Skip to main content

tv   Americas Newsroom  FOX News  June 29, 2010 9:00am-11:00am EDT

9:00 am
now. the drama builds in washington. elena kagan faces the fire in a matter of moments. that's a live picture, the confirmation hearings getting underway. we are watching for the headlines as kagan seeks to be the fourth woman to serve on the u.s. supreme court. stay tuned for that. in the meantime, arizona's governor is back at it, blasting the white house in its efforts to protect our border. it's a busy morning isn't it? martha: sure is bill. bill: we like these days. martha: we like this. bill: i'm bill hemmer, welcome to "america's newsroom". martha: i'm martha maccallum arizona governor january brewer says her meeting with top white house officials that were sent down to talk to her was, quote, insufficient, very fiery words from the governor coming on the heels of this scathing new ad that questions the administration's commitment at all at securing the border with mexico. look at this. >> we finally got the message. these signs, these signs,
9:01 am
calling our desert an active drug and new smuggling area, these signs warning people of danger and telling them to stay away. does this look safe to you? martha: wowvment also, this morning, confirmation hearings set to get underway for general david petraeus. busy day on capitol hill this morning. he will try to convince a war weary congress that he has a plan to turn around the war in afghanistan. we'll be all ears on that. bill: breaking news, two spies among us, secret agents busted by the feds, five different cities, now new reports a canadian has been arrested overseas, wanted in the u.s. on espionage charges. the big question, was there a breach to our national security? david lee miller live in new york city, how wide of the infiltration, david lee? good morning. >> reporter: good morning, bill. the infiltration appears to be bide with you it was not very deep. one of the key things here is there was never actually an espionage charge in this
9:02 am
criminal complaint. we'll elaborate in a moment. first, we're streaming live outside the russian mission to the united nations, the building behind me, according to the court papers, diplomats in this building were allegedly in contact with some of the russian spies. now, what were the spice to do by moscow? in one instance moscow sent communication to spies in new jersey, alleged spies, requesting that prior to president obama's trip to russia they try and deliver information about the u.s. policy on the strategic arms limitation treaty. also, spies from boston reached out to u.s. employee to find out information on bunker buster bombs, but it appears, bill, most of the information that was gathered was the type of material that most people could obtain on the internet. no serious breach of u.s. security that we are aware of at this time. now, as for the ten accused
9:03 am
spies that were taken into custody in the united states, they have been operating here since the early 1990s, and most of the people that were talked to by reporters who were neighbors say they blended into their communities very well. here are neighbors who lived next door to two of the people arrest montclaire, new jersey. >> i'm completely in shock. i didn't know the family that well but it was great to have a stay at home dad, we were all excited about that, he was in the bus stop, i mean, we had no idea. the little girls were the sweetest little girls, so when all this erupted last night, we were just, you know -- yes, shocked. >> reporter: indeed, there is a great deal of shock this morning, and bill, also worth noting here is we will probably learn a great deal more about these ten accused spies over the next several days, weeks and maybe months because what will happen, there's going to be an indictment, and very possibly that indictment could contain even more serious charges. some of the defendants due
9:04 am
back in court in new york city later this week. bill: david lee miller, this comes days after president obama met with a russian president in california. david lee, thanks, live in new york, at four minutes past the hour. martha: we've got hurricane warns now up in southern texas, foreclosurers say they expect tropical storm alex to become a hurricane today that would make alex the first atlantic hurricane of this season. in the last hour winds of up to 70 miles an hour, 74 would make it an hurricane and it could the a category two storm, winds topping 100 miles an hour when it makes landfall tomorrow or thursday morning across middle easto northeast mexico or south texas. we'll show you the maps on that. bill: although alice may be hundreds of miles away it's moving. the outer bands could derail cleanup efforts and big bands are crog into the wedlands. here's the governor bobby jindal back on the coast again. >> even more disturbing,
9:05 am
more disturbing, we saw several waves of the heavy oil, a lot of orange, but not just orange, heavy bands of oil, as close as 3 miles off the coast of grand isle. we saw several waves of this oil, making its way towards grand isle. and here's the challenge facing our coast, going all the way up from the northern chandeliers down our coast, toward to the timbilerer, we know the weather over the next few days, with the wind currents, the wave, we know this oil will continue to be pushed into our coast, into our wetlands. i don't want to see a drop of oil on grand isle, i don't want to see a drop of oil on fourchon beach or the rocky barriers out here. bill: this story is going to be with us, not just the oil spill but the storm for several days, throughout the entire week, in fact. despite the worries about alex now, some experts do point to an upside, that weather might just give mother nature a hand in breaking down the bands of crude. we're live in the gulf coast to see how that will work in
9:06 am
about 15 minutes. stay tuned for that. martha: all right. all eyes are on the shaky situation in spain right now as we wait for the markets to open. stock futures are tumbling this morning and it's mostly over fears that europe's debt crisis could spark another recession, another wave here at home. stuart varney is here to break it down for us in the fox news room. first greece and now serious concerns about spain which is a much bigger economy and much like our own. >> look, here we go again, another wave of anxiety about banks in europe, spain in particular and that wave is washing over here and it's being met in america by another wave of negative feelings about our economy. clearly, america's economy is slowing, and there are some big names now saying that maybe we are indeed heading for another recession. we've got some very prominent voices saying recession is coming, and there's one voice, krugman in the tiles, saying it's going to be a depression.
9:07 am
the result of all this is a big wave of selling on the market, whether it's stocks or oil. the bottom line, martha, is there's trouble over there, it's washing over here, it's meeting negative feelings over here about our economy, and confidence in the u.s. recovery is eroding. that's the situation this tuesday morning. martha: one of the disturbing things in the analysis of this, stuart, a lot of folks here, i hear saying we don't have a situation nearly as bad as what's going on in europe, we're protected from that to a certain extent at this point because we're in better shape. how dangerous do you think that line of thinking is? >> look, we are in better shape. the economy is growing. we're not currently in recession. but our debt situation is going the same way as europe. they have crashed. we are going down that same road. you can see that wall in our future. and it's not that far away. yet, that's the worrying
9:08 am
point here that we are going down that road. the warning signals are all around us. martha: hopefully there's a small window of time to rern from those mistakes and correct the situation before it gets here. stuart, thank you very much, stuart varney, varney & co coming up. bill: fox news alert, new videotape of general david petraeus, arriving moments ago for his confirmation hearings on capitol hill. petraeus expected to get a clear green light for his next assignment, running the war for the u.s. and nato forces in afghanistan. it will be interesting to follow the following story line, will he be given different latitude to fight the afghan war differently from his predecessor, stay mcchrystal, mcchrystal late yesterday saying he will now retire after he was removed from his post following that article that appeared in rolling stone magazine about a week ago. petraeus heads into what room -- into that room, the hearing starts in 22 minutes. on the hill, also, the first
9:09 am
round of questioning is just about to get underway for this woman here, elena kagan, age 50, supreme court nominee, her hearing underway, and things might get interesting if and when republicans on the senate judiciary committee start grilling her over her record on the judicial level that is nonexistent. she has never been a judge. carl cameron is in the room right now. what would we expect to you -- today, given the backdrop they were given yesterday, the opening statement concluded late in the afternoon and now we get to the question and answer and this is when we find out. the story, carl. >> reporter: yesterday was a no runs, no mits hits, no errors, everybody gave the stock's futures and laid out the parameters what they expect the hearing to look like. it is underway. elena kagan is testifying and almost true to form the chairman of the committee, pat leahy of vermont, a democrat, set her up, keyed her up with tough questions. they couldn't have been bigger soft balls.
9:10 am
the first question was tell us about your parents and the second one was tell us about how the constitution has been amended over the course of the nation's history and she's in the process of that history lesson, as well as a bit of more personal biography. the hot stuff is going to come later at the hands of republicans, the banking republican, seated next to the chairman of pat leahy is jeff sessions of alabama. he'll go off -- each senator has 30 minutes to ask questions, which means to make speeches and ask questions of the nominee. how much answering she'll have to do will depend on how long the speeches are. they're almost trained, these nominees, to talk slow and limit their information. orrin hatch, republican from utah, is suggesting she has lots of explain to go do. listen to the senator from utah. >> it will be interesting to see if she'll live up to what the law review article said as far as criticizing the vapid way the hearings are held. but i suspect she's going to have to answer questions on, you know, the things like
9:11 am
abortion, things like the military recruitment issue, you know, free speech issues are going to be important, and i also think there will be others. >> reporter: in a book review in the '90s when she was working for the clinton administration elena indicationan wrote that the hearings process is essentially become hollow, they're not probative questions, they don't get to the meat of the issue and don't illustrate much about the nominee's judicial philosophy. she's going to get grilled on it, orrin hatch is referring to a number of things. as dean of harvard law school, she was around when the campus tried to ban recruitment, a wartime military recruitment on one of the most respected universities. it's very controversial. i didn't quite outright spot but it's something she's going to get grilled about. when she worked for the clinton administration she advised clinton on a compromise to avoid an outright ban on late-term abortion procedures. she was also deeply involved, way back when she clerked for then supreme court justice thoro good
9:12 am
marshall with questions about free speech, suggesting the leaf splitting and antirights literature should have been suppressed by the government. look for free speech advocates to question what she meant at that time. bill: thank you, carl. patrick leahy begins the questioning, he's chairman of the committee, as carl pointed out, jeff sessions will follow on the republican side. we are watching the hearings. any developments, any headlines, we'll get you back there on capitol hill. in the meantime, you can also go to our website, foxnews.com, we are streaming the hearings live on line in case you want to watch it now, 12 minutes past the hour, at 9:00. big day for kagan. martha: big day for kagan and general petraeus and there are brand new reports this morning that some states are going to miss a very important health care deadline that involves patient who is have preexisting conditions. we're watching health care reform actually kick in now folks and we're seeing how it's working at the state level. we'll tell you very important information on
9:13 am
that. bill: also there's a new message from the white house, from governor arizona january brewer who has not been shy, by the way. >> representatives from the white house and it was somewhat disappointing, to say the least. bill the big meeting was yesterday and the fallout continues today. this time, why she's blasting the administration on the efforts to secure the border. back in a moment. a new commercial, just out.
