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America's Legal War on Terrorism: Are There Rules for Hunting Terrorists?; Could bin Laden be Brought to Trial?

Aired October 6, 2001 - 15:00   ET



GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: We seek not revenge in America. We seek justice.

TONY BLAIR, BRITISH PRIME MINISTER: We must bring bin Laden and other al Qaeda leaders to justice and eliminate the terrorist threat.

UNIDENTIFIED MALE: American people expect us to give this fight the highest priority.

UNIDENTIFIED MALE: It is war against terrorism that strikes directly at the American way of life.

RUDY GIULIANI, MAYOR OF NEW YORK: On one side is democracy. On the other is tyranny, arbitrary executions, and mass murder.

GEORGE PATAKI, GOVERNOR OF NEW YORK: This is not just attack on our economy, it's attack on the freedom. We will get the individuals.

BUSH: I want justice. There's an old poster out West as I recall that said, "Wanted, dead or alive."

We did not seek this conflict, but we will win it.


ANNOUNCER: This is a special edition of "BURDEN OF PROOF" with Roger Cossack and Greta Van Susteren.

ROGER COSSACK, CO-HOST: Hello and welcome to a special edition of "BURDEN OF PROOF," America's legal war on terrorism. Are there different rules for hunting down terrorists? Could Osama bin Laden be brought to trial? What's happening to your civil rights? And are you will to trade some of them for a sense of security?

GRETA VAN SUSTEREN, CO-HOST: We're going to talk about those questions. But first, let's go to CNN's White House Kelly Wallace for the latest -- Kelly.

KELLY WALLACE, CNN CORRESPONDENT: Well, hello there, Greta and Roger. The latest is President Bush chaired a 45-minute video teleconference with his National Security Council team. The President at the presidential retreat at Camp David, along with his National Security adviser Condoleezza Rice and CIA director George Tenet, other advisers attending that from Washington.

The two developments to report to you. Number one, the White House saying absolutely not to any negotiations, any discussions with the Taliban over their latest offer to again, release those aid workers in exchange for the U.S. to stop threatening any military action. In the words of one U.S. official, "it is time for action, not words."

Number two, the U.S. -- President Bush really, for first time, using the words "time is running out." Greta, Roger, President Bush has not used those words before. He has said that there would be no timetable, that U.S. would act based upon its own time, but the President's words the clearest indication yet that military action against the Taliban regime may not be too far off in the near future -- Greta, Roger.

SUSTEREN: Kelly, is there any risk or is anyone talking about whether or not there's likely to be terrorist attack on the United States?

WALLACE: Well, as you know, there's been lots of discussion about that. The word from the administration is that there can continue to be threats. Attorney General John Ashcroft saying just last weekend that there continue to be risks out there. And U.S. officials saying if the U.S. retaliates, those risks will go up.

CNN has confirmed that a senior intelligence official did tell members of Congress that there would be a 100 percent chance of some attack in the United States or abroad against Americans if the U.S. retaliated.

And one other very interesting thing, senior law enforcement sources talking to my colleague, John King, say that they don't have any specific threats out there, but they do have some intelligence data that has them somewhat uneasy. They've been tracking known and suspected terrorists. And they say their activities right now are very eerily similar to the activities before September 11.

These officials saying they've been able to put together a good sense of what exactly happened before September 11. And they're noticing some similar language, such as "you might be happy soon." Some activities. Some travel in and out of Afghanistan. Some calling that has them concerned.

Again, they do believe these officials -- these officials saying they do believe that suspected terrorists know that the CIA, the FBI, these agencies are tracking them. So they're not sure how much of this could be disinformation to keep the U.S. on its guard and to keep the U.S. from retaliating, but nevertheless, it does have U.S. officials somewhat uneasy -- Greta.

COSSACK: All right, our thanks to Kelly Wallace.

The hunt for Osama bin Laden continues. And joining us today to discuss that investigation, former federal prosecutor Saul Wisenberg, former FBI director William Sessions, and Jeffrey Smith, former general council for the Central Intelligence Agency.

Judge Sessions, I want to start with you. In this investigation, we have heard that the authorities are hampered because of lack of a intelligence and the difficulty in getting intelligence. Why is that?

WILLIAM SESSIONS, FMR. DIRECTOR OF THE FBI: Well, you know, we've heard that there was great deal intelligence, but that much of it would not be deciphered, that is it could not be translated. There were information -- there was information that came in. They simply weren't able to get actually to.

But we also know from what we've heard, that at the time, the FBI knew that in fact these two people that were suspected in Minneapolis and had reported by the Minneapolis office, might well be planning things, but they could not have sufficient information, even though it had seemed to on point, to actually get the authority to have the taps that were necessary or they felt were necessary.

