 Welcome to the broadcast. I'm David Feldman, DavidFeldmanShow.com. Please friend me on Facebook. Follow me on Twitter. On today's show, we go to Capitol Hill for the latest on the hearings for our new Secretary of Defense. And then we lighten things up by talking to our resident film critic, Michael Snyder, about the Academy Awards. Stay with us. The David Feldman radio program is made possible by listeners like you. You sad, pathetic humps. Donald Trump nominated General James N. Mattis, a retired Marine for Defense Secretary, calling him the closest America has to a general patent. General Mattis, 66, was a four-star general and as head of the United States Central Command from 2010 to 2013, he was deemed too hawkish on Iran and for that reason was fired by President Obama. One of the stumbling blocks to Mattis running defense is the 1947 National Security Act, mandating that the Secretary of Defense be appointed from civilian life. Mattis Schwartz writes for the Intercept and he joins us today from Capitol Hill. The Senate Armed Service Committee hearings on the Mattis waiver are just wrapping up. Very quickly, what is the Mattis waiver? So General Mattis needs Congress to pass a waiver in order to become Secretary of Defense due to the 1947 law you mentioned, which says you have to be out of the armed services. Well, initially it said 10 years and that was later reduced to seven years and Mattis has only been up for three or four years. So Congress has to pass a new law for him to become Secretary of Defense and instead of the normal 51 votes that appointee would need from the Senate, he actually needs 60 in order to get that law on the books and clear the way for him to be in charge of the Pentagon under Trump. And that's what the hearings so far have been about? Well, this hearing was preliminary. Mattis was not there. It was with a couple of academics, experts. One was Dr. Elliot Cohen talking about where this law came from and the history of civilian control, the military in the US. The other one was Kathleen Hicks, I believe. Yeah, that's right. That's right. And these are being chaired by... By Senator John McCain. It's the Senate Armed Services Committee and he's the chair. And I believe they were called to the behest of Senator Reid of Rhode Island. Will the waiver be passed before or after General Mattis testifies before the committee? Uh, it's unclear. It seems likely that it would be after. But, you know, the Senate is in session now and it's not it's not all together clear. Right. I will also have to pass Congress for the break that the fast tracks the legislation and we'll make that process. I'm sorry you broke up. You were breaking up a little. Say that again, please. The bill before the break that the fast track the legislation and we'll make the process easier. Senate rules are a little Byzantine so go over that for me. First of all, I haven't read the Constitution recently. Confirmation is only the purview of the Senate when it comes to Defense Secretary. That's right. But in order for General Mattis to become Defense Secretary there actually needs to be a new law sort of setting aside this requirement that the Secretary of Defense be out of military service for seven years. So this would be the 1947 National Security Act that needs to be rewritten. Yeah, or there needs to be a new law. You know, I think the law that they're talking about now would be a very narrowly tailored exception that would say the next person who is appointed Secretary of Defense who meets these, you know, criteria this law would not apply to. So it would be a one-time exception to the 47 law. Right now the Senate rules require a majority for a Secretary of Defense. That's right. That's right. In order to pass this law you would need to have 60 votes. So the Democrats could block it because you need 60 votes to invoke cloture and prevent a filibuster. Now Senator Gillibrand of New York has said that she's going to oppose the waiver. So there does appear to be one Senator who potentially would be ready to block it. So they'll need 60 to pass this law and give him the waiver. You know, one of the reasons a lot of Americans don't pay attention is it is complicated. So I just want to spell this out if you don't mind. In order for General Mattis to be approved by the Senate the new rules are just a simple majority. That's right. But it's unclear whether he would be constitutionally allowed to assume the office if he were in violation of this 1947 statute requiring that the Secretary of Defense come from civilian life. So there's two things that have to happen. One, the Senate has to confirm him. And two, Congress has to pass a new law granting him a waiver for this 1947 prohibition. If they don't pass the law it's unclear whether he'd be able to become Secretary of Defense legally. So just that we're clear here, it requires 60 votes to pass the waiver but 51 votes for him to be confirmed as Secretary of Defense. Elliott Cohn, he's a professor of strategic studies at Johns Hopkins University, testified today on behalf of the waiver. He says that Mattis would act as a stabilizing force on Trump's watch. How much should people who don't like Trump trust somebody like General Mattis? I don't know if that's a good idea to trust the government. Trust is a dangerous word. I think Dr. Koehn