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Final Day of Alito Hearings; Rumsfeld Press Conference

Aired January 12, 2006 - 9:59   ET


WOLF BLITZER, CNN ANCHOR: To our viewers, you're now back in THE SITUATION ROOM, where new pictures and information from around the world are arriving all the time.
Happening now, our special coverage of the Samuel Alito confirmation hearings. It's coming up on 10:00 a.m. here in Washington, where Judge Alito has been taking questions on life and death issues. We're live in the hearing room as the Supreme Court nominee works to win confirmation.

Also, this hour, the controversy that brought Alito's wife to tears, and led to a sparring match between senators. Has the flap over a Princeton alumni group been put to rest?

And is an author's integrity in a million little pieces? James Frey talks about accusations that his memoir was fabricated and so does his most important fan, Oprah Winfrey.

I'm Wolf Blitzer. You're in THE SITUATION ROOM.

All that coming up.

First, though, let's check some of the other important news happening right now. Daryn Kagan standing by at the CNN Center.

DARYN KAGAN, CNN CORRESPONDENT: Good morning once again, Wolf.

We are updating a story that we're following out of Saudi Arabia. Dozens, perhaps hundreds of Muslim worshipers have reportedly been killed or injured in the annual Hajj pilgrimage in Mecca, Saudi Arabia. Reuters medical service has said as many as 300 may be dead. Witnesses say there was a stampede during a ritual stoning of a symbolic devil. A similar stampede broke out during the same ritual two years ago.

Talks over Iran's nuclear program are heating up. Ministers from Britain, France and Germany meet today, two days after Iran resumed uranium research. Iran says it's nuclear energy but it is about energy, but others fear the know-how will be used to make bombs. British Foreign Secretary Jack Straw says the dispute will likely end up before the U.N. Security Council.


JACK STRAW, BRITISH FOREIGN MINISTER: When it became clear two and a half years ago that Iran was in breach of its obligation under the non-proliferation treaty, the board of governors could have referred Iran immediately to the security council. Some say that it should have done. We suspended that action in return for Iran suspending its uranium enrichment activities. Iran has now broken a key part of that deal.


KAGAN: And now on to other world news.

It's a quarter century after he shot Pope John Paul II. Mehmet Ali Agca walked out of prison this morning. Turkish officials say the government will review his release. Pope John Paul II was gravely wounded in that attack. He had publicly forgiven the man. A group of supporters cheered his release and showered his car with flowers.

Another escaped inmate is back in custody in Florida. Police say that Rodney Buckles eventually surrendered when authorities caught up with him in the Miami area. Buckles allegedly scaled the fence Tuesday at that same maximum security facility that a suspected serial rapist broke out of last month. Reynaldo Rapalo was recaptured six days after authorities say he repelled down a wall using tied up bed sheets.

A suspected armed robbery. And you've got to see this video. Picked the wrong gas station. It's a mini mart in Bethlehem, Pennsylvania. It had been held up four times in a month. But as you can see their surveillance clerk says he was not going to take it anymore. The clerk bats the suspect around and so the suspect says, all right, all right, I don't need the money anymore. Things turn worse for the suspect. He arrived home to see police were already waiting for him there. Officers had staked out his house. They were acting on a tip. Knew who he was.

To South Korea now. A scientist today apologizing for making fraudulent claims about stem cell research. But Hwang Woo Suk says that he'd been deceived by collaborators at another lab. Hwang's apology followed a finding from a scientific panel that his data had been falsified. His claim, that he created the world's first stem cells from a cloned human embryo was published in the "U.S. Journal of Science."

And the author of the best-selling memoir is defending his book from accusations that he fabricated parts of it. He gave an exclusive interview to our own Larry King last night. Author James Frey spoke about the book. It's called "A Million Little Pieces." The book describes his life as an alcoholic, a drug addict and criminal. Frey notes the page count of disputed events is less than 5 percent of the book. He also said he acknowledged making some embellishments. The book became a best-seller after Oprah Winfrey picked it for her book club. The talk show host called in to Larry's show last night and continues to back the book.


JAMES FREY, AUTHOR, "A MILLION LITTLE PIECES": My side is that I wrote a memoir, you know. I never expected the book to come under the type of scrutiny that it has. I don't think it's necessarily appropriate to say I've conned anyone. You know, the book is 432 pages long. The total page count of disputed events is 18, which is less than 5 percent of the total book.

LARRY KING, CNN ANCHOR: We're going to hold the show a little longer because I understand we have Oprah on the phone. So let's see what she has to say.

Are you there, my friend?

OPRAH WINFREY: Hello, Larry.