SUSTEREN: And of course, always in hindsight, you know, as a piece fit together, it looks like someone dropped the ball in hindsight. But Jeff, in terms of collecting intelligence so that our FBI and CIA can work effectively, is there something that's holding back? You know, is there money problems or legal problems, you know, some reason why we can't get more intelligence earlier?

JEFF SMITH, FMR. GENERAL COUNCIL, CIA: In terms of the collecting intelligence, we're doing a lot. We have collected a lot. As the judge said, a good deal of the problem is associated with rapidly processing that intelligence and finding the bits and pieces scattered throughout this vast array of information we get that would give us adequate warning.

SUSTEREN: But what the judge is talking about was the information the FBI only got in August. Or maybe in August about the man who had has been picked up as a material witness in Minneapolis. If you go back through this investigation, there is a lot of planning going on.

For instance in Hamburg, which seemed to be the center of Mohamed Atta, who may be a ringleader, we didn't have that intelligence. What's the defect that we can't get that kind early?

SMITH: Well I'm no sure that we didn't have that intelligence, but it is clear that this was a massive intelligence failure. And somehow or another, these bits of information that now are coming out, we didn't either have or didn't appreciate the significance of what we have.

COSSACK: Jeff, Seymour Hirshon in the recent "New Yorker" writes about the fact that he says the failure of our intelligence agency is that we have no one on the ground in these Middle East countries, who are able to infiltrate any of these groups, that we have a total inability to do that. SMITH: I think he substantially overstates it. It is certainly true that penetrating those groups is enormously difficult. And we have been trying for many years to penetrate the groups. Keep in mind, we have had some successes. Overseas, we have been able disrupt groups, acting on our own and together with other governments.

There are unknown and unseen successes, but we've disrupted these groups. Clearly in this case, we were not on the inner circle of these groups. It's extraordinary difficult. And we have to try harder.

SESSIONS: What he makes a points is very clear. That is the caliber of the actual information you're getting from human intelligence. It is not enough to have an informant. You have to have a good informant. It is not enough to have an agent. You have to have a good agent.

You were you mentioning earlier the fact of funding. I do not know the precise level of funding for the bureau during the past 10 years. But consistency and a level of funding that allows us to continue to actually to deal with and to translate and to operate on the information that we've gotten is very important. And that relates to funding.

SUSTEREN: Saul, a lot of people picked up as a material witness. What is a material witness for our viewers?

SAUL WISENBERG, FMR. FEDERAL PROSECUTOR: A material witness is somebody who has material information about a crime, but who is not himself or herself chargeable.

SUSTEREN: But how do you hold them? I mean, if he hasn't been charged with a crime, how does the government have the right to held them?

WISENBERG: It's really one of the great ironies of American federal law enforcement. There's a statute that actually authorizes the holding of material witnesses. And if can you show there's a likelihood to flee, you can hold them for a period of time.

You know, there hasn't been really been, to my knowledge, much significant court testing of this statute. You would think that in certain respects, material witnesses seem to have fewer procedural...

COSSACK: Because it's not often used?


COSSACK: But when it is when there's a problem.

WISENBERG: Right. Material witnesses, in some sense, have less procedural safeguards than criminal defendants. I can't say that I'm unhappy that the statute is on the books right now though, because I think the great majority of the people they're holding are being held under that statute. SUSTEREN: Judge Sessions, hold that thought. We'll get right back to you on this. We're going to take a quick break. We'll be right back.


SUSTEREN: Welcome back to the special edition of BURDEN OF PROOF. Judge Sessions, I will come right back to you. You had a question I think for Saul.

SESSIONS: Actually, a material witness is many times, I think it's understood, that it's for their benefit to be held and to be protected and to be in that kind of status. So it isn't always just that they're being held against their will. Sometimes its a very cooperative circumstance.

SUSTEREN: Well, it's a very sort of curious issue. And we -- like Alan Dershowitz, professor at Harvard is here. Alan, what's your thought on the holding someone as a material witness?

ALAN DERSHOWITZ, PROFESSOR, HARVARD: Well, you know, the statutes have been on the books since the Middle Ages. And they were really designed to prevent people who were foreigners from leaving the country.

They get used only rarely. They get used mostly in organized crime cases. Judge Sessions is absolutely right in organized crime cases, they're used very often to protect cooperating witnesses, who really need to be in protective custody against those they are testifying against.

