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Have President Bush and the Attorney General Gone Too Far by Ordering Military Tribunals?

Aired November 29, 2001 - 19:30   ET



GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: ...and if I determine that it is in the national security interests of our great land to try by military commission those who make war on America, then we will do so.


BILL PRESS, HOST: Have President Bush and the attorney general gone too far by ordering military tribunals? And can justice be served out of the public eye? This is CROSSFIRE.

Good evening. Welcome to CROSSFIRE. Tonight, are civil liberties being undermined in the name of war? President Bush gets high marks across the board for conduct of the military operation in Afghanistan. But he and Attorney General John Ashcroft are coming under more and more criticism for their pursuit of suspected terrorists here at home.

Under fire: Bush's executive order to try non-U.S. citizens in secret military tribunals, rather than in public courtrooms. A decision he defended again today, but which Republican Senator Arlen Specter criticizes for bypassing both the Congress and the courts.

Also under fire, Ashcroft's refusal to release the names of those people detained since September 11th and his wholesale campaign to invite hundreds of other Arab men in for questioning and possible detention themselves.

Tonight, are these measures necessary? Are they ever justified? And are they the right policy for the United States at this time? Lining up on opposing sides, attorney and Republican consultant Jack Burkman, and Harvard professor and criminal defense attorney Alan Dershowitz.

And joining us as guest host on the right tonight, it's a pleasure to welcome Jonah Goldberg, editor of the "National Review Online" and a syndicated columnist. Jonah, welcome. Your first question to Professor Dershowitz.

JONAH GOLDBERG, HOST: Thanks for having me. I'll try to keep the nudity tasteful. Professor Dershowitz, George Washington used military tribunals quite often. Abe Lincoln used them on Americans. FDR used them on Germans. Truman used them in Korea. Why all of this -- and the Constitution seemed fine at the time with all of that. Why all of a sudden is this a major constitutional problem?

PROFESSOR ALAN DERSHOWITZ, HARVARD LAW SCHOOL: Well, this is the first time we're ever trying during non-wartime situation to apply them to long-term permanent residents of the United States.

Under the Bush order -- theoretically at least, I hope it wouldn't be used this way -- people who've lived in Detroit, say, for 10 or 15 years, who have a Green Card, who pay taxes, who could be drafted if we restored the draft, could be picked up in the middle of the night based on an accusation, subject to a secret trial, convicted on the basis of conclusions reached by colonels and majors who want to be promoted to general by the very president who then has the ultimate appeal without the court's intervening and be executed without the public ever knowing about it.

I would make a very sharp distinction, by the way, between Americans -- and I include by Americans permanent residents who are not citizens -- and somebody like Osama Bin Laden, who has never been in America, who is picked up on a battlefield, who's a competent, they are constitutionally -- they could be tried by a military tribunal.

It would be foolish to try them secretly because I think we are -- we should be proud of our legal system. I have more faith in our legal system than apparently the president does, and I would like to show it off around the world and show that we have the best legal system in the world and we can do justice even under extreme pressure.

GOLDBERG: Well, let me -- let me pick up on that point. you yourself in an interview said that if Osama Bin Laden could be found innocent in a civil trial, that that in and of itself is a great argument for killing him on the spot in Afghanistan. And William Safire and others have made that point as well. Why is it killing Osama Bin Laden in a cave is -- with summary execution not an affront to civil liberties and due process...


GOLDBERG: But giving him a trial in a wood-paneled room is more troubling?

DERSHOWITZ: It is not only an affront to due process, it would be a criminal act. If we -- if he surrendered -- came out with white flag -- and we gunned him down and murdered him, we would be in violation of all kinds of international treaties to which we are signatories. And the people who did it would not be able to defend themselves on the basis of superior orders. Under the Nuremberg law they would be criminals and would be properly subject to prosecution.

If he decides to die, and we bomb his cave, or if we decide not to risk the life of a single American and kill him in the process of combat, that would be perfectly justified. But we cannot murder somebody, and we can't subject them to the kind of drumbeat kangaroo court that we condemn other countries for doing. Remember, we recently condemned the country that put -- what's her name -- Lori Berenson on trial and insisted that she be tried by a civilian court and finally she has been tried by a civilian court. We have condemned other countries as well. We can't speak out of two sides of our mouth that way.

PRESS: Jack Burkman, here's what I don't understand. I mean, we are fighting a war over in Afghanistan. I think one of the things we are fighting for are our democratic freedoms, including all the protections that we enjoy under our system of justice.