I am disappointed by this controversy surrounding "A Million Little Pieces" because I rely on the publishers to define the category that a book falls within and, also, the authenticity of the work. So I'm just like everybody else. I go to the bookstore, I pick out a book that I love. If it says memoir, I know that maybe the names and the dates and the times have been compressed because that's what a memoir is.

And I feel about "A Million Little Pieces" that although some of the facts have been questioned and people have a right to question because we live in a country that lets you do that, that the underlying message of redemption in James Frey's memoir still resonates with me. And I know that it resonates with millions of other people who have read this book. And will continue to read this book.


KAGAN: The Smoking Gun Web site made the accusations against the book following an investigation. The Web site is partly owned by Time Warner, which is our warrant company.

And a programming reminder for you. You can watch more of Larry, "Larry King Live" week nights at 9:00 p.m. Eastern.

So, Wolf, Oprah says it's the publisher's fault.

BLITZER: And you know what, Daryn, it's still number one on I suspect it's going to be number one for some time. Not a huge surprise there.

KAGAN: No. No such thing as bad publicity.

BLITZER: Go back to that video, though. That guy in that convenience store.

KAGAN: The clerk.

BLITZER: Is he like a designated hitter. Lock at him. This guy does not know what got into this situation. This guy's got a bat. Look at this. Look at this guy pummeling him and he's not taking no for an answer.

KAGAN: And for the potential robber, that's what you call a bad day at the office. BLITZER: Geez.

KAGAN: You know, you get beat up at the convenient store and you go home and the cops are waiting for you.

BLITZER: I guess he took a hit.

All right, Daryn, thanks very much. We'll check back with you shortly.

We're here in Washington in THE SITUATION ROOM. We're watching the hearings. The Senate confirmation hearings of Samuel Alito for the U.S. Supreme Court.

Bob Franken is our man on the scene right now.

Bob, update our viewers. What has happened to far today?

BOB FRANKEN, CNN CORRESPONDENT: What happened is, a couple of Democrats have had questions for Samuel Alito. What we're having now is Edward Kennedy, Senator Edward Kennedy, who has had some of the sharpest questioning and some of the most dramatic moments as these hearings have gone on.

He's reading a statement, in effect recapping his position, criticizing Judge Alito for his failure to answer properly questions about his views on presidential power and, of course, on the now infamous, the Concerned Alumni of Princeton Group, which has been presented as a group that vigorously opposed diversity on the Princeton campus and the membership of Samuel Alito in this group of which he says he has no recollection.

And also the answers that Kennedy says is not getting on the failure of Judge Alito to recuse himself from a case which involved a company that had connections to his mutual fund holdings. This has been part of the controversy that surrounded Alito. Kennedy making the point that he is dissatisfied with the answers or lack of answers that he's gotten from Alito.


BLITZER: All right, Bob, thanks very much. Bob Franken reporting for us from The Hill.

We're going to take a quick break. We're going to go right back to the hearings after we do.

We're also watching other important news that's unfolding.

Stay with us. You're in THE SITUATION ROOM.


BLITZER: Welcome back to THE SITUATION ROOM. We're going to go back to the hearing right now. The Senate Judiciary Committee. Senator Orrin Hatch, Republican of Utah, senior Republican on the committee, speaking out on this whole issue of Vanguard, Samuel Alito's investments in this mutual fund. Whether he should have recused himself. Senator Kennedy had been making a big deal out of this during his round of questioning. Let's go back to the hearing room.

SEN. ORRIN HATCH (R), UTAH: Vanguard matter and then you made a mistake later, 12 years later, which you rectified. In other words, you lived up to your word in every sense of that term. Whether or not you considered the initial service or not, that anybody who looks at it would have to say, my gosh, that doesn't mean 12 years from now. But you even ignored that and said, I recognize that I made a mistake, I recused myself even when I didn't have to recuse myself and did everything I could to live up to that -- my word, which you did. In other words, you lived up to your word. That's a fair interpretation, isn't it?

JUDGE SAMUEL ALITO, SUPREME COURT NOMINEE: It is, Senator. I said in -- even if you read the answer as setting out a promise that would be binding on me for the entire term of my judicial service, and I did disqualify myself in the only Vanguard case that ever came before me.

HATCH: And so to imply somehow or other that you were dishonest because you lived up to your word in the end I think is a little bit beyond the sale. The ABA reviewed this matter and found that you have an excellent record for integrity. You earned, for the second time, the highest American Bar Association rating of well qualified.

And I put in the record yesterday letters from several ethics professors who have examined this issue and found nothing improper. They agreed that you lived up to your word and you didn't have to. Nor will you have to in the future. That's what that law says. In 28 U.S. code section 455-D-4-I. That's what it says.

