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Professor, a Former Marshall Clerk, on Alito

Professor Cass Sunstein discusses the nomination of Samuel Alito to replace retiring Supreme Court Justice Sandra Day O'Connor. Sunstein a professor at the Law School at the University of Chicago, is a former clerk for Supreme Court Justice Thurgood Marshall.

21:45

Other segments from the episode on November 1, 2005

Fresh Air with Terry Gross, November 1, 2005: Interview with Cass Sunstein; Interview with William Kristol; Interview with Daniel Benjamin and Steven Simon.

Transcript

DATE November 1, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Cass Sunstein discusses Judge Samuel Alito's judicial
rulings and philosophy
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

We've invited constitutional scholar Cass Sunstein back to our show to talk
with us about the judicial record of Judge Samuel Alito, President Bush's
nominee to replace retiring Supreme Court Justice Sandra Day O'Connor. Alito
was unanimously confirmed to the US Court of Appeals in 1990 when he was
nominated by President George H.W. Bush. But he's a more controversial
nominee for the Supreme Court and faces liberal opposition.

Cass Sunstein is a professor at the University of Chicago Law School, a
contributing editor at The New Republic and author of the new book "Radicals
in Robes." He wrote an op-ed piece on Alito in today's Washington Post.

You write in your op-ed piece in The Washington Post today that his decisions
have been almost universally--almost uniformly conservative. And usually when
he dissents, he has a more conservative position than that of his colleagues
and that you could see that in his dissents on civil rights cases. Can you
give us some examples of that?

Professor CASS SUNSTEIN (University of Chicago): Yeah. In his 40 or so
dissenting opinions, when they have an ideological dimension, he's almost
always on the conservative side, opposing sometimes conservative colleagues.
There was one case where a woman and her 10-year-old daughter were subject to
a strip search; they were asked to take off their clothes. And this pretty
clearly violated their constitutional right because there wasn't a warrant to
tell these people to do that. And they sued, saying their constitutional
rights had been violated. The court said that the case could go forward
because it was a clear violation of their rights. And Judge Alito dissented,
saying the police had qualified immunity. His opinion wasn't lawless; it had
some basis in the law, but it was a bit of a surprise that he would strike out
in dissent in that way.

There was a recent case involving prisoners in segregation units, who were
banned from receiving newspapers or magazines, even from the prison library.
The court struck down that ban as violating the prisoners' First Amendment
rights. Judge Alito dissented. He said that the ban was in the prison's
legal power.

There was a case involving a Hindu temple, a little relevant to recent debates
about church and state, which had land use restrictions imposed on it, lots of
them, including they had to have off-duty police officers there to monitor and
protect the site. That's what the local zoning board required. And the court
said this is very hard to defend, these restrictions on the Hindu temple.
They're arbitrary and unlawful. Judge Alito dissented, saying that what the
zoning board did was perfectly legitimate. And this is consistent with the
general pattern of his decisions in dissent.

And I guess what I'd say unifies a lot of them is deference to established
institutions. So if it's a prison or a university or an employer or police
officers, he is protective of them; less protective of people complaining that
they violated the law.

GROSS: And what are the larger--what's the larger significance of that?

Prof. SUNSTEIN: I guess what I'd say is that Judge Alito isn't someone like
Justice O'Connor, who was unpredictable in her outcomes. He's someone who, at
least on the Court of Appeals, when he's departed from his colleagues, has
always gone--or almost always gone--in the same direction. So if some
Democrats and moderates are nervous and some conservatives and Republicans are
happy, it might be because this is someone who seems to be of a predicable
mind on some of the great issues of the day.

GROSS: Since abortion is an issue that both the left and the right are
measuring Judge Alito by, let's take a look at abortion. It seems the
strongest indication we have on his judicial opinion on abortion is in the
case Planned Parenthood vs. Casey. Would you summarize for us his dissenting
opinion in part of that case?

Prof. SUNSTEIN: Yeah. The--part of his opinion was actually quite prescient.
He predicted that the Supreme Court would ultimately adopt the undue burden
standard for evaluating restrictions on abortion, and he was quite right on
that. The court eventually was persuaded to do that by Justice O'Connor.
Where he wasn't so prescient was that he voted to uphold part of the law that
required married women to notify their husbands that they were going to have
abortions. And he was in dissent there because the majority of the court
concluded that most of the time married women are going to notify their
husbands, and when they're not, there's probably some problem, very possibly
fear, even physical fear. And in cases of that sort, the majority said this
was an impermissible restriction on the woman's right. Judge Alito disagreed
with that. He said that this was not an unconstitutional restriction, and the
Supreme Court eventually disagreed with him.

GROSS: What does that tell you about his larger judicial philosophy on
abortion? Does it tell you much?