I mean, the courts may not always get it right but the American people have great confidence in our courts. People around the world admire and envy our judicial system. Why at this time should we be talking about throwing it away and replacing it with these kangaroo military courts?

JACK BURKMAN, REPUBLICAN STRATEGIST: We're not. We're talking about following the law and doing no more or no less than what the law demands. What you want to do is give these thugs, these killers and these terrorists greater protection than the Supreme Court -- the Supreme Court of the United States -- has said they are entitled to.

I mean, look. This whole issue, Bill, is ridiculous. 90 percent of the American people are strongly behind the president on all of these civil liberties issues. You've got the Supreme Court says what the president is doing is fine. There is a long body of case law in this.

You know, I was thinking today, I was watching the last few days on the air. During the impeachment you used to read polls all the time. And you used to say, "the public isn't with you." When I was on your show three years ago, you said, "the public is not with you House Republicans. Why don't do you what the public wants?" Why don't you now do what public wants? 90 percent of the people are with the president on this.

PRESS: Let me just tell you something. I don't care about polls and I don't care about the Supreme Court.

BURKMAN: You did then.

PRESS: Alan Dershowitz just wrote a great book pointing out that the Supreme Court made the worst mistake in the history of the Supreme Court in Gore v. Bush last January or February. whenever it was. So -- it was actually December, wasn't it. Yes. OK.

So let me come back to you. Let's talk about these -- these courts. Here is we are we are talking about. We're talking about secret trials. We're talking about trials where basically they can make up their own rules. You know, we are talking about trials where you can execute people without any review by a civilian court...

BURKMAN: Bill...

PRESS: Let me ask my question. Doesn't that strike you as something very un-American about that whole process?

BURKMAN: No. Because you're talking about -- you said who is the Supreme Court? What is the Supreme Court? The Supreme Court is the final arbiter of our law. The Supreme Court in some ways is the final arbiter who have we are as people. The U.S. Supreme Court lays out our law. You say who is the Supreme Court. You want to trash our institutions.

PRESS: No, no, no. Wait.

BURKMAN: You want to -- let me tell you what's going on here.


PRESS: Let me interrupt...

BURKMAN: Johnnie Cochran and everybody else...

PRESS: Well, let me interrupt. I'm not asking about the Supreme Court. I'm trying to get you to defend this kangaroo court called a military trial. You know it is un-American.

BURKMAN: These courts have been used successfully. This whole process has been used successfully for many years. It has been recognized by the Supreme Court in case law for many years. This is nothing new. Let me tell you something else. The United States...

GOLDBERG: How about letting Dershowitz back in here just for a second.

DERSHOWITZ: That is not completely accurate. Let's be clear about what the Supreme Court has said. It has been divided over the year. In in re Meriman, the Supreme Court rebuked Abraham Lincoln after the war, and said while the courts of Indiana remain open it is wrong to subject civilians -- even copperheads during that day -- to military tribunals.

After the end of the Second World War, the courts rebuked the declaration of martial law in the state -- in Hawaii, which was not even a state then and was the victim of an attack -- the Supreme Court in the Queren (ph) case did sustain the use of military tribunals to try and secret and execute by the way -- it wasn't so secret -- to execute the saboteurs.


BURKMAN: The president's order deals with only noncitizens. Only noncitizens. Where is it...

DERSHOWITZ: But permanent residents. They're permanent residents.

BURKMAN: The Queren (ph) case and the whole progeny of other cases says that if necessary, these tribunals, these proceedings can apply to citizens, and maybe even on U.S. soil. See how far out your argument has become. DERSHOWITZ: You see -- I mean, you read opinions the way you want to read them. In the Queren (ph) case, one of the people -- who was a German soldier who had removed his uniform in order to plant bombs and destroy the water system of New York -- claimed he was a United States citizen. And the Supreme Court said it didn't matter, he was a German military soldier out of uniform. And the tradition of how we try people who are military people out of uniform has long been part of the system.

GOLDBERG: I don't think we are going to able to settle this question of the Queren (ph) case tonight. My understanding is that the Supreme Court did allow for military tribunals. But reasonable people may differ on the details.

What I would like to ask you about, since it already has come up a little bit is how we should be so proud of the American judicial system -- which of course I am -- you were part of that jewel in the crown of the American judicial system, the O.J. Simpson trial.