9:14 am
9:15 am
>> two weeks ago i met with president obama, he promised that we would get word from his administration on what they were going to do to secure the border. well, we finally got the message. these signs. these signs, calling our desert an active drug and human smuggling area. washington says our border is safe as it has ever been. does this look safe to you? washington is broken, mr. president.
9:16 am
do your job! secure our borders. bill: wow. you might recognize her by now, arizona governor january brewer, she met with the white house two weeks ago as she mentions in that new ad that blasts the white house plan for border security. just yesterday, about five administration officials met with key arizona lawmakers on the issue down in to hisson. arizona's attorney general had this to say about how the meeting came out. roll this here. >> are you happy with today's meeting, with you happy with the outcome and the information that you heard? >> well, no, i'm not happy with the outcome. i don't think this was designed to be a definitive event. this was part of, as the president promised, a careful examination of the problem in arizona, and the beginnings of a response. it's not the end of the response. bull bill that's terry goddard, democrat, attorney general down there in arizona and yesterday we had a democratic lawmaker in to hisson, today, congressman lamar smith, represents
9:17 am
another border state, texas and is on the homeland security committee. welcome back to our program here. the arizona meeting, did it take us anywhere? do you consider it just lip service? or do you think you're getting somebody's attention? >> in the case of the meeting with regard to arizona, clearly that was a photo op by the president. no serious intent here to try to secure the border, i know that secretary napolitano has said the borders are as safe as they've ever been but point in fact, that's not true. twenty people could been killed along the border, every year hundreds of people come into our country illegally, we've not enforced our work site law, administration has ignored work site, it's down 17 percent or more since last year. bill: why do you ongoo if all -- if all this is factual, what you're saying, why do you think there's no motivation to get the job
9:18 am
done? >> the obama administration has never had an interest in really enforcing immigration laws and really reducing illegal immigration. i don't know if they're worried about offending people, i don't know if there is a political calculation here that has to be who votes for who, but -- >> bill: do you think the last administration had that desire? >> well, they certainly did a lot better job than the current administration. the last year of the bush administration, they did enforce work site enforcement, they did enforce the laws saying you couldn't hire somebody in the country illegally. under this administration, that work site enforcement is down 73 percent or more in every category. bill: there are some in washington who say the republicans don't even want this border secured because ultimately what you're trying to do is hold up immigration retch. i don't know how you come down on that argument, i don't know if you think there's any merit to it but i know you've heard about it. what do you say to people who claim that? >> there is no merit. everybody believes in border security. it's just that we need to
9:19 am
secure the border first. the border is not secure today. every state has the right to protect their residents, every state has the right to try to stop human smuggling, stop drug trafficking, which is to prevalent along the borders. ef state has a right to protect their own citizens and illegal immigrants. everybody in the country legally ought to be put first and that should be the national interest but the administration is not enforcing immigration laws. bill: we talked about this story -- we talk about this story an awful lot and we're trying to figure out where it goes. where does it go? do we have this same conversation two years from now or four years from now or eight years from now? >> yeah, i don't think so. the obama administration is going to start feeling, if they haven't already, the public pressure to enforce immigration laws. you've got 70 percent of the people in arizona support the new arizona immigration laws, 60 percent across the entire country support the arizona immigration law. everybody wants to secure the border, and the administration, if they don't do it, is going to pay a price at the polls next
9:20 am
november. bill: lamar smith is a republican out of texas. thank you for coming on today, the other side. >> sure. bill: on what's happening in texas. thank you, sir. twenty minutes past the hour. martha. martha: we have seen pictures this morning of these huge bands of orange oil, and they are now creeping closer to those fragile wetlands we've been watching so closely since all this started. now you've got a soon to be hurricane that is the last thing that folks in the gulf need. how a new storm could make the cleanup efforts so far seem like a cake walk. >> we need to protect our way of life down here, we need the federal government to have the same sen of urgency. in washington, they can't see the oil, smell the oil or touch the oil. they need to understand it's real. martha: we have a live report from rick leventhal, who got in from the choppy gulf waters. he's bringing us the exclusive on what's out there this week, what he has now found in the water, coming up next.
9:21 am
9:22 am
9:23 am
9:24 am
martha: to the oil disaster in the gulf, forecasters are expecting tropical storm alex to become a hurricane before it makes landfall somewhere near the mexico-texas border on the gulf. the storm may not be as strong as first thought. that's pretty good news. but the impact on the cleanup is really still an unknown. today, vice president joe bid sen heading down there to assess the situation and get general update and the national audubon society is finding the louisiana coastal marshes appear to be holding up pretty well so far. rick lev enthal joins from us grand isle, louisiana he just got back in from being off shore and assessing the situation out there.
9:25 am
hey rick. >> reporter: good morning, martha. rough winds and choppy seas and that means very little cleanup effort going on, no skimmers, no vessels of opportunity to help picking up the oil, the barges serving as barriers are back on shore and some of the containment boom like the boom you see on the beach, some of the boom on the water has been pulled back because of concerns it might break free. but despite the small craft warning that's in effect we did go out on to the waters with the local fishermen and it didn't take long to find the oil. >> an oily, shiny sheen, two and a quarter miles from grand isle beach, in addition to the rainbow-colored oil on the surface which we can also smell we're seeing little globs of oil floating, little globs that will become tar balls if they hit the beach and are covered with sand. this is threatening, according to our host, his way of life.
9:26 am
this must make you pretty sad to see this. >> this is the first time i've really run off shore to have a good close-up look of it and it's amazing how big this thing is. i don't know if they'll ever clean it up. >> reporter: once again, what -- >> what you're doing is a bik to shrimp. what's going to happen? now it's going to be the dead sea, the dead gulf of mexico? >> reporter: and from the air, the oil plumes are much more visible. yesterday the fox news cameras flew along with louisiana governor bobby jindal. the waters off the grand isle, they came here because of our reporting on sunday on a massive 32-mile long plume that was headed for grand isle. chemical dispersants dropped on the oil, along with the ocean current and the rough seas tend to break up that oil, and that's a good thing, but the bad thing is that oil is out there, and it's headed this way, and there's a storm surge expected here mid-day, a tidal surge of 2-4 feet,
9:27 am
martha, and local officials are very concerned they may get more heavy oil here this afternoon than they have seen yesterday, because of the storm surge, because that oil has gotten so close to shore. martha: wow. rick, thank you very much, rick leventhal in grand isle. for more on how a hurricane can endanger the cleanup efforts hundreds of miles away, go to foxnews.com, for the latest. you can watch our continuous coverage. bill: there's a new york times op-ed with a scathing review of the president's priorities. it's in the paper today. we're going to debate that fair and balanced with juan williams and stephen hayes. in a moment, general petraeus, arriving on the hill for his confirmation hearing moments ago. will he get what he needs to win the longest war in u.s. history? the mission under the microscope in minutes on "america's newsroom".
