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Panels Discuss War in Afghanistan, Military Tribunals

Aired November 23, 2001 - 21:00   ET


LARRY KING, HOST: Tonight, where does America's war on terrorism stand and what comes next? Behind the headlines, insights from three A-list journalists: Bob Schieffer, a moderator of CBS News "Face the Nation"; Bob Woodward, best selling author, assistant managing editor of the "Washington Post"; and Daniel Schorr, senior news analyst for National Public Radio.

And then later, if Osama bin Laden is taken alive, who should try him and why? A debate on this controversial order from the U.S. commander-in-chief joining us: Judge Robert Bork, former solicitor- general of the United States; Judge Richard Goldstone, former chief prosecutor of the U.N.'s International Criminal Tribunals for Rwanda and former Yugoslavia; former prosecutor Nancy Grace, now an anchor for Court TV; and former chief minority counsel for the House Judiciary Committee, Julian Epstein. Plus, Mary Chapin Carpenter sings "Late for your Life," all next on LARRY KING LIVE.

KING: We begin with three of the best journalists in the business and we'll be taking your calls, by the way. In Washington is Bob Schieffer of "Face the Nation," and Bob Woodward of the "Washington Post," also a Pulitzer Prize winner. Also in Washington, Daniel Schorr, the senior news analyst for National Public Radio.

Bob Schieffer, we'll start with you. What's your assessment of the military operation in Afghanistan? Has this just been a major plus so far?

BOB SCHIEFFER, "FACE THE NATION": Well, I think it's going exceedingly well. It was a couple weeks ago that people were beginning to wonder had we bogged down in some kind of a Vietnam. I think there's no question about that now.

But I think we have to be very careful, Larry, not to get our hopes up. This is going to be a very difficult thing, even after the Taliban as it were is defeated. There are going to be some enormous problems there, trying to find some way to bring a stable government to that part of the world.

There are going to be people that need to be fed, and my guess is that the next major step there is going to be finding a way to get humanitarian aid, to make sure the people of Afghanistan now don't starve while they try to put together some kind of government.

KING: Bob Woodward, to this minute has this been easier than expected?

BOB WOODWARD, "WASHINGTON POST": I think so. It's been ten weeks. At least there's no combat casualty we know of, which absolutely is amazing. It seems to be a victory, but as Bob Schieffer points out, two weeks ago people were talking about this is a quagmire. This is not working. This is too slow.

So obviously, this is one of the many cases to fully beware of the conventional wisdom and there are going to be good days and bad days here. There have not really been bad days yet, which is astonishing.

KING: Daniel Schorr, from your perspective, what's next?

DANIEL SCHORR, NPR SENIOR NEWS ANALYST: Well, what's next is to indeed to try to form a government and that's very difficult. In a sense, the thing has been so successful that it moved almost too fast. The idea was to try to get a broad coalition of various groups together to have at least a kind of an interim government before they got together and tried to form a more permanent government.

However, it moved so fast that they were not able to keep the Northern Alliance from getting into Kabul, which collapsed so all of a sudden. The problem is that they've got to get past their successes and get something that will stay for a while.

KING: Bob Woodward, the White House has released a report of alleged atrocities by the Taliban and the al Qaeda network and Osama bin Laden's group. Are they doing well, if we can term it that, on the PR front?

WOODWARD: Well, the only PR that really matters here is who's winning. It's pretty clear that the Taliban is a bad group who do all kinds of things that are totally unacceptable, not only in this country but hopefully most countries in the world.

But, you know, the White House is in that game. They're not really speaking to an American audience at this point because the country is behind President Bush on this. They are speaking to the Muslim world, and to the rest of the world to try to underscore that point that Bush had made that this is not a war against Islam, that this is a very specific war against the Taliban in Afghanistan.

KING: Daniel Schorr, we'll go make a round robin turn so everybody gets kind of equal time here.


KING: The Northern Alliance has been no walk in the park though have they, with regard to treatment of people?

SCHORR: No, not at all and that's one of the reasons why I rather regret this public diplomacy bit now, where they dig up some of the atrocities that were performed under the Taliban as they see how bad they are as though to say, if they are so bad, that may excuse some of the other things that have happened. The fact of the matter is that they've been fighting against each other, group against group, ethnic group against Pashtun against Tajik and all the rest have been having at each other, and the real job now is not to say "well, you're bad people, you're good people" but try to get something a little better than they've had for the past ten years.

KING: Bob Schieffer, we're not circulating leaflets about this $25 million reward. Do you like that idea? Do you think it could pay off?

