David Rivkin transcript from Fox & Friends appearance on Tuesday, July 13, 2010:

Host: How can states limits the federal government’s power? … the justice department says our best case is the supremacy clause in the Constitution that says no state law should eclipse the federal law. You realize that for instance, Maryland, one of a dozen states, is trying to rewrite the Constitution. How so?

David Rivkin: Well they are seriously considering having a Constitutional Convention, a constitution which, by the way has been amended for a number of times, to see if they can come up with more parliamentary revisions.

The point, Steve, is that it reflects a sentiment we see around the country which says, in addition to passing statutes, it pays from time to time to look at the most fundamental set-up which is the state constitution or the federal constitution and come up with things that really cure the problems that have arisen—including the one you mention which is a lack of balance between federal and state authority.

David, you suggest they change things so that if two thirds of states agree, they can suggest their own amendments to the Constitution, right? How would that work?

Yes, that is correct. In order to get there you would need to have a very targeted state convention or you need Congress to propose that amendment. The idea is to put states on the same level plane as Congress in coming up with specific targeted amendments.

To emphasize, this is very important, if states had this power today, you would put a real check, deterrence if you will, on the political class. I think, for example, Congress would have been less willing to push for unconstitutional health care reform if there was a way the states could come back and revist, for example, the commerce clause. Arizona would’ve been played very differently. It’s really a way of restoring the balance that has been unfortunately lost over the last several decades.

Well, David, what’s the chance that this might actually happen?

I believe it is going to actually happen. Its something that states ought to be taking seriously. This is a cause that everybody who is concerned about expansion of federal power should endorse including the Tea Party movement, independents.

To me this is nothing more than restoring the regional balance between the federal and states governments that the framers had in mind. And very important, it’s not just about states rights, because that word has acquired bad currency in some quarters. It’s about restoring individual liberty. Because remember individual liberty is to be protected by balancing federal and state power, not just from the Bill of Rights.

In an appearance on Fox News, lawyer David Rivkin said that media outlets such as the New York Times had “blown up” the controversy surrounding a video released by Liz Cheney’s advocacy group questioning the patriotism of Justice Department lawyers representing terrorist detainees.

“We have a principled disagreement about an issue relating to legal ethics,” Rivkin said.

Rivkin said he felt the issue was not a major debate among conservatives as it had been portrayed in the media throughout the last week.

“The biggest concern is the presumption [in this ad] that you can make meaningful deductions about the sympathies or proclivities of lawyers based upon the causes of the represented,” he said. “That is not true in our legal system.”

The Fox News broadcast played a clip of the video released by the advocacy group, Keep America Safe, that asked President Obama for the names of seven lawyers who advocated for terrorist detainees, calling them “the al-Qaeda Seven.” You can see video on this site under "Media Gallery -TV Appearances."

Rivkin was one of many prominent conservatives who later signed a letter condemning the ad.

“I deplore the positions [the lawyers] have taken, but I don’t want to jump to the conclusion that someone who represented an al-Qaeda detainee is sympathetic to them,” he said.

From Fox & Friends, original airdate: 2/6/10

Was it proper for them to be mirandizing this guy in the first place?

David Rivkin: Utterly improper and Clayton forget about the critics. The justice dept senior official, U.S. attorney for the Southern District of New York [Preet Bharara] on Dec. 18 argues in a filing that its essential to treat a person like Ghailani or Abdumuttalab as intelligence assets, with protracted interrogations, psychological dominance, to illicit ever bit of intelligence information back and forth—not 15 minutes.
Remember he’s at his most vulnerable right after his capture. This was a huge mistake.

We seem to have gotten a lot of information from this guy.

Of course. But we didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more.
My point is, don’t listen to me, listen to Mr. Bharara, U.S. Attorney for the Southern District of New York, who wrote this filing up to consult the intelligence community that espouses the virtue of treating somebody as an intelligence asset. Forget about where he’s going to be tried eventually, that’s a different debate. We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision whether we want to put him in a criminal justice system.…. We got some information out of him, we could’ve gotten more. There’s no doubt about that.