And they're also used in terrorism cases. And -- but they can be terribly, terribly abused, because the standard, the criteria, and the fact that they can be held almost indefinitely make it a real exception to our constitutional presumption and innocence.

Here, people who are not charged with crime, who may be perfectly innocent, some of them at least, may want to leave and go away. And yet, the government can use the pressure of holding them as a material witness as a way of really inducing them to cooperate, or else they are hold them indefinitely. So it's a...

COSSACK: And that, of course, is one of the reasons why, at least in my career with material witnesses, I've never seen it used often at all.

I want to go back to you for a second, Jeff. We were talking a little about intelligence and we were talking a little bit about the notion of getting agents and have well-placed agents. You are critical of what the law is and what the law requires?

SMITH: I'm critical of the current law on the Foreign Intelligence Surveillance Act, which enacted in 1978. It currently requires, in order to get wire tap on a non-U.S. person in the United States, you must have probable cause that the individual is an agent of a foreign power or an agent of a terrorist organization. Front page of this morning's "New York Times" discloses that the FBI in Minnesota wanted to get a FISA order to open some of the -- get into the computer of the Algerian, who was a French national in Minnesota, who was training to fly planes and didn't want to learn how to land them.

That apparently was disapproved at FBI headquarters because they didn't believe there was adequate authority, given the facts and the law, to get an order from the special foreign intelligence surveillance court.

I think that with respect non-U.S. persons, Congress should change the law, to make it easier to collect foreign intelligence, not for purposes of prosecution, but to collect foreign intelligence from non-U.S. persons in the United States. Congress chose not to do that. They left the standard where it was.

COSSACK: What standard could there be? What this person did sounded absolutely bizarre. But is that what the standard's going to be, foreign nationals acting bizarrely?

SMITH: I think the standard to be something like to collect extremely valuable intelligence information when there are sufficient evidence that he has links to foreign terrorist groups.

But to prove that he's an agent of a foreign terrorist group is very difficult to prove. Now these are foreign nationals in the United States. And it can clearly be abused. And I don't know what the exact standard ought to be, but we clearly need greater authority to go after non-U.S. persons in the United States, who are coming here to kill us.

SUSTEREN: Judge, you want to get in?

SESSIONS: Well, if there are circumstances where the persons have come here and, as in this case it appears, who are sleepers. That is, they came, became normal citizens, functioned in community, who are not suspicious in activities by and large. Their community accepted them. They're sleepers.

And then they're called in to do particular duty, either for their government or for this case we believe, Osama bin Laden's group. So the point is that it's very hard, as Mr. Smith says, to make the connection with a government or a foreign terrorist group.

SUSTEREN: Well, you know, the interesting thing is though that all the intelligence you're talking about is gathering it in Minnesota with this particular guy, which was way down the chain of the planning.


SUSTEREN: And it seems to me that we really need to move up in time, in that if there's a way to get intelligence, you know, to track down the terrorist before. And I guess takes a lot of corporation with other governments. SESSIONS: Well, nobody wears a flag that has a terrorist flag signal on it.

SUSTEREN: No, no, but it would be better if, you know, we'd gotten earlier in the time line, to get intelligence out of Germany, for instance.

SESSIONS: We may well have had some of that, but it didn't connect up. I don't know. But the point is that when you get to that point that you believe you have sufficient to justify a Foreign Intelligence Surveillance Act warrant or tap order, you can't do it because you cannot prove the elements concerning their connection.

COSSACK: Saul, what does it mean? It's my understanding that of all the arrests and detentions that have been done in this case so far, there have really, with the exception I think of these few in Virginia on the driver's license, there have been very few charges filed having to do anything to do with the September 11 attacks. And yet hundreds people have been detained and arrested?

WISENBERG: Well, it means that they're very actively using this statute you mentioned and that the professor mentioned. That really doesn't get used, but that they don't have enough to tie them to these very specific four airline flights.

SUSTEREN: And when they do get them, it's something like the guy they're holding in England, that we're trying to get back to the United States. It's for lying on his pilot's application and not saying he had old knee injury in a petty theft. So it's like, we're trying to find anything.

WISENBERG: Right. And if you had -- I saw a newspaper story that really blew my mind that we know about four of these cells that are operating in our country, but we can't touch them or we couldn't touch them, supposedly, because we can't see that they're doing anything.

COSSACK: Yes, that's what Jeff was referring to earlier on. Let me interrupt you all just for a second, because I now got to take that break.

When we come back, President Bush says that all roads lead to Osama bin Laden for the September 11 attacks. So what's the evidence? And why has that been kept secret? Would it hold up in a court of law? Don't go away. We'll discuss all of this we come back.



