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Elena Kagan's Confirmation Hearings; Senator Sessions Comments on Kagan Hearings; Senators Consider Petraeus Confirmation>

Aired June 29, 2010 - 11:00   ET


CANDY CROWLEY, CNN ANCHOR: Let me just interrupt here, because Senator Hatch, who we were just talking about, is still questioning Elena Kagan. Let's go back to the hearing room.


ELENA KAGAN, SUPREME COURT NOMINEE: Senator Hatch, putting the Citizens United case to the side, I think that there are extremely important constitutional principles that prevent the government from picking and choosing amongst speakers except in highly unusual circumstances with hugely compelling interests.

SEN. ORRIN HATCH (R), UTAH: Well, what's highly unusual about a book or a pamphlet or a movie?

KAGAN: Well, Senator Hatch, I said putting Citizens United to the side, I argued that case. I argued it on behalf of the government because Congress had passed a statute. We are --

HATCH: You do believe it was wrongly decided, too, don't you?

KAGAN: I'm sorry?

HATCH: You did take the position it was wrongly decided?

KAGAN: I -- I absolutely said, Senator Hatch, that when I stepped up to the podium as an advocate, I thought that the U.S. government should prevail in that case and that the statute should be upheld.


KAGAN: I wanted to make a clear distinction between my views as an advocate and any views that I might have as a judge.

I do think Citizens United is settled law going forward. There's no question that it's precedent and it's entitled to all of the weight that precedent usually gets. I also want to make clear that in any of my cases as an advocate -- and this is Citizens United or any of the other cases in which I've argued -- you know, I'm approaching the cases as an advocate from a perspective of --


KAGAN: First, the United States government interests and also it's a different kind of preparation process. You don't look at both sides in the way you do as a judge.

HATCH: I got that. I got that. I don't have any problem with that. All I'm saying is, is that we've had arguments right here in this committee that this is a terrible case that upset 70 years of precedent, and I've heard all these arguments and they're just inaccurate and that's what we're establishing here.

When President Obama criticized the Citizens United decision in the State of the Union address with the Supreme Court justices sitting there, he said that it would allow foreign corporations to fund American elections. Others have said the same thing.

Do you agree that this case involved an American nonprofit organization, not a foreign corporation, that this case involved independent political speech, not campaign contributions, and that the separate laws regarding political spending by foreign corporations and campaign contributions by anyone are still enforced today?

KAGAN: Senator Hatch, this case did, as you say, these parties were domestic, nonprofit -- was a domestic nonprofit corporation.

HATCH: OK. Yes, well, there was no foreign corporation involved. That's one of the points I'm trying to establish, and it was misstatement of the law. And I'm not here to beat up on President Obama. I just want to make this point, and all I said just accepted that like that is true.

It isn't true. In First National Bank of Boston versus Belotti, the Supreme Court held a 1978, more than 30 years ago, that, quote, "The identity of the speakers not decisive in determining whether speech is protected. Corporations and other associations like individuals contribute to the discussion, debate and the dissemination of information and ideas that the First Amendment seeks to foster," unquote.

Belotti was decided just two years after the landmark case of Buckley versus Valeo. In Belotti, the court recognized that corporations have a First Amendment right to engage in political speech and that decision Chief Justice Berger wrote an interesting concurrence in order to, as he, quote/unquote, "raise some questions likely to arise in the future," unquote.

These questions included that large corporations would have an unfair advantage in the political process. He had some amazing insight there, I think, because some people -- because people are making just such arguments today.

That case also involved the First Amendment Protection of the Press that Berger noted how the government historically has tried to limit what may be said about it. He concluded, quote, "In short the First Amendment does not belong to any definable category or persons or entities. It belongs to all who exercise its freedoms," unquote.

Do you agree with that?

KAGAN: I'm sorry, Senator Hatch, the -- HATCH: Do you agree with Justice Berger's comment there?

KAGAN: But would you read that again? I'm sorry.

HATCH: Sure, I'd be glad to. He said, "In short the First Amendment does not belong to any definable category of persons or entities. It belongs to all who exercise its freedoms."

KAGAN: Senator Hatch, It's -- the First Amendment protects all of us and grants all of us rights.

HATCH: Right. A very important fact. In Citizens United -- I get a little tired of people on the left saying it was a terrible case, wrongfully decided, when frankly -- let me make this point.

In Citizens United, the court listed at least 25 precedents dating back almost 75 years. Here's a list of them right here. Holding generally that the First Amendment protects corporate speech and specifically that it protects corporate political speech.

Now I'd like to put these cases in the record at this point. On the other side of the presidential scale is a single a 1990s decision in Austin versus Michigan Chamber of Commerce. As the court said in Citizens United, no other case held that Congress may prohibit independent expenditures for political speech based on the identity of the speaker.

