But do you personally believe that?
Al Qaeda.
Isis type groups are still at war with US.
I think
Yes. I mean, I think we were still in a state of war was certain
elements of radical Islam to this very day.
I believe that's documented. Yes, okay.
Now.
What's the process to determine whether one's an enemy combatant
under our law?
Well, um, I believe that the executive branch makes a assessment.
Um, of whether or not someone is taken up arms against the United
States somewhere in the world.
Related to all of this, Okay, So is an executive branch function
determine whether or not this person qualifies as an enemy combatant.
Well, I believe that they make it to the current law under current
law, Um, I believe that determination is made by the executive branch
and the person is put into
Is detained.
Um, And then the question becomes
Whether they are able to bring some sort of legal challenge to that
they had previous, right. Yes. Okay, So the law is it? The executive
branch determines if you're an enemy combatant.
And under our law, you can appeal that decision to federal court
through habeas Is that correct? I believe that's correct. OK, Is
it your view that we can hold enemy combatants as long as they are
a threat to the United States?
I believe that's what the Supreme Court has determined. Did you argue
that that should not be the case before and then America's breathe?
I'm trying to think I had to amicus briefs that I worked on or three
technically, but
Two different cases.
Um we'll have another visit tomorrow. Yes. Go back and check. Yes,
pretty sure that in your brave you argued that the executive branch
should not have the ability to hold an enemy combatant and definitely
you need to try him.
Through some process or release them. Yes, Senator As you were, um,
talking I my clients, the Cato Institute, the Rutherford Institute
in the Constitution Project.
Made that argument and asked me to draft their brief. Yes. Well,
Do you agree with that argument?
Senator Mike, Um, responsibility was to make my clients arguments
and as a nominated Supreme Court that's the kind of issue
did not address that issue. They in fact,
Um, the case became moot. Organize an effort to get 20 judges to
To follow brief the Supreme Court on this issue.
Not on that issue. No. Another issue. Yes, Senator. Okay. Did you
actively go out and recruit 20 judges?
To help you follow brief on another issue regarding law award attention.
Not technically.
What do you mean by that? What I mean is that I was
At Morrison and Foerster, which was my law firm in the Supreme Court
and appellate group.
One of the partners at Morrison and Foerster was a
Um
Former federal judge.
Who wanted to make this argument and who said we I have former federal
judges who are friends of mine who would like to join with me to
make this argument.
So I worked with her partner at my firm who was a former federal
judge to make it was her idea to get former judges to write this.
Yes, yours and you just helped in the implementation.
So, Senator as a member of the Supreme Court and appellate group
in a law firm. That is the practice, right
practice? Yes. Wasn't your idea with somebody else? Yes, okay.
Uhh! So
Now.
There are people still held at Gitmo.
Today.
Do you understand that? Yes, okay.
What system is in place.
Regarding their future.
I am not.
Aware of the system right now, Um, I'm not sure exactly what you
want me to tell you what it is. Yes, there's a periodic review process.
Made of of an inter agency.
When they get to the fouls of these folks.
And they determine whether or not they still present a threat to
the United States or the world at large, and I think it's six months
maybe a year.
But that goes on.
Least on an annual basis.
And if there's a determination that this person still represents
a threat to the United States
There continued to be confined.
That's the way this system works.
Are you okay with that?
As a policy matter, Senator I'm I'm not speaking to my views that
that's my understanding is that the periodic review system is an
executive branch determination.
Of whether or not they're going to continue to hold people that they
make sense to you as a way to deal with these detainees, Senator
I'm not in a position to speak to the policy or the discretion of
the executive branch regarding how they're going to handle detainees.
The reason I mentioned it because some more of the briefs you argued
that the executive branch doesn't have that option.
That if we if you had your way, the executive branch could not do
periodic reviews about the danger the detainee presents to the United
States, they would have to make a decision of trying them or releasing
them.
Is that not accurate? Respectfully, Senator. It was not my argument.
I was filing an amicus brief on behalf of clients, including the
Rutherford Institute.
The Cato Institute and the Constitution Project.
What? When you when you sign on to a brief, does it not become your
argument?
It does not. Senator if you are, if you are an attorney
And you are representing a client in
your position when you were in private practice.
I mean, you you sign onto this brief making this argument, But you
say
It's not your position. I mean,
Why would you do that? If it's not your position?
