Return to Transcripts main page

CNN Talkback Live

America Speaks Out: Are Secrets Courts Necessary to Bring Terrorists to Justice?

Aired November 14, 2001 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, HOST: Today on TALKBACK LIVE: "America Speaks Out," we're going to find out more about how a military tribunal would work, and why this entire idea of using it to try suspects and terrorists has the ACLU so upset.

Also, we're going to speculate on what would happen if Osama bin Laden would be captured alive. Where can he go to get a fair trial, and could a good lawyer get him off? TALKBACK LIVE: "America Speaks Out" is up next.

(COMMERCIAL BREAK)

DARYN KAGAN, HOST: Are secrets courts necessary to bring terrorists to justice? Find out why the resurrection of the military tribunal distresses the ACLU.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.

(END VIDEO CLIP)

KAGAN: And what if Osama bin Laden is captured alive?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The hardest job in America will be that lawyer or lawyers who have to defend this miserable killer.

(END VIDEO CLIP)

KAGAN: Could bin Laden stand trial and walk away a free man?

Welcome to TALKBACK LIVE, everyone, "America Speaks Out." I'm Daryn Kagan. Today we are talking about military tribunals, as the White House calls it, a new tool against terrorism. A special military court to hear cases involving suspected terrorists.

The U.S. hasn't seen something like this since World War II. We have a lot to learn and a lot to talk about. Right out of the box. We have our CNN legal analyst, Roger Cossack, joining us from Washington.

Roger, good to see you.

ROGER COSSACK, CNN LEGAL ANALYST: Hi, Daryn.

KAGAN: Good to have you in the house with us here.

Explain to us how a military tribunal would work.

COSSACK: Well, Daryn, it's still unclear exactly how it's going to work. Let me tell you, though, what the framework, at least how it's been described. A military tribunal would be made up of military officers who would be appointed by, I believe, by Secretary Rumsfeld. We don't know how many and we don't know who they are.

KAGAN: What about where? It doesn't even have to be here in the U.S., does it?

COSSACK: It does not have to be here in the United States. It could be someplace else, and could be -- unusual as it sounds, proceedings could be held partially in secret or entirely in secret, or none in secret. These are all things that would have to be decided.

The reason that you look to a military tribunal at times like this is because, mainly because you have these situations where you have a whole lot of intelligence that may have to be turned over, in a normal court of law, to a defendant. Under the traditional notions of jurisprudence and due process that we have in this country, the defendant is entitled to see the evidence that is being used against him ahead of trial so he or she can prepare.

In a military tribunal that wouldn't happen. As I told you, there would be no jury, so therefore you wouldn't have to have a unanimous opinion of a jury.

KAGAN: Roger, let me jump in here a second. Just that very basic point, of the defendant wouldn't even have to see what kind of material you have against him, that seems so un-American.

COSSACK: Well, let's just say that it's certainly unlike the evidence -- the way we run our courts here in the United States in the traditional way. Let me give you an example.

Suppose we had someone in custody and we believe that person was a terrorist, or harboring a terrorist, but we don't have that kind of evidence that would stand up in a traditional court of law here in the United States under the traditional rules of evidence, where hearsay would not be prohibited -- or would be prohibited, where you have to have authentication of statements that are made.

In a military tribunal, you might have evidence where someone is put on trial and then someone else comes in and says, "we have information from a confidential informant, who we can't tell you who that person is, that this individual really is a terrorist and was harboring a terrorist, and was at this certain place with these certain people on these certain times."

That kind of evidence, while never being able to be admitted in an American court, would be able to be admitted in a military court. It's an entirely different kind of thing, and I must say, not entirely without precedence.

KAGAN: We're going to talk about that precedence. Roger, stand by.

Joining us now as well, criminal defense attorney and formal federal prosecutor, joining us. Help me here. OK, there we go. Former federal prosecutor Stanley Cohen. Sorry about that, Stan. His clients have included members of the Irish Republican Army, the head of Hamas and the leader of the American Muslim Conference.

Anthony D'Amato, professor of law at Northwestern University Law School. He has argued a number of human rights cases around the world.

Gentlemen, welcome, and thank you for joining us.

STANLEY COHEN, CRIMINAL DEFENSE ATTORNEY: Thank you for having me. I need to correct the fact, I've never been a prosecutor. I'm sure there are persons at the federal prosecutor's office who are aghast now.