Prof. SUNSTEIN: I think it does tell you something. I think it strongly
suggests that he is not going to take an extremely firm hand against
restrictions on the abortion right that falls short of elimination of the
abortion right. It wouldn't be at all surprising if Judge Alito thinks Roe
against Wade as an original matter was wrong. It wouldn't be a shock if Judge
Alito ultimately votes to overrule Roe against Wade. I think this is a tea
leaf we actually can read; that when there's a restriction on the abortion
right that doesn't go to the heart of the right, doesn't eliminate it, Judge
Alito is probably likely to listen with great respect to the government's
arguments.

GROSS: So you think it's likely that he would vote to overturn Roe v. Wade
if it came to a vote?

Prof. SUNSTEIN: I wouldn't say he'd vote to overturn Roe against Wade.
That's a quite momentous decision, and any person would have to think long and
hard before doing that. I think what's clear is that he is likely to be
receptive to efforts to protect the interest in fetal life that don't
eliminate the woman's basic right to choose abortion. What I'm talking about
now are things like restrictions that involve parental notice requirements,
restrictions on so-called partial-birth abortion, efforts to qualify the right
that fall short of eliminating the right. That's the domain in which we're
going to see a lot of action in the next five, 10 years.

GROSS: Let's look at Judge Alito's opinions on states' rights vs.
congressional authority. Do you want to choose a decision that you think is
particularly revealing on that subject?

Prof. SUNSTEIN: Yes. There's one that's actually quite revealing. It's a
very big deal. The court in the '90s--that is, the lower court--was
confronted with someone who possessed and actually sold machine guns and
argued, the defendant did, that Congress doesn't have the constitutional
authority to ban at least the possession of machine guns. The court ruled
that Congress did have that power under the commerce clause, saying that
machine guns typically travel in interstate commerce and they affect
interstate commerce because of their connection with crime.

Judge Alito, in a very striking dissenting opinion, argued that our system of
constitutional federalism, as he rightly described it, forbids Congress from
banning the possession of machine guns; that there has to be some requirements
in the law that the machine guns are traveling in interstate commerce or
something to that effect. And that ruling was a bit of a surprise. The
courts have not been striking down bans on the possession of machine guns. It
suggests that he is quite interested in the revival of constitutional limits
on Congress' power. And there's no question that Senator Specter, among
others, will be a little concerned about that.

GROSS: You mentioned that part of Judge Alito's opinion was based on his
interpretation of the interstate commerce clause. Now the interstate commerce
clause has been at the center of some judges' judicial philosophy. Why is
this clause such a focus of attention and a way that we kind of try to read
somebody's judicial philosophy now?

Prof. SUNSTEIN: OK. It's a really big deal, and the simple reason is that
much of what Congress does under the Clean Water Act, the Endangered Species
Act, the Civil Rights Act and much more, much of this comes under the commerce
power. So Congress, insofar as it's protecting rights, often is acting in
the--under the provision of the Constitution that allows it to regulate
interstate commerce.

Now a lot of people think that Congress has taken the commerce clause too
broadly and that when Congress tries to regulate, for example, possession of
marijuana or possession of machine guns or some violations of civil rights or
tries to protect endangered species in one state--a lot of people think that
Congress has exceeded its constitutional authority. Now if they prevail, we
could see a very fundamental change in how our government is structured. It
could be that laws that have been on the books a long, long time will all of a
sudden be invalid. And Judge Roberts, actually, as judge, raised the
possibility that the Endangered Species Act would be unconstitutional as
applied to purely intrastate activity.

Now Judge Alito has said--in a much more dramatic opinion than Judge Roberts'
quite cautious one, Judge Alito says that the possession of machine guns
cannot constitutionally be criminalized by Congress. It can by the states, of
course, but not by Congress. And that will concern Senator Specter and
several others, who are aware that, under the leadership of Chief Justice
Rehnquist, the Supreme Court has struck down over 30 acts of Congress since
1995; that's a huge number. And these people are concerned, the senators are
concerned, conservatives as well as liberals, that the court will prevent them
from doing what they believe to be their constitutional job. And this is
a--for people who think that way, as Senator Specter does, this opinion by
Judge Alito is a warning sign. It suggests that he is with those who are
interested in reading the Constitution to restrict Congress' power under the
commerce clause.

GROSS: So can you explain just a little bit more on what grounds certain laws
are being ruled unconstitutional because of the justices' interpretation of
the interstate commerce clause?

Prof. SUNSTEIN: Yes. Some justices believe, for example, that if Congress
tries to penalize violence against women, as it did by creating a civil rights
action that women would have against those who committed violence against
them, then it's not regulating interstate commerce; that this can be just
within one state. What does this have to do with interstate commerce? So a
majority of the court said--in striking down a provision of the Violence
Against Women Act, the dissenters said, `Look, violence against women has
interstate effects. If there's a lot of violence in New York that's against
women, then women aren't going to travel to New York, so this does affect
interstate commerce.' The majority of the court disagreed, and so a provision
of the Violence Against Women Act was struck down. And many members of
Congress, Republicans as well as Democrats, didn't like that.