In other words, Austin was the aberration, the exception, the break in the court's consistent pattern of precedence. And many folks have -- and Mr. Chairman, I'm going to need about 30 seconds more just to finish then I'll --


HATCH: OK. Many folks have attacked the decision saying it is a prime example of, quote, "conservative judicial activism," unquote, because it ignored precedent by overruling Austin.

But by overruling that one precedent, wasn't the court really reaffirming a much larger group of previous decision including Belotti, that as we discussed affirmed that corporations of a First Amendment right to engage in political speech, and that includes all these smaller corporations. That sounds like the court is committed to precedent, not rejecting it.

Now I thank my -- I thank my chairman for allowing me to make that last comment, but I get a little tired of people misstating what Citizens United is about.

KAGAN: Well, Senator Hatch, I think that the --

HATCH: And I appreciate your comments here today.

KAGAN: Senator Hatch, I think that there was a significant issue in the case.


KAGAN: About whether Austin was an anomaly as you quote it or whether it was consistent with prior precedent and -- and consistent with subsequent precedent as well. And certainly the government argued strenuously that Austin was not an anomaly, although the court disagreed it and held that it was.


LEAHY: Senator Feinstein is recognized and then after round of questioning, we'll take a break.

Senator Feinstein?

SEN. DIANE FEINSTEIN (D), CALIFORNIA: Thank you very much, Mr. Chairman. I just want to clear up one thing before I go on.

JOHN KING, CNN ANCHOR: Senator Dianne Feinstein, Democrat of California, continuing the questioning of the president's Supreme Court nominee, the current solicitor general Elena Kagan.

Let's come back into the room here and have a conversation about what we just watched.

Candy Crowley, Jeff Toobin, Victoria Toensing, Gloria Borger, Donna Brazile and Ed Rollins with us. We'd make a great law firm.

Got a little bit contentious there. The Republicans taking issue with her but, Jeff, more so with this big case of Citizens United. That was more Orrin Hatch giving a lecture to the left, not so much Elena Kagan, about a very important case that relates to both campaign finance but to the big broader issue of First Amendment rights?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: First Amendment rights are always a big issue in the Supreme Court and this is a case that shows how First Amendment rights have shifted over time.

The traditional First Amendment rights have been about individuals -- the right to protest, the right to speak out, the right to support unpopular causes. But this is a case that talks about the First Amendment rights of corporations who are generally powerful players in the country.

And Democrats, usually backers of the underdog, have been very hostile to this case because they believe that in giving corporations and labor unions a lot of power that distorts the marketplace for ideas.

So that's -- that's the debate that is at the core of Citizens United.

VICTORIA TOENSING, FORMER JUSTICE DEPARTMENT ATTORNEY: I want to join politics and law together for just a moment. That is, the Republicans got behind on the message of this case.

Democrats came out of the ballpark, and newspapers, the press, everyone has followed along behind saying, the Supreme Court allowed big, bad corporations to contribute all this money to these issues. And I can't tell you how many newspaper articles you'll see where they don't mention unions. They don't mention small companies, nonprofits. . They just say corporations.

So the message has not been out there. I think --


TOENSING: What hatch is doing --

TOOBIN: Where is the power in the society?

TOENSING: Wait a minute.

TOOBIN: Labor unions?


TOOBIN: This is a dying entity.

TOENSING: Excuse me? Who just spent money in the primaries with the labor unions political correspondents?


ED ROLLINS, CNN CONTRIBUTOR: There's actually no evidence that any corporation are raising to basically stick money. They had independent expenditures before. And I think what this real issue is, the president threw the gauntlet down.

The president made this the first case of this is a court that basically is moving too far to the right and is challenged. I think is what everything is responding to.


CROWLEY: Let me interrupt you just because something is going on in the Kagan hearings that we want to get to.

Senator Dianne Feinstein speaking about the gun issue, specifically whether there should be limits on gun use and gun ownership. Here you go.

FEINSTEIN: OK. This is a 5-4 closely decided decision in both cases. California is not Vermont. California is a big state with roiling cities. It's the gang capital of America. The state has tried to legislate in the arena.

As I understand McDonald, it's going to subject virtually every law that a state passes in this regard to a legal test, and that causes me concern because states are different. Rural states have different problems than large metropolitan states do.

I mean, we probably have as many as 30 million people living in cities where the issue of gangs is a huge question. So here's my question to you.

Why is a 5-4 decision in two quick cases -- why does it throw out literally decades of precedent in the Heller case in your mind? Why does it -- why do these two cases become settled law?

KAGAN: Senator Feinstein, because the court decided them as they did, and once the court has decided a case, it is binding precedent. Now there are various reasons for why you might overturn a precedent, if the precedent is -- had proved -- proves unworkable over time or if the doctrinal foundations of the precedent are eroded or if the factual circumstances that are -- were critical to why the precedent -- to the original decision, if those change.

