHY GEITHNER, TREASURY SECRETARY: We will have to doexceptional things as we have done already to fix this mess. That'snot putting on the table or taking off the table any specific thinglike that. But I just want you to know that there are things thatwe've had to do I would never have contemplated doing.

(END VIDEO CLIP)

STEPHANOPOULOS: So let me put up for -- to remind everyone,1975, the famous Daily News cover, Gerald Ford to New York City: dropdead, I think it's going to come up right there.

"Ford to City: Drop Dead," and, George, I'm reminded that a monthlater Gerald Ford approved loan guarantees for New York. Is that whatwe're going to see here with California?

WILL: I certainly hope not. Mr. Geithner did say it's a messand we are going to fix it. No, it seems to me they've...

STEPHANOPOULOS: Ruled out TARP money, though. He said no TARPmoney.

WILL: Well, he said no TARP money because statutorily TARP is tobe used for financial institution such as Chrysler and General Motors.It was a breath of fresh air for Geithner to say there is somethingthe Treasury doesn't have authority to do with the taxpayers' money.That's progress but 10 percent of the Congress, approximately, comesfrom California and they will be heard.

DIONNE: You know, what California really needs is not a bailoutbut a constitutional convention. One of the reasons they're in thisfix is because you can't get a budget through without two-thirds ofthe votes of the legislature. One-third plus one, in this case themost conservative members of the legislature can block the usual dealthat you make to solve a problem like this.

WILL: An excellent thing.

DIONNE: And it's a disaster. It's created this problem. Thenyou have voters who can go to referendum and vote for programs withoutnecessarily paying for them and so you have this problem at the heartof the California budget situation.

WILL: E.J., E.J. lays out the plan for fixing California bymaking it easier to raise taxes and transfer wealth from taxpayers tothe public employees unions. That would be the solution that I wouldexpect the administration ...

BRAZILE: It's drastic cuts in education and health care, layingoff thousands of workers and I think the ...

WILL: Thousands of workers that added to the payroll during thiscrisis. BRAZILE: Of course, turning over undocumented illegal peopleover to the federal prison so we are going to have to help Californiafind a way to close this budget gap. Maybe help them with theirmunicipal bonds and make sure they can get on the market and get thebest price but ...

STEPHANOPOULOS: So you think they will turn around.

(UNKNOWN): It's a lot of electoral votes.

BROOKS: Once you start there, believe me there are 49 otherstates or at least -- 30 some or Democratic states, let's be moreexplicit about this. The problem is as George pointed out in a columnway in front of us on this story, spending on the public employees hasbeen exploding. What is it twice the cost to house an inmate?

And then when you concentrate revenue on getting the top onepercent that gives you incredible volatile revenue streams. But stockoptions one year but no stock options the next year and you get thesecrashes and if we bailed them out that would be addressing none of thestructural issues.

STEPHANOPOULOS: That may be but one of the suggestions peoplehave made is that, okay, there should be conditions. I know GeorgeWill wouldn't like them but you should do away with the two-thirdsplus one, you should do away with the constitution ...

WILL: Californians wouldn't like it. This is federalism.People have a right to the laws they want.

DIONNE: Two-thirds plus one is not a democratic system. Itrequires -- it gives a minority the power to write the state budget.But I think what you're going to see is not a direct bailout ofCalifornia. There wasn't enough money put in the stimulus package tohelp enough states that are in trouble. If it was in normal timeswhere one was in trouble he might be able to do a bailout but you haveso many states are facing trouble if they help they'll have to dosomething more general. I don't think they can't just helpCalifornia.

BROOKS: Gray Davis, we had the last California iteration. Nowwe have this one. If we don't ...

DIONNE: And the system in California is broken. Exactly.

STEPHANOPOULOS: Meanwhile, the president does face a realpolitical problem and a real economic problem. He can't allowCalifornia to go under. So what do they do?

BROOKS: Well, I would hope they would hope they would reduce --some of the public employee unions that have gotten huge increaseswithout doing the draconian things that Donna talked about, that's gotto be possible. Because if they kept spending at a reasonable rateover the past 20 years they wouldn't be having this problem. So theremust be a way to cut and do structural reforms without the equivalentof closing the Washington Monument. BRAZILE: This is not just an attack on unions and their pay aswe saw in the whole conversation about General Motors and Chrysler.This is structural problems that must be addressed and many of thesestates are having a hard time selling their bonds on the market. AndI think the federal government maybe with the TARP money, whatever,can help these states get these bonds on the market to help them withtheir little credit crunch.

WILL: Well, good. Let the administration go to Congress andsay, we want a law passed to bail out California. The problem withthis is, generally, it interrupts all the feedback loops by whichpeople learn. California has to learn. The other 49 states have tolearn. And they are to some extent not mere appendages of the federalgovernment.

BRAZILE: Who is the image here? The federal government? Whoare they going to learn from, George? We're in a recession andthey're having a hard time getting money and they have all of this --the needs -- the budget needs but we're in a recession. And that'smoney not coming in.

WILL: Donna, if we went back to the Dark Ages, to the spendinglevels in California of say 2002 they wouldn't have these problems.

BROOKS: There's one other issue George may not like. Termlimits. If you're only in the legislature for a short period youdon't care about the out years. That's been a big factor here.Frankly, if we want to reach a compromise I'll give you a short-termbailout if there is fundamental reform, if Obama leans on them andthey really do fundamental reform. I think most would accept that.

STEPHANOPOULOS: That is actually what happened in New York backin 1975. The City of New York did and the State of New York madereforms. You guys can continue this in the green room. All of youcan join in later on abcnews.com and for political updates all weeklong follow me on FaceBook and Twitter.

END