Why would you take a client that has a position like that? This is
voluntary. Nobody's making you do this of Senator, I would. I would
refer you to the same sorts of statements that Chief Justice Roberts
made when he came before the committee, which is that lawyers?
Represent clients. I'm not holding the client's views against you,
The like the people you represented Gitmo. They deserve representation.
But this is a maker's brief for you.
And other people try to persuade the court that change policy.
The policy I described as a periodic review.
If the court had taken the position, argued in the brief that you
signed upon would have to release these people or try them in some
of them. The evidence we can't disclose because his classified you're
putting in America in an untenable position.
This is not the way you fight a war. If you tried to do this in World
War two, they'd run you out of town.
We hold enemy combatants. As long as they're a threat. There's no
magic passage of time that you've got to let him go. So my question
is very simple.
The you support the idea. Did you support then? The idea
That indefinite detention of an enemy combatant is unlawful.
Respectfully, Senator when you are an attorney.
And you have clients who come to you whether they pay
Or not.
You represent their positions before the court. I'm sure I'm sure
Everybody get my wants out. Now. I got that.
This is gonna make us brief, and I just don't understand what you're
saying. Quite frankly, I'm not holding against you because she represented
a legal position. I disagree with
I mean, that happens all the time. I'm just trying to understand
what made you
Joined this cause and you say somebody hired you.
But
Did you feel okay? And adopting that cause I mean,
When you signed on to the brief for you not advocating that position
to the court.
Senator as a judge now
In order to determine
The lawfulness or unlawfulness of any particular issue. I need to
receive briefs and information making positions on all sides.
I got what the judge is all about. Listen, I'm not asking you to
decide the case in front of me right here. I'm asking me to explain
the position You took.
As a lawyer regarding the law of war and I am beyond confused.
I know what you said in your brief
Would I agree with or not? It's not the point. I just want you to
understand that it's important for all of us to know where you were
coming from. That brief had been accepted by the court.
It would be impossible for us to fight this war because there's some
people don't die in jail and Gitmo and never go to trial for a lot
of good reasons, because the evidence against them it's so sensitive.
We can't disclose it to the public.
That we're not charging him with the crime. What we're doing is saying
that you engaged in hostile activities against the United States
that you are an enemy combatant under our law, and you will never
be released. As long as you're a danger until the war's over. You're
no longer danger.
That's the difference between fighting a crime and a war. Uh
Did you ever accused in one of your habeas petitions the government
of acting as war criminals?
We're holding the detainees.
And I'm holding of the detainees but by our government
That we were acting as war criminals.
Senator. I don't remember that accusation. But I will say that you
believe that's true.
That America was acting as war criminals and holding these detainees.
Senator. The Supreme Court held that
The executive branch has the authority to detain people who are designated
as enemy combatants, Um, for the duration of the hostilities.
And what I was doing in the context of the habeas petitions at this
very early stage in the process.
Was making allegations.
To preserve issues on behalf of my clients.
A habeas petition is like a complaint.
That lawyers make allegations have been a lawyer, too. But I don't
think it's necessary to call the government of war criminal in pursuing
charges against a terrorist.
I just think that's too far. I don't know why he chose his words.
That's just too far. But we are where we are. So let's talk about
The nomination process.
Have you ever had any reaction? Whether group called the man Justice?
No directly or indirectly. No
Have you ever had an interaction with a group called American Prospect?
No. Do you know anything about our
Our Arbella was that the right term?
Have you ever heard of a group called Arbella?
I've heard of a group that I think is Arabella or something like
that, right? Yes. Arabella. Yeah. Do you know anything about them?
Have you had any contact with them? No.
Okay. Ah, in your nomination, Did you notice that people from the
left were pretty much cheering you on?
A lot of people were sharing me on Senator. That's true. Did you
know there's a lot of people from the left were trying to destroy
Michelle Charles? You notice that
Senator. A lot of people were supporting various people for this
nomination.
So you're saying you didn't know there was a concerted effort.
To
this qualified Judge Charles from South Carolina because she was
union busting.
Unreliable Republican in this guys.
Senator, I was
I'm a sitting judge. I was focused on my cases. Answers. No, I didn't
know that. No, I didn't know that. Would it bother you? If certain,
um that that happened.