SCHIEFFER: Well, I don't think it can hurt. I certainly don't think it can hurt when you think of a country like Afghanistan and what the gross national product of that country must be; $25 million is almost an indescribable amount of money in that part of the world.

Rewards often pay off in criminal cases, and this is definitely a criminal case of the highest order. So I think that eventually there will be some result of that.

But I think, Larry, it is our interest, it is in our interest to crack down and find Osama bin Laden and his thugs. That's in our immediate interest. But it seems to me that in our long-term interest, we have to think about improving life in that part of the world. That's just simply in our interest.

I mean think back at the end of World War I. The allies won, or they had an armistice at the end of World War I but reparations were so harsh, that out of World War I grew World War II. Then didn't think of what happened at the end of World War II, when we had the Marshall Plan, the rebuilding of Europe, the rebuilding of Japan.

We have to start rebuilding. It's in our interest to get the television sets into that part of the world, to get education into that part of the world, because we have a lot to do there. There's a lot of misunderstanding about this country and it's in our national security interest to improve life in Afghanistan and in Pakistan for that matter.

KING: Following the segments with these gentlemen, we're going to have -- do you want to add something, Daniel, I'm sorry.

SCHORR: I just want to add that I think Bob Schieffer's quite right about this, and even those who greet us coming in and greet our Special Forces are saying, "we hope that you won't walk away from this the way you walked away from it after we got the Soviets out of here." They're saying, "don't walk away just because you've won your battle. Remember what you're leaving behind or you'll get another civil war."

KING: Bob Woodward, and this is for all of you, following your two segments we're going to have a major debate on this tribunal question. What are your thoughts on the President saying that if we get Osama bin Laden, he's going to be tried in a military tribunal in secret.

WOODWARD: Wow. It may be necessary. Obviously journalists don't like secret trials. I think whenever they occur; it's not a good thing if there's another road, another way to make such a trial public if that occurs.

I just want to make the point Bob Schieffer and Dan Schorr to a certain extent are talking as if this war is over. It's not over by any means in Afghanistan. In the larger context of the war that the President and his advisers and cabinet have talked about, this broad war on terrorism is going to go on for a real long time.

I mean talking about, you know, the end of World War I or World War II, we are not at that point yet.

KING: But aren't they saying in a sense though, when the Afghanistan part of this ends, we're going to have to take care of these people?

WOODWARD: Yes. There's not question about that, but what is fascinating in all of this is, we have not located, captured or killed bin Laden. If we're winning so well, and I take it at face value we are, why has that not occurred? Why can one person hide in what is comparatively a small country?

KING: How's he doing that, Bob Schieffer, do you think?

SCHIEFFER: Well, I totally agree with Bob on this. Absolutely that is just what I said. Our number one job here, our business here is to track down and find Osama bin Laden.

But there is a much broader war to be won here than just tracking down Osama bin Laden. The way to end terrorism in the end is to open up these countries to education, open up these countries to access to information, so they can see what's on the other side of the track.

Because when they see, they'll want to be like what's on the other side of the track. That's why when communism crumbled, it crumbled so fast. It was not because the people in East Germany wanted rockets. It was because the people in East Germany wanted VCRs and they could see on television coming from West Germany, that the people on that side of the tracks had washing machines and had other conveniences.

Once we begin to open up these countries, that has to be part of the job of destroying television -- destroying terrorism, not television.

SCHORR: I like the Freudian slip. I'm with Bob on this.

SCHIEFFER: Look the first thing we got to do is find this guy, Osama bin Laden, no question about that.

KING: Daniel, what do you think about the idea of this tribunal, military tribunal if captured?

SCHORR: I'm afraid I don't think very much of it. I think they want this tribunal because I think they probably dread the idea of having Osama bin Laden sitting there in the Federal Court House in New York and preaching to the infidels. That is something that would give them nightmares. I think that is what inspired the idea of having military tribunals operating in secret.

We are trying to show the victory of the American way against the way of these tyrants, and to do this by putting aside the American way, which is a trial in the Federal Court, and we've had some of these terrorists tried successfully in the Federal Court and there's no reason they could not do it again.

KING: All right.

SCHORR: So I'm not crazy about this whole idea.

KING: We're going to get a break. There will be a major debate on that following. We'll come back with our three journalists, include some phone calls as well on this edition of LARRY KING LIVE. Don't go away.


KING: Bob Woodward, in a recent article, you wrote of 50 countries detaining 360 suspects at the CIA's behest. The roundup reflecting aggressive efforts of an anti-intelligence coalition viewed as a key to the War on Terrorism. Do you agree with that concept of the seeming arresting at will?

WOODWARD: Well, it's not arresting at will. It's arresting when they have information that somebody might be a terrorist or connected to a violent terrorist group.