From THE ED SHOW on MSNBC original airdate: 2/8/10

Video opening of footage of top counter terrorism chief John Brennan explaining the night of Detroit bombing.

Ed: Why the Republican criticism so late when they knew the day it took place what was going on?

Rivkin: First of all, they didn’t. It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized. What’s interesting is at the beginning of this administration they announced the creation of something called HIG, high interrogation group that was centered in the FBI. They specifically said it did not mean people would be invariably Mirandized. So Brennan is just factually wrong. Let me just point out isn’t it kind of silly to be talking about, gee, why didn’t the other side complain instead of looking at the underlying substance of this.
We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks.

Well, what you’re saying may be true. But no Republican at the time had any objection for weeks on end on this issue?

Ed, I just explained that they did not know when he was going to be Mirandized.

Well you’re assuming that. You’re putting your credibility against Mr. Brennan who says they were told.

No, Mr. Brennan said that Abdulmutallab was in FBI custody and that invariably meant he would be Mirandized …. I’m telling you when the administration eye-level announcement, when they created HIG, specifically said it did not mean that people would get Mirandized. So unless they could read Mr. Brennan’s mind … The notion they [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!



From Fox and Friends, original airdate:  2/11/10

Host: Supreme Court said California is different; they do have, under the Constitution there, a right to free speech in parts of the mall subject to reasonable regulation. So wasn’t the pastor’s first amendment right violated?

David Rivkin: I think it’s an excellent case as you correctly point out under the California Constitution; it’s broader in scope than the federal Constitution. And the gist of it would be this: the regulations the mall put in place were overly broad and they were enforced in an arbitrary fashion. Remember he did not carry placards, he did not try to organize a demonstration which is the kind of activity for which you would need a permit, he just had a conversation with free shoppers. And the notion that you need to get advance approval for that kind of interaction is quite frankly, silly.

The mall instituted two “reasonable” restrictions—a specific place in the mall, and the speaker has to submit an application four days in advance. Doesn’t that strike you, as a lawyer, as maybe potential censorship and unreasonable?

It is. And again it would be quite different if we were talking about a large city where you were going to organize a demonstration of many thousands. A number of cities don’t require that long of an advance period. So they manage it. 

But another thing to emphasize: these regulations only apply to conversations involving political and religious and other noncommercial speech. So it’s not just a question of reasonable regulations such as place. But it’s the content because it seems to single out religious and political content.

That may be what bothers people. It’s ok to strike up conversations about baseball but not God. There’s something that may be offensive to a great many people about that.

That is absolutely true. Let’s be clear: content regulation, or regulations that treat one type of speech different from another are almost always unconstitutional … For example in the context of getting a permit, let’s say: It was reasonable to get a permit for a large demonstration, but regulations said you don’t need to get one when talking about art, but if you’re talking about God you need a permit. That would be struck down without a doubt.

If I’m a business owner and someone is proselytizing in my store, I guess I have a legit business interest in preventing that from happening and thus the reasonableness of the designated area?

No, what you want to do is tailor restrictions as narrowly as possible. Concerning behavior in a store: If someone is driving customers away there would be nuisance and loitering approaches that would enable you to ask the person to leave, or cause them to be arrested. You don’t need to have regulations of this kind here. But nothing like that happened here.

Yes or no: Is the preacher going to win?

Well, it's in California State courts but I think he has an excellent change of winning. He obviously lost so far at the trial level, but things tend to get better results at the appeal level. I’m optimistic he would win.

 

Constitutional law expert David Rivkin “optimistic” on Fox & Friends

Published on February 11, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

Attorney and Constitutional law expert David Rivkin voiced his optimism for the plaintiff in a California free speech case in an appearance on Fox & Friends today.

Youth pastor Matthew Snatchko was arrested in 2006 by security guards at a Roseville mall after having private conversations about God with mall shoppers. The California Constitution extends its free speech clause to public places so long as would-be speakers fill out an application four days in advance and agree to pre-determined regulations. Snatchko had been given these guidelines but felt that security guards misinterpreted his conversation with shoppers before arresting him.