Now, I might add, that includes a letter from Professor Geoffrey Hazard. Back when Justice Breyer was up for confirmation and questions were raised about the propriety of him hearing a case in which some argued falsely, I think, that he had a financial interest, my friend from Massachusetts, Senator Kennedy, favorably cited a letter from Professor Hazard that was favorable to Justice Breyer. And, by the way, I'm not going to judge the two cases, but it was every bit as much a case as this week thing that has been brought against you.

Now, you know, what is going on here is nothing but an attempt to make a big deal about nothing. A small thing. And I think it's being done with a bit of old bait and switch, if you ask my opinion.

I might add that when Judge Breyer, what happened there, in the case of Breyer, I reviewed it, I investigated it. And when the facts showed that he did no wrong, as they show you have done no wrong, I came out of the blocks and defended him. And I'm glad I did because he, like you, is an honest man. Neither Breyer, Justice Breyer, or you have gone into public service to make money. That's pretty apparent. Now, to have this like you have done something wrong because you made a mistake, and then you rectified it, my gosh, how many times do we have to beat that old dead horse?

And with regard to the other thing, I have my own opinion as to why that's repeatedly brought up when you have adequately explained that you didn't remember much about it or anything at all. Now we find that the Rusher memoranda contained no reference. He never heard of you before now. And it makes you wonder why are they bringing that up? Well, I've got my opinions on that. And I think my opinions are right.

The fact of the matter is, you've been straight forward here. You've honestly answered the questions. You've answered more questions than almost any Supreme Court nominee in my 29 years in the Senate. And I don't think you've been fairly treated. And it makes everybody wonder why would anybody want to do these jobs?

I know the law review graduate school make more than the chief justice this year. New graduates from law school. So it's apparent you're going into this because you love your country. You want to serve and it you have done it well for 15 years. And anybody who knows you knows that. And I know you. So I think it's just wrong to keep bringing these phony issues up.

And you have to ask, why are they doing it because they are so phony? That's all I care to say. I'll reserve the balance of my time.

SEN. ARLEN SPECTER (R-PA), CHAIRMAN, SENATE JUDICIARY COMMITTEE: Thank you, Senator Hatch. Your 18 minutes and nine seconds will be reserved

HATCH: Thank you.

SPECTER: Senator Biden has asked for 20 minutes. We're going to be a little more flexible at this final round because I see light at the end of the tunnel, quite frankly. I see our conclusion of these hearings probably not tonight but tomorrow not too late. We've started all the sessions exactly on time and we've held to the time limits on the -- up till now, which I think we have to do if we want to move ahead. If you once start to slip on when you start or the timing, it just gets out of hand. But at this juncture, on the final round, that we have a little more flexibility. I see the light at the end of the tunnel.

And, Senator Biden, you're recognized for up to 20 minutes as you have requested. And if you go a little more, my gavel will stay put.

SEN. JOSEPH BIDEN (D), DELAWARE: Well, thank you, Mr. Chairman. I'll try not to.

Judge, I heard the chairman. I happen to be doing something on Darfur and I was in the conference room and I heard the chairman say that, which I agree, he and I have talked about this, nominees tend to answer as many questions as they think they have to in order to get confirmed. And I would say that that's been the case with all nominees. Basically since Judge Bork. I'd also add another, I think, truism that's developed, is they tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them. And it all goes to kind of a central point here is, what is the public entitled to know about what you think or what anyone thinks before they go in the court. And I realize there's this dynamic tension between your independence as a nominee, what you'd be an independent justice and answering questions.

But having said that, let me go to an area that I hope you'll engage me in. And it goes to executive power. I have had the dubious distinction because of my role in the Judiciary Committee and on the Foreign Relations Committee in the last three or four times force has been used by a president to be the guy in charge of, at least on my side of the aisle, drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that, President Bush, and even before that, the discussion back on Lebanon with President Reagan et cetera. So it's something I've dealt with a lot. Doesn't mean I'm right about it, but I've thought a lot about it.

And now there is a school of thought that's emerging within the administration that is making not illegitimate and intellectually thought out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.

And the fellow who was -- is very bright guy, who was -- is referred to as the architect of the president's memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them, is Professor Yoo. And I think I'm pronouncing - Yoo, excuse me. Professor Yoo. And he's written a book called, "The Powers of War and Peace." And he makes some claims that are relatively new among the constitutional scholars in his book and he urges the -- he had urged when he was at the administration the president had these authorities.