But unless one can sort of point to one of those reasons for reversing a precedent, the operating presumption of our legal system is that a judge respects precedent, and I think that that's an enormously important principle of the legal system, that one defers to prior justices or prior judges who have decided something and that it's not enough, even if you think something is wrong to say, oh, well that decision was wrong, they got it wrong.

That the whole idea of precedent is that's not enough to say that a precedent is wrong. You just -- you assume that it's right and that it's valid going forward.

FEINSTEIN: OK, let's go to the 1973 case of Roe v. Wade, the 1992 case of Planned Parenthood versus Casey, the 2000 case of Stenberg v. Carhart. In those cases, the Supreme Court clearly stated, and I quote, "Subject to viability, the state in promoting its interest in the potentiality of human life may, if it chooses, regulate or even prescribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother."

That's 30 years of case law. But in the 2007 case of Carhart v. Gonzalez, the court issued a 5-4 decision upholding a statute that did not contain an exception to protect the health of the mother for the first time since Roe was passed in 1973.

So, let me ask you clearly, in a memo that you wrote in 1997, you advised President Clinton to support two amendments to a late-stage abortion bill to ensure that the health of the mother would be protected.

Here's the question. Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?

KAGAN: Senator Feinstein, I do think that the continuing holding of Roe and Doe versus Bolton is that women's life and women's health have to be protected in abortion regulation.

Now the Gonzalez case said that with respect to a particular procedure, there was -- that the statute Congress passed, which passed the statute without a health exception and with only a life exception, was appropriate because of the large degree of medical uncertainty involved.

FEINSTEIN: Because of the procedure?

KAGAN: Because of the procedure.


KAGAN: But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman's life and that the woman's health must be protected in any abortion regulation.

FEINSTEIN: Thank you very much. Let me move on to executive power, if I might. Some on the left have criticized your views on executive power, finding fault with your testimony during a 2009 confirmation hearing as solicitor general in which you agreed with Senator Lindsey Graham that the law of armed conflict provides sufficient legal authority for the president to detain individuals suspected of terrorist ties without trial.

You also agreed that the courts have a role in determining whether a particular detention is lawful and that substantive due process is required before an individual may be detained.

You agreed during the aforementioned hearing that an individual suspected of financing al Qaeda in the Philippines was, quote, "part of the battlefield," end quote, for the purpose of capture and detention.

Could you elaborate on the scope of the president's authority to detain individuals under the law of armed conflict?

KAGAN: Senator Feinstein, the conversation that Senator Graham and I had, and I believe in that same hearing, you asked a similar question, starts with the Hamdi court, where that Supreme Court said that AUMF, the Authorization for the Use of Military Force, which is the statute that applies to our conflict with Iraq and Afghanistan, that the AUMF includes detention authority.

Detention -- and Hamdi said that the law of war typically grants such authority in a wartime situation and interpreted the AUMF consistent with that law of war understanding.

Now the question of exactly what the score of that detention authority is has been and continues to be the subject of a number of cases. And in the role of solicitor general, I've participated in some of those issues.

The Obama administration has a definition of enemy belligerence that it believes are subject to detention under the AUMF and as approved by Hamdi, and the solicitor general's office has used that definition of an enemy belligerent, which is a person who is part of or substantially supports the al Qaeda and Taliban forces.

And that's the definition that the solicitor general's office has advocated as has the rest of the Justice Department. Now there are a number of uncertain questions in this area that almost surely will come before the Supreme Court, questions about whether the scope of the definition that the Obama administration has been using is appropriate, whether it's too broad, whether it's too narrow, where the battlefield is, what counts as -- you know, do you have to be a member of a fighting force or is it sufficient that you support the fighting force, and if so, what kind of support might give rise to detention?

So all of those questions are, I think, questions that might come before the court in the future. The Obama administration has taken views as to some of them, not all of them, in cases that have been litigated over the past couple of years, but there is certainly quite a number of questions that will come before the court about the exact scope of detention authority.

FEINSTEIN: So, if I understand you correctly, you would say that the executive's power in this area is really limited by the specifics of the actual situation. If I understand what you're saying.

KAGAN: Senator Feinstein --

FEINSTEIN: And that the president does not have an overriding authority here.

KAGAN: Senator Feinstein, the way that the Solicitor General's Office has argued these cases and the entire Department of Justice is on the basis of statutory authority, is on the basis of the AUMF, the Authorization for the Use of Military Force.

And we have actually never argued that Article 2 alone would provide such authority, and the question you raise really -- the usual framework that people use when they think about this question is something called Youngstown, the -- of course, Justice Jackson's opinion in Youngstown.