“The regulations the mall put in place were overly broad and they were enforced in an arbitrary fashion,” said Rivkin. “Remember he did not carry placards; he did not try to organize a demonstration, which is the kind of activity for which you would need a permit; he just had a conversation with free shoppers. And the notion that you need to get advance approval for that kind of interaction is, quite frankly, silly.”

Snatchko initially lost his case in the lower courts, which found the mall's ban on controversial speech with strangers was not a First Amendment violation. He is now waiting on the 3rd Appellate District in Sacramento to schedule a date for arguments or issue a ruling. One of the issues at stake is whether this kind of religious content or political speech may be singled out in malls or public areas across America.

“Content regulation, or regulations that treat one type of speech different from another are almost always unconstitutional,” Rivkin added. “What you want to do is tailor restrictions as narrowly as possible … If someone is driving customers away there would be nuisance and loitering approaches that would enable you to ask the person to leave, or cause them to be arrested … But nothing like that happened here.”

When the host asked whether Rivkin felt the pastor had a good chance of overturning the ruling, Rivkin seemed confident. “I think he has an excellent chance of winning,” he said. “These things tend to get better results at the appeal level. I’m optimistic he would win.”


About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.
For more information, visit www.davidrivkin.com or contact:

David B. Rivkin, Jr.
drivkin@bakerlaw.com
202.861.1731
Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304

 

Former Justice Department official cites secret legal filing that contradicts Obama approach to charging terrorists

Published on February 08, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

Attorney and former Justice Department official David Rivkin recently broke a story in his Wall Street Journal Op-Ed (“Tale of Two Terrorists”) regarding a secret filing made by the U.S. attorney for the Southern District of New York. The filing, made Dec. 18, basically argued that interrogating terrorists must come before criminal prosecution.

On Feb. 6, Rivkin appeared live on Fox and Friends alongside Matthew Alexander, a former senior interrogator in Iraq and author, to discuss the use of Miranda rights for accused terrorists. They specifically discussed Nigerian terrorist Umar Farouk Abdumuttalab, who promptly stopped talking after being read his rights. White House Press Secretary Robert Gibbs previously stated that the FBI obtained sufficient intelligence from a 50-minute interrogation of Abdumuttalab on Christmas Day before reading him his rights. Rivkin strongly disagrees with this approach.

“This was a huge mistake,” Rivkin said. “The Justice Department senior official, U.S. attorney Preet Bharara on Dec. 18 argues in a filing that its essential to treat a person like Abdumuttalab as an intelligence asset, with protracted interrogations to illicit every bit of intelligence information back and forth—and not just for 15  [or 50] minutes.”

Alexander countered that he would rather “deligitimize” terrorists by showing that our government upholds the word of the law; and also by treating terrorists as common criminals which would make them less effective as recruitment figures.

Rivkin said the most important means of self-defense involved timing and the overall intelligence information gathered from suspects at hand. “We didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more,” Rivkin said, noting that he was still for humane treatment of prisoners.

“We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision about whether we want to put him in a criminal justice system,” Rivkin said. “We got some information out of him, but we could’ve gotten more. There’s no doubt about that.”

About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.  For more information, visit www.davidrivkin.com or contact:

 

David Rivkin transcript:

Fox & Friends appearance, Monday, Jan. 25, 2010

(video available at youtube.com/justourfreedom)

Gretchen Carlson: Joining us now to weigh in is David Rivkin, a former Justice Department official. Good to see you, Dave …. When you heard Robert Gibbs say that the “crotch bomber,” as Brian likes to call him, was interrogated for only 50 minutes that made you extra hot under the collar. Why?

Rivkin: Absolutely. Because it is utterly incompetent. Every intelligence expert knows that it takes days and weeks and months to get all the intelligence you can get out of a person. Even then you don’t know if you got everything. To say smugly that 50 minutes is all you need is appalling.