BUSH: Whether we bring our enemies to justice or bring justice to our enemies, justice will be done.

UNIDENTIFIED MALE: If Osama bin Laden is involved in this option, we need to -- something which is the evidence which is the proof on Osama bin Laden, to talk on this option. Unfortunately, President Bush denied that, again and again and here stand off on the attack on Afghanistan.


COSSACK: Now the U.S. says it has the evidence linking Osama bin Laden and al Qaeda to the September 11 attacks. So what happened if he's captured alive?

Joining us now here in Washington, David Scheffer, the first U.S. ambassador at large for war crimes, in Boston international law professor Anne Marie Slaughter, in New York criminal defense attorney Stanley Cohen. And of course, we've also introduced him, but can never introduce him enough, criminal defense attorney Alan Dershowitz, along with California Democratic Congresswoman Maxine Waters.

Ambassador Scheffer, I want to start my first question to you. Let's assume that Osama bin Laden is captured, should he be brought back to the United States for trial? And what happens then?

DAVID SCHEFFER, U.S. AMBASSADOR AT LARGE FOR WAR CRIMES: Well, I think he should. This is really an operation that involves both international law general enforcement and just cause in self defense.

If he happens to be taken alive, and that that's big question, if, I think it would be appropriate to bring him back to United States. He has been indicted already for the 1998 embassy bombings Africa. So there's more than enough cause to bring him back here.

And frankly, the Security Council has endorsed that in resolutions ever since 1998, that he needs to be captured and brought to justice in a court of law. I think it would be a far too convoluted process at this point, to try to create an international tribunal to prosecute him.

We have the measures and the means here to do so, I think it's also a big question whether or not he'll ever reach an American courtroom. These are military operations. They're in self defense. They're to eliminate a threat. And whether he can either be confronted with the threat of force and surrender, or actually be apprehended, I think that's just going to have await the operational play out of this whole process.

SUSTEREN: Anne Marie, you and Ambassador Scheffer previously have given me the education four choices at trial here in United States, a military trial, an international criminal tribunal like Bosnia, or a Nuremberg type trial, like we did in the after the World War II. What do you think smartest thing? Should he be caught alive?

ANNE MARIE SLAUGHTER, INT'L LAW PROFESSOR: Well, I agree with David that we have to wait to see whether it really is possible to try him alive. And I think he could be tried in the United States. And short-term, we know how to do that. It might be difficult to get him a fair trial, but we could do it.

If we're really think ahead, and we're thinking in terms of a global war of terrorism over the long-term, if would be better to try him in an international forum, where we can get the input, but also the condemnation of judges from all he world's legal systems under both national and international law.

COSSACK: Alan Dershowitz, the notion of trying Osama bin Laden in an American court while, you know, sounding like a -- something that would be satisfying I think would be very, very difficult. You're a person who's known as a staunch defender of due process and all of those things that defendants get in a trial. How could he every receive those?

DERSHOWITZ: It would be very difficult. It would be very daunting. First of all, who would be his lawyer? Everybody in the America says that everybody is entitled to fair representation, but they certainly don't want anybody to represent him who has any chance of possibly putting on his Ellis defense or winning.

The big virtue that American justice presents is trial by jury. And trial by jury, you can't whisper number to a jury. A jury just comes together to do justice in a single case. It doesn't have ambitions. It doesn't want to be promoted. It doesn't want to be praised by peers.

What I'm terrified about is an international tribunal sponsored by the U.N. or any other group, which has shown that it cannot be fair when it comes to issues revolving around the Middle East.

Look at the international conference in Durban recently, which just spent the entire time condemning Israel for racism, when there was so much racism in slavery all over the world. I think what you get would be a version of victor's justice.

You'd get people coming in and saying, "Well, we're not terrorists. We're really, you know, national liberation fighters. And you know, there'd be distinctions and hair splitting. And I think America was the essential victim here. We would try very hard to afford a fair trial.

In today's paper in Canada, I have a front page article. If I were the prosecutor, what my opening argument would be. And I think can you make a fairly strong conventional Ricco case, Ricco is racketeering case, in which al Qaeda is the enterprise.

There are many predicates that go back a long period of time, some of which Osama bin Laden has admitted to. And then you use circumstantial evidence, because there's no smoking gun on September 11, but you could get enough evidence that has been sufficient in the past to put a lot of organized crime people away. And yes, I think could you get a fair trial.

SUSTEREN: All right, Stanley Cohen, you've had a lot controversial clients. Could you represent Osama bin Laden and could he get a fair trial?