KAGAN: I guess we should mention -- Stanley Cohen, correct?

COHEN: That's correct.

KAGAN: Probably a lot of nasty things I could have called you, and prosecutor was probably at the top of your list, huh.

COHEN: Probably for me, as well as good federal prosecutors who I have fought against for years.

KAGAN: OK, granted. Appreciated. So you would like to go on the defense side of things. Tell me this up front: if you had the opportunity, would you defend Osama bin Laden?

COHEN: Same answer today I gave two months ago. I don't know.

KAGAN: You don't know?

COHEN: Don't know.

KAGAN: How could you not know?

COHEN: Because I don't know what the person is, I don't know what the evidence is, I don't know what's involved. I don't know what it would take for my practice or my life, I don't know what the issues are. It would be easy for me to say yes or no, but I can say neither.

Unlike so many people who are convinced of his guilt, I know nothing about the case. I wouldn't take it because of the nature of the case, and I wouldn't shy away from it because of the nature of the case. It's like a lot of my political cases. If I were approached, I would reflect, I would examine and I would make a decision.

ANTHONY D'AMATO, NORTHWESTERN UNIVERSITY: I would add it that --

KAGAN: Good ahead, Professor.

D'AMATO: I would add it that the fact that in meeting with Osama bin Laden for the first time, a lawyer would want to know whether he was willing to plead.

KAGAN: How do you come up with a plea agreement for Osama bin Laden? Community service? He's picking up trash along the side of I- 80? I don't think that's going to fly here in the U.S.

(LAUGHTER)

D'AMATO: The plea would be he has evidence that he can turn over that we have no other way of getting. And he is willing to testify and root out a whole lot of other people. That would be the kind of cooperation with the court that might get his sentence, say, reduced from capital punishment to life imprisonment or 40 years, or something like that.

COHEN: Maybe from 10 million years to 5 million years. That what it would get reduced to.

D'AMATO: That could be. But I don't think we should overdo this. I mean, he -- he may have things he wants to give. On the other hand, he may be like Milosevic -- I'm just going to grandstand the whole thing, and say that the court is illegal -- in which case there would be no fun or no interest to me, or most lawyers, in defending a person like that.

COHEN: Yeah, that's one of the issues I raised previously. This may very well be a case, assuming he is captured, which I don't think he will be, where he instructs his attorney that he or she is to sit quiet for a year and a half, do nothing and then Mr. Bin Laden would take the stand and say whatever he wants. Quite frankly, I have more important things to do in my time.

KAGAN: I see, so in that case, you wouldn't think that the case would be interestingly enough or intriguing enough for you to take. But just on the concept, would someone like Osama bin Laden, just on the bases, he deserves legal representation. You have to find someone to represent him.

COHEN: Well, the fact of the matter is, the core of our system -- it goes back to the comments that Roger made -- is not only the right to counsel, but a separation of powers and a checks and balances system, which this new, you know, Diplock sort of military tribunal runs directly at odds with. It violates 200 years of jurisprudence in this country.

KAGAN: Ah, but there is a history of it. And, Professor D'Amato, why don't you clue us in on that? I mean, we've seen it before in this country.

D'AMATO: I just wanted to say that if you can't find anyone in the world to defend him, you've got Allen Dershowitz.

COHEN: There you go.

KAGAN: And you know what? He's going to be on the "Court TV" special. We'll be talking to Catherine Crier in a little a bit. So we'll be getting to the topic of Allen Dershowitz.

But, Professor, what about the precedent, here, that we have seen this before in this country?

D'AMATO: First of all, we have to say that the foreigners don't have direct rights under the U.S. Constitution.

KAGAN: And this military tribunal would only apply to non-U.S. citizens?

COHEN: We don't snow.

D'AMATO: If it applied to U.S. citizens, they would have U.S. due process rights for trial. But foreigners don't have those rights. So that's one big advantage. But they do -- they can cite the international covenant on civil and political rights, which is a treaty we've signed. And that would give them some procedural rights at trial.

But the main thing is that a military tribunal can be quick, it can be efficient, and get the job over with in a hurry, so that other terrorists will see that they're not going to be -- you know, if they get caught there's not going to be a five-year delay, with all kinds of...

KAGAN: Stan, just answer me this. Are you also concerned that there is no time limit on this? I mean, this executive order just stands. It is not like next year or two years.