And he sets forth three different zones. He says well, in one zone, the president can act in accordance with congressional authority and that is the easiest for a court to validate, to say look, Congress and the president are acting together, the president is acting in specific accordance with what Congress has told the president to do, the court should give real deference to that.

FEINSTEIN: Let me stop you here, because it's the three-pronged test and we've discussed this in almost every Supreme Court confirmation hearing now.

The concern is where there isn't legislation, and -- or when the third prong, when legislation may say the opposite, can the president exceed that legislation and how strong is his authority?

You say it's not the commander in chief authority, it's the AUMF authority that prevails. Do I understand that correctly?

KAGAN: It's essentially what the Solicitor General's Office and the Department of Justice has been arguing in these last two years, is that we're in zone one which is where the executive is acting with Congress' authorization, rather than in zone two, where the executive is acting and Congress hasn't said anything. Or, zone three, where the executive is acting as against Congress' statement to the contrary.

So those would present very different issues. Whether the president has authority to detain where Congress has not said anything or, still yet, whether the president has the authority to detain where Congress has specifically deprived him of that authority. That would be a very different question indeed.

FEINSTEIN: Let's talk about that for a moment because that's something I had something to do with, and that is expanding the exclusivity portion of the Foreign Intelligence Surveillance Act to say that the executive authority may not exceed in statute --

KING: You're watching Elena Kagan, the president nominee for Supreme Court, at the moment being questioned by Democrat Diane Feinstein on a very important issue of executive power and how it plays into terrorism cases that could make their way before the Supreme Court, the Supreme Court she might sit on in just a few short months.

Let's check in at the moment, though, with Jeff Sessions. He's the ranking Republican on the committee. He's up in our booth now. He has been down in the room for these hearings over the last two days.

Senator Sessions, let me start with this simple question. One of the questions coming in is, would she be specific? Would she meet the Kagan standard, the standard she set out in academia about nominees being more specific at these hearings?

You had an exchange with her about Harvard, about "Don't Ask, Don't Tell." She's talked about executive power, about Roe v. Wade, about gun rights. You may not like some of her answers, but is she being, in your view, candid with the committee?

SEN. JEFF SESSIONS (R), JUDICIARY CMTE., RANKING MEMBER: I have to say I'm very troubled by her testimony, John. I thought that the points I raised with her, she would acknowledge immediately. I've been very frustrated with the White House false spin out here about what really happened at Harvard.

I was deeply disappointed that she seemed to have followed the White House spin and ignored the reality. She suggested she was following the Third Circuit Law when the Third Circuit Law never applied at Harvard. She backed off of that.

She said when she stopped giving the military equal access to the recruiting office on Harvard campus and suggested that when Harvard changed that policy, it was after a meeting with the military when, in fact, the military had to threaten to cut off funds to Harvard again, and that's when Larry Summers, then president of Harvard, reversed her policy. And in fact the military documents show that she objected. So I was really troubled by this. I begin to worry -- it worried me whether she had the intellectual honesty, the clarity of mind that you would expect on the Supreme Court of the United States, our highest court, that demands clarity of thought, intellectual honesty, rigor and analysis. And I was disappointed, frankly.

KING: That's a -- that's a tough thing to say. You question whether she lacks the intellectual honesty. That's not saying you disagree her on a legal question. That's questioning her character. Her intellectual honesty.

I want to play a little bit of that exchange because I want you explain to me why you think -- at least you're skeptical that she meets that test. But let's listen to some of that exchange.


SESSIONS: Now when you became dean, you personally opposed the "Don't Ask, Don't Tell" policy and felt strongly about it, did you not?

KAGAN: I do oppose the "Don't Ask, Don't Tell" policy.

SESSIONS: And did you then?

KAGAN: And I did then.

SESSIONS: And you in '03, not long after you had then become president, you 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 not within six months or so of becoming dean, and that was an e-mail you sent to the entire law school.

KAGAN: Senator Sessions, I have 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.


KING: So, Senator, I'm going to assume that you would give her points for candor there on what she thinks of the "Don't Ask, Don't Tell" policy.


KING: But in how the discrimination ban was implemented and how the recruiters were forced to go through the Veterans Office, and how that all played out, again, you're questioning her integrity here by saying you question her intellectual honesty. I want you to be as specific as you can in saying why you reached that conclusion.

SESSIONS: Intellectual honesty is a state of mind that you can be absolutely precise in your handling of these kind of matters. And it's a skill, not so much a character to fault. Something a good judge or a lawyer develops over years.

And I felt she tried to distance herself from this whole matter, tried to suggest that she was merely following the law when that was not accurate, that she had reached an accommodation with the military after she had booted them out of the Career Services Office and then they were let back on.

She said it was after a meeting when it's pretty clear from the documents that they were threatened again by the military because the law was never in doubt. It was always enforced at Harvard and they were about to lose their funding again and Larry Summers overruled her opinion apparently over her objection and said the military should have full, complete access.