KING: With any kind of information, or is it on a tip they arrest?

WOODWARD: No, it's not on a tip. It's on information that they deem credible. It reflects what's going on in this country when the FBI has arrested or detained 1,100 people.

But in the case abroad, what you find and what we have learned September 11th that this plot was hatched in Germany, that many of these plots all around the world, there are cells, al Qaeda cells where this is done, and so the effort to get these people arrested and interrogated is part of this very broad war.

KING: Speaking of broad wars, Bob Schieffer, do you expect to see Iraq become one of the perennial people that we will assail?

SCHIEFFER: Well, I think at this point I would have to say no. I mean I think those are decisions that will be made down the line, but my sense of it is that at this point, the United States has chosen not to attack Iraq.

I mean if the United States were looking for an excuse, there seems to be very little question that they are going through the process of manufacturing weapons of mass destruction, chemical weapons whatever they might be.

My guess is, if the President decided that that would be the policy, that he would be able to find an excuse to do that. So I guess at this point the decision has been made that they won't do that. Whether they will, I simply don't know at this point, Larry.

SCHORR: I think, Larry, there are divisions within the Bush Administration on this question and I think it's been going back and forth. I think for the time being, what's happening is our sanctions against Iraq are expiring at the end of November.

The U.S. will try to get tougher sanctions and will probably demand that Iraq let inspectors back in to see if they're developing weapons of mass destruction. Assuming the Iraqis say no to that, the United States will then be in a better position to try to take some action. So I think it's going to be a one, two, three step.

KING: Bob Woodward, the "New York Times" recently, R.W. Apple said that President Bush and most of his top colleagues all their life had been small government types, but they have made this big, big government in many of their actions. Do you agree?

WOODWARD: Well, it's evident. I mean we're adding what, 28,000 employees for security at airports. This obviously is a war that has to be conducted by the government. You can't go out and hire mercenaries or get private enterprise to do it, so I think they realize that it belongs in the hands of the government, and it rightly does. In a way, it's kind of an obvious point and not particularly startling.

KING: You mean that they would resort to that, but there are big governments everywhere though.

WOODWARD: Yes, that's right. But this is a very -- I think one of the things that's happened since September is the country absorbed the blow and there has been much fear. There have been many warnings that there were going to be other attacks.

The people who know the most about this are most fearful that there really is going to be additional terror attacks against U.S. facilities abroad or in this country. Should that occur, it is going to change the whole dynamic of this, and so in this war obviously you have to mobilize the government.

SCHIEFFER: Well you know, Larry, I think also people talk about the things that have changed since the 11th of September and one of them is, I think there is kind of a reevaluation in the minds of many people of government.

A lot of people have been saying for a long, long time that the government is the enemy. We've heard that from various quarters, and now people are kind of reassessing, I think and saying, you know "there are some things that maybe the government ought to be doing and that this is the government's job."

I think we've seen new faith expressed in the government as a result of the attack on 9/11.

KING: So New York is in and now the government is in?

SCHIEFFER: I think government is in.

SCHORR: A lot of things are in that President Bush would never have dreamed would be in. One is, there's new respect for the Federal Government. The polls indicate that Americans believe the Federal Government can handle a question like this.

Another is, the President campaigned against something called nation building which he thought was something only President Clinton did, and what is he now doing? He's busy trying to build a nation. Really, facts can sometimes change your ideological positions.

KING: Bob Schieffer, what do you make of the bipartisanship on the Hill?

SCHIEFFER: Not much right now, because I don't think there's a great deal left. I think the fact that the President and the moderates and democrats were able to form a coalition and get this airport bill finally passed really, at times over the objections of some in the republican party, especially over in the House, I think the fact that they did that showed that they can still work together.

But there's a great deal of difference now over what to do about a stimulus package for the economy. My sense of it is that there may in the end not be a stimulus package because the two sides right now are just so very far apart on that. So we have seen, especially immediately after the attack, extraordinary bipartisan spirit. Right now that spirit has waned a bit I'm afraid.

KING: Daniel Schorr, we know your record in civil liberties. Are you concerned about them waning?

SCHORR: I'll tell you what I'm concerned about. What I'm concerned about is that this administration is arrogating to itself a lot of powers I don't think you can find in the Constitution.

We've already discussed the question, which you will discuss at much greater length about military tribunals operating in secret. But that is not all.

There's a question of whether or not the suspects can consult their lawyers without being wiretapped and listened in on, and I think in a whole series of matters that John Ashcroft, the Attorney General, is assuming powers, which I don't think that the government has.

KING: Bob Woodward, you've covered so many things and you've broken a lot of stories over the past, since September 11th. Has this been investigatively wise, very tough?