For example, he says that the framing generation well understood that declarations of war were obsolete. He goes on to say, given this context it's clear that Congress's power to declare war does not constrain a president's independent and plenary right, constitutional authority over the use of force. And he goes on and he argues, as you well know this argument, I mean not from your court, just as an informed, intelligent man, there's a great debate now of whether or not the administration's internal position is correct. And that is the president has the authority to go to war absent congressional authorization.

And it was a claim made by Bush one and then dropped. Bush one argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn't want to. That was the claim made.

Similar claim made here. So I want to ask you a question. Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?

ALITO: Well, that's a question that I don't think is settled by the whole issue of the extent of the president's authority to authorize the use of -- to authorize the use of military force without congressional approval has been the subject of a lot of debate. The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war and, obviously, that means something. It gives Congress the power of the purse and, obviously, military operations can't be carried out for any length of time without congressional appropriations.

Congress is given the power to raise and support an army, to maintain a navy, to make the rules for governing the land and the naval forces. The president has the power of the commander in chief. And I think there's been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.

BIDEN: Is that the deciding question, if the Congress does not have the time to act?

ALITO: Well, the Prize cases I think go -- are read to go as far as to say that in that limited circumstance, the president can act without congressional approval. A lot of scholars say that what's important as far as congressional approval is not the form, it's not whether it's a formal declaration of war or not, it's whether there is authorization in one form or another. The war powers resolution was obviously an expression of the view on the part of Congress.

BIDEN: But if I can interrupt, Judge, since I'm not going to have much time. The war powers resolution is a legislative act. I don't want to get into that. I'm talking about the war clause. And the administration argues . . .

BLITZER: All right, we're going to break away briefly from the hearing as Senator Biden questions Samuel Alito on war powers and other executive branch actions. We'll go right back there. Remember, you can always watch it streamed live on uninterrupted by commercials or anything else.

We're also standing by, this note, the Defense Secretary Donald Rumsfeld has called a news conference. We're going to hear what he has to say on the war in Iraq and other issues. We'll go to the Pentagon for that.

Much more of our coverage of the Alito hearings right after this.


BLITZER: Welcome back. Senator Joe Biden continuing to question Samuel Alito on various aspects of the law. We're watching the hearings. We're going to go back there shortly. Jeff Greenfield, Jeff Toobin watching together with all of us here in THE SITUATION ROOM.

This whole Vanguard issue that Senator Kennedy keeps pressing forward and we heard Senator Hatch defending Samuel Alito's investment in this mutual fund over the past 15 years. Whether or not he made money on Vanguard, is that an issue right now?

JEFF GREENFIELD, CNN SR. ANALYST: Well, he would have made money on it if the fund would have. It had nothing to do with any decision that he involved himself in. What Ted Kennedy is trying to paint is a portrait of a guy who didn't keep his word to the committee and whose credibility is in doubt because he has different explanations as to why he didn't.

Wolf, if this becomes a genuine cutting issue that hurts Samuel Alito, I will eat my hat, if I had one, or Joe Biden's Princeton hat on public air, on this very network. I just do not understand how this affects Judge Alito's fitness to serve on the Supreme Court.

BLITZER: And the ABA did give him a clean bill of health.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: They gave him a clean bill of health. The ethics experts consulted by the committee gave him a clean bill of health. I don't know where this argument goes. At least with the Princeton issue it goes to a matter of substance. It goes to issues of civil rights. It probably doesn't do much on those issues, but at least it is about something.

The Vanguard is only about the issue of greed and money and there's not even the slightest suggestion there is any question about his greediness. And if it goes -- and some Democrats are saying, well, no, it's about his credibility. It's hard for me to see how it does.

GREENFIELD: By the way, the blogs on the right are all over with the story in "The Washington Times" today that Ted Kennedy, while at Harvard, was a member of an all male equivalent of an eating club called The Owl (ph) Club. You wouldn't -- I don't know what that is but . . .

TOOBIN: It's a private club. They don't -- you don't eat there, you just sort of hang out there and get drunk there and that's sort of mostly what they exist for. But, I mean, in fairness to Ted Kennedy, I don't think it's an advocacy organization the way the Concerned Alumni of Princeton is. I don't think it's quite a parallel but it's worthy of mention.

BLITZER: You went to Harvard so you would know.

TOOBIN: But I certainly wasn't a member of The Owl club.

GREENFIELD: Interesting mention of extracurricular activities.

BLITZER: All right. The blogs are already buzzing on this Vanguard issue, as well. Abbi Tatton has been checking into this situation.

What are you picking up, Abbi?