GROSS: What are some of the other laws that you think might be challenged?

Prof. SUNSTEIN: Well, the Clean Water Act in some of its applications is now
constitutionally vulnerable, no question about that. If the Clean Water Act
is being used to protect against pollution in a body of water that's just
within one state, well, then there could be a constitutional challenge to the
Clean Water Act. So, too, there are hate crimes laws that are designed to
protect against hate crimes based on race and other grounds--race and
religion. Hate crimes laws enacted at the federal level would be
constitutionally vulnerable under this view because many hate crimes don't
have an obvious connection with interstate commerce.

As I've already mentioned, the Endangered Species Act often applies to
behavior that really just occurs within one state where--for example,
landowners taking steps that will eliminate an endangered species. Many
members of Congress think that when an endangered species is eliminated, that,
by its nature, affects interstate commerce because scientists and others often
want to travel to see these species. And also there are ecological functions,
it's said, that many species perform that cross state lines. But those who
doubt this argue that, `Well, if the endangered species is just within one
state and there's no commerce in it, then Congress really lacks the
constitutional power to do anything about it.'

At the extreme, some of the civil rights laws might be constitutionally
vulnerable, and we did have a fight about that in the 1960s. But if you have
a civil rights law, for example, that forbids a restaurant that just does
business within one state from discriminating on the basis of race, what does
that have to do with interstate commerce?--some would ask. Now it may be that
the precedent that upholds the civil rights laws is so entrenched that no one
will take it on. But we can see the direction of the law that Judge Alito, at
least, signals in suggesting that the possession of machine guns is something
that Congress can't reach without showing a connection to interstate commerce.

GROSS: So the interpretation of the interstate commerce clause that Judge
Alito has demonstrated is an interpretation that would lead toward more
federal deregulation.

Prof. SUNSTEIN: Yeah. It would lead toward more restrictions on Congress'
power to act on the ground that there's a connection between what it's doing
and interstate commerce. And Judge Alito's position here, I should add, is
well-reasoned and not without support in what the Supreme Court has said. But
notice that he dissented, and the majority of the court thought that the
possession of machine guns could be reached by Congress. And the dissent is a
signal that what you describe rightly as a form of deregulation by a
constitutional law, he might well turn out to be interested in.

GROSS: My guest is constitutional scholar Cass Sunstein. He's a professor at
the University of Chicago Law School and author of the book "Radicals in
Robes: Why Extreme Right-Wing Courts are Wrong for America." More after a
break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is constitutional scholar Cass
Sunstein. He's a law professor at the University of Chicago Law School and
author of the book "Radicals in Robes."

If Judge Alito is confirmed, how do you think his confirmation would change
the makeup of the court?

Prof. SUNSTEIN: Probably a lot. Justice O'Connor, whom he'd replace, was
often unpredictable. And what really marked her was she was--and is- a
minimalist; that is, someone who focuses on the particular facts of the
particular case and often refuses to venture far from the narrow issue at hand
and whose decisions often couldn't be forecast. So when the court upholds
affirmative action programs or refuses to overrule Roe against Wade or upholds
campaign finance regulation or allows Congress to regulate commercial
advertising, she's often been the key vote.

Now to read Judge Alito on any of these issues as having a definite view would
be too speculative. On the other hand, as a lower court judge, he has shown
both a high degree of confidence and a high degree of predictability. And
that suggests that we would probably see some movement in the court toward
conservative rulings on most of these issues.

GROSS: Most of which issues?

Prof. SUNSTEIN: Most of the great issues that are now dominating public
discussion, such as campaign finance regulation, affirmative action programs,
restrictions on commercial advertising, the constitutional legitimacy of the
Endangered Species Act, the protection of property rights, which has gotten a
lot of attention in the last year. On these issues, it's likely, based on his
lower court rulings, that he would be most of the time with Justice Scalia
and Justice Thomas.

GROSS: When Judge Alito was nominated by the elder President Bush for the
appeals court, he was unanimously confirmed. And now he's a hotly contested
nominee. What's changed? Why unanimous in the early '90s and hotly contested
in 2005?

Prof. SUNSTEIN: The difference between a lower court and the Supreme Court,
the stakes are much higher. So a lot of people, Republicans or Democrats,
would happily vote for someone to a lower court, where the discretion is
limited, but they wouldn't vote for the same person for the Supreme Court,
where the discretion is significant.

GROSS: We've all heard that Judge Alito's nickname is Scalito because of the
similarities he's perceived to have to Justice Scalia. Do you think he's
similar to Justice Scalia in his judicial philosophy?