STANLEY COHEN, CRIMINAL DEFENSE ATTORNEY: Well, I don't know if I could represent him. And I don't think he's ever going to set food in the United States, but I think if there's ever been a single case in the history of this country that is bigger than the criminal justice system's ability to dispense justice, to produce a fair trial, this is the case.

All over the United States, Muslims, not charged with the crimes from pillar to post, from the north to the west, east, south, the entire nation are being attacked, are being harassed, are being beaten, in some cases being killed just because they're Muslim.

There's never before been a case that has produced the type of anxiety and pain and anger and understandingly so, as this one has. And it's impossible to have a fair trial. I think it'd be nice to go through exercise. I think at the end of it, we would probably slap ourselves in the back and say, "Gee, justice prevailed." But we shouldn't dilute ourselves. It's absolutely impossible to find a fair case or fair jury in this particular case.

DERSHOWITZ: Well, what's the alternative then?

SUSTEREN: Well, hold that that. Alan, we've got to take a break. When we come back, Congressman Maxine Waters will have other weigh in on this. Stay with us.


VAN SUSTEREN: Welcome back. Congresswoman Maxine Waters from California, let me ask you this question: President Bush says dead or alive. We get him alive, what should we do?

WATERS: I don't know. We've gone to the international community to ask their support in building a case against bin Laden, and it seems to me we at least have to find out whether or not the international community would want some involvement in determining what happens to him. I think most Americans would like to see him brought back here. But I don't know if he could get a decent trial here.

VAN SUSTEREN: Let me ask you, one of the problems I think that we confront on this is that this seems to be -- this is a world problem, not just a United States problem, and here in the United States we have the death penalty, and in many places in the world, a lot of those who agree with the United States in this don't have the death penalty. Is this going to create a problem?

WATERS: Well, I don't really think so. First of all, let me just say this, I don't think we'll ever see him alive here in the United States. When the president of the United States says "dead or alive," you open up the opportunity for someone to get the trophy. That's number one.

Number two, and I understand that Bill Clinton had put out an order, you know, to kill him a long time ago. And in addition to that, I understand he has said that if there's any chance that he could be captured by the West, that his own people are to kill him first. So, I really think it's a nice discussion, but I don't think we'll ever see bin Laden alive in the United States.

COSSACK: Ambassador Scheffer, you know Congresswoman Waters once again may be right, but just on the off chance that he is captured alive, wouldn't you agree that perhaps this is a trial that should be held in a global manner rather than in the United States? First of all, I just think it would be -- it would be a nightmare to hold that trial in this country, and this is an international problem, not just a United States problem. Yes, we suffered most of the damages and most of the harm, but this is a global problem.

SCHEFFER: But remember, the conventions on anti-terrorism that we have fathered over the last 10 to 15 years operate under the presumption that nations have the responsibility to prosecute these individuals domestically or to extradite them to jurisdictions that will.

I think we have a responsibility to do this. Now, if there were a court already established internationally that had jurisdiction over these crimes, then I think you would have a good argument to make, maybe there is an alternative form that should be used. But in this case, we would have to create this court, and I, having built courts for the last eight years at the criminal level internationally, I can tell you that I think a lot of governments will actually shy away from taking the responsibility for building these courts, because then they are on the line, they are subject to retribution.

We've been asked to make almost no sacrifice in this country. We're being to be asked to go on spending binges. I think the one sacrifice we should be willing to make is to stand up for our legal system, stand up for what we've actually advocated for years and signed up to, which is that national courts have the responsibility to prosecute these crimes, and we should have the courage to do so.

VAN SUSTEREN: Anne Marie, with the issue in the area of international law and even the marriage with any sort of military law, is there any obligation to try to take him alive if the opportunity presents itself?

SLAUGHTER: I don't think you could say there's an obligation to take him alive and that we're in new ground. He's not a state, but neither is he an individual criminal of the kind that our traditional laws and treaties against terrorists anticipate. He's something in between.

We're making new rules. One of the biggest arguments for an international court is that somebody is going to have to figure out not only with respect to Osama bin Laden but to the many other people out there who have been trained by him or in other groups, what are going to be the rules? How do we combine national and international law? And an international tribunal is well placed to do that.

If I could just add, David Scheffer, when he was working for Madeleine Albright in the U.N. helped get the Bosnia tribunal established, the international criminal tribunal for the former Yugoslavia. That tribunal has worked very effectively. It has indicted and convicted...

VAN SUSTEREN: Except for one thing. I'm not so sure, I know that that tribunal has done very well, but here in the United States, the death penalty is something -- I mean, there's 6,000 people killed here, and overwhelmingly American people are in favor of the death penalty. You don't get the death penalty in that tribunal. Is that going to be sort of -- I mean, is that a significant enough issue for clamor for a domestic trial?