 

Brian Kilmeade: It just defies logic. A customs official, an FBI official were the ones who questioned him for 50 minutes and then he got medical treatment.

 

Rivkin: You’re right, remember you’re supposed to get all the intelligence experts.

Where is the CIA? Where is military intelligence? Where is all the interagency cooperation that is supposed to be brought together to gain intelligence supposedly after 9-11? You had local people on the scene. Its probably not the “A” team, I hate to say it about Detroit—but the best people in Washington spend 50 minutes with him?

The thing is they did it. What is even worse from my perspective, they’re defending it. They’ve learned nothing from this experience. They had a knee jerk reaction to do law enforcement stuff, and they’re defending it weeks into the process.

 

Gretchen Carlson: Some people would say it’s not a knee jerk reaction, Dave, they would say this is the policy of the Obama administration. That they have made a determination in their minds that they’re going to charge any terrorist as a criminal, not an enemy combatant.

 

Rivkin: But they could’ve done that. They didn’t have to do it this fast. It was a knee jerk reaction because they didn’t have a system in place. Remember all these senior intelligence advisors were never consulted about it. It was not even decided by the attorney general. [This] was not enough time to call anybody in Washington.

They put a system in place that lurches toward the result and weeks later they’re still defending it. That’s why I was so upset listening to Gibbs yesterday.

 

Brian Kilmeade: [Umar Farouk Abdulmutallab] was talking non-stop.  Everyone agrees he was talking non-stop. Talking about second bombs.

 

Rivkin: You are most vulnerable at that time. Psychological shock, being captured, this is the time to press on.

 

And the minute they said you have the right to remain silent, you can have a lawyer he never spoke again and he’s got a lawyer. And they said they “hope” he changes his mind and begins to talk.

 

Rivkin: Lots of intelligence, even if you get out of him weeks and months down the road, would not be as actionable.

 

I can see you seething right now because you know what’s at stake. David Rivkin, thanks so much.

 

Rivkin: The security of the American people. Very depressed.

 

 

 

Former Justice Department official calls out recent intelligence failure on Fox & Friends show

Published on January 25, 2010

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C.

Lawyer and former Reagan Justice Dept. official David Rivkin was upset after hearing White House Press Secretary Robert Gibbs defend the decision to interrogate accused Detroit bomber Umar Farouk Abdulmutallab for only 50 minutes before granting him an attorney. Rivkin explained his frustration live during the Fox and Friends morning show that aired Jan. 25.

“Every intelligence expert knows that it takes days and weeks and months to get all the intelligence you can get out of a person. Even then you don’t know if you get everything,” Rivkin said. “To say, smugly, that 50 minutes is all you need is appalling.”

The accused terrorist was granted an attorney after a nearly hour-long interrogation session and immediately stopped speaking on the advice of counsel. Rivkin went on to argue that 50 minutes was not nearly enough time to consult experts in Washington, get feedback from the attorney general, or utilize interagency cooperation from the CIA and military intelligence.

“The thing is they did it. What even worse from my perspective, they’re defending it,” Rivkin continued. “They’ve learned nothing from this experience. They had a knee-jerk reaction to do law enforcement stuff, and they’re defending it weeks into the process.”

Rivkin said the Obama Administration could’ve still charged the accused terrorist as a criminal but that it did not have “a system in place” and should’ve consulted more senior intelligence officials. For instance, interrogators could have capitalized more on the mental state of the recently arrested prisoner, Rivkin said. “You are most vulnerable at that time. Psychological shock, being captured, this is the time to press on,” he told hosts for Fox & Friends.

Rivkin, who is a vocal proponent for classifying accused terrorists as enemy combatants instead of criminals, closed by lamenting the fact that much or any intelligence gathered from the suspect “weeks and months down the road would not be as actionable.”

About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.  For more information, visit www.davidrivkin.com.

Contact

David B. Rivkin, Jr.
drivkin@bakerlaw.com
Tel: (202) 861-1731