Prof. SUNSTEIN: In some ways, yes; in many ways, no. He has a very different
style, so I think the Scalito moniker is more just because the names sound a
little bit alike than because they are really similar. That is Judge Alito is
low key, and Justice Scalia is not low key. Justice Scalia is one of the best
writers in the history of the federal judiciary. Judge Alito is a solid,
clear writer, but he has none of the, let's say, panache and imagination in
his writing that Justice Scalia shows. Justice Scalia has a well-worked-out
theory of constitutional interpretation that he developed as an academic,
which is that the Constitution means what the ratifiers thought it meant.
Judge Alito has not supported that view.

One dimension along which they're sort of similar is that Judge Alito does
believe that ordinary laws should be interpreted to fit with their text; that
is, he insists text is our loadstar. And Justice Scalia is on the same track
on that point. Also, Justice Scalia, of course, has a largely conservative
set of voting patterns. On most issues, he is unquestionably conservative.
Judge Alito also, despite being low key and kind of cautious in his opinions,
shows really very conservative voting patterns. He's a very different judge
than Scalia. Scalia is someone who you could kind of tell was an academic.
His mind goes toward theory. Judge Alito you can tell was a lawyer. His mind
goes toward, really, the details of the law. So their styles are
fundamentally different.

GROSS: So what are you expecting from the hearings?

Prof. SUNSTEIN: I think they will be extremely lively hearings. I think that
many of the Democrats and some of the Republicans will be concerned not about
Judge Alito's competence, not about his character but about his
predictability, thinking that judges should have a measure of unpredictability
that--in a way, that's a credit to them. I also think there's going to be a
tremendous amount of spinning by both sides in a way that will characterize
Judge Alito as very different from what he is, which is a highly competent,
low-key, unfailingly courteous, respectful and quite conservative judge.

GROSS: Cass Sunstein, thank you so much for talking with us.

Prof. SUNSTEIN: Thank you very much.

GROSS: Cass Sunstein is a professor at the University of Chicago Law School
and author of the book "Radicals in Robes: Why Extreme Right-Wing Courts are
Wrong for America."

I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

(Announcements)

(Soundbite of music)

GROSS: The neoconservative magazine The Weekly Standard is celebrating its
10th anniversary. Coming up, we talk with founding editor William Kristol.
Then we'll hear from Daniel Benjamin and Steven Simon. In their new book "The
Next Attack," they say the invasion of Iraq has turned the country into a
laboratory for terrorists.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: William Kristol discusses the nomination of Judge Sam
Alito to the US Supreme Court, the Lewis Libby indictment, the war
in Iraq and the 10-year anthology of The Weekly Standard
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

The neoconservative magazine The Weekly Standard is celebrating its 10th
anniversary this year. Now there's a new book collecting selected articles
from those 10 years. My guest William Kristol is the founding editor of the
magazine and editor of the new book. Kristol was an advocate of invading
Iraq. The new book includes an article he co-wrote in 1997 titled "Saddam
Must Go." We began by discussing the Supreme Court. Kristol told me he's
very enthusiastic about the president's nominee, Judge Samuel Alito.

Mr. WILLIAM KRISTOL (Editor, The Weekly Standard): Well, he just has a
consistent pattern, I think, really, like Roberts and like other leading
conservative constitutionalists of not believing that the courts should
intervene excessively, unless it's required by the text of the Constitution,
to drive legislative outcomes. He's been deferential to legislatures, local
city councils, state legislatures, the Congress as a judge. I think he will
continue to do that in the Supreme Court. Obviously, one has to intervene
when basic rights are at stake, but I think the courts have gone way
overboard in the last 20 or 30 years, and I think a much more limited judicial
role is healthy for self-government. That's what Alito's judicial career
suggests.

GROSS: Now when Harriet Miers was nominated, you wrote a column that was
headlined I'm Disappointed, Depressed and Demoralized. What did you do,
besides writing that column, if anything, to put pressure on President Bush to
withdraw the nomination?

Mr. KRISTOL: All I did is say that I thought Miers was a poor choice. She
didn't have the qualifications, really, to be a Supreme Court justice and
certainly not to be a first-rate Supreme Court justice. And then the more
that came out, the weaker a choice it seemed.

GROSS: I thought that a lot of conservatives weren't confident enough that
she would be anti-abortion and weren't confident enough of her conservative
credentials.

Mr. KRISTOL: Yeah, I thought Miers was kind of a wild car in terms of how she
might rule constitutionally on the court. And I think that's ridiculous at
this stage to put someone on the Supreme Court who doesn't have a
well-developed judicial philosophy. Look, if liberals--you know, Larry Tribe
has a very different judicial philosophy than Samuel Alito, and he's entitled
to say that Alito's philosophy's bad for the country and not the kind of
philosophy we want Supreme Court judges to have. That's an intelligent debate
to have.