9:28 am
9:29 am
9:30 am
bill: top story, the feds busting an alleged spy ring involving ten people in this country accused as serving as secret agent phos russia's intelligence service, an 11th suspected arrested overseas, wanted in the u.s. on spy charges. home prices rising for the first time in seven months, it posted a modest gain, .8%. the confirmation hearings set to get underway for general david petraeus, coming a week after the president accepted the resignation of general stanley mcchrystal, mike
9:31 am
emanuel leading from his post at the pentagon up on the hill, how much pressure is there for him to deliver results quickly in that war, mike? >> reporter: he's expected to get a hero's welcome when he kicks off this hearing, but there's a great deal of pressure, everybody from the president to the secretary of defense, gates, to general petraeus himself recognizes there is great pressure, desire to see some results by the end of the year. the president has said there will be a review of the strategy by the end of the year and they are realizing what this war now, coming to be nine years old this fall, that there is great anxiety here in the u.s. to see results because popular support is on the decline for the war in afghanistan, bill. bill: we're getting word that part of the message is what's happening in the war is tenuous but victory is still possible. look for that as a theme. also, on the topic of petraeus, that brings up today two bya. we have norm out of
9:32 am
pennsylvania writing this, what does it mean for general mcchrystal to be relieved of his demand, what does he do now. he made some news late yesterday, mike. what is it? >> reporter: that's right, very timely question, because he called the army office that handles officer retirement and announced his intentions to retire from the army. bottom line, when you are a 4-star general and you leave a 4-star general post there just are not many positions for guys with that rank. adding insult to injury, there's also great speculation about whether general mcchrystal will have to give up his fourth star because in the army, you have to serve three years at a particular rank to retire at that rank. he's only been a 4-star general for about a year. so unless some kind of waiver comes from a very high level, general mcchrystal may be retiring as lieutenant general stanley mcchrystal, even though he served a year as a fourth star. we expect he will file his paperwork shortly on his retirement and announce a date at which he wants to
9:33 am
retire from the united states army. bill: prior to that i would imagine, and correct me if i'm wrong because you cover this for a living, mcchrystal can advise petraeus, can he not, and tell him all the information he has on how the current war is being fought? >> >> reporter: absolutely. and as part of this hearing today, you will hear general petraeus pay tribute to the service of stanley mcchrystal, more than 30 years in uniform, he'll talk about some of the good things he has done over the years to make sure that he is not just remembered for this interview in rolling stone, and one would expect as a loyal soldier for many years, that he would give his best advice to general petraeus on his way to retirement. bill: mike emanuel on the hill, thank you, watching this today for us. to our viewers at hole, you got a question you want answered, something in the news that isn't quite clear to you, martha in new jersey? -- >> martha: march from from new jersey, i have questions all the time. bill: hemmer, foxnews.com, follow me, or go to twitter, it's one line, bya, because
9:34 am
you asked. martha: martha from new jersey says this: general petraeus gets ready for his confirmation hearing today, we're watching a lot of breaking news this morning. we do expect a real look at the situation on the ground from afghanistan from his perspective. in the big picture here at home, questions are being raised this morning as well. take a look, at this quote, this is from bob herbert of the "new york times" editorial this morning, this is titled "wrong track distress" and i emphasize this is from "the new york times", from bob herert. this is what it says. it is getting harder and harder for most americans, looking honestly at the state of the nation, to see the glass as half full and that's why the public opinion polls contain nothing but bad news for barack obama and the democrats. the oil gushing in the gulf of mexico, the war in afghanistan, and above all, the continuing epidemic of joblessness, have pushed the nation into a funk. all the crowing in the world about the administration's legislative accomplishments, last year's stimulus package, the health care reform, et cetera, is not
9:35 am
enough to lift the gloom. those are very strong words this morning from bob herbert. now joining me, stephen hayes, senior writer for the weeky standard, fox news contributor and juan williams, npr news analyst and fox news contributor. juan, what does it mean when you see bob herbert of the "new york times" really slamming the administration as we saw this morning? >> well, he's a strong liberal voice. i mean, i think that he's an african-american liberal voice, here really taking it to the administration. you know, it's interesting, martha, the right track-wrong track numbers had been off for a long time, at the time of the '08 election, it was 80 percent of americans who thought the country was going in the wrong direction. now it's around 60 percent. so it's over 2-1, americans think things are going wrong. and when you ask them why, the number one reason is the economy, unemployment, just what herbert was talking about, joblessness, and then the decifit, and then you've got the wars, and people just don't have the sense that things are getting
9:36 am
better, and picking up on this whole notion of anxiety, people are just anxious about their own jobs, their own savings, education of their kids, will their kids be able to buy a house. that's very real stuff, and somehow, i think the obama administration has at times lost folk from us this jobs and anxiety element, and i think that's what herbert has picked up. martha: i'd like to play a clip. david axelrod was on with jon stewart of the daily show last night. let's take a look at what transpired there. >> first of all, obviously we came at a very difficult time, huge economic problems, and fiscal problems, and two wars and so on. >> you knew that, though, when you started. >> we knew most of it. we knew most of it. we didn't know the extent of the economic problems which really occupied us. the recession occupied us for the first several month necessary ways that nobody could have anticipated. martha: i mean, stephen, your reaction to that. he says the recession occupied us for the first several month necessary a way that nobody expected.
9:37 am
you wond every -- wonder what's occupying their time now given the fact that everybody is focused still on the economy. >> well yeah. if you look, david axelrod is a smart guy and he was in effect running the campaign at the end of the 2008 presidential campaign. the last month of the campaign was given over to just what a tremendous economic rut we were in. so they were talking about it, they were talking about it extensively, and if you remember, too, back in february of 2009, when they were looking to pass the stimulus bill, the argument was we can't even wait a weekend. we can't can't -- can't even give people time to read this. i think he's misremembering history. i'd like to go what juan said, 80 percent wrong track at the 2008 election, it's about 60 percent now. i think the real difficulty for president obama comes for a number that was in between the 80 and the 60, when the country seems to sort of rally behind president obama, bought into his argument that we were moving in the right
9:38 am
direction, you know, independents joined president obama, joined democrats, and there was a sense of hopefulness that they were going to get something done. the problem that president obama face social security david axelrod's answer that they inhered all this just doesn't work anymore. he's been now on this for 18 months, it was a time at which people thought he was beginning to make progess and coming up with solutions and i think now we're seeing in very plain sight that those solutions, particularly on the economy, are not working. martha: stephen hayes, thank you very much, and juan, i apologize, we're going to go to the hearings on capitol hill, but this is a big topic, i know we're going to have time to talk about it again. thank you very much, gentlemen, juan, good to have you. bill: it's 9:38 in washington, d.c., round one underway, elena kagan taking questions from the republican ranking member, senator jeff sessions, he started his first question, now we join in progress with her first answer to the hill we go. >> -- to suggest, you know, anything about the case, but
9:39 am
what the law says, whether it's the constitution or whether it's the statute. now, sometimes that's a hard question, what the law says, and sometimes judges can disagree about that question, but the question is always what the law says. and if it's a constitutional question, it's what the text of the constitution says, it's what the history says, the structure, the precedent, but what the law says. not what a judge's personal views are. >> i agree, but the point i just wanted to raise with you is that this idea, this concept of legal progressism is afoot. i know c.j.dion had an article, starred off saying democratic senators are planning to put the right of citizens to challenge corporate power at the center of their critique of an activist, conservative judging, offering as a case that has not been -- offering a case that has not been fully aired since the
9:40 am
great progressive era of justice lewis brandeis. and i think we do have this national discussion going on about a progressism. leppedz: vice president biden's chief of staff, ron claim, a lawyer, was vice president -- chief of staff to vice president gore, also i believe, who's known you for a number of years, said this about you: elena kagan is clearly a legal progressive. i think elena is someone who comes from the progressive side of the spectrum. she clerked for judge nickba, clerked for justice marshall, worked in the clinton administration, in the obama administration. i don't think there's any mystery to the fact that she is. as i said, more progressive role than not. close quote. do you agree with that? >> senator sessions, it's absolutely the case that i have served in two
9:41 am
democratic administrations, and i think -- >> no, but i'm asking do you agree with the characterization that you're a legal progressive? >> senator sessions, i honestly don't know what that label means. i've worked in two democratic administrations, senator graham suggested yesterday, and i think he's right, that you can tell something about me and my political views from that, but as i suggested to you, that my political views are one thing, and -- >> i don't agree with you exactly that you should not be condemned for being a political believer and taking part in the process and having views. but i'm asking about his firm statement that are you a legal progressive, which means something. i think he knew what he was talking about. he's a skilled lawyer. he's been in the midst of the great debates of this country about law and politics, just as you have. and so i ask you again, do you think that is a fair characterization of your
9:42 am
views? certainly you don't think he was attempting to embarrass you or hurt new that process, do you? >> i love my good friend ron claim, but i guess that people should be allowed to label themselves, and that's -- you know, i don't know what that label means, and so i guess i'm not going to characterize it one way or the other. >> i would just say having looked at your overall record, having considered those two people who know you very well, i think you have to classify you -- i would have to classify you as someone in the theme of the legal progressives. now, one of the things that we want to test, i guess, is your willingness to follow the law, even if you might not agree with it. and senator leahy has asked you about harvard and the military. isn't it true, isn't it a fact, that harvard had full
9:43 am
and equal access to the recruiting office, the office of career services, when you became dean, and isn't it true, well, when you became dean? >> senator sessions, the military had full access to our students at all times, both before i became dean and during the time. >> that's not the question. i know that -- >> let her answer the question. >> all right. but you know, you -- you -- go ahead. >> so the history of this is harvard did have this antidiscrimination principle, and for many, many years, my predecessor, who is bob clark, had set up a system to ensure military access, but also, to allow harvard to come ply with its antidiscrimination policy, which prohibited the office of career services from providing assistance to
9:44 am
employers that could not sign the antidiscrimination pledge. and the accommodation that bob worked out was that the veterans organization would instead sponsor the military recruiters. so the only thing that was at issue was essentially the sponsoring organization, whether it was the office of career services or instead, the student veterans organization. >> please let me follow up on that. but in august 26th of 2002, dean clark, your immediate predecessor, acquiesced when harvard's financing had been threatened by the federal government for failure to come ply with the law which requires not just access, but equal access to the offices on calf us, he replied in this fashion to the government, this year, and in future years, the law school will welcome military to recruit through the
9:45 am
office of career services, close quote. so that was the rule when you took office, was it not? it was the rule when i took office and remained the rule after i took office. for many years the dod, the department of defense, had -- >> well, not for many years. how many -- well -- >> for a number of years, for a great number of years, the department of defense had been very accepting, had approved the accommodation that we had worked out. you're quite right that in 2002, dod came to the law school and said although this accommodation has been acceptable to us so far, it's not acceptable any longer, and instead, we want the official office of career services' assistance. >> but before, harvard acquiesce and -- acquiesced and agreed to do so, on a direct threat of cutting off funds, and otherwise he