So I thought, overall, it was an attempt to alter the reality of the situation. I was disappointed she just wasn't very -- wasn't forthcoming about her leadership role in that. She spoke to a protest group opposing the policy. She was very engaged in all of this.

CROWLEY: Senator Sessions, it's Candy Crowley. I want to ask you, continuing on this particular issue. You know now that she has obviously been opposed to the "Don't Ask, Don't Tell' policy for some time. You have your version of what went on on the Harvard campus. She has hers.

In it of itself, is any of that a disqualifier to sit on the Supreme Court?

SESSIONS: Well, she has her version and I have mine, but there is a true version. And we're going to get to that truth. We're not going to let this slide by. This is my opinion and this is your opinion, and it doesn't make any difference. There are true facts here. And -- I would say that it raises questions. I don't think she helped herself with that testimony today.

CROWLEY: But is it -- do you think that -- your version, let us say, and --


CROWLEY: And agree with you and stipulate that your version is correct. Is that enough to keep her off the Supreme Court?

SESSIONS: It raises additional questions in my mind. I didn't expect this kind of testimony. I didn't think that she would be -- it seems to me just going along with the White House spin on it that I have felt was inaccurate.

She stood up. She went too far. She violated the law. There was never any legal threat to the -- any legal overriding of the Solomon Amendment which required not access to Harvard but equal access to the Career Services Office, and she denied that without legal authority.

I would have thought she would have admitted it and was disappointed she did not. KING: Senator Sessions, John King again. Let me try it this way. If you emerge from these hearings and you are not satisfied that you have reached the truth or gotten her to acknowledge some things that you now view as misstatements or not consistent with reality, is this issue enough?

If you are unhappy coming out -- the Democrats have the vote, we assume. If they vote her out of committee, is this issue enough for you to say, I'm so unhappy, we should now consider the extraordinary step of a filibuster?

SESSIONS: Well, that's -- I'm premature to say that, but I do think that the matter is not healthy where it lies. I think the nominee has gotten herself in a position that does not -- is not becoming of a person who would like to be on the Supreme Court of the United States who every day is required to use rigorous analysis, intellectual honesty, clear judgment.

That's what we pay them for, not for politics, not for getting along, not for being a nice person, not being able to conduct strategy, but to rigorously analyze cases that come before them every day. And I was troubled by that. That's all I can say --

KING: Let me try it one more way. You say it's premature to make that decision. Republicans, including yourself as the ranking member have said you viewed it as very unlikely you will stage a filibuster. Are you more likely right now as we speak than when you woke up this morning and to go to leader McConnell and say, you know what, in this case, I think we should try to block her with a filibuster?

SESSIONS: Well, I'm more troubled about her nomination today than I was before -- now then when we started. I really was uneasy about the testimony. I don't think I'm being unfair, and so I am uneasy and more troubled today than before.

GLORIA BORGER, CNN CONTRIBUTOR: Senator Sessions, it's Gloria Borger.

Are you just simply saying you do not trust Elena Kagan?

SESSIONS: Well, what I'm saying is, having practiced before judges and seeing great judges, having seen the clarity of testimony of John Roberts and Sam Alito, this would never have happened to them, never.

BORGER: What about Sonia Sotomayor?

SESSIONS: And so I think this raises questions maybe about the gifts she has. Maybe her gives are accommodation or political. She's bright, there's no doubt about that. I don't think she's a person that's dishonest fundamentally, but I just think that you expect a lot out of a person who sits at the highest court in our land.

CROWLEY: Senator Jeff Sessions, ranking republican on the Judiciary Committee looking at Elena Kagan as the possibility of the next justice sitting on the Supreme Court. You will, as we know, have another round of questions. We will be listening to those. Thank you so much, Senator, for being with us.

SESSIONS: Thank you.

CROWLEY: We'll be back after a short break.


KING: The Petraeus confirmation hearing. Before the break, we were talking about the Kagan confirmation hearing. That's the kind of day it is here in Washington, a very consequential and important day. Question time for two big nominees, Elena Kagan for the Supreme Court and General David Petraeus, who is to become the commander of U.S. and NATO forces in Afghanistan.

That hearing is now in a brief break, but just a short time ago one of the key questions. President Obama said in July 2011 he will begin to bring U.S. troops home. Many republicans don't like that, they think it send the wrong signal to the enemy. They say success is when the troops should start coming home. Republican Senator John McCain making that point in his questioning of General Petraeus.


SEN. JOHN MCCAIN (R-AZ), RANKING MEMBER: That's the problem here in whether we are going to prevail and convince the people of Afghanistan to come over to our side and to stand up against the Taliban rather than, as the military person said, they say you'll leave in 2011, the Taliban will chop their heads off. It's frustrating.

