HH: As promised, Jon Kyl, Republican number two in the United States Senate, our favorite Senator, from Arizona. Senator Kyl, always a pleasure, thanks for joining us today.
JK: Happy to do it, Hugh. Thanks to you.
HH: Lots to talk about. Let’s start, though, with yesterday’s extraordinary hearing. You know, I was a special assistant to two attorneys general, Senator Kyl. And my guys never showed up unprepared to answer basic questions.
JK: But the Attorney General did.
HH: He sure did. What did you make of that day?
JK: It’s hard to know. Is it a matter of not caring, or not having the answers? I mean, I don’t know, but he simply did not perform well. There were several basic questions asked, and he simply stumbled around the answers. One of them was why did you make the decision to go to the Article III courts rather than military commissions? He offered a number of reasons, but never really quite got to the rationale for how the decision was made. For example, he said well, we can better obtain a conviction in the court. I said well how can you obtain a conviction better than when the guy says he’ll plead guilty in the military commissions? And then he didn’t answer that. He went off on a toot about how, well, he’s not going to let KSM tell him what to do. Well, nobody said that he should tell him what to do. But when the guy says he’ll confess, why don’t you take the confession?
HH: Well, there were many such toots, to use your phrase, Senator Kyl
HH: And the audience, my audience knows, because I’ve been talking about it for two days now, this sounds a little inside baseball, but they’re ready for it. I’m looking for a rule here to apply to future cases.
HH: And he didn’t articulate one.
JK: No, and I said what’s the measure…the next guy that’s down in the military commissions says wait a minute, I want to come up to an Article III court. And what is the principled reason that you’re going to argue to the judge why he shouldn’t be able to do so? How is this case any different?
HH: And he didn’t have an answer.
JK: No, he just goes back and says we’ll decide it based on the protocol on a case by case basis, the protocol meaning the set of criteria that he has established up there, which at the end of the day, allow him to do anything he wants to do.
HH: It’s personal rule. It’s not rule of law. So after these hearings, I often see on C-Span, you and your Democratic colleagues are milling around and talking to each other. Did your friends across the aisle give you a raised eyebrow, a wink or a nod of a head that indicated they saw what we all saw?
JK: No, no. I don’t want to be uncharitable, but you saw that most of them expressed support for what, for the decision that he had made.
HH: What do you attribute this to, Senator Kyl, because…
JK: Party loyalty.
HH: Okay, their reaction. But why is the Obama administration doing this?
JK That is hard to fathom, although there was a report today that the decision was actually made by the president in May of this year, and communicated to Governor Paterson in New York. So perhaps the decision was made a long time ago. But if you think about what could go wrong, and although both the president and the attorney general have said in no uncertain terms, nothing will go wrong, he will be convicted and he will be executed, first of all, that’s probably a violation of prosecutorial ethics. You can taint a jury pool by that kind of language. But nonetheless, they’re so doggone certain of that, when you ask them the next question yes, but what if by some fluke one juror decides no, they don’t have an answer for that. And that…if that should happen, I think it could make this president a one-term president.
HH: Do you believe, Senator Kyl, that it is possible that one of the motivations here is to turn this into a trial not of Khalid Sheikh Mohammed and his confederates, but of the Bush administration interrogation tactics?
JK: I don’t want to question the motives of the president or the attorney general, but when you say what conceivable motive could there be, the only other motive that I can think of is well, we want to show off our jury system to the rest of the world. Now think about that for a minute. If that’s what we’re doing here, and we’re declaring in advance that we know for a certainty that he’s going to be convicted and executed, what kind of a system is it?
HH: Agreed. Now you cited Andrew McCarthy, who is the lead prosecutor of the Blind Sheikh case, and perhaps one of the greatest go-to authorities, his book, Willful Blindness, very important…
HH: It appeared that the attorney general actually took offense at this.
JK: Well, at least he appeared to. I don’t know if he knew who Andrew McCarthy was. I got the impression he didn’t, or he wouldn’t have looked down his nose at him as just some TV talk show person.
JK: No, I don’t think he knew who he was.
HH: All right, last question on this subject, because we’ve got to move to health care. Senator Grassley asked a series of questions about other DOJ lawyers who have worked as lawyers to detainees in the past. And he requested details on those affiliations and those representations so as to assess the conflict of interest dimension. And twice the attorney general said I’ll consider your request. Were you surprised by that response?
JK: Well, yeah, at the end, he said I just wanted to make sure I could ethically provide the information. I don’t know. We’ll see.
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HH: We turn now from Eric Holder’s amazing and disappointing performance yesterday to the question of Obamacare 7.0. Jon Kyl, this is the seventh version of Obamacare. Three in the House, plus the one that passed, that’s four, two in the Senate plus Harry Reid’s whatever it is that he introduced yesterday. What’s in this bill that’s better than in the House bill, but do they have the votes to get to opening the debate?