ABBI TATTON, CNN CORRESPONDENT: Wolf, not just the blogs, but also the documents themselves. You can go online and read this pledge that was made in 1990 by Samuel Alito. In the Judiciary Committee hearings, when Samuel Alito was up for a position on the federal bench there in 1990, he revealed all the holdings that he had here in Vanguard at that time over 16 years ago. Around 80,000 at that point. And also he wrote -- he put down in writing that he didn't think any conflicts of interest would arise from his financial holdings but that he would disqualify himself from any case relating to the Vanguard companies. That's from 1990.

Also in his questionnaire that he submitted to the Judiciary Committee this time around, also revealing how much he had in these mutual funds in Vanguard. Now, the question has arised that Senator Kennedy has been pressing that why did Samuel Alito not then recuse himself for a case in 2002 involving Vanguard.

Now, the blogs, also the liberal blogs, are pushing on this one. Think Progress, for example, this is the blogging arm of the Liberal Center for American Progress here in Washington, asking why Samuel Alito hasn't gone ahead and said he will recuse himself for any case in the future involving Vanguard if confirmed to the Supreme Court.


BLITZER: All right, Abbi, thank you very much.

You wanted to weigh in? Yes?

TOOBIN: Well, in fairness to Alito, the judicial ethics rules specifically say that you can sit on cases involving mutual funds if you don't manage the funds. And he doesn't manage the funds. He just owns them. So he was -- he didn't arguably abide by his pledge, which he said had an implicit time limit. But he certainly didn't violate the ethics rules. That's the point Senator Hatch was just making a few minutes ago.

BLITZER: And you know, the other interesting thing is that the Democrats, at least so far -- I haven't heard them pick up any hard questioning on the Princeton Alumni issue as -- in contrast to yesterday.

GREENFIELD: Well, because I think what we heard was the staff went through the papers. They couldn't -- apparently his name doesn't even show up in these four boxes of 30-year-old magazine articles from a conservative group. They should get combat pay for that. Imagine having to read pieces by sophomoric sophomores.

BLITZER: It's like your legislative assistants on Capitol Hill. That's their job.

GREENFIELD: I used to be a junior one of them. And that stuff rolls downhill, as they say.

BLITZER: Let's go back to the hearing room right now. Joe Biden, Democrat of Delaware, continuing to question Samuel Alito.

ALITO: ... go into the stare decisis analysis. If you said I don't believe, I'm not absolutely required to follow prior Supreme Court precedent, and I regard every question as a completely open question, I think...

BIDEN: With all due respect, the way it would likely take the form is a justice could say I disagree with the line of cases that say that, you know, a president needs congressional authority, or that a, whatever the line of cases are.

They're not likely to say I disregard stare decisis. It's like what Scalia said in the abortion case, he said, "Look, we just look at this head on. Roe v. Wade is wrongly decided. We should just say so." And he's entitled to do that. And if he had a majority -- I'm not suggesting what you would do on that -- he's entitled to do that, and that wouldn't be a violation of any written or unwritten code that relates to a Supreme Court justice's conduct, would it?

ALITO: Different justices and different judges have different views about stare decisis, but my view is that you need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important. But I've also said it's not an inexorable command.

In the area of constitutional law, there has to be the ability to revisit a case like Plessy v. Ferguson. I don't think anybody would want a system of stare decisis that made that impossible.


My time -- three minutes left -- I'd like to try to get quickly to another area here, if I may, that you've been questioned on, this notion of unitary executive and the questions referencing Morrison and the dissent of Scalia, et cetera.

As I reach and teach the dissent of Scalia -- and I won't take the time, in the interest of time, to read his exact language -- he has a very scathing and intellectually justifiable, many would argue, criticism of the test employed by the majority in that case to determine whether separation of powers has been breached. He argues there are very bright lines, that there can be no sharing of any of the power. If it's an executive power, it's an executive power and it's executive power.

He would argue that the alphabet agencies -- the FDA, the FCC, the EPA -- they are really not constitutionally permissible because the FDA makes a legislative judgment, it makes a judicial judgment, and it imposes fines and penalties, and so therefore it does all three things as sort of the bastard child.

But most of the -- the majority of the justices say that as long as the power one branch is using does not unduly trench upon the power of the other branch, or it does not substantially affect its ability to carry out its powers, then that's permissible.

BIDEN: Which school of thought do you fall into?

ALITO: Well, different issues are presented in different factual situations.

BIDEN: That's why I didn't give you a specific issue.

ALITO: Well, I think you need a specific issue in order to answer it's. For example...

BIDEN: OK, the FDA, is it constitutional, Federal Drug Administration?

ALITO: I don't know whether there are statutory restrictions on the removal of the FDA commissioner.