does have a point that General Mattis is among the more experienced and moderate of Trump's appointment so far. There have been reports that he actually wanted to make Michelle Flournoy, who was widely perceived to be Hillary Clinton's choice for Secretary of Defense's deputy, and that she actually met with the president, like to discuss that, decided that she didn't want to. So he has been nearly as moderate and apolitical as most folks in senior positions in the military are these days, far more so than Trump's other military appointees, Michael Flynn, his national security advisor, and John Kelly, his choice for the Department of Homeland Security. Well, they call him mad dog and when somebody compares a general to Patton, my reading of history is that Patton wasn't the sanest of our military. Yeah, Koehn said that he'd never heard anyone in uniform use the mad dog appellation. We know that General Mattis travels with a library of 6,000 books. He's written some pretty eloquent emails about the importance of reading. If he did want to look at his record, the thing to look at would be his conduct of the taking of Fallujah in the early part of the Iraq war. He was the Marine General who George W. Bischarge were taking back the city, and there have been a lot of allegations that there were unnecessary civilian casualties. There were more than a thousand insurgents hiding out in Fallujah and urban warfare is not a pretty thing, but that would be the one aspect of his record that if you wanted to push those questions that Congress could focus on. Did torture happen on his watch in Iraq? Not that we know of, and he came down pretty hard on Abu Ghraib, which I believe he was sort of tangentially connected to in command. Of course, Trump has said that Mattis has changed his mind at least to some degree on whether waterboarding, which is a form of torture, should be brought back. He said that to The New York Times a few weeks ago, which is part of why people have been so supportive of the Mattis nomination. The sense that he could moderate the president-elect's views. He had a mea culpa, mea culpa with Abu Ghraib. He called it one of the most embarrassing moments, if not the most embarrassing moment of his career, right? Yeah, I believe that he did. I think that is correct. He has come out against waterboarding, but now President-elect, boy, that's hard to trip off the tongue. President-elect Donald Trump says that he's changed his mind on waterboarding, or has he pretty much remained steadfast opposed to waterboarding? No, no, no. President-elect Trump said that Mattis changed Trump's mind at least to some degree on waterboarding. In his interview with The New York Times editorial board, he said that he just met with General Mattis and that Mattis said that he could do better with a pack of cigarettes and a couple cans of beer than with waterboarding if he were interrogating an al-Qaeda prisoner. A lot has been made of this remark by Trump, and people have turned that into a suggestion that Trump's own views about torture may be moderating and that Mattis could potentially be a stabilizing force on his thinking. But that's really all we get from Trump is just these kind of like throwaway moments and quotes and tweets and little glimpses. And I don't think anyone really knows what his opinions about these things are and who will really be part of his inner circle. Now, of course, the Secretary of Defense is part of like the National Security Committee. The Secretary of Defense is one of the principles. So if the Trump White House looks anything like those before it, you know, he will be one of the people in the room when the big decisions get made. Now, will Trump abide by that precedent? He's certainly set many others aside. So, you know, who knows, it's all kind of up for grabs at this point. Mattifyas Schwartz writes to the Intercept, you have a great article about the Mattis waiver. President-elect Trump went to the Military Academy as an adolescent, but never served in our military. He seems to get his information from the shows, doesn't read, loves the movie Patton, and we're hoping that he's not really going to be in charge, right? He's going to kind of play the king and Vice President-elect Pence will be the Prime Minister and that Trump really won't be making the important decisions in the situation room. That'll be left to the generals. Is that, that's not what our founding fathers want. And then we'll get to that in a second because you write a lot about that. But is that what they're hoping for on Capitol Hill? Even the Republicans that Donald Trump kind of just tweets in the situation room while the adults are in charge? Well, that is with the transition. That is what Trump's campaign reportedly told Governor John Kasich of Ohio when they offered him the job, a vice president. They told them that if Trump won, he would be the most powerful vice president in history and that Trump wasn't really that engaged in day-to-day things. I find that hard to believe. I think Trump's whole identity and brand, which is the thing he's most obsessed with, is focused solely on him being in charge. And I find it, I think he'll, there'll be things that he isn't interested in, and that will be an important area of his administration to watch. But in terms of the big issues, I