WOODWARD: Sure, because a lot is hidden. What's going on in Afghanistan? We essentially have to rely on the government, the reporters there struggling, only seeing a little piece of it.

We've been able to write about the CIA. That always is the unseen and the hidden war. They have an immense presence in Afghanistan and this war and yes, indeed it's hard.

SCHORR: I think considering a large part to you, the CIA has become more visible than almost any other part of the government.

KING: Yes, Woodward deserves that credit.

WOODWARD: Well, thank you.

KING: Bob Schieffer, Bob Woodward mentioned, are you shocked no casualties?

SCHIEFFER: Well I think it's just extraordinary, and it turned out that this is a battle plan that seems to be working, this combination of putting these commando forces on the ground to spot the targets for these high-flying bombers is something that we have not been able to do except on very rare occasions in the past. It is working.

Also working are these drone aircraft that they're not flying that are just eyes to look over the horizon, to follow these people around in their cars. They're equipping some of those with the smart bombs.

It's a real triumph of technology and I think it also speaks very well of our military forces. They obviously have been very well trained to carry this out with the success that we've seen so far.

KING: Yes. Daniel, what's your assessment of Rumsfeld, Rice, Powell?

SCHORR: Well Rumsfeld is probably the best press spokesman the Pentagon has ever had. He has these very long and very patient news conferences every day. I'm not sure he tells us everything, but he's done it very well.

I think that Secretary Powell is doing a great job in trying to keep the coalition together, and this week made a very interesting and very measured speech, trying to patch together something between the Palestinians and the Israelis.

I must say because they have people in this government, Cheney and Rumsfeld and Powell who have served in previous governments, they have an experienced crew and I think they're on the whole working pretty well.

KING: We thank you all very much. Bob Woodward, Bob Schieffer and Daniel Schorr, three of the best journalists ever. We thank them for spending time with us and, of course, we'll be calling on them again.

When we come back, we're going to get into it, the tribunal question, yea or nay? A panel of four people, they're next. Don't go away.


KING: President Bush has proposed the use of military tribunals to try non-United States citizens accused of terrorist acts, using rules set up by the Secretary of Defense. We're going to debate that now.

In Washington is Judge Robert Bork, former solicitor general of the United States, former circuit court judge, best selling author, senior fellow of the American Enterprise Institute, and as a former Marine is rather familiar, I guess, with military courts and is pro the idea of tribunals.

In New York is Justice Richard Goldstone, chairperson of the International Independent Inquiry on Kosovo, former chief prosecutor of U.N. International Criminal Tribunals for the former Yugoslavia and Rwanda, and he opposes the idea of military tribunals.

Favoring them in Atlanta is Nancy Grace, former prosecutor and anchor for "Trial Heat" on Court TV; and opposing them in Washington is Julian Epstein, former chief minority counsel of the House Judiciary Committee who opposes, as we said.

We start with Judge Bork in Washington. Why is this a good idea?

ROBERT BORK, FORMER U.S. SOLICITOR GENERAL: Well it's a good idea because if you have open trials, not only do you give bin Laden a chance to speak to the whole world, particularly the Muslim world on CNN, but more importantly you have disclosure of American intelligence methods and what we already know from intelligence.

That happened as Charles Krauthammer pointed out, when they tried the bombers of the African embassies, our African embassies, and had to disclose that they were listening to Osama bin Laden on satellite telephone. As soon as that word got out from the trial, they stopped, bin Laden stopped using the telephone and went to other means.

So if you open up the thing, our intelligence effort is in very bad shape.

KING: Judge Goldstone, and why do you oppose it?

RICHARD GOLDSTONE, FORMER PROSECUTOR: Well for two main reasons. First, I think it would be bad for the United States (UNINTELLIGIBLE) its own court system, its own insistence over decades and centuries on fair and due process, and perhaps more importantly, it would lack any credibility in the international community and there would always be answers to whether the guilt of bin Laden or any of the other people tried in secret has been established.

KING: Nancy Grace, why would you support anything in secret?

NANCY GRACE, FORMER PROSECUTOR: Well, we keep discussing the American way, but the issue of military tribunals dates all the way back to George Washington. The first one was conducted in 1780 with a British spy. You don't hear anyone trashing FDR, Franklin Delano Roosevelt for his use of a military tribunal, as well as Andrew Johnson, tried in secret those conspirators that planned the assassination of Lincoln.

So this theory dates back to the 1700's and, long story short, what was stated earlier is the primary reason, informants, wiretaps, special security techniques in obtaining information would be leaked in an open courtroom.