BIDEN: No, but there are. The FDA does exercise judicial power. It makes judgments -- "You, drug company A, violated the law."

ALITO: And I don't know any constitutional object to that.

BIDEN: Well, Scalia?

ALITO: I don't know that he would have a constitutional objection to that. My understanding is that he would not have a constitutional objection to their doing that, but I could be mistaken.

And I wouldn't want to prejudge my constitutional question that might be presented to me. But I'm not aware of a constitutional -- if there isn't any limitation on removal, then there obviously isn't a removal issue there.

As to the agencies where there are restrictions on the removal of commissioners who are appointed for a term, that issue is dealt with in Humphrey's Executor and Wiener and in Morrison. And Morrison was 8-1 and the other cases would be, sort of, a fortiori from Morrison.

BIDEN: Well, my time's up. And hopefully someone will pursue this unitary executive issue about private suits, because I thought what you explained was a little inconsistent, or I don't understand it. But I'll let someone else do that.

Thank you very much.

SPECTER: Thanks very much, Senator Biden.

Senator Grassley has asked that his time be reserved. Senator Grassley has other duties which he had to attend to. He was here earlier; will be back. He's also chairman of the Finance Committee.

Just a word, when senators come and go -- everybody has many committees and many constituents and many visitors and many callers. So when they're not here, you can conclude they're otherwise engaged.

And Senator Grassley is now.

SPECTER: But his time is reserved.

Senator Kohl has asked for 20 minutes.

Senator Kohl, we'll set the clock at 20 minutes for you. And as I said earlier, we have some flexibility here.

SEN. HERBERT KOHL (D), WISCONSIN: I thank you very much, Mr. Chairman.

Elected officials make decisions on issues...

BLITZER: All right, we're going to break away briefly from the hearing, but we'll go back there shortly. Remember if you want to watch on your computer, your laptop, your desktop. A special service that CNN is providing, uninterrupted streaming of the hearing directly from the Senate Judiciary Committee.

Jeff Greenfield, Jeff Toobin are here in THE SITUATION ROOM. We're watching all of this. It's wrapping up right now. Clearly the fireworks, at least as of now, are gone. There weren't much fireworks to begin with. It doesn't look like the Democrats are going to go forward with a filibuster, although you never know.

GREENFIELD: No, I think we're as close to knowing this as you can know without an absolute certainty. The irony -- it's not an irony, I hate that word. But interestingly, the actual confirmation vote, assuming there's no filibuster, is likely to be reasonably close. You know, there'll be maybe -- we know one Democrat who's probably going to vote for Alito and that's Ben Nelson of Nebraska.

But, in fact, what interests me is, all right, if the bar that they thought was set to help block Alito -- that's what some Democrats thought -- and that apparently isn't going to happen. Then you look ahead to a possible next Supreme Court nomination and you wonder, all right, is there a candidate the Bush administration can offer that would, in fact, trigger a successful filibuster between the Democrats and some moderate Republicans?

TOOBIN: I don't know. Certainly Alito has proven to be less controversial than many Democrats expected. There are other candidates out there like Janice Rogers Brown, who's on the D.C. Circuit, Edith Jones, who's on the Fifth Circuit, who are perceived to be even more controversial. But perhaps the message of the Alito hearings is with 55 Republicans on the Senate, a 10-8 advantage on the Judiciary Committee, President Bush has a little more room than people thought.

BLITZER: So you're saying that you don't think Alito's going to get anywhere near the 22 Democratic supporters that John Roberts got?

GREENFIELD: Yes, I'm saying Judge Roberts got 78 votes. Only 22 voted against him.

BLITZER: Twenty-two Democrats voted for him.

GREENFIELD: Oh, no, I think it will be more like four or five. But the point is the key to this was whether or not there was enough critical mass established during these hearings to trigger not only a filibuster, but the likelihood that Republicans couldn't get enough of their people with them to end all judicial filibusters, that so-called nuclear option. I'm pretty sure -- I could always call for one order of crow -- but I'm pretty sure that's not going to happen. And what Jeffrey is saying, OK, so just where is the line? How conservative a judge or how activist conservative a judge would have to be nominated to give the presidential nominee trouble?

The irony is, the one trouble he got into was from his own people, when he nominated Harriet Miers and it was, well, we don't like her qualifications and we don't trust her on overturning Roe. That was the...

And not to get too far ahead of ourselves here. But the next vacancy is likely, in many respects, to be more important than this one. Even though the Democrats are making out like Sandra Day O'Connor was some liberal, she was basically a conservative justice being replaced by another conservative justice. If John Paul Stevens or Ruth Bader Ginsburg would leave, then there would be a major, major change.