find it hard to believe that he won't be putting his personal stamp on all of them and letting everyone know that he's the boss. That seems to be what his whole life is about. Well, you write some really leading questions in the intercept about this. Mutiny and the need for generals to follow the orders of their president. In the intercept, you write that the Senate Armed Services Committee needs to ask General Mattis what his stance is on mutiny and whether or not a general is obligated to follow the orders of our president. There's sort of this issue of muscle memory with, you know, if he served in the military, will he see a president and a sort of colleague in whose cabinet he's serving in and who constitutionally he's going to give advice to, or will he see a commander in chief to take orders from? Now, one thing I didn't say in this story that's important to note is that there's a difference in the oath that enlisted men in the military take and the oath that officers take. Enlisted men swear an oath to follow the orders of command. Officers simply take an oath to uphold the constitution. They don't actually swear an oath to follow orders. So they do have a different culture and there is a larger degree of independence and republicanism that runs through the officer corps. And I think Mattis has done enough reading to know that, but it is something that the Congress needs to keep an eye on. Yeah, I want to, I hate to use the term unpack, but I do want to unpack this. During the Oliver North Contrigate hearings, I remember Oliver North being told that after the Nuremberg trials, it was enshrined in the military that you are not supposed to obey orders if they're illegal. Because after World War II, a lot of the Nazi generals say I was just following orders. And the takeaway from that experience was that American soldiers were not allowed to just follow orders if those orders were deemed illegal. What is the difference between mutiny and not following orders that you deem illegal? Well, the problematic word in that question is illegal, because there's a lot of awful things that President Trump could do under certain readings of executive authority that are perfectly legal, such as launch a quote unquote preemptive nuclear strike against someone who he deems to be a threat, or such as torture. You know, we've seen the memos from the Office of Legal Counsel written during the term of President George W. Bush by John Yu explaining why torture, why water warning is not torture, even though we all know that it is and multiple independent bodies have found that it is. So that the President, to a great extent, is capable of making his own law principally through the, you know, the Office of Legal Counsel. So the question is not so much whether Mattis would follow illegal orders, but just whether the extent to which he'd be able to flex his own judgment and change the actions flowing from an office whose powers have grown tremendously. I mean, we saw sort of a great wave of executive power that got curtailed in Watergate, and then there was a second wave that got curtailed during the Iran-Contra affair. Now we're at the crest of a third wave and it still hasn't been pushed back. And you can look at some of the precedents that President Obama has set with his own OLC findings and some of them are quite frightening. Under Rumsfeld, he kind of ran the military as his own little country. He dismissed the Republican Guard in Iraq, President Bush didn't even know that. The greatest mistake that was made, the reason ISIS rose up is because Hussein's army was dismissed in Iraq. And President Bush found out about that ex-post facto. Is that what Mattis is just going to do? Is he just going to not consult Trump? Go back to mutiny. What constitutes mutiny in the Constitution? Well, this is just the reading of the Commander-in-Chief clause is that asking his Commander-in-Chief, you know, the President has authority over the armed service. That doesn't apply to the Secretary of Defense. It is a civilian role and it is part of the President's cabinet. So there's no requirement that Mattis obey the President. In terms of what Rumsfeld did with Bush, that- I'm sorry you said there is no what that he obeys the President? There's no constitutional requirement that as Secretary of Defense, he carry out the President's orders. Now, if he doesn't, the President can dismiss him, of course, but it's not it's not illegal for him to to not follow orders in the same way that it would be for like an enlisted soldier, because he will be serving in a civilian role, even though he is a former general. Well, that's really important. It is not- he's not constitutionally mandated to follow the Commander-in-Chief's orders, because he's a civilian, not a member of the military. So legally, if he doesn't follow the President's orders, the worst that can happen to him is he gets fired? Yeah, that's right. Yeah. That's- I mean, it's his job. It's his job to carry out the President's policies, but it's no different from the Secretary of Health and Human Services or the Secretary of Labor. It's a purely civilian relationship between the Secretary of Defense and the President, and it's not something that he could be court-martialed for. It's not a violation of the Uniform Code of Military Justice, even though he is