And also, Larry, this does not provide the defense their opportunity that they love so much, the delay tactic. We see these types of trials linger on for years as a method to win the case. That will not be allowed here.

KING: Julian Epstein?

JULIAN EPSTEIN, FORMER JUDICIARY COMMITTEE COUNSEL: Well, the difference, Nancy, with some of the historical examples that you cite is that in those historical examples, these tribunals were authorized by Congress. They're not here. Let me say as somebody who has supported the President's campaign, military campaign in nearly ever facet, that I think this is a horrible idea for the following reason.

These tribunals are essential kangaroo courts. The Executive Branch arrogates the authority to become the investigator, the prosecutor, the judge, the jury, and then the executioner.

If a simple majority of military officials say that they think it is more likely than not that a non-American citizen has somehow participated in a terrorist act, they then have the unreviewable authority to execute that individual.

I think it's a huge mistake for two reasons. One is, if we are saying Larry, that this campaign, this military campaign is about promoting democratic values and that we are confident in the evidence that we have about the al Qaeda network, then it seems to me that this type of closed, anti-democratic military tribunal, the type of tribunal you would see incidentally in the old Soviet system, is exactly the type of system we don't want to use.

KING: All right, let me...

EPSTEIN: Secondly, that we already have the procedures under something known as the Foreign Intelligence Surveillance Act. We've already cauterized the civilian legal process in a way that we can use those courts and maintain much of the evidence in secret because Congress -

KING: Judge.

EPSTEIN: ... has authorized that already.

KING: Judge Bork, is a military tribunal fair?

BORK: I think a military tribunal is at least as fair as the civilian trial. When I was in the service, I prosecuted some cases. I defended some cases. I was a witness and I sat on some courts. And I think the military justice system is fine. I think that you have people who are really trying to find the truth and do the right thing.

I don't know, I think it's because so few Americans anymore are in the armed services that they don't know what the military is like and are -- easily have suspicions aroused. KING: But doesn't Judge Goldstone make a good point about the act of privacy, Judge Bork, that the world will look on that as what were you hiding?

BORK: Well, what we -- after World War II, not only the Nuremberg trials, but they had military commissions executing Nazi officials and generals and so forth, not tried. These were secret trials. I don't think the world said anything about it at the time, that that was wrong, that somebody was hiding something.

In fact, I don't think there's any alternative to a secret tribunal.

KING: Let's...

BORK: For the reason given that...

KING: Hold on.


BORK: ... intelligence up.

KING: Judge Goldstone, do you want to respond? Then we'll go in order? Judge?

GOLDSTONE: Well, I don't know about the secret trial that Judge Bork's talking about. It was the United States' insistence that the Nazi war leaders were given fair and open trials. And I think the United States opened a whole new era of recognizing those rights. And it was the United States, in particular, that insisted on due process and fair justice in the international tribunals for the former Yugoslavia and Rwanda, cases in which Milosevic was standing trial for genocide. Former Rwandan leaders are standing trial for the murder of hundreds of thousands of people.

KING: Let me get a break. And when we come back, Nancy Grace will pick it up. We'll also include phone calls. You're watching LARRY KING LIVE. Don't go away.


JOHN ASHCROFT, ATTORNEY GENERAL: The terrorists won't be able to hide in the caves of Afghanistan. And they won't be able to hide in the legal cracks of the American judicial system. These are not people who are American citizens. They are people at war with the United States throughout history. War criminals have been tried in war and military courts. This war is no different. And this president ought to have to the right to protect American lives in having such commissions.


KING: Nancy Grace, you were going to say?

GRACE: Well, I wanted to say that Congress doesn't have to approve what Bush did. That's why a lot of politicians aren't happy with his decision. They can't get their fingers in the pie.

But I want to point out a case in point, Larry. In 1993, the World Trade Center was attacked with a bomb by people very similar to those that carried out the last attack. During that open trial, the construction details of the World Trade Center were put in open court for everybody to hear. And it is very likely that that very evidence was used by al Qaeda to perform a successful attack on the World Trade Center eight years later. That is a perfect example of why this case should be tried in secret.

KING: But couldn't you make that case then for Mafia cases if you were (UNINTELLIGIBLE) secret person is on trial? Then you could have every in trial secret.

GRACE: Of course -- well, in Mafia cases, I mean, this no ordinary criminal case. This is not Judge Judy, OK, where two people in a divorce are arguing over the car. This is an attack on the country with highly sensitive security matters that we do not want in open, very unlike Mafia type trials.

KING: OK. Now the reverse. Julian, what the heck is wrong, as long as Judge Bork tells that you the military tribunal is fair?

