HH: It’s an astonishing day, and it’s an extraordinary day. The United States Supreme Court, in a 5-4 decision today, awarded habeas corpus rights to terrorist fanatics. Now the habeas corpus writ is called the Great Writ, and it extends to Americans, and extends to illegal aliens. It extends to anyone journeying through our land, who is even a criminal. It is never before been understood to extend to fanatical terrorists captured on the field of combat abroad in their attempt to destroy and kill and maim hundreds of thousands of people. And yet by a 5-4 decision today, the United States Supreme Court, the four liberals plus Justice Kennedy, struck down the carefully crafted statute – it’s not a rebuke to the administration. It’s a rebuke to the administration, the executive branch and the legislative branch, who went back to work after the last decision by the United States Supreme Court. The executive worked with the Congress. 65 Senators, including many Democrats, passed the Military Tribunals bill. A majority in the United States House of Representatives, including many Congressmen, passed that bill. Everyone believed it had finally settled this. It was explicit, it did not extend habeas to the terrorists. But Anthony Kennedy and his four colleagues did today. I’m joined now by the Deputy Chief of Staff to the President, Joel Kaplan. Mr. Kaplan, welcome to the program.
JK: Hey, Hugh, good to be with you.
HH: Well, I’ll talk with Jon Kyl about a legislator’s reaction to this after the break, but I want to ask you as a member of the executive branch who worked so hard on this, how surprised are you, or stunned by today’s Supreme Court decision?
JK: Well, you know, we’ve seen an activist Supreme Court step into areas of national security where it really ought not to go before. And so on level, it’s not surprising to see them do it again, to see these five justices do it again. That said, the fact that it’s not surprising doesn’t make it any less outrageous or dangerous a decision. So we’ve got lawyers poring over it, but there’s no question this is a bad decision for our national security, and we strongly agree with the four dissenting justices that included the Chief Justice, who wrote a very strong opinion, and Justice Scalia, who wrote a very strong dissenting opinion.
HH: You know, I’ve read through the 70 pages, Mr. Kaplan, and I get to the end, and it seems like Anthony Kennedy’s apologizing for the havoc he has thrown us into, suggesting that one district court might manage all the habeas petitions, suggesting that intelligence has to be preserved, et cetera. But all I can see here is hundreds of lawsuits going on dozens and scores of years, compromising our security and encouraging our enemies. I mean, what happens next?
JK: Well, that’s a great question, and you know, I think you’re right that it’s not clear that the five justices in the majority here understand what the implications of this are going to be, or maybe they began to understand at the end of the opinion. But look, the bottom line, I think, was expressed by Justice Scalia in his dissent, where he said this decision, “will almost certainly cause more Americans to be killed.” And I don’t think, you can’t really get any more direct or explicit than that. There’s going to be literally hundreds of lawsuits brought in potentially district courts all over the country. And the Court made clear that the remedy that these district courts need to be able to apply is to release the detainees. I mean, imagine, imagine what the effect of that will be – individual district court judges around the country are going to get to decide that some member of al Qaeda, who today is safely imprisoned on Guantanamo Bay, can be released. It’s just a stunning, stunning decision by five justices of the Supreme Court.
HH: There is one line in the opinion, Joel Kaplan, that jumped out at me. It’s at the end, Justice Kennedy writes, “unlike the President and some designated members of Congress, neither the members of Court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people.” Actually, they do describe every single day, not only serious threats but imminent threats. And it seems to me that Justice Kennedy was admitting here at the end, he doesn’t know what he’s talking about when it comes to the war.
JK: Well, and you know, it didn’t stop them from basically turning the Constitution on its head. There are two branches, two elected, accountable branches, the Congress and the executive, who have these responsibilities of national security. And not only do they have the responsibilities, they have the authorities, they have the tools, they have the information necessary to protect the American people. And the Court admits that it doesn’t have it, but nonetheless, usurps that authority for itself. It’s just a terrible display of judicial activism, and one with real consequences for the safety and security of the American people.