D'AMATO: The fact of the matter is, you are applying international law, which you have a right to do. And under international law, there is no statute of limitations. So this executive order could be revised, could be resuscitated, it could be changed. It doesn't matter. As Mr. Cossack rightly said, the reason we don't know a lot about these procedures is very simple. There are no really detailed procedures. So there is a tremendous amount of flexibility.

COHEN: Well, there are some people who call flexibility arbitrary and capricious. I need to first of all differ with what the professor said, about the fact that he believes that "foreigners," quote unquote, do not enjoy the full panoply of rights in the criminal justice system in the United States.

Ask Manual Noriega about that, and many other persons who were accused and brought to the United States and tried. They have the same exact rights as any U.S. citizen when it comes to criminal prosecution. No. 2, while there is some discretion, what you have here is the president, not Congress, has announced that he's declared war against individuals. He's decided who the good and bad guys are. There have been no indictments. He's going to appoint the judges, he's going to appoint the jury. The executive branch will take over the entire control of the system. It runs directly contrary to our constitution and our experience.

KAGAN: Stanley, let me jump in here real quick. Another trial that's going to take place, "Court TV" is going to put Osama bin Laden on television -- actually on trial on television. We're going to talk to Catherine Crier, find out more about that special and hear from our audience, just ahead, after this break.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOANNA: Hi, I'm Joanna from American University, and I believe if Osama bin Laden was brought to America, he would not receive a fair trial because of the extreme biases that Americans already feel towards him. I believe in most people's minds he's already guilty, so it will be really hard to find people that think otherwise.

(END VIDEO CLIP)

KAGAN: Welcome back to TALKBACK LIVE. We are talking about putting Osama bin Laden on trial, whether it's on "Court TV," as they'll be doing next month or in a military tribunal, if the U.S. were able to capture Osama bin Laden alive.

Let's bring our guests back in. I want to start with Professor D'Amato. And with this concept of a world court, some people are saying, well, instead of a military court, why don't you put him up for trial at The Hague or international criminal court? What does exist there, and how would that be different from a trial here in the U.S.?

D'AMATO: There is no jurisdiction to try him in any international court. The criminal tribunal at The Hague has jurisdiction only over crimes committed in Yugoslavia. And the International Court of Justice doesn't have criminal jurisdiction at all.

So you would have to put up either an American court, like we're talking about, or the U.N. would have to set up an ad hoc tribunal. And I think the United States is better off setting up its own tribunal and dealing with this. I mean, we're entitled to apply international law.

KAGAN: Professor, what about the difference between the way the world sees the death penalty and most Americans see the death penalty?

D'AMATO: Well, I agree with the rest of the world. I think this is an outmoded concept.

KAGAN: Even for Osama bin Laden? It wasn't outmoded for him, with what happened, apparently, to 5,000 people in New York City. D'AMATO: I think he would be much worse off if he had to spend the rest of his life in a cell. I think that he'd probably try to commit suicide. And it's much more of a punishment than a quick and merciful death.

KAGAN: Let's bring our audience in. We're talking about an international opinion on that point, and we have some gentlemen here from Scotland, I think coincidentally, right? You two don't know each other. It just so happens.

OK, we're going to get two different viewpoints from Scotland. First James.

JAMES: My opinion is you have to keep your justice department and your military separate. The military is not accountable to the people. They're not voted. They make decisions and don't have to answer to anyone, possibly the president, even.

I'm very wary of that, and I feel that when we talk about justice, then that justice has to be accountable. You make a wrong decision, it has to be accountable. It seems to be, in the military you make a bad decision, you either get promoted or you retire. So I'm very, very afraid that we bring in this type of military tribunal, where the burden of proof, we don't really know what it is. So I think it has to be kept separate.

KAGAN: Roger, talk about that, keeping those two separate. And the former prosecutor, would that concern you at all?

COSSACK: It does concern me, and I'll tell you why. Historically in this country, there have been always three branches of government, the executive, the judicial and the legislature. And it was set up that way for the specific reasons that it sounds like, to make sure that all three of those branches stay apart.

And as we pointed out earlier, what you're having here is you're having the executive branch setting up a court which is directly under its jurisdiction and its control, and answers to no one else. And, I might say that there are no appeals from this court, the way it's at least initially been set up. So that from being able to go from, say, this military court to, say, the United States Supreme Court or the Circuit Court of Appeals, that would be impossible. There is no appeal, except perhaps to the president.