EPSTEIN: Well, I said -- as I said a minute ago, Larry, I think one, the public relations in terms of the international campaign are disastrous for this country who talks about the need to promote democratic norms of justice.

But secondly, with respect to what Nancy just said, Nancy said Congress doesn't have to authorize that. I think that's incorrect. The Supreme Court in 1942, when they last heard the question on the validity of these tribunals, Nancy, the court pointed out that Congress had specifically, in the articles of declaration of war in World War II, specifically...

GRACE: War doesn't have to be declared by Congress for this to take place.

EPSTEIN: That is absolutely, absolutely, unclear.


EPSTEIN: According to the Supreme Court.

GRACE: It does not have to be declared by Congress.

EPSTEIN: Where does it say that the president has its authority to do this absent a congressional authorization? The Supreme Court has said that's far from clear.

GRACE: In his apparent authority, as the commander in chief...

EPSTEIN: From where do you get that, Nancy?

GRACE: ...he is allowed to make this declaration from the constitution. EPSTEIN: No, he doesn't.

GRACE: Hey, get out your constitutional law book.

EPSTEIN: Nancy, you're making it up. The Supreme Court has said that that is an unresolved...

KING: Let me get a call in between, guys.

EPSTEIN: Secondly...

KING: Tampa, Florida, hello. Hold on, Tampa.

CALLER: Yes, Larry. My question for the panel is if we actually bring the terrorists to a military tribunal, should there be allowed an appeals process while we're still at war? And if we do, what is actually delay closure and perhaps delay justice itself for actually bringing these people to justice?

KING: Judge Bork, can you appeal a military tribunal?

BORK: Well you can if you provide for one, but it's not a constitutional right to have an appeal. It's not a constitutional right to have an appeal in a case in the regular courts. We...

KING: And it could be denied?

BORK: We choose to make -- to give courts of appeals, but we don't have to constitutionally. And this case, the Bush -- the President will cut off appeals.

KING: Julian. what was your second point, Julian?

EPSTEIN: Well, if you notice, today in "The New York Times," the reports that the country of Spain, one of our most friendly countries, has decided not to cooperate with us in an extradition request if we decide to use these military tribunals.

So I think if our friends are telling us that they disprove of this and they won't cooperate in extradition procedures with us, imagine what the rest of the Arab world might be saying. But secondly, remember this is very important.

GRACE: I'll doubt you'll find a jury trial for the rest of the Arab world, Julian.

EPSTEIN: Nancy and Judge Bork, I think appear to be complaining about the fact that if we bring them back to this country and then try them in open court, all kinds of bad things could occur. Well, Congress in 1978 really anticipated that problem with the FISA Act.

And the FISA Act says that you can, in the case of foreign terrorism, that you can try these guys and these gals in secret proceedings, using secret evidence, without going to the extreme, I think, which this case represents of military tribunals, the extreme of a really almost a Soviet style system of justice, that has almost no accountability whatsoever and is totally contrary to our legal traditions.

KING: Florida, Fort Lauderdale, Florida. Fort Lauderdale, hello.

CALLER: Hi, Larry, good evening.


CALLER: I have a question for the panel. What if countries overseas, they have their own military courts, and they decided to hold the American citizens without trial or without legal representations and execute them? What should we do then, send bombers overseas?

KING: Nancy?

GRACE: Well, unlike this case in which President Bush has put forth this military ruling, there will be defense attorneys. There will be a trial. There will be a time for both sides to be heard. And it will then go up basically on appeal, so to speak, to the President or the Secretary of Defense to review.

KING: Alexandria, Virginia, hello.

CALLER: Hi, Larry. I don't think the American people want another trial like the O.J. circus.

GRACE: Tell it.

KING: What's the question?

CALLER: I don't think the American people want another trial like the O.K. circus.

KING: Yes, I heard that, but do you have a question?

CALLER: Yes, can you hear me?

KING: Yes, that's your question? The answer is yes.

Judge Goldstone, why should we care what the world thinks? It was the Trade Center that was bombed. It was attacked and killed all those people. It was the Pentagon. I mean, you can care, but why care that much?

GOLDSTONE: Well, let me say I think the starting point for me is that if the United States apprehends bin Laden or any of his colleagues, the United States obviously has the legal, the political, and the moral right to put these people on trial in the United States.

The issue is whether they should be given a second or third class trial or the sort of trial that the United States Constitution has always envisaged. And if they're not, I repeat, and I agree with Daniel Schorr's approach that this would be the meaning of the very values that the United States stands for and would be, in my view, giving a gift on a platter to the terrorists, who don't like the democratic form of life for which the United States stands.