SLAUGHTER: That could well be, although I think that's an open question, because this would be a global tribunal. One of the most important things that's happened in this crisis is that the world has changed. The international community is more on our side than ever before, and the president knows it.

In the negotiation with the entire international community, the Islamic states themselves have the death penalty, and if it really came down to global negotiations with the coalition members that we are now working with, it's not clear to me hat we would not have a real case for the death penalty in an international tribunal. At the very least, it's an open question. But we have judges around the world and countries around the world who want to work with us on this over the long haul, well beyond Osama bin Laden.

COSSACK: So, I get a quick answer from you on this one. You're the prosecutor in this case, you now have to turn over the evidence which says that you can prove the case beyond a reasonable doubt. Some of that evidence may be highly classified and highly secure. What do you do in situations like that?

WISENBERG: Boy, it's everything depends on the circumstances. I think in this particular case you would make every effort to turn that over. But I would not want to operate in a world forum. I degree with professor Dershowitz, it could be turned into a anti-American circus.

COSSACK: All right, let's take a break. Ambassador Scheffer and Anne Marie Slaughter, thank you for both joining us today. Up next, wire taps, racial profiling and domestic surveillance, all in the name of security. Are your civil liberties at risk? And do you care? Stay with us.



JOHN ASHCROFT, U.S. ATTORNEY GENERAL: We will propose no change in the law that damages constitutional rights and protections that Americans hold dear. Just as we have provided law enforcement with the tools they need to fight drug trafficking and organized crime without violating the rights and the freedoms of Americans, we are committed to meeting the challenge of terrorism with the same careful respect for the constitution of the United States and the protections that that constitution accords to America's citizens.


COSSACK: Welcome back to this special edition of BURDEN OF PROOF, America's legal war against terrorism.

I want to go right now to Congresswoman Waters. Congresswoman, the House has just finished its work on the terrorism bill. Are you satisfied that people's rights have been protected?

WATERS: Well, I think we did a good job working on the bill. The attorney general did not get everything he wants. We worked very, very hard to deal with trying to protect Americans' privacy. And we modified the bill substantially. And I think we did a good job.

I think law enforcement and the intelligence community certainly have what they need in order to do the kind of investigations and surveillance. I don't think they need more money or more authority. I think...

VAN SUSTEREN: What is wrong with more money? I got to tell you, I'm hung on this. I'm not necessarily usually a big spender, Congresswoman Waters...

COSSACK: Not necessarily a big spender.

VAN SUSTEREN: Well, I'll tell you, intelligence cost money. You know, and to me much of this tragedy could have been avoided if we had the ability to get intelligence, and that cost money.

WATERS: But you must understand, the Congress of the United States has always been very generous with giving money to the intelligence community and not making them have to account for it. So no one is begrudging them money. And they will get more money. That's not the problem, and I think even those people you have in the studio today will tell you they do need some things.

For example, they need more human beings on the ground. They need more people who come from the cultures that they are trying to investigate. They need better ability to interpret and to analyze. I don't think the Congress will begrudge them any money. We will work very hard to protect the privacy of American citizens without hampering them.

But I think they will admit there is some problems inside the intelligence community, in relationship to coordination. It's public information now that the CIA had the information at least on one of the hijackers. That information had been transferred to the FBI. They lost him. They didn't -- they didn't keep up with him, and we don't want to bemoan that, we don't want to, you know, place the blame, but we want to just say that, you know, better coordination, better use of the resources they have -- they will get more resources.

It's a complicated world. They are dealing with -- with the kind of war that we've never really experienced before, and they have just got to do a better job.

VAN SUSTEREN: Judge Sessions?

SESSIONS: Oh, I think the congresswoman is absolutely right. The consistency of funding, not just now that there's an emergency, but over the period of time for the things that she's mentioned is very, very important. If you have those capabilities in law enforcement, on the law enforcement part of it, you could do a more... VAN SUSTEREN: As long as you have the funding with the accountability, which is always the problem with people being irresponsible.

Alan Dershowitz, do you have any problem with the new anti- terrorism bill?

DERSHOWITZ: I have lots of problems with it. My biggest problem is that when they drafted it, they didn't consult with civil libertarians and people who are sensitive to these concerns. You know, when Canada suspended civil liberties in the 1970s because of terrorism, they invited in civil libertarians to sit down with them and to sensibly look at sunset provisions, at civil rights, impact statements...

VAN SUSTEREN: What's the worst thing about this? I mean, give me...