9:46 am
indicated in his statement he would not have done so. now, when you became dean, you personally opposed the don't ask don't tell policy and felt strongly about it, did you not? >> i do oppose the don't ask don't tell policy. >> and you did then. >> and i did then. >> and you in '03, not long after you had been -- became president, he said, quote, i abhor the military's discrimination recruitment policy, close quote. i consider it, quote, a profound wrong, a moral injustice of the first order, close quote. and you said that within six months or so of becoming dean. and that was an e-mail you sent to the entire law school. >> senator sessions, i repeatedly said that i believe that the don't ask don't tell policy is unwise and unjust. i believed it then and i believe it now, and we were trying to do two things. we were trying to make sure that military recruiters had full and complete access to our students, but we were
9:47 am
also trying to protect our own antidiscrimination policy, and to protect the students whom it is -- the policy is supposed to protect which in this case were our gay and lesbian students. we tried to do both of those things. >> well, you couldn't do both, as it became clear, as time went on. in fact, there was a protest on campus the next year and you participate that protest, and spoke out, saying, quote, i'm very opposed to two government policies that directly violate our policy of nondiscrimination, and directly impact our students. the first is don't ask don't tell, the second one is the supplemental amendment which effectively forces educational institutions to make exceptions to their nondiscrimination policy. so you sent that out to the -- you said that at that
9:48 am
meeting, and in addition to that a lawsuit was filed in a different circuit, the third kir suggest -- circuit, and you participated in the filing of a brief attacking the don't ask don't tell policy, is that correct? >> senator sessions, that's not quite correct. the lawsuit itself brought a constitutional challenge to the don't ask don't ask tell to the solomon amendment. we did not participate in that challenge. what the brief that i filed did do was to argue, try to argue, that harvard's accommodation, which allowed -- which, you know, welcomed the military on campus, but through our veterans organization, what we tried to argue, that that accommodation was consistent with the solomon amendment. that's what we argued to the third circuit. >> well, and eventually, the supreme court did not agree with that. but after the third circuit
9:49 am
rule, 2-1, questioning the constitutionality of the statute, you immediately, the very next day, changed the policy at harvard and barred the military from the office of career services, the equal access the solomon amendment had required, is that correct? >> senator sessions, after the third circuit ruled the solomon amendment unconstitutional and the third circuit was the only appellate court to have issued a decision on that question and did rule the solomon amendment unconstitutional, i thought it appropriate at that point to go back to what had been the school's long standing policy which had been to welcome the military on to the campus but through the auspices of the veterans organizations rather than through the auspices of our office of career services. >> well, the veterans weren't interested in taking on that burr and that was not the equal access that the solomon amendment, which i worked on to pass,
9:50 am
required. congress frankly was frustrated at the law school. we passed four or five versions of the solomon amendment to get around every maneuver that occurred on the campus. now, isn't it a fact that the mandate or the injunction never issued by the third circuit, that the third circuit holding did not apply to harvard at the time you stopped complying with the solomon amendment, and isn't it a fact that you are acting in violation of harvard's agreement and the law when you reversed policy? >> senator sessions, we were never out of compliance with the law. nobody ever suggested that harvard should be sanctioned in any way. the only question was whether harvard should continue -- continued to remain eligible for federal funding, and after dod came to us and after dod told us
9:51 am
that it wanted law schools to essentially ignore the third circuit decision, that it wanted -- that it was going to take that decision to the supreme court and that it wanted law schools to continue to do what they had been doing, we did change back, we did precisely what dod asked us to do, and dod never withheld the -- >> well, you didn't, ms. kagan, you didn't do what the dod asked you to do. just ask this, put your legal hat on for a second, the third circuit opinion never stayed the enforcement of the solomon amendment at harvard, did it? did that law remain in effect? >> senator sessions, the question was -- >> new york city that's my question to you. did the law remain in effect at all times at harvard? >> the solomon amendment remained in effect, but we had always thought that we were acting in compliance with the solomon amendment, and for many, many years,
9:52 am
dod agreed with us. after the third circuit, i thought it was appropriate to go back to our old policy which previously dod had thought complied with the solomon amendment, when dod came to us and said no, the third circuit really hasn't changed matters because we're going to take this to the supreme court and we want law schools really to ignore what the third circuit said, dod and we had some discussions, and we went back to doing it exactly the way dod wanted to. >> well, that's -- let's get more basic about it. >> you stopped complying and that season was lost before the military realized, frankly, you never conveyed that to them in a straight-up way like i think you should have. you just started giving them a return yarn. the documents we've gotten from the department of defense say that the air force and the army says they
9:53 am
were blocked, they were stonewalled, they were getting the runaround from harvard. by the time they realized that you had actually changed the policy, that recruiting season was over. and the law was never not in force. i feel like you mishandled that. i'm absolutely confident you did. and -- but you continue to persist with this view that somehow there was a loophole in the statute that harvard did not have to come ply with, after congress had written a statute that would be very hard to get around. what did the supreme court do with your brief, how did they vote on your brief, attacking the effectiveness of the solomon amendment to assure equal access at harvard? >> senator session, if i might, you had suggested that the military lost a recruiting season, but in fact, the veterans organization did a fabulous job of letting all our
9:54 am
students know that the military recruiters were going to be at harvard during that recruiting season and military recruiting went up that year, not down. so you're exactly right, that the supreme court did reject our amicas brief. again, we filed an amicas brief not attacking the constitutionality of the solomon amendment but instead saying that essentially the harvard policy complied with the solomon amendment, the supreme court rejected it 9-0, unanimously. >> but even before that the military said the law was still in effect, harvard had no right to get around it, and they should comply even before the supreme court issued a ruling, and they had to contact the university's counsel and the president, mr. larry summers, and mr. summers agreed that the military should have full and equal access before even the supreme court ruled. but after you had denied
9:55 am
equal access. isn't that right? >> senator sessions, we had gone back and done exactly what the department of defense had asked us to do prior to the time that the supreme court ruled. we had done it -- >> wait a minute. you asked them what they asked you to do after the third circuit ruled, you denied them access, they had to insist and demand that they have equal access, because the law was still in effect. you did not agree to that. you had reversed that policy and the president of the university overruled your decision, according to the internal dod documents. they say that president summers agreed to reverse the policy, the dean remains opposed. >> senator sessions, larry summers and i always worked cooperatively on this policy, i didn't ever do anything that he didn't know about and he never did
9:56 am
anything that i didn't approve of with respect to the decision that you're talking about. this was a joint decision that larry and i made, that because dod thought that what we were doing was inappropriate, we should in fact reverse what we had done, you know, that period lasted for a period of a few months in my six-year deanship, and long before the supreme court issued its ruling in the fair versus rumsfeld case, we were doing exactly what dod asked us to do. >> so it's your testimony that the decision you made immediately after the third circuit opinion, you concluded was inappropriate? you and president summers? and you reversed that policy later? >> senator sessions, what i did after the third circuit decision was to say look, the only appellate court that had considered this question has struck down the
9:57 am
statute. we've always thought that our policy was in compliance with the statute. the appropriate thing for me to do, really the obligation that i owed to my school and its long standing policy, was to go back to our old accommodation policy which allows the military full access, but through the veterans organization. when dod came to us and said that it thought that that was insufficient, that it wanted to essentially ignore the third circuit decision, because it was taking it up to the supreme court when they came back to us, we went through a discussion of a couple of months, and made a decision to do exactly what dod wanted. >> well, you did what dod wanted when they told the president and the counsel for the university they were going to lose some $300 million if dean kagan's policy was not reversed. isn't that a fact? >> -- senator sessions, we did what dod asked for,
9:58 am
because we have always tried to be in compliance with the solomon amendment. thought that we were. when dod had long held that we were, when dod came back to us and said no, notwithstanding the third circuit decision, we maintain our insistence that you're out of compliance with the solomon amendment, we said okay. >> well, in fact, you were punishing the military. the protest that you had, that you spoke to on campus, was at the very time in the next meeting, or one or two buildings nearby, the military were meeting there, some of the military veterans, when they met with you the first time expressed concern about an increasingly hostile atmosphere on the campus against the military. didn't they express that to you? >> senator sessions, i think, as i said to senator leahy, that i tried in every
9:59 am
way i could throughout this process to make clear to all our students, not just to the veterans, but to all our students, how much i valued their service and what an incredible contribution i thought that they made to the school. >> i don't deny that you value the military. i really don't. but i do believe that the actions you took helped create a climate that was not healthy toward the military on campus. but let me ask you this: you keep referring in your e-mails and all to the military policy. isn't it a fact that the policy was not the military policy, but a law passed by the congress of the united states, those soldiers may have come back from iraq or afghanistan, they were appearing to recruit on your campus, they were simply following the policy of the united states congress, effect ate dollars -- effect ated by law, not their -- effectuated by law, not their idea and you were
10:00 am
treating them as second class citizens, bat giving them equal access because you deeply opposed that policy. why wouldn't you complain to congress and not to the dutiful men and women who put their lives on the line for america every day? >> senator session, you're of course right that the solomon amendment is law, passed by congress >> how much i honored everybody who was associated with the military, on the harvard law school campus. all that i was trying to do, was to ensure that harvard law school could also comply with the anti-discrimination policy, a policy that was meant to protect all of the students of our campus, including the gay and lesbian students, who might very much want to serve in the
10:01 am
military. who might very much want to do that most honorable kind of service that a person can do for her country. >> that's a legitimate concern and people can disagree on that and i respect your view on that, i'm having difficulty with why you would take the steps of treating the military in the second class way to speak to rallies and send out e-mails, and to immediately, without legal basis, because the solomon amendment was never, at any time, not enforced as a matter of law, why would you do all of those things, simply to deny what congress required that they have equal ac as anyone else? >> senator, the military at all times during my deanship had full and good access. military recruiting did not go down, indeed, in a couple of years including the year that you are particularly referring
10:02 am
to, it went up and it went up because we ensured that students would know that the military recruiters were coming to our campus, because i talked about how important military service was, because our veterans organization and the veterans on campus did an absolutely terrific job, a terrific service to their fellow students in talking to them about the honor of military service. >> well, while -- i would just say, while my time is running down, i am just a little taken aback by the tone of your remarks, because, it is unconnected to reality. i know what happened at harvard. i know announced... against the military policy and acted without legal authority to reverse harvard's policy and deny those military people equal access to campus until you were threatened by the u.s. government of loss of federal funds. this is what happened.