KAGAN: So that also means that if there was a conviction and a sentence of the death penalty, that would happen a lot more quickly than it would if you were going through the regular criminal system.

COSSACK: I would say that if speed is what your goal is in this exercise, this is certainly the way to get a speedy resolution. If, on the other hand, you are concerned about 200 years of American jurisprudence, this is going to be something that causes you some concern.

These are difficult times, Daryn. I don't think there's anyone around who's going to say that things are the same since September 11th, and that the government does not have to do things a little differently than they've done it in the past, to protect us. This is one of those ones where there's just tremendous tension between the way we do things and the freedoms we have in America, as opposed to what this unheard-of military tribunal -- really unheard of, even though there is some precedent -- the kind of way it would operate. This notion of a secret court is just an (UNINTELLIGIBLE) to we Americans.

KAGAN: Let's get another Scottish opinion, and this is Les.

LES: I have a completely opposite opinion from my friend here in front. We've experienced in Britain roughly 30 years of terrorism at the hands of the Irish Republican Army, who we tried to try through due process of law. I believe if the military had been given the hand, we would have defeated terrorism, many innocent people would have been saved.

And all I would say to the American people is: Have faith in your president. Have faith in your military. I do. Have that faith. Keep the faith, and destroy terrorism. Because if you try them by due process of law, it won't work.

(APPLAUSE)

COHEN: May I jump in with response to that?

KAGAN: Stanley, I would like you to, because I want to hear if you are hearing Les. And this is a man who has seen this situation for a number of years. He understands it better than Americans do, I think.

COHEN: No. 1, we don't have a parliamentary system of government, which he comes from. No. 2, the British locked up thousands of Irish men, women and children for decades, often while denying them rights to counsel, often without having them appear in front of judges. We know about the abuses of people wrongfully convicted. We fought a revolution from Britain to maintain separation of the separate branches of government and to have checks and balances.

There is another party here that's got interest here, it's called public. One of the cornerstones of our criminal justice system, of our system of checks and balances, is a public trial. It's not just about to defend that. We have a right, as the public, to observe, to watch and monitor.

And the reason why we do that is because our experience before the revolution with Britain was star chamber. The public was excluded. The chief, the king, and now the executive simply decided one's guilt or innocence and executed people. Their experience may be very different. Our country is very different because of our experience with them.

COSSACK: You know, Daryn, could I jump in...

KAGAN: You know what, though, If I don't get Les have a chance to respond, I think he's going to explode, here. Have to let him have a chance, Roger.

LES: I don't want to go into the (UNINTELLIGIBLE) situation, but let me say, this guy is trying to fool you with a lot of things he is saying right now. First of all, historical situation has changed since 1776, greatly. For us, as well as you.

COHEN: But our Constitution hasn't.

LES: Right. The second thing is, you must understand that you have been in this country under a public relations barrage from the Irish Republican Army and their sympathizers. Thousands of people have been damaged in our country because of that misunderstanding you have. They have bombed -- we talked a little bit about the veterans, and we saw the veterans here today.

Do you people know in this country that the Irish Republican Army planted a bomb on a Veteran's Day parade in Britain, and killed innocent civilians? And the perpetrators of that crime, because we don't have a death penalty, were put in prison. And do you know where they are now? Out on the streets. Is that what you want with bin Laden? Get him!

KAGAN: And on that note, we are going to go ahead and take a break. Let's have the audience behind him. We are going to hear from Roger right after this. Stay with us.

ANNOUNCER: Still ahead, Osama bin Laden on trial.

(BEGIN VIDEO CLIP)

TONY BLAIR, BRITISH PRIME MINISTER: The utterances from the al Qaeda network and from bin Laden's own mouth leaves no doubt. Far from hiding their guilt, they gloat about it.

(END VIDEO CLIP)

ANNOUNCER: But could a good lawyer convince a jury that bin Laden is innocent? Hear the arguments right after this.

(COMMERCIAL BREAK)

KAGAN: Welcome back to TALKBACK LIVE.

We are talking about putting Osama bin Laden on trial. And, in fact, next month that is what Court TV plans to do. They are going to put the terrorist leader through a mock trial, discussing everything from opening statements and final arguments. Hosting the show will be former judge Catherine Crier. She is joining us along with Scott Mendelhoff, a civil and criminal attorney investigator in Chicago. Welcome to both of you.