And I was curious, considering in 1993, when we put world -- the first World Trade Center on trial we had to compromise intelligence assets, it was -- it would be a real risk again along those lines again -- is it really worth showing off our trial, which would be obviously more of a circus than the O.J. Simpson was and compromising national security in the process?

DERSHOWITZ: Well, first of all, we wouldn't have to compromise national security. We have legislation on the books today which permits the government to withhold national security information. The legislation strikes an appropriate balance between the rights of the defendant and the legitimate security needs of the United States.

As far as a circus is concerned, a judge can control this. The question is not a perfectly fair trial, because it would be impossible for some of these people to get 12 jurors, obviously, never heard of the case. It is comparative fairness between 12 independent jurors who don't take orders from the president or anybody else, and three colonels and two majors who want to be promoted to general and who have to decide whether their commander in chief acted properly in charging these people.

BURKMAN: Alan, let me ask you this. Why do you want to give -- here's my question. Here's my question for you. I haven't heard an answer now. Why do you want to give these thugs, terrorists and killers more protection than our law requires?

DERSHOWITZ: Because I'm not confident that...

BURKMAN: Why do you want to take this...


DERSHOWITZ: If I knew in advance -- let me answer the question. Let me answer the question. If I knew in advance that they were terrorists and thugs, we wouldn't need a trial. We are talking about people who are accused and who are presumed innocent, some of whom may be -- you laugh at the presumption of innocence.

BURKMAN: We're talking about combatants in war zone.

DERSHOWITZ: Wait a minute, you -- no, I'm talking about a fellow picked up in Detroit on the basis of suspicion the way a thousand people have been picked up -- 500 of them still detained, presumed innocent. I want to have a fair trial. And if they are determined to be the thugs, the criminals and the terrorists, believe me I want the severest punishment available for them.

But what if they are innocent? What if they -- what if a jury might find them innocent? What if a fair trial would find them innocent? What are we ashamed of? What are we afraid have? Even if a person is found innocent our system prevails if we show the world that we provided a fair trial.

PRESS: Jack Burkman, that's the point. And you know, Jonah mentioned this 1993 -- after the 1993 bombing of the World Trade Center. We have been through this. We had a public trial in New York City. There were questions of national security. They weren't compromised. The legislation allowed the court to handle that. The jury wasn't threatened. The city wasn't threatened, national security wasn't threatened, there -- what -- what is the problem and what are you ashamed of?

BURKMAN: Well, there's a big difference. There's something you won't address and Alan won't address. There's something called a war going on now.

We haven't -- we haven't declared it because we are not fighting a state. We have a new kind of warfare now. But for anyone to suggest that the United States is not at war simply because our opponent is not a nation state, is -- is an absurd argument.

Twice the people who died at Pearl Harbor died in the World Trade Center. I would submit to you, that as poignant and powerful a memory as Pearl Harbor is for our country, this is a hundred times worse.

DERSHOWITZ: I agree, I agree. But even if we were at war that doesn't mean all of our constitutional rights get suspended.

PRESS: Thank you. Thank you.

DERSHOWITZ: We have to ask the question on a case-by-case basis.

BURKMAN: But Alan, you're not following...

DERSHOWITZ: I think I am following you.

PRESS: One at a time. One at a time.

GOLDBERG: Professor Dershowitz, Professor Dershowitz, you keep saying that we should be taking this on a case-by-case basis.

DERSHOWITZ: That's right. GOLDBERG: Fair enough. But the examples you always give are of picking up somebody in Detroit who is arrested or was stopped for dubious circumstances, when everything we have heard coming out of this administration is that the people who are most likely going to be put on trial in these cases are going to be found in Afghanistan. Aren't you sort of setting up a straw man by saying (UNINTELLIGIBLE) case by case basis?

DERSHOWITZ: That is why -- that's why this should have been done by Congress, because Congress could have had hearings. They could have narrowed the legislation. They could have decided to not include within it permanent residents. They could have decided to limit it to war zone cases. They could have decided that the president doesn't initiate and then serve as the final appeal. The United States Court of Military Appeals -- which is a civilian court -- could be given jurisdiction over appeals in this case. If the Congress had sorted it out, we could come to an appropriate compromise.

BURKMAN: Not that this is anything new.

DERSHOWITZ: This is something quite new.

PRESS: Jack, just before we take a break here, let's go back to 1961. Israel rounded up Adolf Eichmann. I mean, of all people, the ugliest guy you can imagine. Brought him back to Israel, put him on trial in a public courtroom with three judges and a televised trial, and it became the model for the world in terms of the judicial system.