General, at any time during the deliberations that the military shared with the president when he went through the decision-making process, was there a recommendation from you or anyone in the military that we set a date of July 2011?


MCCAIN: There was not by any military person that you know of?

PETRAEUS: Not that I'm aware of.


KING: Let's bring our Pentagon correspondent Barbara Starr into the conversation.

Barbara, the July 2011th date is one fascinating question for General Petraeus. Another one that he got to even in his opening statement is whether he will take a fresh look at the rules of engagement that you know better than anyone some of the troops on the ground in Afghanistan say from time to time has tied their hands behind their back. BARBARA STARR, CNN PENTAGON CORRESPONDENT: Yes, John, these were the two big issues so far this morning for General Petraeus. That 2011 withdrawal date, fascinating tidbit there that General Petraeus openly says it wasn't the military's idea but when it was posed to them by the political side of the house, if you will, they embraced it on those rules of engagement.

These are the very strict rules put into place of General McChrystal restricting the use of dropping bombs, restricting ground action in order to protect civilians, but many troops and their families and a lot of con turn nation about it. They believe it is putting their lives at risk, that they are not adequately able to defend themselves against the Taliban.

General Petraeus putting it right out there this morning saying he will take a very hard look at it. Whether he changes it or not is a different question, but he is signaling that he is well aware of how many troops are so deeply concerned about that issue, John.

KING: And on that point, when we watch the Kagan hearings we expect politics in the sense of you have someone who has served in political administrations who is now in a highly political environment, but when General Petraeus, Barbara, as you noted, he laid that out before the committee before anyone could get to it. If he says he will consider it, does that not almost send a signal to the troops that there will be at least some change?

STARR: Well, I think it possibly does. You know, how much change -- and the military is like everything else in Washington, what really is change?

What General Petraeus is likely going to do first is take a look at how it's being implemented. What he wants to make sure of is that the troops understand it and you don't have like one commander out there in Afghanistan who is maybe implementing it more strictly than another one and putting some troops inadvertently at risk. So he wants to look at all of that.

But, you know, John, you bring you politics and even though the military is not supposed to be political, it most certainly is. Senator Lindsey Graham, one of the top republicans on the committee from South Carolina, really turning a corner in this hearing and laying out how aggravated he seems to be about the whole thing. Have a listen.


SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: I don't know how this translates in Pashtun, but it is not translating well for me in English in terms of where we are and where we're going. And I would not use the term relentless, General, in terms of the policy where we are going regarding the enemy. That's my two cents worth.

Here's the summary of your testimony from my point of view, and I may be wrong. It doesn't appear there are going to be any civilian changes in terms of the team in Afghanistan. Is that correct? PETRAEUS: That's beyond my purview as a general.

GRAHAM: OK, well, from what I can tell, it doesn't seem to be any contemplated.

From your testimony, I think you have created an expectation by the American people that in July 2011 we will begin to withdraw from Afghanistan. Is that a correct assumption I've made or not?

PETRAEUS: What I have done is restate the policy as it currently exists, Senator. And the policy, again that as I stated I supported and agreed to back last fall, to begin a process in July 2011 under which tasks or transferred to Afghan Security Forces and government officials and a quote, "responsible drawdown of the surge forces begins pace to be determined by conditions."


STARR: "Determined by conditions." Keep listening, John, for the next several months for those words. Petraeus knows he is on the grill about all of this.

The 2011 date set by the White House by all accounts very vigorously endorsed by Vice President Biden, Chief of Staff of the White House Rahm Emanuel, but the military looking for wiggle room on that because they don't necessarily want to be held to withdrawing a large number of troops in July 2011. Right now, it looks like they may not be ready for that. So Petraeus knowing he's getting grilled but he's not going to stick on that rotisserie spit. He wants to get off that subject and get on subjects here that are a little more friendly.

CROWLEY: Barbara, let me ask you something about the rules of engagement. Because this intrigues me because part of what we've the soldiers on the ground ask about and complain about is that they feel that they are not allowed to aggressively either defend themselves or go after anyone because part of the counterinsurgency book which really General Petraeus wrote is that you both have to take out the enemy and then make friends with whoever is left.

So the thought that he might sort of step back from this to me is a little curious simply because wasn't that the whole point of his counterinsurgency plan?

STARR: Well, you know, exactly. And let's be very clear on this, he was General McChrystal's boss, so he would have had to approve anything McChrystal put in place and now suddenly he's changing his mind?

I don't think he's changes his mind per se. He wants to send a signal to the troops that he understands, that he gets their concerns. He wants to, if you will, fine-tune this, make sure it hasn't gotten out of whack that if troops are at risk, they can, in fact, call in bombs or other Military support to get them out of trouble.

The counterinsurgency doesn't mean that troops can't get themselves out of harm's way by shooting their way out of it but they are supposed to really protect civilians. It's a very fine balancing act. Petraeus wants to make sure it hasn't gotten out of balance.