JK: I think actually, this bill combines almost all of the worst features of all of the bills. First of all, like the House bill, it’s well over two thousand pages. The cost over the first ten years of full implementation, in other words, when you have both the obligations, the subsidies and so on, and the revenues, the taxes and fees, the cost of that is over $2.5 trillion dollars. That approximates the cost of the House bill. There’s about a half a trillion dollars in tax increases to pay for it, and about a half a trillion dollars in Medicare cuts to pay for it. And according to the Congressional Budget Office, the government run plan, which is a part of this, would, and I’m quoting now, typically have premiums that were somewhat higher than the average premiums for the private plans and exchanges, end of quote. So the whole point of this, to drive down the cost of insurance premiums, is not going to be satisfied. You’re going to have half a trillion dollars in Medicare cuts that are going to hurt seniors, you’re going to have half a trillion dollars in tax increases, you’re going to have a cost which cannot be sustained under the budget, it will provide a huge deficit in the budget, not an increase in revenues, as the committee, or as the leader tried to suggest. And most important of all, it will, because of the interlocking provisions that relate to the government authority over health care, result in the rationing of care both for seniors and people through the private exchanges.
HH: So what do you think generally about the prospects of this to get a debate begun and then closed?
JK: My guess is this will be a purely partisan exercise. I think that’s the way the president has set it up. He’s said you have to do this for me, for the success of my presidency. And as a result, the vote Saturday, which will probably occur at about 8:00 at night on the important question of shall we go to this bill, it has to pass by sixty votes, and my guess is it’ll pass by exactly 60 – 60 Democrats, 40 Republicans voting no.
HH: If they succeed in getting sixty, that means Ben Nelson, Mary Landrieu, Blanche Lincoln, Evan Bayh, Michael Bennett, and a bunch of other endangered Democrats. Does that mean it’s going to pass in the end?
JK: No. Now I’m assuming, I’m just taking Harry Reid at his word when he says that he’s got the sixty votes. If I were some of those people, I’d really want to think twice about voting to proceed to the bill, because if they don’t, they’re subject to this, well, I was for it before I was against it problem that Senator Kerry has back in one of the debates when he was defeated by President Bush. Voting to go to the bill is tantamount to voting for the bill, because at the end of the day, the president and the Democratic leadership will put enormous pressure on these same people to vote yes one last time. Then the argument will be well, let’s just vote to move it on over to the House where we can then get it into Conference Committee and see what happens to it then. Of course, whatever objections people had at that point go up in smoke, because there’s no way to change the bill. So that is the way, there’s no way to change the bill through the legislative process. You’d have to be in the back room with the few people that are writing the conference report.
HH: So between now and then, even if they do go to bring the bill up, will there be a vigorous fight waged…
JK: Oh, yes.
HH: And how long do you think it’s going to take?
JK: Well, it depends upon whatever agreement is reached between the majority and minority leaders. They’re negotiating that right now. Just because your audience is pretty steeped in this, what we could do is continue debating things that have nothing to do with health care, as we are right now, and then this vote occurs at 8:00 on Saturday night, and then we debate health care for thirty hours. That doesn’t make a lot of sense, and I think one suggestion the two leaders are thinking about is how about if we start the debate on health care tonight, basically, and have that debate through Saturday at 8:00, then have this vote, and then go home and start talking to our constituents about it, and come back ready to start the amendment process the Monday after Thanksgiving.
HH: How long will that amendment process go, if in fact they get to take up the bill?
JK: Assuming they take up the bill, if you compare it to other bills of this kind, it’s, you can easily justify a six or seven week process. So I’m assuming it will be into early next year.
HH: And how important will the public’s reaction…I mean, there’s things in here like the Botox tax we just found out about. I mean, that’s going to devastate a bunch of businesses that do cosmetic surgery.
JK: The answer is that this bill will pass or fail depending upon the degree of energy by which the American people express their opposition. They’re essentially in opposition by a 60-40 vote. That’s probably not going to change a lot. And so the question is, will the majority, the substantial majority who oppose this legislation be heard by their representatives? If they are, then it will be defeated, and we’ll go back and try to do it in a more responsible step by step way. If these representatives or these Senators hear the voices but choose to ignore them, they’ll probably be defeated in the next election, but we may have some very bad policy in the meantime.
HH: Senator Kyl, the Medicare tax of 2.5% on incomes above $250K, to me, it’s the alternative minimum tax being born again in front of our eyes. When inflation hits, it’s going to already heavily impact hiring and consumption and other sorts of things. But it will gradually sweep in everyone. Do they not understand basic economics across the aisle?
JK: Yeah…no, well first of all, they well understand that they don’t want to index this, for their purposes, so that it can over time hit more and more people, and they can raise more and more revenue. In other words, whereas the AMT, the alternative minimum tax was a mistake, they only intended to hit millionaires, but now it hits over 25 million American people. This was deliberately set up this way, but it’s a little bit like the frog in the water. You only turn the temperature up a degree at a time. Eventually, he boils, but it’s a long time before he figures out he’s a goner. And by then, it’s too late. So this will only begin to hit people well after the next election, people that the president promised he wouldn’t be increasing taxes on. So they’re not going to figure it out until he is, at least in his view, won a second term.
HH: Last question, Jon Kyl, thanks for spending all this time. Do you think the public option survives the vote in the Senate with your Democratic colleagues?
JK :I think it will be modified to some extent. If it’s in the form it is right now, this bill will not pass.
HH: Jon Kyl, always a pleasure. Thank you, my friend.
JK: Thank you, Hugh.
End of interview.