10:03 am
>> senator -- senator, your time is expired. response -- >> did not happen in that way, and, i think if you had any complaint it should have been made to the u.s. congress not to those men and women who we send in harm's way, to serve our nation. >> because of the number of people including the dean of west point, who has praised you and said you were absolutely not anti-military, take time to respond to what senator sessions just said. >>. >> thank you, senator leahy. you know, i respect, indeed i revere the military. my father was a veteran. one of the great privileges of my time at harvard law school was dealing with all of these wonderful students we had, who had served in the military and students who wanted to go into the military and i always tried to make sure that i conveyed my
10:04 am
honor for the military and always tried to make sure that the military had excellent access to our students. and, in the short period of time, senator sessions, that the military had that access, through the veterans organizations, military recruiting actually went up. but, i also felt a need to protect our... defend our school's very longstanding anti-discrimination policy and to protect the men and women, the students who were meant to be protected by that policy, the gay and lesbian students who wanted to serve in the military and do that most honorable kind of service and those are the two things that i tried to do, and i think, again, the military always had good access at harvard law school. >> senator -- >> ma'am, just -- >> senator. >> thank you so much. senator leahy --
10:05 am
thank you. you will testify this week for many hours regarding your... bill: that's the first round. jeff sessions, the republican senator out of alabama, what he was going after there was the issue that cropped up when alane indicati -- elena kagan was the dean of harvard law and the u.s. was fighting two wars overseas and military recruiters who were supposed to given access to universities like harvard were denied access to certain parts of the campus and by law the department of defense can cut off all defending to harvard and you heard jeff sessions talking about the, quote, legal progressi progressive, a definition where he is trying to frame around elena kagan. before we went to that, earlier today, she said that my politics would be, have to be and must be, separate from my job. so the lines are now drawn there on day one of the opening hearings and the question-and-answer session, any way, officially day two for elena kagan. martha: things are getting interesting. we saw a very active back and
10:06 am
forth between senator sessions and elena kagan, bret baier joins us from washington, at one point senator sessions said she had given the military the run around at harvard and suggested she didn't revere the military, to which she was quite opposed and said that was not the case at all. >> reporter: that's right and senator leahy offered her the ability to kind of wrap up her comments, about the military, and her support of the military, at the end, but senator sessions was getting to the point about military recruiters on harvard, whether they could go through the career services office, or whether, as she, as dean, moved them, still on campus but through a veterans organization. they threatened the solomon amendment, that was the law that was passed by congress, that threatened federal funding for schools, that did not provide military recruiters access to those career services offices.
10:07 am
one circuit court of appeals determined that that was unconstitutional and the supreme court eventually decided that, yes. military recruiters have to be on the campuses and the solomon amendment threatening the funds is, in fact, constitutional and elena kagan reversed the policy, and the point was because of her politics and because of her being deeply opposed to "don't ask, don't tell", personally that that led her to her decision with how she handled military recruiters and he's laying the groundwork for how her politics, he charges, would affect her time as a judge on the bench. martha: it was interesting, bret, struck me, he -- she said i was just upholding the anti-discrimination policy at harvard and i thought, she is saying here, it is my responsibility to uphold a longstanding anti-discrimination policy and protect gay and lesbian students at the
10:08 am
university who may be interested in recruiting and becoming members of the military and at that point, sessions said, i respect that, i understand where you are coming from on that, but, it seemed to me the heart of what he was saying was he felt that she disrespected the military and he used the phrase, you gave them the run around, made it difficult to know where they were supposed to set up and do their recruiting. >> reporter: yeah and he charges they have memos from the department of defense that suggest that the different branches were essentially being told different things, and were essentially given the run around as far as where to go, they eventually settled at the veterans organization, which was on campus, and, she right lepoints out that military recruit went up in those years. and it is an issue republicans will come back to but under this broader umbrella of whether her politics would influence her time on the bench. she insists that as a judge, she would keep them separately -- or
10:09 am
completely separate, from that time. martha: very interesting, we expect more fireworks to come. in all of this and we'll take you back to washington, bret, thank you so much, bret baier monitoring this for us from our d.c. bureau there, go on-line as well to our web site, foxnews.com, all of this will continue streaming live, we have a lot of breaking news and a lot of coverage this morning. so we'll move on now to general petraeus, bill. bill: the second big issue, that faces the future of the country, general petraeus, we fully expect him to be -- pass the senate hearing and be the man who takes control of our troops and nato forces serving the ground in afghanistan. this after a fiery week, facing the pentagon, the u.s. military after the comments from general mcchrystal were printed in roll stone magazine. what we were just listening to with david petraeus is about the rules of engagement and this is what he said already. he talked about assuring the mothers and fathers of americans for those fighting in
10:10 am
afghanistan, that he is aware of their concerns, and in the following sense: he says i mentioned the rules of engagement because i'm keenly aware of concerns by some of our troopers referring to soldiers and marines on the ground, about the application of our rules of engagement and the tactical directive. that all goes to the issue of how we are fighting the war in afghanistan, and whether or not under general stanley mcchrystal haves something accepted or not, david petraeus, now, lays out the way he'd fight the war in afghanistan at 10 minutes past the hour, 10:00, he's 40 minutes in, general petraeus back in the headlines as he has been now five years with the u.s. military, and the wars in iraq and afghanistan. >>... not the norm throughout afghanistan. nonetheless, the asf are very much in the fight and sacrificing for their country and nothing reflects this more than the fact their losses are typically several times ours. there is no question that levels
10:11 am
of violence in afghanistan have increased significantly over the last several years. moreover, the taliban and its affiliates had until this year steadily been expanding the areas they control and influence. this year, however, isaf achieved progress in several location, the initial effort has been in the helmand river valley and afghan, u.s. and u.k. forces ha expanded security there and predictably the enemy fought back as we have taken away his sanctuaries in the districts at marjah, and elsewhere. nothing has been easy in those operations. but, 6 months ago, we could not have walked through the market in marjah as i was able to do with the district governor there, two months ago. we are now increasing our focus on kandahar province, an area of considerable importance to the taliban. we're working hard to ensure that our operations there are based on a strong, integrated
10:12 am
civil, military and afghan international approach to security, governance and development. so-called shaping operations including a high tempo of targeted special forces operations have been ongoing for some months. president karzai and his ministers conducted shura councils and other political initiatives focused on increasing the sense of inclusivity and transparency in the province, elements that are stressed by president karzai. in the months ahead, we'll see an additional u.s. brigade from the great 101st airborne division, deployed into the districts around kandahar city where it will operate together with an additional afghan army brigade. we'll see the introduction of additional afghan police and u.s. military police, to secure the city itself. along with other u.s. forces and civilians who will work together with the canadian reinstruction
10:13 am
team that has been operating in the city. the combination of all of these initiatives is intended to slowly but surely establish the foundation of security that can allow the development of viable, local political structures, enable the improvement of basic services and help afghan leaders and local governance achieve legitimacy and greater support by the kandaharis. while relentless pursuit of the taliban will be critical in kandahar and elsewhere, we know from iraq, and0 counterinsurgency experiences, that we cannot kill or capture our way out of an industrial-strength insurgency like that in afghanistan. clearly, as many insurgents and citizens as possible need to be considered to be part of the solution rather than a continuing part of the problem. the national consultant of peace jirga consulted several weeks ago was an important initiative in the arena and the reintegration policy president
10:14 am
karzai signed today and i talked to him about it on the way here this morning... will be critical to the effort to convince reconcilable elements of the insurgency, to lay down their weapons, and support the new afghanistan. we look forward to working with our afghan and diplomatic partners in implementing this newly signed policy. recent months in afghanistan have, as you noted, mr. chairman, seen tough fighting and tough casualties, this was expected. indeed, as i noted in testimony last year, and again, earlier this year, the going inevitably gets tougher before it gets easier when a counterinsurgency operation tries to reverse insurgent momentum. my sense is the tough fighting will continue. indeed it may get more intense in the next few months. as we take away the enemy's safe havens and reduce the enemy's freedom of action the insurgents will fight back. in the face of the tough fighting, however, we must
10:15 am
remember that progress is possible in afghanistan, because we have already seen a fair amount of it, in a variety of different forms beyond the recent security gains. for example, nearly 7 million afghan children are now in school, as opposed to less than 1 million a decade ago under taliban control. immunization rates for children have gone up substantially and are now in the 70 to 90% range nationwide and cell phones are ubiquitous in a nation where during the taliban days they were nonexistent, though the taliban tries to shut down them, ha lat, jalalabad, infrastructure has been repaired and built and commerce is returning to hill man ore isaf and afghan forces are present. even in places where governance remains weak, innovative efforts like the afghan government's national solidarity program supported by american and
10:16 am
international civilians as well as by our troopers, have helped enable local shura councils to choose their own development priorities and receive modest cash grants to pursue them. enabling further such progress, though, and successfully implementing the president's policy will require that our forces in -- work in afghanistan is fully resourced. it is essential for the conduct of this mission, for example, that the supplemental funding measure now before congress be passed. this committee and the senate have passed it and it was heartening to hear speaker pelosi's call last week for the house to do the same expeditiously. beyond that, as always, i also asked for your continued support for the commanders emergency response program. the projects are often the most responsive and effective means to address the local community's needs. indeed, it is often the only tool to address pressing requirements in areas where security is challenged.