I thought the Miers debate degenerated pretty quickly on the part of her
backers, actually, in the White House to a kind of coded appeal to
conservatives, `Don't worry about her philosophy. She'll rule in the right
way,' which I don't think is appropriate. And so I'm much happier to have--I
think Alito will be a much better justice than Miers would've been. But I
also think the debate over Alito will be a much more elevated and appropriate
debate than the sniping that we ended up having on both sides of the Miers
nomination.

GROSS: Let me move on to the indictment of Scooter Libby. What's your
reaction to Patrick Fitzgerald's indictment and the grand jury's indictment?

Mr. KRISTOL: I guess I have several reactions. I mean, Scooter Libby's a
friend or, you know, friendly acquaintance. He's not a close friend, but
I've certainly known him for 15 years. We worked together in the first Bush
administration. I like him and I respect him, and I'm sorry that he got
indicted and obviously hope, frankly, that he's acquitted in this--hope he's
innocent, I shouldn't say--I should--and therefore is acquitted. Obviously,
we don't know. We haven't seen his side of the story, and we haven't seen all
of Fitzgerald's side of the story either.

Politically I think, you know, whatever happens with Libby, I think the
opponents of the Bush administration, who hoped this would be a major blow to
the future of the Bush administration, I think, will end up being
disappointed. I mean, whatever happens with Scooter Libby, we're going to
have a trial in which one person will be accused of lying about three
conversations with three journalists, basically. And there's not going to be
brought to court any kind of massive conspiracy to falsify evidence or even to
out a covert CIA officer, if Mrs. Wilson was, at that stage, truly a covert
officer. So I think in that respect, politically, I think this is obviously
bad for the Bush White House, but not nearly as bad as it could've been.

GROSS: Well, the indictment is for, you know, lying to the grand jury and
obstructing justice. But, you know, the underlying question seems to be: Did
he intentionally try to discredit Joseph Wilson because Joe Wilson wrote a
column contracting the Bush administration's statements about Saddam Hussein
and weapons of mass destruction? In other words, the underlying question here
seems to be--or an underlying question seems to be: Have members of the Bush
administration or has this particular member of the Bush administration tried
to discredit critics by revealing, in this case, information about his wife?

Mr. KRISTOL: Well, I think members of the Bush administration are entitled
to challenge critics. And most of what Libby and many other people did--and
they did this publicly of course--is say that there were inaccuracies in
Wilson's column, which there were--we've reported on them in The Weekly
Standard--and that the whole question of weapons of mass destruction wasn't
fairly presented by Wilson, etc.

Now in terms of the wife--and that really came up sort of incidentally in the
sense of why did the CIA pick someone who was already a vocal critic of the
Bush administration to send on this trip? Not an unreasonable question to
ask if you're in the Bush White House. And, in fact, part of the answer may
have been that his wife suggested him for the trip, or it occurred to other
people in that meeting that she was in that he would be an appropriate
candidate and because they might have known him through his wife.

In any case, the notion that this was some, you know, well-organized, massive
smear, I think, is just clearly wrong. The indictment specifies three
conversations--or five conversations, I guess, with three reporters; three
with Judy Miller; one with Tim Russert in which Libby, according to Russert,
did not actually mention Joseph Wilson's wife; and then one with Matthew
Cooper that's really de minimis. So, really, what it comes down to is that
Libby did apparently tell Judy Miller a couple of times that one reason Wilson
might have been picked for this trip was because of his wife, something Judy
Miller, incidentally, didn't publish. So that's it.

I mean, this was a not a massive attempt to go after Joseph Wilson's wife. It
may have been wrong to even mention it to the degree they did, and it may have
been illegal and certainly was illegal if it's true that Libby later lied to a
grand jury about what he had said to journalists. But I think the notion,
again, that there was this massive conspiracy to go after Joe Wilson's wife
just isn't true.

GROSS: My guest is William Kristol, the founding editor of The Weekly
Standard and editor of the new book "The Weekly Standard: A Reader:
1995-2005." We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is William Kristol, the founding editor of the
neoconservative magazine The Weekly Standard. He's edited a new 10th
anniversary book collecting selected articles.

October has been the fourth-deadliest month in Iraq so far, with about 92
American soldiers killed. An estimated 25,900 Iraqis have been killed or
wounded so far since the invasion. And last week we reached the number of
2,000 American casualties in Iraq. Many counterterrorism experts say that
Iraq has actually become a laboratory for training terrorists. As someone who
strongly advocated the invasion, how do you think we're doing?

Mr. KRISTOL: Well, I think it was necessary to remove Saddam, and I strongly
support that decision. I think we made some mistakes in executing it. I
think we're doing better now, and I think we're going to win.