GRACE: That's an interesting point that they don't like the democratic form of government. But when it suits them, they want to avail themselves to that form of government with every right under the Constitution.

GOLDSTONE: So why we mustn't stoop to their level.

GRACE: So how can you say the Muslim countries will be angry, when they don't have trial by jury with 12 citizens sitting in a jury box? Why should they expect that now?

EPSTEIN: Yes, but what you're fail to recognize...

GOLDSTONE: So what you're saying is that we should adopt their level?

GRACE: No, I'm not saying that. I'm saying we should adhere to the standards set forth by as far back as Abraham Lincoln.

GOLDSTONE: Let's get up to date.

GRACE: And Franklin Delano Roosevelt.

KING: We'll take a break and be right back with more. This is LARRY KING LIVE. Don't go away.


ASHCROFT: What a tragedy it would be to bring people back into the United States for trial, and to make juries at risk, courthouses and cities terrorist targets, because these people are on trial, reveal important secrets of America's defense in the kind of normal court system, when we're not talking about violations of our criminal law. We're talking about violations of war crimes. And they've always been tried in military courts. And it's appropriate that this president save American lives by having that as one of his tools.



KING: Vancouver, next call, hello.

CALLER: Yes, hello. My question is, since we can assassinate bin Laden, why can't we just kill him when we catch him rather than bring him back and put him on trial?

KING: That a good point? Julian, if we got a reward out and somebody gets him, why not just kill him and forget the whole thing?

EPSTEIN: Well, I think that a lot of this is likely to be moot because I think the chances are that he will be killed in combat. The rules of engaging combatants are entirely different legally from those once somebody is apprehended. And that there's a long-standing tradition in Western law for that. The point, I think, that Nancy and Judge Bork keep skipping over is that look, we've tried terrorists successfully. We are 15 for 15 now, trying the terrorists under the laws that exist today. Neither of them have responded to the fact that the procedures already allow for you to conduct a lot of these trials through secret proceedings with secret evidence.

KING: How about that point, Judge Bork?

GRACE: It doesn't work.

KING: You can have a secret proceeding in a public trial.

BORK: Well, of course you can take.

EPSTEIN: Not a public, necessarily.

BORK: No, not a public trial. If that is true, and I don't think it is true under present law, but if it is true, then I don't understand why there's any objection to these military commissions or secret trials?

EPSTEIN: Because the FISA procedures are very different. They look to protect U.S. security by allowing secret evidence to be presented. So that it isn't made public. So you're not signaling other terrorists.

But you don't have the situation where the executive, the president essentially is saying to the military commanders "conduct this trial if you think by a majority that it's more likely than not that somehow this person is involved in terrorism, then you have the authority to execute him."

I think that is so antithetical to everything that we all believe in, no matter what side of the political debate, legal debate you're on, I think that's utterly antithetical...


EPSTEIN: Particularly given the fact that the system already works. And when we use these things in the past, neither Nancy or Judge Bork has responded to the fact that Congress authorized this.

GRACE: Julian?

EPSTEIN: Congress did not authorize these in this case.

GRACE: Julian, I guess you want to give bin Laden a quarter to call his lawyer, too?

EPSTEIN: I don't.

GRACE: I think it's just so far out of control. And bottom line, we learned it after the terrorists that attacked the World Trade Center in 1993 were tried, all that information came out in open court. And it was used against us to the tune of 5,000 dead people. I don't know what more you want, Julian.

EPSTEIN: You think -- you actually relate the trial to the terrorist incident September 11?

GRACE: I do relate forced disclosure of the construction of the World Trade Center...

KING: All right, I don't want both of you to take over the show.

GRACE: The first trial didn't work. The second trial did.

KING: Judge Bork, can he get a fair trial? By that I mean, can you find a jury, military or otherwise, to judge bin Laden fairly?

BORK: Yes, I think you can certainly get a fair trial in the military tribunal. I am less certain about a civilian tribunal because civilian juries are known to react emotionally.

KING: Judge Gladstone, I'm sorry Judge Goldstone, what do you think? Can he get a fair trial?

GOLDSTONE: Well, I don't know about fair trials before a military tribunal. They would be held in secret. These are people who are part of a military hierarchy. They're appointed by the President. And incidentally, one of the important points, it seems to me, that that certainly I found objectionable with great respect to the administration is that the defendants are not allowed to have council of their choice, their counsel have to be approved by Secretary Rumsfeld.

BORK: Well, the reason for that, undoubtedly, is the question of national security about security of our intelligence. They want somebody who is known not of the personal -- turn that intelligence over or leak it.

KING: Cherry Hill, New Jersey, hello.

CALLER: Hello, Larry. How are you?

KING: Hi, fine.