10:17 am
our commanders value cerp enormously, and, they appreciate your appropriating funds for cerp, each year. as i close, i'd like to once again note the extraordinary work being done by our troopers on the ground, in afghanistan, iraq, and elsewhere around the world. our young men and women truly deserve the recognition they have earned as america's new greatest generation. there is no question that they comprise the finest, most combat-hardened military in our nation's history. there is also no question that they and their families made enormous sacrifices since 9/11 in particular and have performed on multiple tours to perform difficult missions under challenging circumstances under against, even barbaric enemies. we cannot in my view ever thank our soldiers, sailors, airmen, marines an coast guardsmen enough, what americans have done to support those in uniform and
10:18 am
our deployed civilians has been truly wonderful. indeed nothing meant more to our troopers and their families than the appreciation of those here at home. as you noetyou noted, my wife, here today, a symbol of the strength and dedication of families around the globe, who wait at home for loved ones while they are engaged in critical work in afghanistan, iraq and elsewhere. she has hung tough while i've been deployed five-and-a-half years since 9/11 and so have untold other spouses, children and loved ones as their troopers deployed and continued to raise their right hands time and time again. clearly, our families are the unsung heros of the long campaigns on which we have been embarked over the past decade. one of america's greatest presidents, teddy roosevelt, once observed that far and away the best prize that life has to offer is the chance to work hard at work worth doing.
10:19 am
there are currently nearly 140,000 coalition troopers and over 235,000 afghan security force members, engaged in hard work, very much worth doing in afghanistan. if i am confirmed by the senate, it will be a great privilege to soldier with them, in that hard work, that is so worth doing, in that country. thank you very much. >> thank you, general petraeus. let me, since we now have a conform take care of some important committee business... bill: a few headlines from general petraeus in his opening remarks, this is the confirmation hearing now under way for him to succeed the out going general stanley mcchrystal and take over the afghan war on behalf of the u.s. and nato forces there and he admitted in his opening statement that the fighting will get more intense and he calls talked about the rules of engagemenengagement, h keenly aware of the fighting there, the tactics we have or have not been able to use thus
10:20 am
far and as he continues there, we are getting ready for orrin hatch and the other committee meeting, the hearing undergoing with elena kagan. we will get back to that hearing in a matter of moments, you heard the opening comments from jeff sessions, so, we're balancing two stories, right here on "america's newsroom," two very important significance, too, the future for the war on terror in afghanistan and, also, will elena kagan be the fourth woman in u.s. history to be appointed to the u.s. supreme court? do not move. we will not, back in three minute, right here. -- minutes, right here. [ male announcer ] invest with fidelity and get more for less.
10:21 am
10:22 am
don't you wish all investing decisions were this simple? ♪ ♪ ♪ now when you open and fund an account, ou'll get 200 commission-free trades. fidelity investments. turn here. ♪
10:23 am
10:24 am
hated the policy and his issue is, fine, you hate the policy, you don't take it out on the military. you take issue with the congress who passed the solomon amendment which says you don't get federal funds unless you allow equal access on campus or take it up with the president for whom you chose to work who put the policy into place, president clinton
10:25 am
and she had such a problem and she worked for him and wanted to kick the military off of her campus recruiting office and she said they had equal access through this veterans and recruiting went up during my tenure and critics said thanks to the hustle of the veterans, that is why the numbers went up, she cannot take credit for that. martha: it is interesting, and, he was narrowing it down to that, how do you feel about the military, when given the opportunity to work with them you gave them the run around, he said, and she said i revere the military and he said i'm not sure, which i thought, he was -- >> and he said you treated them like second-class citizens and his point is, you gave them access and it wasn't equal access and that what is the solomon amendment, which was they're because colleges across the country were kicking the military off campus because of don't ask, don't tell and congress passed a law saying you allow them equal access for recruiting otherwise you don't get federal dough and what is being missed is that elena kagan and other deans across the country had the opportunities to
10:26 am
take a principled stance on don't ask don't tell and kick the military off campus if they wanted but they couldn't also take the federal funds and that was what the case boiled down to, at the supreme court chief justice roberts said, that is your right as the dean of harvard, if you don't want it, then don't take the money an deans wanted it both ways, they wanted the military off, out of the campus recruiting and wanted the dough, and ultimately, the supreme court unanimous decision said -- >> you think if anybody can afford to live without the dough, it would be harvard university given their endowment and she tried to split the hair and said we gave them access through this veterans affairs on campus and not through career services and that gave her safe ground, she felt, to uphold the anti-discrimination policy at harvard university and, he said to her, i respect your perspective, on the anti-discrimination policy and that you want to uphold it but i don't respect how you treated the military. >> and the other point was, she's been trying to say, her
10:27 am
supporters have been trying to say she dheecontinued the polic she didn't institute, but the truth is what happened while she was dean is the third circuit court in philadelphia, federal appeals court struck down the solomon amendment and as soon as they did it. she at harvard in the 1st circuit, not bound by the third circuit decision saying you no longer have to follow the solomon amendment she nantly reverted back to an old policy that essentially hurt the military that didn't allow them full access and sessions said you didn't have to follow the 3rd circuit decision and you were in the 1st decision and he say it is going to the supreme court and she said, yes, when they said you better let the military back on, if you want the money, she did it. >> let me ask you, we knew all along it would be a hot button topic we'd hear discussed and we are waiting for orrin hatch, coming up, and what do you think
10:28 am
the other landmines for the kind of fireworks are. >> based on what i heard yesterday in terms of the republican forecast including hatch they'll focus on her experience, they can't go after her for never being a judge, 1/3 of the supreme court justices in history were not judges and judges scalia, one of the most conservative justices said i think it is good the currents nominee, talking about her is not a judge, we need diversity in terms of opinion and they can't go there but can talk about qualifications an experience, look at judges like our former chief justice rehnquist, he was not a judge before going to the high court but he had been a successful lawyer for 25 years, and elena kagan only practiced law, realistically 2-3 years. martha: spent a lot of the time in academia. >> right. and there is a question of whether she understands the law in a way in which we need our supreme court justices to do. martha: and in a way,when you do have a prior judicial experience, to be judged in these kinds of hearings it makes it more difficult to get at you, than when you have personal
10:29 am
experiences and you make judgments in the academic world. >> two tots things she'll get hit on, number one, guns, because yesterday we had the big decision and earlier when she was clerking for thurgood marshall in the supreme court someone wanted to appeal the d.c. gun ban and she wrote a gun saying i'm not sympathetic to his position and she was proven wrong and secondly, abortion, partial-birth abortion, she persuaded president clinton to veto a ban, to not allow a ban, because she said it needed a health exception and the president followed the advice and it took until george bush got into office to reinstitute the ban and critics of partial-birth abortion, say you put a health exception into the ban and women can go in essentially, and abuse the law for a make and get an abortion in the third trimester in a way that is gruesome and he'll be questioned about that on the g.o.p. side. martha: scribbling notes, in the
10:30 am
margins of the paper. >> write nothing! martha: great to see you, megyn kelly. bill: tough to get around the e-mails, though. >> yes. martha: not good. but nothing in writing. bill: the trail -- >> verbal communications. bill: boston to washington and back again, based on that, thanks, ladies. we're watching elena kagan and waiting for orrin hatch and he'll be the next in a moment here aftnd, plotting the war fo the future of afghanistan, a major deal in light of what happened last week, and general mcchrystal both events streaming live at foxnews.com and we'll be back in a moment to both hearing rooms here in "america's newsroom" and in the meantime, check out this number. wow! the dow is dropping like a stone off 274 points, now 75, and only 60 minutes of trading, three major stories, we're on top of all of them here, back in a moment, three minutes away, on "america's newsroom." t's why g
10:31 am
one million dollars every hour... to improve our technology and your safety. it's an investment that's helped toyota earn multiple top safety pick awards for 2010 by the insurance institute for highway safety. no other brand has won more. these top safety picks, and all our new safety innovations are available at toyota.com/safety. music these top safety picks, and all our new safety innovations
10:32 am
summertime was made for maine. music start planning your maine vacation at visitmaine.com you'll find hundreds of summer getaway packages filled with exciting, special offers. music yon can also request your free maine travel planner. music come discover there's more to maine. music
10:33 am
martha: all right, "fox news alert," this coming in, breaking news on the hunt for a cop killer. in the south, massive manhunt underway right now of the two police officers were shot dead during a traffic stop. they pulled over a red toyota camry with no license plate and soon after, reports say the driver opened fire and took off with a woman in the passenger seat. we are joined from tampa general hospital in florida, and, welcome, what can you tell us
10:34 am
from there? >> reporter: good morning, martha, a somber day, two police officers shot and killed and dave curtis pulled over a camry for not having a visible license tag and ran a back ground check on the people inside the car and found the passenger had an arrest warrant for a worthless check and called for backup, backup arrived, they showed up, tried to make an arrest and investigators say the suspect pulled a gun and shot and killed both of the officers. they are dave curtis and jeff kocab and i understand we have pictures of these officers as well, curtis had been in the tampa police department at least five years and kocab had been on the force for a little more than a year. and kocab is married and has a wife, that is expecting a baby, here in the next couple of weeks. curtis is considered a family ham. he has four children, these are considered exceptional police officers.