CATHERINE CRIER, COURT TV ANCHOR: Thanks, Daryn.

KAGAN: Catherine, good to see you here on CNN.

CRIER: Yes, much appreciated. KAGAN: Yes, I don't think I've had the chance to talk with you on the air, so it's a pleasure.

CRIER: Good to see you.

KAGAN: Tell me exactly how this is going to work on Court TV.

CRIER: Well, we are going to have two phases. Obviously, we are going to take a look what would happen in federal court under traditional rules for a criminal case. We will be discussing with former Deputy Attorney General Eric Holder and professor Alan Dershowitz various aspects from opening statements to the kind of evidence and witnesses, to the kind of charges, whether it is RICO or conspiracy, and take through the trial itself.

But -- what your guests have been talking about -- we are also going to deal with the issue of a military tribunal. And if I could for just a moment...

KAGAN: Go ahead.

CRIER: I was sitting here wiggling in my seat.

This is not unprecedented. Not only is it not unprecedented, the earliest case I could find was George Washington's appointment of a military tribunal in 1780, but it's also Constitutional. It's also been approved by Congress. It's part of the Articles of War, particularly Article 15. And it is so specific that the Supreme Court has reviewed the president's ability to do this, specifically, in 1942, an ample case where even a naturalized citizen came under these particular rules. There is nothing illegal, surreptitious, secretive. It is entirely provided by our founding fathers through our Constitutional history. And I think that needs to be clear.

KAGAN: But on the show, it is not going to be a military format?

CRIER: No, we're going to address that though with the guests because this is an option. As President Bush has indicated, this order is an option for us to treat the case as is entirely appropriate, given our judicial history in this country to be tried by a military tribunal.

KAGAN: Did you happen to hear...

(CROSSTALK)

COSSACK: Let me just step in a second here.

Catherine, you know I have nothing but great respect for you and absolute...

CRIER: Go ahead and disagree, Roger. It's all right.

COSSACK: And, you know, you are absolutely correct that there has been a United States Supreme Court decision on this. And I have never meant to imply that there was some surreptitious about the fact that they are going to have a military tribunal.

What I am saying is is that a military tribunal flies completely in the face of 200 years of traditional American jurisprudence. And when you give out the reasons about why they want to have a military tribunal, then you have to weigh about what are the benefits and what are the burdens.

What I was trying to say earlier....

CRIER: But you can't say that though, Roger. You can not say it goes against 200 years of jurisprudence because if you read that Supreme Court opinion, you will see they very clearly state that certain kinds of cases do not fall under our traditional trial by jury. Our founding fathers made this determination in all of our judicial history and sources.

(CROSSTALK)

COSSACK: Catherine, there's been maybe...

STANLEY COHEN, CRIMINAL DEFENSE ATTORNEY: Can I -- can I jump in...

KAGAN: I hear Scott. Scott, is that...

COSSACK: There have been maybe three trials in the history of this country that...

(CROSSTALK)

COHEN: Can I jump in as well?

COSSACK: ... three or four times that this has ever been done.

CRIER: No, no, no, not three trials. I've got two pages of footnotes here.

COHEN: Judge, with all do respect to you, Judge, the Constitutionality is not the issue, because slavery was Constitutional. Jailing 160,000 Japanese Americans was Constitutional. Denying the right of women to vote for 140 years was Constitutional. The issue is not whether it is -- quote, unquote -- "Constitutional." This issue, as Roger says, is where given the significance of where we are in history, whether we want to throw the baby out with the bath water to get a quick fix.

(CROSSTALK)

COSSACK: I am not saying there may not be a reason to do that.

I mean, one of the issues that we have to talk about, whether we like it or not, is the issue of bringing evidence forward in a trial against these people and giving up highly-placed intelligence sources. That bothers me. That is a reason why you may have to have some kind of different forum than we traditionally have.

(CROSSTALK)

CRIER: Roger has got it absolutely right, is there has been specific provisions made under the Articles of War because these cases may require a different kind of treatment to preserve the integrity of the United States.

COHEN: War has not been declared here.

CRIER: And there are times -- no, but it doesn't have to be a defined declaration of war by Congress for these to apply. There are certain circumstances regarding the acts of enemy belligerence which bring these acts into play. And thus far, based upon everything we have heard about Osama bin Laden and al Qaeda, they fit.