DERSHOWITZ: ... relatively unlimited detentions. Yeah, I'm talking about the government and the administration didn't call them in...

WATERS: We modified all that.

DERSHOWITZ: I understand...

WATERS: We modified that. We took away unlimited detention.

DERSHOWITZ: I still think that -- I still think that there's a probability today that a person could be brought in and detained and then redetained and redetained. I don't think the criteria for how you keep somebody in is well spelled out.

Now, there are things that I think we should do that in fact we didn't do. I think -- and this is going to sound strange coming from a civil libertarian -- I am now in favor of a national identity card with a chip in it matching either your fingerprint or your retinal print. The reason for that, is if we have that, we would have no excuse for racial profiling, for ethnic profiling...


DERSHOWITZ: If you have this card, you go right through.


DERSHOWITZ: Well, you say no, I say yes. We have a disagreement.


DERSHOWITZ: I think 90 percent -- now, you're again, just because South Africa did it doesn't necessarily mean it's wrong. Ninety nine percent of us have photo IDs. The 1 percent of us who don't -- the right to live an anonymous life and to go...


DERSHOWITZ: Whatever it is, and I don't think it's a sacrifice of civil liberties. I think it gives us more civil liberties.

COSSACK: Let's let the congresswoman respond. Go ahead.

WATERS: Two or three things. First of all, I'm a civil libertarian, and the civil libertarians were involved. We worked with the ACLU and lawyer groups and others in Washington, hour after hour after hour. John Conyers and a lot of members of that Judiciary Committee put a lot of time in on this legislation. We modified it substantially. It is not unlimited detention. We have cut that down to a matter of like 14 days, and then they have to let them go.


WATERS: We have done a lot of other things in this bill, and the attorney general is not happy, and we'll probably come back before the bill hits the floor and try to get more of what he wants. But we have limited the ability to just violate the rights of Americans.


COSSACK: Stan, let me go to you for just a second. As a lawyer who represents many people who are charged in these kinds of situations, how do you feel this will affect your ability to defend your clients?

COHEN: It's not, but it's all empty symbolism. Israel for 40 years has developed a system where there's very little due process, there's preventative detention. Torture is allowed. The supreme court says rough interrogation is approved...


COHEN: You have a system where people are detained where they are denied counsel, where they are held in front of military tribunals, where for years they have approached these problems. And you know what? There is still terrorism, there is still bombings, there is still explosions. This sounds good. It's empty symbolism.

You know, a month ago, everyone was crying to investigate the FBI. Congress wanted to revamp the FBI because of the history in the last 10 years of abuse by some, unprofessionalism and misconduct. And now they are the fair-haired boys. I, for one, think...


COHEN: What we don't -- we have enough laws. What we don't have is responsible law enforcement at this time of crisis, and we shouldn't flush civil liberties in this time of crisis, because historically whenever we do that the vulnerable among us get hurt. It's as old as America, as mom and the apple pie.


VAN SUSTEREN: All right, we will continue this discussion in just a minute. We'll be right back. Don't go away.


VAN SUSTEREN: Welcome back. Jeff, ban on assassinations that we've had for a number of years. Good idea or bad idea?

SMITH: I think it was a good idea. It was first enacted by President Ford in 1976 in an executive order. Every president since then has continued it. I do not believe we should have an official policy of assassinations. In the past, we have been able to conduct military operations and intelligence operations, including those involving the use of force, that have resulted in deaths. And we can continue to do that without actually engaging in directed assassinations against specific individuals.

VAN SUSTEREN: Sol, you agree or disagree?

WISENBERG: Well, we tried to assassinate Hitler a number of times. I tend to disagree. I don't disagree with the factual analysis with Mr. Smith that you can do it in other ways. But I think it would have symbolic value to retract the executive order.



SESSIONS: I absolutely agree with Mr. Smith. We do not, absent a declaration or war, a formal declaration of war, which was the case with a second world war, have a policy of assassination. We do not want to make our president even more of a target than he already is.

SMITH: I'm troubled with the idea that at the end of the war what would emerge -- again, at the end of this year against terrorism what would emerge is that it would be an internationally recognized norm of acceptable behavior to assassinate foreign leaders you don't like, led by the United States.

COSSACK: And recognized by other countries. Judge Sessions, one of the criticisms that I have heard time and time again is that the failing of the intelligence community was it, there was a failure to share information between the FBI and the CIA. Is that going to go away now?

SESSIONS: Not totally, because there are limitations on what you are allowed to share. Now, I have not seen the new bill, but the sharing of information has its limitations between law enforcement and the intelligence community. And we all know about them. We all accept that they are there. They are a brick wall is what they are. You cannot divide...