a retired general. As Secretary of Defense, he'll be there. It'll be a civilian job. As Secretary of Defense, we'll remain a civilian job. And that's baked into the Federalist Papers, you write. What did our founding fathers believe when it came to civilian rule of the military? They were afraid of standing armies. That was one of their big complaints against the English rule, is these big standing armies that were kept everywhere. They felt that was a threat to republicanism, and they wanted a small volunteer army that would expand in times of crisis. Now, we kind of set that aside after World War II. We never really demilitarized after World War II. You know, we've been, trying to run at least half the world since then. So some of these concepts are a little bit antique. The one that is in is that the military is not autonomous. It's controlled by the President to a lesser degree lately by Congress, which sets his budget. And then it can only appropriate budgets to the military for two years at the most. That's in the Constitution. So the military takes direction from two branches of government, the executive and the legislative. And it is not autonomous. It's not capable of giving itself orders. Those orders flow down mostly from the President. We've been talking with Mattithaia Schwartz. You are a reporter for The Intercept. And do you specialize in military? What are you specializing over there? I'm a national security reporter for The Intercept, and I contribute to The New Yorker and The New York Times Magazine as well. Great. Thank you so much for your time. I'll let you get back to the hearings. I hope you'll come back real soon. Yeah, yeah, I'd love to. Thank you. It's a pleasure. Thanks for getting down into the nuts and bolts of this. Thank you. We just got through with The Golden Globes. There are a lot of movies to be watching, keeping our eyes on for the Academy Awards. That's why I talked to Michael Snyder. Joining us is our resident film critic, Michael Snyder. These are the movies he'll be talking about. Eye in the Sky, Loving, Hidden Figures, Zootopia, Jackie, and Pablo Neruda. Tell me about Eye in the Sky. Well, let's preface all this by saying these are five, actually six films from 2016 that I think are worthy and important, and the people should seek out and watch for a variety of reasons. Not a best of list. It's not anything of that nature. Let's put this in context. But Eye in the Sky came out much earlier in 2016, and it's a film that I think is totally relevant and totally topical. It's about the current era of international terrorism, about drone warfare, and invasive high-tech surveillance. It goes into the consequences of fighting this ruthless, elusive enemy with, I guess you'd call it imprecise technology, especially when it's in the hands of human beings. The movie shows what can happen when innocents are thrust in the middle of the conflict, and soldiers and agents have to deal with their individual and sometimes conflicting values for, I guess, what people would call the greater good. Helen Mirren is the star, and she's so elegant and beautiful and sexy, but here she plays a no-nonsense British army colonel who's using an American drone in conjunction with the U.S. military to finally find this longtime nemesis that she has, a U.K. citizen who joined a Kenyan terrorist organization. But when she finds the target, she sees the target as overseeing the launch of multiple suicide bombings. So they order a missile strike, except a little girl wanders into the kill zone. The drone pilot is played by Aaron Paul from Breaking Bad. The tremendous Alan Rickman, sadly one of the talented people who departed the earth in 2016 and not in a rocket ship, now he died. Alan Rickman plays a fellow British military officer in London who is trying to debate whether or not there's a moral reason to go in there and do this as the timers tick. Jeremy Northam, Ian Glenn. It's a fantastic piece of work, and there's a real gravitas to this. I mean, the question is, is one life a child's worth so many other, you know, to stop so many other deaths? The director's Gavin Hood, who I guess he was the director of the Oscar-winning South African film, Sotsi, but he also did Ender's Game and X-Men Origins, a Wolverine film, so he's done a lot of commercial stuff, but he handles the moral and ethical dilemmas here with such sensitivity, and the action sequences are so tense. I mean, this is a clear and present story that's ongoing and is probably going to ratchet up this year, so I thought I and the sky is very timely and something people should seek out. Loving. Loving is a very powerful and understated, historical, but real relevant and topical movie, a docudrama that has a heart and a mind and a very noble purpose. I mean, it shows in no uncertain terms the inhuman, bigoted and petty-minded elements of society that existed in America, and even exists now, as we well know, that run counter to human rights and in all too many cases, like I said, still linger in the 21st century. It's about the real-life commitment of an interracial couple, Richard and Mildred Loving. Really, that's their surname, brilliantly portrayed by Joel Edgerton from Down Under and Ruth Nega from the UK, and Ruth Nega is getting wonderful notes on this. She's done some work here in the States