KAGAN: OK, on that note I want to bring in the prosecutor, Scott Mendelhoff. Scott, are you with us.

SCOTT MENDELHOFF, FORMER FEDERAL PROSECUTOR: I am.

KAGAN: There you are, being so quiet and just waiting your turn. You will get all riled up like the rest of them before we are done with you.

Do you think it is good idea to have a military tribunal?

MENDELHOFF: Actually, my concern is not as much with the military tribunal as it is with some of the procedures that are being proposed here.

KAGAN: Such as?

MENDELHOFF: The dispensing of reasonable doubt, the requirement for...

KAGAN: But what is the burden of proof here, to borrow the name of Roger's show.

MENDELHOFF: It certainly looks from the item that the government has released, or the order that has been entered, that the burden of proof is a broad burden as to whether or not they are making a finding of guilt without setting -- in other words, did the person do it or not? And there is a reason we have reasonable doubt standard. We want to be sure when we are going to be doing these things or as sure as is reasonable.

KAGAN: But, Scott, I've got to think that, as a prosecutor, you would like the way the rules would be stacked that way.

MENDELHOFF: As a prosecutor, one of the primary responsibilities that we have -- that I had and that all prosecutors had -- is to do justice. It's much more important than winning or losing.

And my concern about the way this system is being set up is that there aren't the kinds of safeguards that we need to have to make sure that, in every instance, we are doing justice. Reasonable doubt is one aspect. The juries do not have to come to a unanimous verdict. That's another concern I have.

COSSACK: There won't be a jury, Scott.

MENDELHOFF: Well, there is going to be a commission.

(CROSSTALK)

KAGAN: And who makes up this commission? Are there members of the military?

MENDELHOFF: The Defense Department puts the commission together. And the commission itself does not have to come to an unanimous verdict, either as to guilt or sentencing.

COHEN: Soldiers whose political career is on the line. The military who are looking for promotions in the future and looking to the executive to promote them would be the people called upon to serve as the jury.

CRIER: Well, there is a provision, Daryn, which everyone ought to know. It does say -- and this is of course is subject to argument -- a full and fair trial with the military commission sitting as the triers of both fact and law. And we have a history of definitions as to what a full and fair trial may be. And so while the rules of evidence allow probative evident and don't require some of the specificity we do in a civil or criminal court, there are parameters. And this isn't simply, bring out the hangman's noose.

(CROSSTALK)

KAGAN: Hold on, I want to ask Catherine a question.

As a former judge, if you did have the opportunity to run this military tribunal, how would you do it so that it would be fair? And could it be fair?

CRIER: Well, yes, I do think it can be fair, although I understand the reservations. And I have reservations. This is something new, certainly to our generation.

But I think that those who have been assigned and who are legally trained and understand the parameters of a trial proceeding where their burden of proof is reduced to sort of probative evidence. But you have got to have two-thirds of that military tribunal to agree on the particular verdict. And they've got to be able to respond. This is not going to be a star chamber or, you know, get out the noose. It's -- I think they understand what full and fair trial is under the parameters of our system.

KAGAN: Stanley, go ahead.

COHEN: This sounds all too familiar with all of the trials that occurred in Latin America in the '60s and '70s.

CRIER: I don't think you can make that analogy. I do not.

COHEN: May I finish, please?

With the executive setup, military tribunals to sit for the same reason you are alleging are necessary here, where there's secret evidence, where there's secret panels, where there is no burden of proof, where there is no due process. And there too, the president says and many persons such as yourself say, we need it because of the exigency of the moment. We have a system. It works. We have to have faith in it. We have to let the public observe. Let's do it, unless you don't have the evidence. And then you can go that way.

KAGAN: I hear Scott trying to jump in here. Scott, go ahead.

MENDELHOFF: Yes, you know, I think making reference to these extreme cases in Latin American and the like, really is, for my point of view, beside the point.

The point is that we have a country that we believe in and we love with all our hearts for a reason. It's for our principals. And there are certain principals of justice that apply and they apply to every action that the government should be taking. And we shouldn't be making special cases, even in this kind of a circumstance. After all, the biggest test of character is when you are under these kinds of...

CRIER: But, how it is a special case if, in fact, this has been very, very specifically established within our Constitution. And within our...