BURKMAN: I'm having trouble...

PRESS: Why should we do any different?

BURKMAN: Because in 1961, Israel was not at war. There was no war going on in 1961. We have a very clearly delineated body of case law that provides for what do you in case of war.

PRESS: The professor said it. War is not an excuse for junking civil liberties.

DERSHOWITZ: But you know, talking about Israel, they put Demjanjuk (ph) on trial, who was the second Eichmann, and the court of appeals in Israel had the guts to acquit him and send him back to the United States and they became a model of world justice by acquitting somebody who in my view was almost certainly guilty. If wasn't Ivan the Terrible he was certainly another terrible Ivan, and he...

PRESS: All right. Attorneys, attorneys, we are going to have to interrupt you, please. And the -- hold your fire for just a second while we take a break. When we come back, let's move on to a related issue. Young Arab men are being asked to come in voluntarily and answer questions from federal attorneys. Are they walking into a big trap? We'll be back with more CROSSFIRE.


(BEGIN VIDEO CLIP) JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES: People who have information about terrorist activity must make a choice: either they will come forward to save American lives, or they will remain silent against evil. The people who have the courage to make the right choice deserve to be welcomed as guests in our country, and perhaps one day to become fellow citizens.


GOLDBERG: Welcome back to CROSSFIRE. I'm Jonah Goldberg, sitting in on the right. The Bush administration is detaining hundreds of people in connection with the September 11 attack. Is this a travesty of justice or simply a reasonable measure? We're continuing our debate with Harvard Law Professor Alan Dershowitz and attorney Jack Burkman. Bill?

PRESS: Mr. Burkman, we debated this the other day. And as you know, the other day, on orders from the attorney general, federal attorneys in the state of Michigan sent out a letter to 566 men of Arab descent asking them to come in -- come on down, voluntarily, for questioning.

I was suspicious about that was all about. Suspicions confirmed when the "Detroit Free Press" reported yesterday that in the memo the attorneys -- to the attorneys in Michigan, they are told that even if they find people with some minor violation of their visa when they come down voluntarily, that those people can be detained indefinitely the same way some other people have been.

I want to read to you what Mr. Noel Saleh, who's an immigration attorney out in Detroit had to say about this. Quote, "It's hardly a method of voluntary cooperation when you start holding people with no bond based on what is I'm certain will be some investigator's jaundiced view. This basically confirms everybody's worst fears that this is a witch hunt and a dragnet and people are going to get swept up in it for no reason."

Dead on. Isn't he?

BURKMAN: No. I'll tell you what. If the Ashcroft measures had been in place prior to September 11, if the body of things we are talking about now had been in place only three months ago, in my view September 11 would not have happened.

Some of the key participants, as you know, and as CNN has done some good reporting on, some of the key participants were in this country illegally. If we had done nothing else prior to September 11 but enforce our own immigration laws -- which we did not do -- if we had done only that, even with all the other neglect, we probably would have prevented September 11 because it was a very complex scheme that required, a dozen, 14, 16, steps to happen.

Now, let me say this. Let's assume that some of the points you are making are right. Let's assume that maybe we do have a situation where there is a small handful of people who get treated unfairly. I don't think that's the case. But let's assume -- assuming arguendo (ph) that that is the case, isn't it better to err on the side of aggressive law enforcement? Because we know when we're soft on law enforcement -- look what happened September 11. Thousands killed?

PRESS: Believe it -- believe it or not I'm a liberal. And I don't believe in aggressive law enforcement or more police powers, not even in time of war. And look what's happening out there. There are 566. They are all men, they are all young, they are all Arabs. They have nothing in common except that they come from a country -- they are not suspected of anything -- they come from a country where there are known terrorists. That is racial profiling at its worst and you cannot deny it.

BURKMAN: Most of the people -- most of the people you are talking about -- the Justice Department is looking at people who have immigration violations. Look, Bill, we don't live in a utopia. There is nothing wrong with the federal government having some sense of who lives within its borders. There is nothing wrong with the federal government making some effort to enforce the law.

GOLDBERG: Professor Dershowitz...

DERSHOWITZ: Let's be very clear about one fact. If they had visa violations, they wouldn't have to be called in voluntarily. They could be picked up, arrested.

The 500 that we are talking about who are being asked to come in voluntarily, are people who are in status, who happen just to come from a country -- they have a perfectly valid visa -- and they're being asked to come in. If one of them is a terrorist, he is certainly not going to come in and say, "by the way, let me tell you I'm here to commit a terrorist act."