Senator. It is troublesome that people
Are were doing things related to, I think nominations. Why they say
it. People have a right to speak out and pick the person of their
choice. But all I can say, is it if you miss the fact
That there was an organized effort. Here's President Biden has only
a certain amount of political capital for keeping his party united
if he needlessly angers progresses on the scotus pick that could
create all sorts of problems for him down the line. Jeff Hauser.
Revolving door.
Projects. Let's see.
I just got so many quotes.
It's difficult to imagine someone with a record like Judge Charles
winning votes from criminal justice advocates like Senator Cory Booker.
Even Dick Durbin.
Ah Charles Experience is nothing like the diversity of experience
that the bad administration has championed.
Ah!
This. Just let's see. Picking her child's would demoralize the base
sad with corporate America. The fact that Lindsey Graham is vouching
birds should give the White House balls
Our revolution, Joseph
Gerald Vangie, or whatever his name is. I'm sorry about that. Joseph
Bernie Sanders Pack director. You didn't know that Always. People
were declaring war on Judge Childs.
Senator, I did not write
Well, No, I'm not saying you did.
You said you didn't know I'll take it your word, but I am saying
That
What is your judicial philosophy?
So I have a methodology that I use in my cases in order to ensure
that I am ruling impartially and that judicial philosophy is to rule
impartially. No, my judicial philosophy is to rule impartially and
to
Rule consistent with
The limitations on my authority as a judge, and so my methodology
actually helps me to do that. In every case, you wouldn't say that
you're in an activist judge.
I would not say that, so we'll have a 20 minutes more later on. But
here's what I would say that every group that wants to pack the court.
That believes this court is a bunch of right wing nuts are going
to destroy America that consider the cost to shin trash.
All wanted you picked
And this is all I can say.
Is the fact that so many of these left wing radical groups that would
destroy the laws we know it declared war on Michelle Childs and supported
you.
Is problematic for me.
Thank you.
Thank you, Senator Graham. Let me mention a few points here. Congressman
Jim Clyburn was strong supporter of Michelle Childs. And now I believe
he is publicly supporting your nomination.
And Michelle Childs has been nominated by President Biden to be a
circuit judge, and she we considered by this committee as quickly
as possible.
On the issue of Guantanamo. There are currently 39 Guantanamo detainees
remaining.
The annual budget for Guantanamo is $540 million per year, which
means each of these detainees
being held at the expense of 12 or $13 million per year.
If they would be incarcerated at Florence, Colorado, Supermax prison
federal prison, the amount would be dramatically dramatically less
Since 9 11 nearly 1000, convicted in the United States on terrorism
charges since 2000 and nine with the beginning of the Obama administration,
the recidivism rate of Guantanamo detainees released
Is 5%.
Mr Chairman, according department director of National Intelligence
is 31%. Somebody is wrong here to talk about what I said. I'm all
respond to what you said. If we close Gitmo and move on to Colorado,
Do you support indefinite detention under the law war for these detainees?
I would just say I'm giving the facts and the answer is no. I want
to make sure that it's clear that 31% you referred to goes back to
the year.
2000.
2000. Does it matter when it goes back to? We had them and their
got loose and they started killing people. Well, I could just say
that if you're one of the people killed in 2000 and five does it
matter to you? When we released suggested president of your own party
released him in
I'm suggesting this system has failed miserably and advocates to
change this system like she was.
Was was advocating would destroy our ability to protect this country.
Where war we're not fighting a crime. This is not some passage of
time event as long as they are dangerous. I hope they all die in
jail. If they're going to go back and kill Americans, it won't bother
me. One bit of 39 them die in prison.
That's better outcome to let them go. And if it costs 500 million
to keep them in jail, keep him in jail cause they're going to go
back to the fight. Look at the freaking Afghan government is made
up of former detainees and Gitmo.
This whole thing by the left about this war eight working
Let me also note that Larry Thompson, who served as deputy attorney
general under President George W. Bush, or incur special counsel
Viet Dinh, who served as assistant attorney general for legal policy
in the George W. Bush administration, John Bellinger and former D
C circuit judge Social General and independent counsel Ken Starr.
Were also prominent conservative lawyers signing a letter defending
attorneys who represented Guantanamo Bay detainees
I don't believe that we should associate