(CROSSTALK)

CRIER: Let me finish.

KAGAN: Let the lady go, gentlemen.

CRIER: ... within our Constitution and certainly a history of precedent where we can not go back to any of these particular precedents that I've reviewed and said, "Oh, my heavens. We obviously committed an egregious error here and therefore should rewrite or restrict the use of this very narrow provision."

(CROSSTALK)

KAGAN: That's the last word. Hold on. I am driving the bus and I am telling you we are going to a break. So you guys just hold on with all those thoughts.

We are going to talk about just how secret is secret in this case. And what else wouldn't the American people know if these tribunals did take place. We will be back after this.

(APPLAUSE)

(COMMERCIAL BREAK)

(APPLAUSE)

KAGAN: Welcome back to TALKBACK LIVE, our final minutes here.

We want to get comments from the audience. This is Cameron from North Carolina.

CAMERON: I was just concerned with the fact that the lawyers and the judges keep pointing out the fact that by the Constitutional right, he has the right to a fair and speedy trial. But the Constitution is designed for Americans. And I don't think that that should apply to him if he is not an American citizen.

COHEN: She's wrong. The Constitution does not apply when it comes to criminal charges, just to Americans. Any person, an American or a foreigner, who is charged with a crime and brought to this country has the same Constitutional rights. It has been the law for 250 years. We shouldn't tinker with it just the way we shouldn't tinker with the process at this crossroad.

KAGAN: Here is Abby.

ABBY: We talked earlier about whether the United States should have the right to hold this trial. And I think we should. It shouldn't be on a world trial, it should be ours because the attack was on us. It wasn't on anybody else. And it should be our trial to hold.

The tribunal is for our protection, that is so it protects a city, so we don't have to give away all our secrets, how we call him. We can't go tell him exactly how we call him because all he is going to do is go back and tell other members of al Qaeda and that way, they are go to know how to evade us longer.

We're going to teach him exactly how we caught him and that's something that we don't need to do. The tribunal is for our protection. They are not saying they are going to use it. But they're holding it out there in case we need it. And I think that that needs to be there.

KAGAN: What about the threat of future terrorism? How a military tribunal might protect against that, if you are holding Osama bin Laden, if he's in prison for life. What about the threat of...

COHEN: Israel has effectively, essentially, done this for 30 years. For decades, Israel has held military tribunals. They have held secret trials. They've denied information. They've limited access to lawyers. They've even, on occasion, the high courts said torture is OK.

They have the biggest problem in the world when it comes to their security. Let's learn the lesson. We don't tinker to make things better. Our strength and our safety comes from our tradition and our Constitution, not from the moment, sacrificing anyone to the mantle of political expedience.

CRIER: I disagree. I think Abby had it absolutely correct in what she was describing there, very specific circumstances, where the trial by jury amendment does not apply to these circumstances. And there are times when an act of war, through an enemy belligerent, occur against this country where we have provisions to protect our national security, to ensure that a just and fair trial occurs. But in fact, we do come first in this proceeding as we should.

KAGAN: Other reservations about this, and here's Fran from Ohio.

FRAN: I am against a trial of any kind for several reasons. We talked about the expense to Americans for the trial, security of Americans.

But another thing, any time there is violent crime and there is a trial, everybody talks about how difficult it is on the families. I think this is going to be a horrendous thing to put the families through. And I think that if they can get close to catch them, they should kill him.

And secondly, I'm sorry, but I think this mock trial is a very bad idea. I think until this is all over, I think speculation, pretend trials, mock trials, is very bad taste.

CRIER: Daryn, let me clarify...

(APPLAUSE)

CRIER: The use of the term "mock trial" is really not fair to what we are doing.

KAGAN: OK, give us a better description then.

CRIER: We are -- it is basically a documentary format in which we are going to sit down and, between taped pieces that discuss elements of the case as we now know them, things that we have been talking about now for weeks over the airwaves. And then we are going to analyze that from a legal perspective. We are not going to set somebody up in the witness box and pretend like we are trying him. We are going to do this as an intelligent, documentary-esque look at how the justice system would deal with the acts of terrorism when they are confronted.

KAGAN: But when you were sitting down, as the Court TV staff, I would have to imagine that you had these concerns and you are worried about that coming across.