CROWLEY: Everything about Afghanistan is delicate these days. Our Pentagon correspondent Barbara Starr.

Thank you, Barbara.

We want to take a quick break. But remember, very important day here on Capitol Hill. Both the Kagan hearings and Petraeus hearings. We will be back with both right after this.


CROWLEY: Welcome back to CNN's continuing coverage of two very big events on Capitol Hill, and two events, really, that touch the lives of so many Americans.

A new Supreme Court nominee being tested by the Senate Judiciary Committee, Elena Kagan. And then, of course, the confirmation hearings for General David Petraeus to head up -- to be the commander over in Afghanistan over NATP troops and U.S. troops.

Let me bring you in on this. You heard Barbara talking about the rules of engagement. We've seen the troops, heard the troops complaining about these, feeling that they really are constrained in their effort to move into various spots in Afghanistan.

ROLLINS: The rules of engagement are far more important than the July deadline. We're going into the most severe combat we've been in a long time. We're taking very heavy casualties. If the soldiers feel they don't have the opportunity to fight and eliminate some of that, the political pressure by Pelosi and others is going to be greater. If we have more bodies, we're going to basically be more concerned.

I would argue if Petraeus wants to be successful, he has to eliminate some of those rules of engagement, go full bore, let his men go full bore, do as well as they can and then you can argue about where we are down the road. But right now, short term, he's going to be tested by his men. Is he really a battlefield general who's going to come in here and let us do what we need to do?

CROWLEY: And, in fact, Donna, this has been the case all along that the Democrats are saying, whoa, whoa, whoa, whoa, what are we doing in here? And the Military for the past couple of months, it's going to be a deadlier summer. This month is the deadliest month in Afghanistan for U.S. Military forces this year.

Can Democrats withstand that and stick with their president on this?

BRAZILE: I think most Democrats, most Americans understand that this should not be an open-ended commitment. We've been there now nine years and we need to have tome benchmarks that will determine when we being to bring our troops home. The President has given the generals what they requested. They wanted more troops, he's deployed just about all of the troops they he committed to except for maybe one or two brigades that will go in later in August. At some point we have to continue to put pressure on Mr. Karzai and others to produce some of the results we need, village by village, tribe by tribe, so that the Afghans can provide their own security. That they clean up their government, that we eliminate some of these drug lords and we are paying for corruption in their government. This is a $7 billion a month commitment, in addition to the lives lost and the sacrifice that our troops are making. We cannot do it alone without the support of the Afghani people.

CROWLEY: Yes, well, and there's the rub, as we say.

The Afghani people and Karzai in particular, can he step up to the plate? Because I think almost anybody will tell you he hasn't done it.

BORGER: It's always been the problem, but what it's is what the United States has to deal with, so there you have it.

I think Petraeus is walking a fine line not only on the rules of engagement but he's walking this fine line on the time line and what you do. Because Nancy Pelosi wants a serious drawdown, as the vice president has spoken about, and John McCain wants conditions-based only. And you hear Petraeus today trying to split that down the middle. At his last hearing he said, we have to be very careful about time lines.

ROLLINS: It's very important to remember, when he stood there and asked Petraeus to take this mission, on the long, he basically said, we're going to be aggressive. He recommitted to this war, whether the Democrats like it or anybody else. To the American public he said, we're sending him in, we're going to driving out the Taliban out of there, we're not backing away.

BORGER: But he also said, don't be obsessive about the time line.

KING: But the great question now is disciplne of message. We call it message discipline in politics in the sense to that point. But we're in an election year. When they're out talking to the liberal groups which are unhappy with this war, you do have the speaker telling her own restive progressives in the House caucaus, we're going to get out, we're going to get out, because there's a move even to deny the funding by some. She's trying to say, calm down. We'll get there. The vice president is much more robust about what July 2011 means than the Military folks.

And my question is, does the mixed message undermine the mission?

BRAZILE: No. I don't think so. I think the mission remains the same, that is, to ensure that at some point within the next year, that the Afghan government and the Afghan security forces, including the police, are well trained so were can begin to drawdown our droops. The president stated the conditions on the ground, the reports he gets from the general will also help him form his opinion. There's another as assessment come December. Now, look, Democrats are restless. Some Republicans are restless about this war. They know the price that we're paying in Afghanistan. You also saw over the last couple of days that some of our coalition allies are also restless. We're not going to leave a security vacuum in Afghanistan, but we're not going to be there until the next 30 years.

ROLLINS: One last thing. The world of Washington will be a different place in December, than it is today.