and back home. I mean, I don't know if you saw the night of the American miniseries on HBO. It was adapted from a British miniseries called Criminal Justice, and Ruth Nega was in that in 2008. She's been working for a number of years, and here she really gets a chance to make an impact as Mildred Loving. They married and then have fought for nine years, so she could be this man's wife and he could be her husband in their hometown, which was in Virginia. This whole idea of Virginia is for lovers. Yeah, well, check this out. So the writer-director Jeff Nichols, who also has brought these incredibly original and memorable and inherently philosophical movies, Mud, Take Shelter, and Midnight Special, is just wonderful and goes total docudrama with Loving, and yet he captures the spirit and emotion, all the elements that make the Loving story true, tragic, and resonant. He's made the personal political with Loving, and everybody delivers the goods in this thing. Do we know if they stay married? They did. They were devoted to one another. Yeah, it's kind of tough to get a divorce after you go through all that. Well, now the cynic in you is showing, but I do believe they loved one another so dearly that the tides of society and history were broached and breached by their love. So one would hope that they did stick it out together and cared for one another unto the later parts of their lives. I don't remember the details of their passing or if anyone's still with us, but kudos to the Loving, brave, courageous, and bold people. John Glenn was the first American to orbit the earth and he passed away this, oh, last year in 2016, and there's a new movie about his flight called Hidden Figures. Well, it's about more than his flight. It could have been all messy and overbearing, but it was instead heartfelt and engaging. It's an historical drama about three African American women who are tasked to provide NASA with important mathematical data needed to launch the program's earliest space missions, and it stars a power pack trio of actresses, Taraji P. Henson, who people know as Cookie on Empire. And before that, she was on Pursuit of Interest as a hard as nails cop, a wonderful character, Octavia Spencer, who's an Oscar winner, and Janelle Monae, a pop singer who clearly is a superior actress and may have started out. I get the feeling she was like a theater kid, and then she moved into music, but people knew her as sort of a flamboyant theatrical pop singer, but she's gotten into acting in the spades part of the expression. I mean, she's truly wonderful in this, and she was also quite great in moonlight. Kevin Koster is also in this thing, Kirsten Dunst, and from the big bang theory of all people, Jim Parsons. Anyway, the story is, well, we see these women as they have been shunted to one side and forced to use colored only bathrooms at the NASA headquarters where they're working. And it's remarkable when they are proven to have so much skill and talent that they are brought into the fold, despite a lot of bigotry and prejudice on the part of those around them. It's funny, the depiction of John Glenn in this movie is wonderful. He's one of the few people that goes over to the African American contingent, which is more than just these three women. They're all working on computations and introduces himself, and is warm and open to them, while a lot of the stiff bastards in the NASA crew keep their distance of the white ones, the white male oppressors, if you will. Anyway, you get sterling work from Henson and Spencer redeems herself after playing a sleazy hooker in the Volger, but rampantly unfunny band Santa, too. These are real women, and we do see in an epilogue what became of them, and they were brilliant and talented, and they ended up being integral to the launch of John Glenn into orbit, which was a big turnaround for the Americans during the space race in the 1960s and eventually ended up with an American flag being planted on the moon for better or worse. And yeah, I say hidden figures is definitely worth watching, whether at home on the big screen at your house or at the theater. You're still pushing the American propaganda that man actually landed on the moon. Yes, Stanley Kubrick's ghost and I had a long conversation about that. He did not fake the moon landing. He says that anyone who thinks otherwise is a tin foil hat wearing lunatic. Zootopia. Well, here's an interesting case where an animated movie has the kind of depth and meta text to tell us something about our society in very clear and cogent ways. It's a renaissance at Disney Animation when Zootopia and the more recent Monet, no, excuse me, it's that Monet, Moana. Let's not confuse the star of a Disney cartoon with a wonderful singer and actress. But in any regard, Zootopia was earlier in the year, and Moana was later, but Zootopia is the one with the real richness and depth. It's fast moving, it's funny, beautifully animated, and the message gets a little mixed here and there, but the movie presumes a world like ours only where generally civilized anthropomorphic animals coexist species by species. We're all out of time for the rest of my interview with Michael Snyder. Go to DavidFeldmanShow.com. We'll see you next week. The David Feldman radio program is made possible by listeners like you. Use sad pathetic humps.