HH: Well, we will continue to chew this with Jon Kyl after the break. I want to talk about next steps. Obviously, it occurs to me that the two choices before the administration are to take all the prisoners from Gitmo and put them in one district, so at least we have one court handling all this, and not all sorts of courts, or to disburse them around the globe, and perhaps even to their home countries, where there will be people and interrogators, and harsh judicial systems that will make them long for Gitmo. Has this been discussed today, Joel Kaplan?
JK: You know, it’s a little early, Hugh, to be honest with you. We got a 70 page opinion, and we’ve got some really smart people at the Department of Justice and the Department of Defense looking at it to figure out what the next steps are. But you know, make no mistake, the Court, the five justices in this majority, have put some very difficult hurdles in the path of the President and the Congress in their efforts to protect the American people.
HH: Is closing Gitmo one of the tabled options that you were talking about in…I mean, let me back up. Did you anticipate this? Did you do any previous planning on should the Court go in this wild direction?
JK: You know, certainly we spent a lot of time thinking about it in advance, and thinking about the possibilities of what the Court might do. There was sort of a range of things the Court might say in this case. I would say this is on the very irresponsible end of the range. So there has been some preliminary thinking going on, but until you actually have the opinion, you don’t really know how much latitude the Court will provide for legislative solutions, and that’s something we’re going to have to look at, and that we’re going to have to talk with good leaders in Congress like your next guest, Jon Kyl, about.
HH: Okay, Joel Kaplan, while we’ve got you, I’ve got to talk about gas prices a little bit, because today, Nancy Pelosi made some comments about them, and here’s what she said:
NP: I mentioned the over $11 dollar increase in one day being the equivalent of what a barrel of oil cost a decade ago. On energy, a barrel of oil now costs four times more than it did when President Bush took office – two oilmen in the White House, cost of oil four times higher, price at the pump, $4 dollars a gallon. Meanwhile, oil companies continue to reap record profits.
HH: She also said this:
NP: The President has said that the solutions are to drill and to veto. It’s interesting to note that we in America possess less than 2% of the world’s oil reserves, and yet we consume a quarter of those reserves every day…the usage daily per day, 25% of that usage is in the U.S. We cannot drill our way out of this.
HH: Joel Kaplan, in essence, sit in your house, don’t drive your car, stay in the dark, and be hot. Don’t drill. What’s the response?
JK: Well, I think that pretty much sums up the Democratic platform for how to deal with energy prices. I mean, look, the Speaker’s observations about the prices are certainly accurate, and they’re also somewhat predictable when you look at the laws of supply and demand. And if you take all of our domestic resources off limits, or you know, a significant portion of our domestic resources off limits, whether it be in the Arctic Natural Wildlife, ANWR, in Alaska, whether it be off the East and West coasts of the country, whether it be in the oil shale in the middle of the country, where there’s, there may be as much as over a trillion barrels of oil equivalent. If you take all those resources off the table while demand grows around the world, it shouldn’t be a surprise that prices are going to go up. And yeah, the President and the Republicans in Congress do believe that we should continue to press to access in an environmentally responsible way those areas, those resources we have right here at home.
HH: Goodness knows what the price of oil would be if we hadn’t had a pro-productivity president and vice-president in the White House, Joel Kaplan. Right now, is there any avenue open to the President to accelerate any kind of exploration? I know yesterday, the Democrats shut down outer continental shelf exploration.
JK: Well, we’re taking a look at it. I think at the end of the day, most of these solutions are going to require legislative action. Like you said, I mean, Congress had an opportunity just yesterday in the House to lift one of the bans on off-shore drilling more than fifty miles off the coast. The horizon, as far as you can see from a very tall building, is 25 miles. The House had in front of it a provision that would lift the ban on off-shore drilling beyond fifty miles, and gave the ultimate veto to the state, and the House still said that we couldn’t do that. So there’s a lot of efforts by House Democrats to scapegoat and to blame the Saudis, or blame the speculators, or blame the oil companies, and I think that’s just a lot easier than looking in the mirror and blaming themselves.
HH: Joel Kaplan, deputy chief of staff to the President, thanks for spending some time with us. Good luck in figuring out what to do next with an out of control Supreme Court, and an absolute energy-hostile Congress. I don’t envy your job, Joel Kaplan.
End of interview.