BLITZER: All right, stand by. We're going to take a quick break. We're going to go back to the hearing. We're also monitoring the Defense Secretary Donald Rumsfeld. He's briefing reporters together with the chairman of the Joint Chiefs of Staff, General Peter Pace. We'll monitor what's happening at the Pentagon on the war in Iraq, all the day's other news. We'll be right back.


BLITZER: Welcome back to THE SITUATION ROOM. I'm Wolf Blitzer in Washington. We're monitoring several developments. The confirmation hearings of Judge Samuel Alito continuing on Capitol Hill. They're expected to wrap up in the next hour or two with his questioning, but other witnesses will be appearing before the committee as well. Also at the Pentagon, the Defense Secretary Donald Rumsfeld is briefing reporters together with General Peter Pace. The chairman of the joint chiefs of staff, General Pace is answering some questions right now on treatment of prisoners.

Let's listen in.


GEN. PETER PACE, CHAIRMAN OF THE JOINT CHIEFS OF STAFF: ... to give up their individual rights as people.

QUESTION: One question on the armor issue. I want to go back and use your example of the Higgins boats (ph) and the capability- based planning. One connected case of the Higgins boats in this were up-armored interceptor vests and side-plate armor. Obviously there's a controversy now that there's a shortage of that armor.

Mr. Secretary, was there a failure, a capabilities-based planning in terms of the Iraq war for individual soldier equipment and vehicles, i.e. planning for unforeseen adversary capability capabilities? PACE: The short answer is no. Yes, the longer answer is Higgins boats were designed in between wars. And when it turned out that is what was needed, the country built a lot of them.

DONALD RUMSFELD, SECY. OF DEFENSE: In fact, the strategy to use them, as I pointed out.

PACE: Up-armored humvees and these sappy protection, were designed before the war. And as we got into the war, the Congress of the United States provided the resources and we have built literally -- beyond 700,000 flack jackets right now have been produced since the beginning of the war. There were 40,000-plus armored vehicles. So the fact that you are doing what you should be doing, prospectively looking at potential capacities and having those available doesn't mean that everything you have on the shelf you should have a world supply of right at the beginning of a conflict that before you know that you're going to need those particular things.

So I would tell you the fact we had the (INAUDIBLE) armor, the fact that we had the up-armored vehicles is an indication that we had people thinking about the right things.

QUESTION: Well, is it fair to say these -- that you underestimated not only the resiliency, but the extent of an insurgency that would be 360 degrees, soldiers would be attacked on the front lines, the back lines, sidelines?

PACE: No, because you have tanks and Bradleys that were clearly available to us, and have been available to us since the beginning of this conflict. What was different was that the commanders on the ground believe the techniques and procedures were better than not to have our guys in those kind of huge armored vehicles to go be able to interact with the populous, and therefore something was different was needed for this different kind of war. The different thing was the up-armored humvee that was available from the stockpile, but not in the numbers that we eventually needed.

QUESTION: Mr. Secretary, the question I was going to ask based on what is happening in Iran, and the fact that the United Nations will probably not act, is it time, perhaps, to seriously consider invoking the military option. But I'm not going to ask that, because if you want to answer it, you may.

But based on the opening remarks, I call to your attention an article by a British brigadier in a U.S. Army journal, where he says that the U.S. army is culturally ignorant of Iraq and Iraqis, that we are given to unwanted and unwarranted optimism, and that we are guilty of institutional racism, which he claims has added to the growth of the insurgency.

I guess his bottom line, however, in all of this, is that perhaps the United States is fighting insurgents improperly. Under your transformation of this event meeting, are you going to revise your tactics, instead of going in with massive troops, and armies and navies to fight insurgents in future battles? RUMSFELD: I've not read the article that this individual apparently has written. And it just -- from your characterization of it, as imperfect as it may be, or perfect as it may be also, yes, it seems to me that one would make a mistake to think that one size fits all, that there is one way to do something and only one way, or that the nature of the situation on the ground in Iraq, for example, is identical in all sections of the country, which it is not. Or that the situation on the ground in Iraq is identical to what's taking place in Afghanistan, which it is not. And broad sweeping generalizations of that type need to be supported by information, and I've not had an opportunity to read it.

PACE: Can I answer the question?


PACE: One very are important point about that article is it was published in a U.S. Army professional journal, a journal that was designed exactly for the opportunity for individuals to express their opinions and get dialogue going in the community.

So for this individual to write what he wrote, the Army to publish it and to get that kind of debate going is very, very healthy. If only one percent of what he said turns out to be something that needs to be adjusted to, then we're all better off for it.