COSSACK: Jeff, is that a problem? SMITH: It is a problem, and the Congress has aggressed that by in two or three instances in this recent bill. Excuse me. And I think it is a step in the right direction. Particularly, they have amended rule 60 of the grand jury rules to permit criminal information obtained during a grand jury to be made available to the intelligence community in limited circumstances when necessary for counter- intelligence and counter-terrorism, and I think that's a step in the right direction.



VAN SUSTEREN: Alan, civil liberties. We are all talking about. People are willing to give it up, a lot of civil liberties they wouldn't have before September 11. Does that mean terrorism works?

DERSHOWITZ: Well, I think terrorism works. There's no question terrorism works. I think the only reason the Palestinian issue is high on the agenda, it's a third-rate human rights violation compared to the Kurds, compared to the Armenians, compared to what happened in Cambodia. But Palestinians put their issue high on the world agenda by engaging in terrorism, and their leader got the Nobel prize for it.

Now, the destruction of the World Trade Center has caused the United States to change its policy toward Israel and announce something that they hadn't previously announced, it caused a rift between Israel and the United States. Terrorism works. It's very, very effective.

VAN SUSTEREN: Congressman Waters, does terrorism work?

WATERS: Yes, and I think it's perhaps been described very correctly that it has caused so many actions, so many changes in our way of life already. So we're fighting, we are having our civil liberties tested. We have to stand up against a wholesale give-it- away of our civil liberties.

We have got to try and find the right balance, so that law enforcement will have the opportunity to do the investigation, to pursue the terrorists. At the same time, we can't have all of us wire tapped day in and day out.


VAN SUSTEREN: ... people were standing up for civil liberties, and saying, well, wait, we should put the brakes in some of this legislation. Are they looking at sort of like almost un-American in the sense that they are trying to advocate putting the brakes on some of these changes?

WATERS: Well, you have to be very careful. One of the things I have discovered is this, even though you're getting an outcry for the criminal -- of the intelligence community to be able to apprehend, to have better investigations, Americans hold onto their privacy with a great deal of zest. Americans in the final analysis do not want to have their lives interfered with by surveillance and wire tapping and investigations unnecessarily.

So they want us to find a way to do it. They want us to support law enforcement, to give the intelligence community the tools, but at the same time they do not want us to have...


VAN SUSTEREN: ... it's like me wanting everyone to go through security at the airport, except for me. I want to just zip through.

COSSACK: Stan, I want to come to you and ask you, what impact has terrorism had on the ability -- what impact has terrorism had on the ability for lawyers to defend their clients in situations like this?

COHEN: It's absolutely horrible. It creates a situation where law enforcement has been basically saying there's good Muslims, bad Muslims, good Americans, bad Americans. People who try to step forward and try to sit down and explain rights to clients, talk about the notions of justice and equality and due process don't go too far these days.

People are petrified. The FBI has been going around, they have been intimidating people. It has become impossible for even myself as a lawyer is now being vilified for standing up and explaining to people what their rights are, what their obligations are. If we don't do it -- we have talked about material witness orders before -- people are picked up. The system is not working effectively. It's not working efficiently at this point.

And for those of us who are committed to the rule of law, that really do every day say we're going to practice and fight on behalf of our clients. it's becoming literally impossible in this climate where everyone wants to step up and say how tough and strong they are, but they don't provide any solutions.

Terrorism works and will work until the route causes are dealt with, and that includes Palestine, Iraq and some other trip wirers in the Middle East.

DERSHOWITZ: None of these things have anything to do with terrorism. This is a desire on a part of a radical Islamic people to change the nature of the world. Read today's "New York Times," there's a big story about it. If Israel and the Palestinians made peace, all that would mean that the people who made the peace got assassinated.

COSSACK: I got to take a break. Stay with us.



MADELINE ALBRIGHT, FORMER SECRETARY OF STATE: I think we don't know yet. Now I think people feel very vulnerable and are looking around corners and trying to figure out who is our friend and who is our enemy, and kind of that great sense of the open road and freedom that America has had, I think people are subdued and questioning.

But I hope very much that we don't lose that spirit of willingness to try things and to help others, and we obviously are going to have to look around and be more careful, but the magic of America for me has always been this balance between personal freedom and security. And we can't take away other people's liberty so that we can be secure.


VAN SUSTEREN: That's all the time we have for this special Saturday edition of BURDEN OF PROOF. Thanks to our guests and thank you for watching.

COSSACK: Now, stay tuned to CNN for continuing coverage of "America's New War."




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