GROSS: What does winning mean now?

Mr. KRISTOL: Well, winning means crushing the terrorists or at least reducing
the threat from the terrorists to what is sort of a livable threat. And, most
of all, winning means leaving a decent, democratic Iraqi government in place,
so that Iraq is no threat to its neighbors and no threat to acquire weapons of
mass destruction and, indeed, an example, I think, of self-government and
self-determination in the Arab world. And I'm pretty optimistic about that.

We've made mistakes, and the Sunnis in particular have been more resistant to
being part of a pluralistic Iraq, in which their rights would be respected but
in which they would obviously be a minority and have, therefore, provided more
succor, more support to the jihadists and the terrorists and the insurgents
than one would have hoped. But I think they are understanding now that they
need to participate in the political process; that we're not going to be
driven out; that terror is not going to restore them to preeminence in Iraq.
And I think actually if we stay the course for another year or two, I'm pretty
optimistic that we end up with a pretty good outcome in Iraq.

GROSS: In a column you write in February of 2002, you wrote that, `American
and alliances force will be welcomed in Baghdad as liberators. Indeed,
reconstructing Iraq may prove to be a less-difficult task than the challenge
of building a viable state in Afghanistan.' Some counterterrorism experts and
foreign policy experts say that kind of confidence that many people in the
Bush administration had that they shared with you, that we would be welcomed
as liberators, prevented us from adequately preparing for the reality of what
we are facing now, which is a very strong insurgency.

Mr. KRISTOL: We have mostly been welcomed as liberators. Most of the Iraqis
are happy that we removed Saddam and happy that we're there, clearly. We're
not fighting a massive guerrilla war supported by millions of Iraqis. No. I
also wish we had gone in with more troops and was critical of the
administration at the time for not doing so and think that would've helped a
lot. And there are plenty of mistakes we made in the last two and a half
years that have probably let the insurgency get more traction than it needed
to. You get some good breaks and you get some tougher situations.

If the war was worth fighting, it was worth fighting at this cost. If it
wasn't worth fighting, then we shouldn't have fought it. But this notion that
we're going to count casualties each month and say, `Well, this month there
were 92 casualties and last month there were 76, and next month there might be
110 and then the month after that 65,' that's not determinative one way or the
other, obviously. If it's worth fighting, it's worth fighting at a cost of
2,000 American deaths. If it wasn't worth fighting, we shouldn't have fought
it even if we could've done so with 400 American deaths.

GROSS: But, you know, I think a lot of Americans feel betrayed because this
isn't what we were told was going to happen. It's not even what we were told
the war was about. I mean, we were told the war was about weapons of mass
destruction; you know, we'd be welcomed as liberators; that we weren't told to
prepare for the kind of cost that--in either money or life, that we've proved
to be paying.

Mr. KRISTOL: Well, look, you know, I don't think that's quite fair on the
second part. I'll get back to weapons of mass destruction on the first
point. There I would--well, let me do weapons of mass destruction first.

GROSS: Sure.

Mr. KRISTOL: We believed they were there, the Clinton administration that
believed they were there, the UN inspectors believed they were there.
Everyone believed they were there, and Saddam did nothing to prove that they
weren't there. So--and it turned out he was bluffing. It seemed he thought
it suited his advantage to pretend he had the weapons of mass destruction. So
I think we went to war honestly, and I don't think anyone at the time thought
the weapons of mass destruction weren't there. So I think that's not a fair
charge.

Now should our intelligence be better? Sure. But it wasn't really based on
exotic US intelligence. It was based on UN inspectors' reports and a
consensus of the international community and the fact that he, of course, had
had weapons of mass destruction.

On the second point, you know, the Bush administration perhaps should have
warned more explicitly ahead of time that wars are difficult and
unpredictable; that you can't know ahead of time how something like this is
going to turn out. I think, to be fair to the president, certainly once we
were engaged there, that's been his general tone. He ran for re-election in
2004 without promising that it was going to be easy, without promising a quick
withdrawal. So suddenly--I will stipulate that everything hasn't gone as well
as I would've liked it to have gone and I'm sure most Americans would've liked
it to have gone. We don't know, obviously, ultimately whether it will end
up--how much it will end up making the world safer or making the world more
dangerous. I think if we stick to it and if we prevail, it will make the
world a lot more safer. But obviously some people disagree with that.

GROSS: Bill Kristol, you are the founding editor of The Weekly Standard,
which is this year celebrating its 10th anniversary. And now you've edited a
new anthology collecting articles from The Weekly Standard. Before you
founded The Weekly Standard, you were chief of staff for Vice President Dan
Quayle. What's the difference between the kind of influence you have when
you're a close adviser to a vice president and the kind of influence that you
have when you're editing a publication that's very closely read in many
political circles, particularly in, you know, conservative circles?