I happen to approve of Ashcroft's plan to reward people who come forward with information. I think that is very good idea. And as far as September 11, that was a failure primarily of intelligence, it was failure of people. It was not, I think, a failure of laws. Although there are some laws that I would favor.

As a liberal people are surprised that I like -- I like the national ID card. I think it's a good idea. But I don't like racial profiling or roundups.

GOLDBERT: I'm interested to know that you are in favor national ID cards. That puts you to the right of most of the people I know on the right.

But I would like to ask you getting onto this issue of racial profiling, just because these people all happen to be Arab-Americans or Middle Easterners, isn't that somewhat related to the fact that all the people responsible for the September 11 attack were Arab Americans or Middle Easterners.

DERSHOWITZ: Well, that's the time when racial -- racial profiling is used. That is when you take a group of people.

(CROSSTALK) GOLDBERG: Should we add some more Mormons and Quakers to sort of get the numbers into balance?

DERSHOWITZ: Oh, no, no. I don't want...

GOLDBERG: ...look like America?

DERSHOWITZ: I don't want to get people who are non-Arabic and non-Muslim if they are not within the category. But you shouldn't have a category that is defined exclusively by reference to race or national origins.

As far as right or left, I don't think national ID cards is a right or left issue. One of the reasons I favored it was because it would reduce the need for racial profiling and ethnic profiling by requiring people show a proper ID...


DERSHOWITZ: ...association that is opposed to it as a right-wing effort because they are afraid if you make people register, the next thing -- God forbid -- you will have to do register guns.

BURKMAN: Let me ask you a question. Isn't it the case that some of the people involved in September 11 -- some of the key people -- were in the country illegally? And don't you agree that if we had done nothing but enforce the immigration laws that those people wouldn't have been here?

DERSHOWITZ: I agree. But that has nothing to do with picking people up just because they are Arabs or Muslims who come from another country. There are probably millions of people who could be picked up on the basis of that kind of ethnic profiling. Let's limit to people who are out of status or who are here illegally. I agree with that completely.

PRESS: Let me -- let me give you one example. There was a woman arrested down in Arkansas from Uzbekistan, not known as terrorist country. She has been detained for 40 days because she took a job as a janitor at Wal-Mart. And that's...

DERSHOWITZ: There were 55 Israelis who were detained. I helped five of them recently get released. They happened to be on the road going to the George Washington Bridge and the government kept them in because they were working while they shouldn't have been working. And it is never an arrestable offense, just in order to make sure that they could keep Arabs in without saying they discriminate between Arabs and Israelis.

PRESS: Alan Dershowitz, Jack Burkman, so much to debate. Hate to stop but we've got to because we are out of time. Thank you very much.

DERSHOWITZ: Thank you.

BURKMAN: Thank you. PRESS: Mr. Burkman, come again. Professor Dershowitz, good have you with us again on CROSSFIRE. Jonah Goldberg and I will come back and settle all these problems, tell the government what to do in our closing comments.


PRESS: Jonah, I want to tell you something. I am tired of hearing this phrase we are at war, we are at war. War is not an excuse for doing the wrong thing. War is not an excuse for junking our judicial system and going to kangaroo courts.

GOLDBERG: Unfortunately, war has been excuse for doing all sorts of wrong things, including lots of socialist economics that you happen to love.

Look. You think that the Israeli trial of Adolf Eichmann was a great example. The problem is the Nazis were defeated in 1945. You can have the luxury of having a civilian trial when you're not at war with somebody. And we happen to be it, even if you don't like the word.

PRESS: I'm still for holding our system of justice. But you know something else? I think as a conservative you ought to really be worried -- like Bob Barr is -- about what John Ashcroft is doing with these detainees. He is seizing police powers. That's more big government. You as a conservative ought to be against it. You ought to be aghast at it.

GOLDBERG: Look, 600 detainees out of millions of young Arab men is not very good racial profiling. These guys are being held for a reason. We are at war. You have to break a few -- you have to break a few eggs.

PRESS: A reason -- wait a minute. They've a janitor's job at Wal-Mart, that's a reason for detaining them? No, I don't think so. From the left, I'm Bill Press. Good night for CROSSFIRE.

GOLDBERG: And sitting in on the right, I'm Jonah Goldberg. Join us tomorrow night for another edition of CROSSFIRE.




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