CRIER: Oh, yes. Well, it is not in any form or fashion going to be treated as a mock trial because we are all much, much too serious about the situation.

KAGAN: Is there going to be a verdict?

CRIER: No.

KAGAN: No, and what about a sentence?

CRIER: Well, what we are going to do is discuss the various options and how you would go about arguing this case, how you would go about prosecuting and defending these circumstances in -- and I hope -- a legalistic and intelligent fashion.

KAGAN: All right.

COHEN: One of the interesting things that has developed is we're talking about either a mock trial or whether Osama bin Laden should be tried in this way or that way.

Even though Tony Blair says there's a smoking gun, to date, no one has been indicted. No one has formally been charged by a grand jury. We are all jumping to assumptions on the basis of what the executive is telling us, the same executive who now says, "Trust me, I need to appoint the tribunal because you are not mature enough or safe enough to handle secret information. Trust me, trust me, trust me."

KAGAN: Stanley, you are sounding an awful lot like members of the Arab world that are saying, "You know what, Osama bin Laden didn't do it. This is all an Israeli conspiracy."

COHEN: I am sounding like a lawyer who has taken an oath to uphold the Constitution of the United States and who has grave concerns, who sees a system that has worked well, with all of its warts, for 200 years. And people now want to start tinkering with the system because of this particular situation. Whether it is Constitutional or not doesn't matter. As I pointed out in the past, we've committed all sorts of atrocities in the name of the Constitution only to regret them 20 and 30 years later. Let's not make the mistake again.

CRIER: This provision has not been used to engage in atrocities nor are we tinkering with something by changing what we have looked at and utilized for 200 years...

COHEN: How many times.

CRIER: ... so I think we need to use our terms appropriately.

KAGAN: Scott, you get...

CRIER: But, I've got about 30 footnotes right here, 30 precedents in front of me.

COHEN: 30 precedents in 250 years.

CRIER: These are all regarding acts of war against this country. And, thank God, we have not been subject to that many of them.

(APPLAUSE)

KAGAN: And here is Scott. Scott, go ahead.

MENDELHOFF: I am just curious as to whether in any of these instances that Catherine just mentioned, the tribunals were set up the way this one is. It's my understanding that this is a departure, even from those.

There was a quote in the "New York Times" today by an expert on military justice that said that the way this tribunal is set up is significantly different from any court martial or military tribunal that he has ever seen.

CRIER: Well, thus far, when I am looking at the president's order, there are still gaps in terms of what he is going to do, in terms of numbers of individuals, how the appointment is going to take place...

KAGAN: Because we are not just talking about Osama bin Laden. They could get 1,000 members of al Qaeda and have the same kind of military tribunal.

CRIER: Absolutely, so we don't have all of the answers to make a comparison.

MENDELHOFF: We know enough to know that they are not going to be using beyond a reasonable doubt standard, that they are not going to be requiring an unanimous verdict. Those are things that are...

CRIER: And in fact...

(CROSSTALK)

MENDELHOFF: Let me finish for a second. Those are the things that we rely on to make sure that what we are doing as a people are truthful and accurate and just. It's not a matter of expediencies. It's a matter of making sure that we're doing what we...

CRIER: But be clear what you are saying though, because those precedents are not precedents that are reflective of our trial by jury system, which applies Constitutionally to certain kinds of crimes.

MENDELHOFF: I am not talking about our trial by...

CRIER: And the tribunals in the past have not been bound by the reasonable doubt standard nor by an unanimous verdict.

(CROSSTALK)

COSSACK: You know, Catherine, we tried that case in New York of the first World Trade Center. We seemed to do it successfully. We seemed to get verdicts. We had a jury decide on it. We had a lot of security. We used the traditional system that we've done in the past for the last 200 years and it seemed to work.

(CROSSTALK)

KAGAN: I'm sorry -- sorry, guys, we are out of time.

Roger, got the last word. But, Catherine, give a plug for your special, when and where?

CRIER: All right, let's see, when are we doing this? December...

KAGAN: 6th. (LAUGHTER)

CRIER: Thank you very much. I'm taping it Friday, doing it December 6. And I hope everyone will watch because we are going to try and make it not inflammatory, but informatory.

KAGAN: The conversation will continue. I want to thank all of my guests, also all of you here in the audience and at home. We will be back tomorrow. Right now, we go back to Washington D.C. and to Judy Woodruff -- Judy.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com