Mr. KRISTOL: Well, the great thing about editing a magazine or writing for a
magazine is that you say what you think and you're not part of a team; you
don't have to sort of defend things you think are indefensible. I--believe
me, lots of times in the last few weeks during the Harriet Miers nomination, I
thanked my lucky stars I wasn't in the Bush White House and would have to
either just keep my mouth shut or go out and sort of valiantly and painfully
defend something I thought was really a foolish idea. And, of course, that's
what you do if you're on a team in politics and government. You don't lie for
your guys, but you certainly don't tell the whole truth. It's fun editing a
magazine where you try to call it as you see it.

I don't know how much influence we have. That's so hard to disentangle. If
you have influence editing a magazine, it's--you put ideas out there, you try
to influence the debate. You never know who's going to pick up what. I
found I have a very bad record predicting which of our articles and which of
our issues is going to make a difference. Something I think is really
important and I think could really change the way people think about some
part of the world, you know, kind of comes out, and then people read it and it
kind of goes nowhere. Something else that I personally might have thought,
`Well, this is kind of repeating something we said two or three times,'
suddenly catches on. But it's a very good group. I've really enjoyed it, I
will say.

I enjoyed being in government, but it's a different kind of influence,
obviously, than sitting in a White House senior staff meeting and trying to
make a case for this policy or that. I was Dan Quayle's chief of staff. We
were pretty powerless, frankly, within the White House. Dan Quayle, whom I
like and respect and I think he got a bum rap--he wasn't anything like Dick
Cheney in terms of influence as vice president. And I sure wasn't anything
like Dick Cheney's chief of staff, Scooter Libby, in terms of influence as a
vice presidential chief of staff. And now with Scooter's indictment, maybe it
was just as well that I was sort of unimportant and non-influential.

GROSS: Are you feeling a sense of relief?

Mr. KRISTOL: Well, not quite. I mean, I don't want to feel relief at
Scooter's expense. As I say, I've known him and I respect him and I'm sorry
for what happened to him, but there is a way in which you--and I just never
was nearly as central to anything as he's been, obviously.

GROSS: Well, congratulations on your 10th anniversary, and thank you very
much for talking with us.

Mr. KRISTOL: Well, thanks, Terry. It's been a pleasure.

GROSS: William Kristol is the founding editor of The Weekly Standard and
editor of the new book "The Weekly Standard: A Reader: 1995-2005."

Coming up, a new book that says we're losing the war on terrorism. This is
FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Daniel Benjamin and Steven Simon discuss their new
book, "The Next Attack"
TERRY GROSS, host:

A new book about the war on terror begins with this short sentence: `We are
losing.' In that book, "The Next Attack," Daniel Benjamin and Steven Simon
write, `The number of terrorists is growing, as is the pool of people who may
be moved to violence.' The authors make the case that Iraq has become a
laboratory for terrorists. Benjamin is senior fellow at The Center for
Strategic & International Studies. From 1994 to '99, he was director of
counterterrorism at the National Security Council. Simon teaches at
Georgetown University and served on the National Security Council staff for
five years. Benjamin and Simon's previous book was the best-seller "The Age
of Sacred Terror."

One of the measures of success that President Bush has used to show that we're
doing well in the war against terrorism is that there hasn't been a terrorist
attack on the United States since September 11th. You argue that one of the
reasons why there hasn't been an attack on American soil since September 11th
is that the jihadists are getting what they need in Iraq. What do you mean by
that?

Unidentified Panelist #1: Well, Iraq, as we point out in the book, is the
jihadists' field of dreams. It enables them to do several things
simultaneously--first, target Americans. Now US forces have increasingly
moved into a cantonen posture(ph), which reduces their exposure to attack, so
casualties are somewhat down, although the level of attacks is very high.
But, first of all, they can kill Americans, and, secondly, they can humiliate
the United States by demonstrating daily that it is not in control of
conditions in Iraq.

GROSS: How does the London subway bombing change the story of what the
terrorists are doing and what we need to do to try to stop further attacks?

Unidentified Panelist #1: The London attacks exemplified a couple of
developments; one is what we call self-starters. These guys from Leeds or the
surrounding towns, none of them had been identified with radical causes until
shortly before these attacks, and not all of them were especially pious. But
they had become so enraged by international events against the background of
their feelings of marginalization within British society that they became easy
prey for an ideology that spread not by word of mouth but through the media.
They also demonstrated the sort of transitional state, we believe, that jihad
is in between the old centralized control of attacks--you know, those that
were ordered by the al-Qaeda of old from Afghanistan--and this self-starter
phenomenon.