KING: Consequential conversations about war and peace in Afghanistan. Peace doesn't come into the equation all that much, but the war in Afghanistan and what would be victory and success. That's one issue being dealt with today in a very consequential day in Washington, D.C. The hearings for David Petraeus, who will become the commanding general of U.S. forces there. Also, on the other side of the Capitol, in the Senate Judiciary Committee room, Elena Kagan, the president's Supreme Court nominee, we are tracking them both on a busy day here in Washington.

Stay with us.


KING: Welcome back to CNN's continuing coverage as we track two critical confirmation hearings, Elena Kagan, for the Supreme Court; and General David Petraeus to take over the command of U.S. forces and NATO forces in Afghanistan.

Let's take a look at the map to outline some of the huge challenges facing General Petraeus and the United States at this delicate moment in Afghanistan. Here you see the layout of the land. Afghanistan here, Pakistan on this side of the border. Where are the troops right now? These are the U.S. troops. There are some NATO troops, as well. We're approaching 100,000 troops now in Afghanistan. More troops in Afghanistan, than in Iraq as the drawdown in Iraq continues, as you can see, largely along the border areas stretched around the Kabul capital here.

Now let's look at attacks in recent days. As Candy noted just before the break, this has been a deadly month, the summer offensive. Down here in Kandahar there's been an offensive. Also there's some activity in the eastern region along the Pakistan border in recent days. As the Taliban knows the United States is focusing down here. There's been some evidence it wants to test U.S. forces up here.

Where are the risk regions in Afghanistan? The dark red shows you the risk and you get a sense there of the scope of the problem. Up here, Taliban strong holds. Down here, this large swath of the country where you have the big offensive. Again, 100,000, roughly U.S. troops in the area. One point worth noting, we should also note, Afghanistan matters not just because of Afghanistan, but because of these critical tribal regions right over here, just over the border in Afghanistan. It is here in these mountainous areas that al Qaeda still has some strong holds. That Osama bin Laden may yet be hiding.

So everything that happens in Afghanistan effects the situation in Pakistan, and part of the effort to prove that the Military can make progress in Afghanistan is to send a signal to Pakistan, to stay in the fight against the terror forces within its borders. A very complicated challenge. The questioning today, much more about the strategy, the lay of the land, here in Afghanistan, than it is about specifically about General Petraeus.

And Candy Crowley, as I toss back to you, that is the big question here. Elena Kagan is being questioned about her capabilities. There's no doubt about General Petraeus's capabilities, but there are a lot of doubts about the strategy.

CROWLEY: General Petraeus doesn't have to defend his credentials at this point. In fact, he's been confirmed up there a couple times. And the question really is the strategy. The question really is A, what sort of restrictions the troops are under. And B, that incredible map that we just now saw. Because while it may be true that U.S. and Afghan forces are in control of a lot of Afghanistan, the toughest parts, the Taliban-held places, are still where we are occupying most of our time, and where we're taking a lot of those casualties.

ROLLINS: There's another question. There's 40,000 NATO troops in there. Now seeing the British wanting to pull out, several others. And there's no good news going forward. And I think to a certain extent, we're going to have to carry this burden for a period, for ourselves. Whatever that period of time is will be determined obviously by the Congress and the funding. But the next six months are probably the roughest period we're going to have.

CROWLEY: And it makes for the Americanization of the war when others pull out their troops. And that's always a very dangerous time. When you cannot have -- well, it isn't just us. It's the following NATO countries. Once it gets Americanized, it just gets rougher.

UNIDENTIFIED FEMALE: There's not a very big coalition of the willing.


If we remember, the criticism of the Bush era --

UNIDENTIFIED FEMALE: There was, but this is a nine -plus year war.

ROLLINS: Remember, this was NATO. We turned it over to NATO. We went in and did what we needed to do initially, drove the Taliban out of the country. We left, we went to Iraq. NATO took it over. We're forced back because NATO couldn't move the ball forward, wouldn't commit the troops. If NATO starts with drawing, pulling back, whatever, then I think there's a pretty strong sign to the war defense here. CROWLEY: Gloria, the political question that John asked before we went to break, which is, are they going to -- this mixed message that General Petraeus is helping to put out there, which is we're going to leave. Well, we're only going to leave if the conditions on the ground.

BORGER: Yes, it's kind of a mommy/daddy thing, which is essentially if you're a liberal Democrat, you want Petraeus to commit on a time line. And he sort of said, yes, there's a time line. If you don't want a time line, and you think that it's counterproductive, he's talking about conditions on the ground.

And the question that John McCain raised today is a real question, which is, does a time line give you more incentive to make better decisions or incentive to make worse decisions on the ground? And how does that hurt your relationship with the Afghan forces on the ground? If people know -- and the population -- if people think you're going to leave, aren't they more likely to be afraid of what's going to happen to them once you're gone?

CROWLEY: To be continued. General Petraeus, Elena Kagan, both on the hot seats up on Capitol Hill. We'll be back right after this.