10:35 am
and, just exceptional people in general. now, investigators are searching statewide for the people involved in this incident, they are 24-year-old dante morris and 22-year-old courtney nicole brandtly, both people are considered persons of interest, the tampa police department does not feel comfortable saying they are suspects at this point, they are persons of interest. interesting to note, that morris was just released from prison, in april, just a couple of months ago, on cocaine possession and cocaine distribution, and, already he's involved in an incident, either involved in it or nearby and that is why he is kedsconsidere person of interest and tampa police department is working with the bay area company to give out all of the information on the persons of interest, on dante morris and cortnee brantly and hopefully, in orlando and
10:36 am
miami, they have these posters up, and hopefully they'll find them as quickly as possible and is the third tampa police officer killed in the last year, back to you. martha: thank you very much, what a tragic story, the loss of those two families. the death of those policemen over initially, worthless check, that he was -- >> feel for 'em every time when you get news like that. for from tampa in a moment and also, this is developing now. >>... 30 years and never did i ever think we would have some russian spies here. it was a big surprise. >> i don't know much about it. i saw them a couple times, she was more friendly. >> when i talked to them they had a russian accent and a young son and also a new baby. you don't expect to hear russians being arrested. bill: have you heard about the story, still developing, that is reaction from some folks in massachusetts, word that their neighbors are among ten people arrested across the country, accused of spying on america for russian intelligence. five of the suspects, in a
10:37 am
courtroom sketch, seen here, russia angrily denouncing the arrest as a throw back to the cold war and meanwhile, we understand the feds spent years working the case before moving in and rounding up the suspects, my guest now knows a lot about these operations, eric o'neill is the undercover fbi operative who captured the most notorious spy in u.s. history, robert hanssen and the real life hero portrayed in the movie "breach", and, eric, good morning to you, based on what we know and frankly, we don't know a lot here, how serious is this? >> just from reading the indictment, it appears pretty serious. these purported illegals were operating for as long as, it appears they operated, they certainly were turning over some information. bill: what information were they after? >> well, from the indictment, and from the conversations and transmissions that were
10:38 am
interseptembered and decriypted they are after policy information, but from the active profile of their espionage it looks like they might be actively engaged in penetrating lobbying groups, government contractors, for the united states and other groups, and even worse, possibly recruiting spies of their own. bill: some say this is information you can get by way of google. why do you need to be a spy? could you understand that point and if so, take it a step further. >> i'm not sure that they were specially trained and sent here, if that is all true. and, i trust the fbi investigation just to receive information you could find with google. from what i can see from the operative profile they were sent to recruit individuals who could provide information back to russia. policy, american policy, being one of those things, but, they were also after nuclear secrets and other things, that could damage american interests across the world. bill: that is intriguing, too.
10:39 am
here's what one of the russian reactions was earlier today. would you act like this in the 21st century? the russians are just dismissing these charges, they say, burying money in a yard for picp is not how it happens anymore, this is your line of work. do they have a point? are they off the reservation here and ultimately does moscow come back and engage in a tit-for-tat. >> i'm going to say they are a little bit off the reservation, they got their knee-jerk reaction while they decide what they will do about that. the tit-for-tat would be to pull some of our guys off the street that are working over in russia, clandestinely and maybe make an exchange, we need to wait and see how the case unfolds and find out how russia reacts once they get their ducks in a row. bill: eric, ultimately, how does it turn out? you have seen it before. >> i think what will happen is this is the tip of the spear and next we'll possibly see some americans who are brought in for
10:40 am
questioning and possibly arrested. there are some people out there, who shouldn't have been talking to these illegals. and i think we'll find the next part of the fbi investigation is going to go after the americans who were spilling information to these potential and i believe illegal russian spies. bill: you are a great guest, eric, thanks for making time with us on short notice. >> thank you so much. bill: my guest out of washington, d.c. you bet. 20 minutes before the hour, martha. martha: a lot of hearings are going on on capitol hill today and very big questioning going on right now by orrin hatch, senator orrin hatch of utah, is asking elena kagan questions, let's listen into this a little bit and see what is going on. >>... and labor unions from using their regular budget to fund candidates, with election issues within 30 to 60 days, of the primary or a general election. they could form separate organizations called pacs, political action committees to do so but they didn't have the
10:41 am
freedom to use their own money directly to speak about candidates or issues as they saw fit. i know there's a lot of loose rhetoric about the decision in this case allowing unlimited, quote, spendingen 0 elections, unquote. -- spending on elections, unquote and i'm assuming that is to conjure up images of campaign contributions or collusion, but to clarify the statute and the case involved what are called independent expenditures. or money spent by corporations, nonprofit groups or unions, completely on their own to express their political opinions. this case had nothing to do with contributions to campaigns, or spending, that is coordinated or connected in any way with candidates or campaigns. isn't that true? >> you are right, senator hatch, that this is an independent expenditure case rather than a contributions case. >> when president obama announced your nomination he said you believe quote in a
10:42 am
democracy powerful interest must not be allowed to drown out the voices of ordinary citizens. unquote. virtually all of the rhetoric surrounding this case is focused on large for-profit corporations, but the law in question and of course this case, affected much more than that. as you know, in that case, a nonprofit organization sued to defend its freedom of speech rights. do you agree that many people join or contribute to nonprofit advocacy organizations, because they support the positions and message of those groups, because those groups magnify the voice of their members, and, their contributors? >> i do agree that civic organizations are very important in our society, senator. >> these aren't just civic organizations, i'm talking about unions and businesses and nonprofits and profits and... partnerships and s corporations and a lot of otheres.