And the link between these two phases in the London case lies in the way
al-Qaeda, after the attacks, made use of those attacks to propagate its
message. And the link is especially curious, I mean, intriguing really,
because they had obtained at some point, probably on a visit by the attackers
to Pakistan, a videotape of one of the attackers talking about his intentions
to carry out these suicide attacks. So, you know, there is still a residual
linkage, but the recruitment of the attackers was entirely spontaneous. They
recruited themselves.

GROSS: You both believe that the war in Iraq has made us more vulnerable to
terrorism and has increased the number of terrorists who would like to attack
us. Did the Bush administration have any warnings that this might be a
consequence of war in Iraq? Did they have any warnings of this before the
invasion?

Unidentified Panelist #2: They certainly did. They did not ask the
intelligence community what the consequences of the invasion would be, but the
intelligence community did write a number of papers and issue warnings about
the likely consequences of an occupation of Iraq. And according to our
sources, none of this got any real reaction, except one senior intelligence
official told me--got one note back saying, `Oh, you guys are just way too
pessimistic. You don't realize all the opportunities that are out there for
us.' But, no, this was definitely something that the intelligence community
was deeply concerned about.

GROSS: You think that one of the biggest mistakes we made in the planning of
the war in Iraq was assuming that Americans would be greeted as liberators.
Are there certain things--what are some of the things you think that America
didn't plan for and, therefore, caught us in a vulnerable state, things that
we didn't plan for because we expected to have this really positive welcoming
reception?

Unidentified Panelist #1: Well, one thing was the decision to disband the
Baathist army, the Iraqi army. This--if there was one single decision taken
before we went in that had devastating implications for us, it was that. What
we discovered, interviewing very widely among senior officials who served with
the Bush administration, is that the decision to disband the army was never
vetted. It never went through the canonical policy decision-making process.
This was a decision that was taken completely offline and with very serious
consequences for the occupation.

GROSS: Why was this decision taken offline?

Unidentified Panelist #2: Well, the run-up to the war, the war and the
post-war were handled as sort of proprietary matters, as the exclusive
concerns of the Department of Defense and the office of the vice president.
To bring us back to the news of the week with the Libby indictment, those
offices wanted to make sure that the State Department, which was not viewed as
loyal, and other parts of the government--for example, the CIA, which was also
viewed as not loyal--would not raise any objections to these policy decisions.
And as a result, they just took place out of channels.

You know, one of the interesting pieces of news recently was the--were the
statements of Larry Wilkerson, who was Colin Powell's chief of staff and who
was actually a source for our book, about a parallel process in the
government, outside of the traditional one, involving the National Security
Council, which brings together all the Cabinet officials. And this parallel
process played a vital role in the entire policy-making regarding Iraq. And
we found lots and lots of evidence of that.

GROSS: Scooter Libby was the aide to Vice President Dick Cheney. What was
the vice president's office's part in the lead-up to the war in Iraq?

Unidentified Panelist #2: The first was simply driving the train. And one of
the things that we uncover in this book that I don't think has been discussed
earlier was that the office of the vice president had a critical role in
getting the government focused on going to war in Iraq far earlier than anyone
has really discussed before; that is to say they were meeting in January of
2002 about the possibility of going to war within three or four months. And
this is extraordinary when you remember that we're already at war in
Afghanistan at this period and no connection to Iraq has been made in terms of
the 9/11 attacks.

The vice president's office played a central role in constructing the
justification for the war. The vice president himself said on numerous
occasions that there was a connection between al-Qaeda and Saddam. He
continually spoke about a purported meeting between Mohamed Atta, the 9/11
conspirator, in Prague with Iraqi intelligence, although both the CIA and the
FBI knocked this argument down. He continued to say it. The vice president
played an absolutely critical role. You know, it was his speech in August of
2002 that really made it clear to the entire world that the United States was
determined to go to war.

GROSS: You've told us about some of the mistakes you think we've made on the
war on terror. What is one of the things you think we should be doing that
we're not?

Unidentified Panelist #2: We've had a counterterrorism policy that is 100
percent offense, and that's OK to a point because you want to get the bad
guys. We've overmilitarized it in that we went into Iraq. But what we don't
have is a political strategy to isolate extremists from moderates and to
convince moderates that we're OK and they should be on our side. On the
contrary, we've alienated a lot of moderates, and we've given a boost to the
ideology of our opponents. So we need a, you know, radical redrawing of this
strategy, and until we have that--and I don't think it's possible, by the way,
until we're out of Iraq--but until we have that, the hole's just going to get
deeper.

GROSS: Well, I want to thank you both very much for talking with us.

Unidentified Panelist #2: Thank you.

Unidentified Panelist #1: Thank you.

GROSS: Daniel Benjamin and Steven Simon are the authors of "The Next Attack:
The Failure Of The War On Terror and a Strategy For Getting it Right."

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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