CALLER: I would like your panel how they feel about Spain's reluctance to give the al Qaeda scum up to us for trial?

GRACE: What?

KING: I'm sorry, Judge Bork, what do you make of things?

BORK: Well, as a matter of fact, as I understand it, Spain did not say they would not extradite because of the military trials. They said they wouldn't extradite, so long as we used the death penalty.

EPSTEIN: No, that's not according to the reports today. It's both. What Spain said, according to -- at least according to the reports. I don't know because I'm reading from I believe "The New York Times" is that if we use the military tribunals or the death penalty, they would refuse to extradite.

And again, I think just the public relations down side of this type of system is so overwhelming, particularly when given the fact that the President has done such a brilliant job thus far in executing the campaign, keeping the world community together, convincing the world community this is a fight about democratic values, which we all want to share, which need to be brought into the Arab countries as well.

It just seems to me that there are so many downsides when you have a procedure already in place that's worked. The FISA courts allows national security information be kept secret. Why not ride a good horse when it's working?

KING: John from Rhode Island. Hello.

CALLER: Hello, Larry. My question is number one, while all this is well and good about you know, bringing him to justice and all that, first of all, he didn't think it was justice when he killed all our people here. And second of all, he is not a citizen. It is not in our Constitution that he should get a trial by jury. And why waste the taxpayers' money when he's cost us billions of dollars as it is?

EPSTEIN: Look, nobody has any ounce of sympathy, let me tell you, for Osama bin Laden. I think we all wish, and I think we all agree on this, the absolute worst for him. I think the likelihood of him coming back alive is almost nil.

BORK: Yes, but the question is not that.

EPSTEIN: On what the executive order says -- well, what the question is, what the executive order says is that these procedures can now be used, not against so much Osama bin Laden, who I hope never sees the light of a courtroom. I hope, you know, he gets his justice on the combat field. But this can be used against any noncitizen, that the President, that the Department of Defense determines may have some connection to some terrorist activity. And I think that goes beyond the pale.

KING: Judge Bork?

BORK: Well, we've been doing that throughout our history. And I don't understand how it can suddenly be beyond the pale. As a matter of fact, military commission that Franklin Roosevelt set up, said you could try citizens, as well as noncitizens. So this order doesn't go as far as Roosevelt went.

GRACE: And that was affirmed by the U.S. Supreme Court as well.

EPSTEIN: Right, and Nancy...

GRACE: In fact, the Japanese imperial commander was tried in the Philippines by a U.S. military tribunal. And as far as Spain not cooperating, that is not unusual. Whenever the death penalty is involved, Spain refuses to extradite. So that's nothing new.

KING: All right, thank you all.

EPSTEIN: Talk about...

KING: I've got to cut. We're going to do more on this. By the way, is this a done deal or can -- is this appealable?

GRACE: A done deal.

KING: The president's decision, it's a done deal, right?

EPSTEIN: Oh, it's a done deal. A case could get appealed under a writ of habeas corpus potentially. Theoretically, they could, but even...

KING: A done deal.

Thank you, Judge Robert Bork, Justice Richard Goldstone, Nancy Grace and Julian Epstein. And when we come back, Mary Chapin Carpenter will close things out. Don't go away.


KING: We close out our program every night on a musical high note. I don't know anybody finer than Mary Chapin Carpenter, whose been an activist a long, long time in many, many things. You were in New York on September 11, right?

MARY CHAPIN CARPENTER, SINGER: Yes, I was. It was frightening. And we saw the first tower that was burning. And it was the scariest day of our lives and the saddest, I'm sure.

KING: And you also participated in that great national memorial concert on September 24 at the Kennedy Center?

CARPENTER: At the Kennedy Center. Yes, that was a very moving night. And we were very proud to be there.

KING: Mary Chapin Carpenter will close it out with "Late for Your Life." That's the closing cut of her newest album, "Time, Sex, Love." And we'll have appropriate pictorials to go along with it. Mary Chapin, thanks so much for doing this for us.

CARPENTER: Our pleasure, thanks for having us.

KING: Here's Mary Chapin Carpenter and "Late for Your Life."


KING: Tomorrow night on LARRY KING WEEKEND, emissaries and ambassadors from nine countries will join us, along with the famed historian Michael Beschloss. We'll not only look at Afghanistan, but particularly get at it in the Middle East with representatives of Israel and the PLO.

Aaron Brown is off tonight. So "NEWSNIGHT" will be hosted by one of my favorite all-time people. Judy Woodruff stands by. Judy's been there all day. Judy Woodruff stands by in Washington to host -- here's the yeoman like Judy Woodruff. Go at it, girl.




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