One thing he did say that I disagree with, is he characterized central decision making as a particular problem for the United States Army. The truth of the matter is that we have central planning, but it's our lance corporals, and corporals, and lieutenants and captains, operating on the battlefield and making decisions as they go that carry the day.

QUESTION: Mr. Secretary, I'll ask the Iran question -- what are your thoughts on the latest developments inside Iran? And can the U.S. -- can the world afford to let Iran get a nuclear bomb?

RUMSFELD: The subject of Iran is something that the president is addressing and the Department of State is addressing. And have -- they both commented on it. It's an issue that the nations of the E.U. have banded together to work with Iran on it and have thus far not been successful, and I'll leave it to the foreign policy experts.

QUESTION: You guys learned that the German, French and British foreign minister's hedge could be referred to the U.N. Security Council. If economic sanctions don't work, is the U.S. prepared for military action against Iran?

RUMSFELD: I'll leave those questions to the White House and the Department of State.


QUESTION: Mr. Secretary, in response to questions about General Miller's situation, you cited that there have been a dozen or so investigations and inquiries into the treatment of prisoners by the U.S. military.

RUMSFELD: Major investigations, yes.

QUESTION: Are you confident that there was no officially sanctioned and/or ordered abusive treatment of prisoners or overly aggressive interrogation tactics ever at Guantanamo and are you confident that none of those tactics, if they existed, were then somehow transferred to the situation at Abu Ghraib?

RUMSFELD: The -- of the various -- of the 12 major investigations, several addressed issues of that type and they concluded that that was not the case.

QUESTION: And you are confident in those conclusions?

RUMSFELD: We have also looked at the situation. And what is -- what took place at Guantanamo is public -- a matter of public record today. And the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment.

And it is also clear by the very fact that some 250 people have been punished in one way or another, that there was behavior that was inappropriate. And so I think that responds to...

QUESTION: I guess the question would be -- while there may have been no policy in the department, are you confident that military leadership, either at Guantanamo or Abu Ghraib, did not sanction and/or order abusive treatment or overly aggressive interrogation tactics of prisoners?

RUMSFELD: The -- if you go back to those investigations, I believe all or most are a matter of public record, are they not?

QUESTION: There's one or two that just (INAUDIBLE) yet.

RUMSFELD: The -- what they indicate is that, to the extent of abusive or improper conduct by military people took place, that it has been investigated in every instance and where appropriate it's been punished. And it has not suggested that there have been policies that authorized or approved that.

BLITZER: All right, we're going to break away from the Pentagon briefing. Donald Rumsfeld, General Peter Pace briefing reporters. We'll continue to monitor it for you.

But there's a developing story that Daryn Kagan is following at the CNN Center. Daryn, tell our viewers what's going on.

KAGAN: Wolf, this story developing not that far from us here in the Atlanta, to the northwest of Atlanta. The wreckage of a Navy jet, it was discovered just last night in the woods north of Atlanta between Chattanooga and Atlanta.

It's a -- the Navy is confirming that the four people who are on board this jet crashed and that they are dead. They include a Navy instructor, a Navy student, an Air Force student and a civilian contract pilot. Their identities haven't been released, as they still are contacting next of kin.

This particular plane took off from Chattanooga, Tennessee. It was supposed to land at Pensacola Naval Air Station in Florida around 3:00 yesterday, following a low-level bomb training mission. And then when it never showed up, the search started in. They had to use infrared equipment late last night to find this wreckage.

But once again, this is what's left of this Navy jet. Four people were on board. There are no survivors. The cause of the crash is still under investigation. Back to you.

BLITZER: Thanks, Daryn. Thank you very much.

We're going to continue to go back to the Samuel Alito confirmation hearings. They are continuing before the Senate Judiciary Committee. We'll go there live right after this short break.


BLITZER: To our viewers, you're in THE SITUATION ROOM, where new pictures and information from around the world are arriving all the time. Happening now, our special coverage of the Samuel Alito confirmation hearings. It's approaching 11:00 a.m. here in Washington, where Democrats are getting what may be their last shot at the president's Supreme Court nominee.

Some are wondering if all the time, tension and questions are even worth it. One of the 11th hour lines of attack, presidential power. What are the limits on the commander in chief? Where does Samuel Alito draw the line?

And a stampede in the Muslim holy city of Mecca. It's approaching 7:00 p.m. in Saudi Arabia, where the final day of the Hajj pilgrimage ended with bodies on the ground and heartbreak.

I'm Wolf Blitzer. You're in THE SITUATION ROOM.

There's a recess in the Samuel Alito hearings on Capitol Hill right now. We're going to go back there live once the committee members and Samuel Alito return.



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