10:43 am
>> you are right. the statute the government defended in the citizens united case was a statute that applies to many different kinds of corporations. >> sure. >> one of the things that the government suggested to the court in the course of its arguments was that one possibly appropriate way to think about the case might be to treat those different situations, differently. but the statute itself applied to many different kinds of organizations. >> okay. now, president obama called the citizens united decision quote, a victory for powerful interest that marshall their power every day in washington to drown out the voices of every day americans, unquote. as i said, the statute applied to for-profit corporations, nonprofit corporations and labor unions. do you believe that, let's take unions, do you believe that they are, quote, powerful interests that drown out the voices of every day americans? >> senator hatch, what the government tries to argue in
10:44 am
that case was that congress had compiled a very extentendsive rd about the corporations and unions, generally and the political process and what the congress had found was that these corporations and unions had a kind of access to congressmen, had a kind of influence over congressmen, that changed outcomes. that was a corrupting influence, on congress. and, that was what the many, many, many thousand page record that was created before congress enacted this mccain-feingold bill, revealed, and that is what we tried to argue to the court. >> i understand the argument. but, the statute banning political speech that was challenged in citizens united also applied to small s-chapter corporations that might have only one shareholder. there are more than 4.5 million
10:45 am
s corporations, s chapter corporation in america and we have 56,000 in my home state of utah alone. these are small companies who want the legal protections that incorporating provides. these are family farmers. ranchers, mom and pop stores and other small businesses. before the citizens united decision, these small family businesses could be barred from using their regular budget for, say a radio program or even a pamphlet opposing their congressman for his vote on a bill if it was that close to an election. do you believe that is the constitution gives the federal government this much power? >> senator hatch, congress determined the corporations and trade unions generally had this kind of corrupting impact on -- >> i'm talking about all of these 4.5 million small corporations, as well. >> senator hatch, of course, in the solicitor general's office we defend statutes and congress determined --
10:46 am
>> i understand that. let me ask my question, the way i want to. i will, i will be fair. intend to be. and you know that, after 34 years. go ahead, i -- keep going. did you have something else you wanted to add. >> go ahead. >> okay. we have to have a little back and forth offer once in a while or this place would be boring as hell, i'll tell you... [laughter]. >> and it gets the spotlight off me, you know? i'm all for it! go right ahead. >> by the way, i have been informed that hell is not boring, so... okay. i have the current volume, the current volume of the code of federal regulations. this is governing federal campaign finances, 568 pages long, the code. this is not including another 1200 pages of explanations and
10:47 am
justifications nor the election commission advisory opinions even more enforcement rulings and more federal statutes. now let me ask you this: do you believe the constitution allows the federal government to require groups such as nonprofit corporations, and small s-chapter corporations to comb through all of this? this is part of it. there are thousands of other pages of regulations. likely hire an election law attorney and jump through the hoops of forming a political action committee with the costs and limitations, simply to express an opinion in a pamphlet or a radio or a movie or just to criticize their elected officials? do you really believe the constitution allows that type of requirement. >> senator hatch, i want to say senator hatch, you should be talking to senator feingold, but, i won't do that. senator hatch, congress made a determination here, and the determination was the
10:48 am
corporations and unions generally had this kind of corrupting influence on congress, when they engaged in -- >> but you acknowledge, it covered all of these other smaller groups and other groups that have -- should have a right to speak as well? >> the solicitor general's office, of course, defends statutes as they are written and congress made the determination, broadly, corporations and trade unions had this corrupting influence, on congress, and, in the solicitor general's office, we in the solicitor general's office as other offices have done, vigorously defended that statute, as it was written on the basis of the record that was made in congress, that i think it was in 100,000-paige record about the corrupting influence of expenditures made by corporations and unions and the court rejected that position and the court rejected that position and in part, because of what you started with. you said political speech is a paramount first amendment value, no doubt the case. and, the court applied a
10:49 am
compelling interest standard, and the court rejected the position. but, the position that we took was to defend the statute and apply it broadly. >> i have no problem with that. that was your job but i'm getting into some of the comments by some of our colleagues, the president and others about how wrong this case was. when i don't think it was wrong at all. your 1996 law review article about private speech and public purpose emphasized the need to examine the motive behind speech restrictions. since you have already written about this, i would like to know whether you personally agree with the supreme court in the citizens united decision that, quote, speech restrictions based on the identity of one speaker are all too often simply a means to control content. unquote. do you agree with that? >> senator hatch, speaker-based restrictions do usually get strict scrutiny from the supreme
10:50 am
court and for the reason that you suggest, which is a concern about why it is that congress is saying one speaker can speak and not another. i had a very interesting colloquy with justice scalia at the court on this question. >> i understand. >> justice scalia said to me and it is a powerful argument. he said, well, you know, if you let congress think about these things, congress is going to protect incumbents, that that might be a reason for congress to say certain groups can make independent expenditures and others not. >> one part of congress was protecting incumbents and the others would be trying to throw them out. that is what the system is. >> but i said to justice scalia, and i think it is true, with respect to the mccain-feingold bill, the old empirical evidence actually suggestion, i think my line was this is the most self-denying thing congress has ever done because all the
10:51 am
empirical evidence suggests that these corporate and union expenditures actually do protect incumbent and notwithstanding that in the mccain-feingold bill congress determined that it was necessary in order to prevent corruption, to prevent those expenditures. but, you know, the court said no. >> tell that to blanche lincoln. how incumbents are protected. in this case, the speech in which citizens united... i think about blanche lincoln, one of the nicer people around here, who had ten million dollars spent against her, by the unions, just because they disagreed with her on one or two votes. i mean, you know, let me keep going. in this -- and i'm enjoying our colloquy together. >> me, too. >> i hope so. in the case the speech in which citizens united wanted to engage was in the form of a movie about
10:52 am
a presidential candidate, hillary clinton, at the time, and the deputy solicitor general first argued the kwcase, from yr office and told several justices if the corporation of any size, union or nonprofit group didn't have a separate pac, the constitution allows congress to ban publishing, advertising or selling not only a traditional print book that criticized a political candidate, but an electronic book available on devices such as the kindle. even a 500 page book that had only a single mention of the candidate not only print or electronic books but also a news letter, even a sign held up in lafayette park. now isn't that what, under that argument, at that time, your office admitted that a first oral argue at the end of the day, the constitution allows congress to ban them from
10:53 am
engaging in any political speech in any of those forums? >> senator hatch -- >> i'm not blaming you for the argument nor am i blaming the person who was trying to defend the statute. i'm just saying that is what happened. >> senator hatch, the statute which applies only to corporations and unions when they make independent expenditures, not to their pacs. the corporation and unions, when they make independent expenditures, within a certain period of an election, the statute is not -- does not distinguish between movies, and anything else. >> as you can see i'm finding a certain amount of fault with that and that is why the citizens united case i think is a correct decision and the court has been criticized just yesterday for not deciding the citizens united case on narrower statutory grounds but according to media... the national journal, it was your office's submission the statute had much
10:54 am
broader constitutional implications, that prompted the court to ask for a second argument in this case and that is where you come in. you reargued the case last september, and i believe that it was justice ginsberg who asked whether you still believed that the federal government may ban publication of certain books at certain times. you said, that the statute in question covered books but that there might be some legal arguments against actually applying to it books. i certainly agree with you on that. but, didn't you argue that the constitution allows the federal government to ban corporations, union and nonprofit groups from using their regular budget funds to publish pamphlets, that say certain things about candidates, close to an election? you -- >> senator hatch, we were of course, i was, defending the statute -- >> i understand. >> as it was written, and, the statute as it was written applied to pamphlets as well as the movie in the case and we made a vigorous argument that the application of that statute
10:55 am
to any kind of classic election year end materials, not books because they aren't typically used to election years but the application of statutes to any kinds of classic electioneering materials was constitutional and the court should defer to congress -- >> i, accept that you made that argument and were arguing for statutory enactment by the congress. but as i mentioned you said that the federal government could ban certain pamphlets at certain times because pamphlets are, as you put it, pretty classic electioneering. unquote, you said tit has deep historical roots in america and some of the political speeches in our american history were m pamphlets such as thomas paine's common sense and you said you were defending application of the statute to a film, would you
10:56 am
also consider films as classic electioneering? >> senator hatch, trying to remember what our brief said. but, yes. i think that the way we argued the case -- >> that position. >> it applies to films as well, of course. >> a pamphlet is often defined at least in the dictionary as an unbound printed work using the paper cover or short essay or treatise. and another first amendment context involving the establishment clause, justice kennedy criticized the idea that application of the first amendment defended on such things as the presence of the plastic reindeer or the relative placement of a poinsettia. i believe he called that a jurisprudence of minutiae. i thought that was an interesting comment, myself. do you believe that the protection of the first amendment should depend on such things as the stiffness of the
10:57 am
cover? the presence of a binder or the number of words on a page? you can give an opinion on that since the case was decided. >> senator hatch, what we did in the citizens united case was to defend the statute as it was written which applies to all electioneering materials, with the single exception of books which we told the court were not the kind of classic electioneering materials that pose the concerns that congress had found to be posed by all electioneering materials of a kind of classic kind, and nobody uses books in order to campaign. but -- >> that is not true. and you did say the books are probably covered but you didn't think they would... >> i thought -- i said, the argument was that they were covered by the language of the statute. but that a good constitutional
10:58 am
challenge as applied constitutional challenge could be made to it because the purposes that congress had in enacting the statute which were purposes of preventing corruption, would not usually have applied to books. but, would have applied to all of this material that people typically use in campaigns. >> i understand in 199 8 when you served in the clinton administration you sued steve forbes and his cap that publishes "forbes" magazine and i have a copy of the "forbes" magazine here and i think most people are familiar with it. steve forbes had taken a leave from his position with the company, to run for president, but continued writing columns on various issues. the fac used the same statute that you used in the citizens united case to say they were illegal corporate contributions to forbes' presidential
10:59 am
campaign. and i know they later decided to terminate the lawsuit and i know the forbes lawsuit involved alleged campaign contribution rather than independent expenditures, but the same statute was involved and i use this as an example to show what can happen on the slippery slope of the federal government regulating who may say what and when about the government. now,he forbes case involved a magazine. the case you argued involved a movie. your office admitted that the statute could apply to books and news letters, and you admitted it could apply to pamphlets. now, all of this involves the political speech that is the very heart of the first amendment whether engaged in by for-profit corporation, nonprofit corporations, tiny s-chapter corporation or labor unions. do you really believe -- this is your personal belief, do you really believe -- i understand you represented the government but do you really believe

240 Views

info Stream Only

Uploaded by TV Archive on