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CNN LARRY KING LIVE

Interview with Senator John McCain

Aired November 28, 2001 - 21:00   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.
LARRY KING, HOST: Tonight, the war on terrorism exacts a deadly toll. A CIA officer is the first known U.S. combat casualty in Afghanistan. His father calls him a hero.

Joining us, a man who spent five and a half years in a POW camp and certainly understands the meaning of heroism: Republican Senator John McCain. He says war is a miserable business, freedom is worth dying and killing for.

And then has the Bush administration gone over the legal line in the name of national security? We will debate it -- G.O.P. Senator Richard Shelby, vice chairman of the Select Intelligence Committee; former prosecutor Nancy Grace, now the anchor of "Trial Heat" on Court TV; the director of the Washington national office of the American Civil Liberties Union, Laura Murphy; and the former chief minority counsel of the House Judiciary Committee, Julian Epstein.

Plus music and emotion from world renowned tenor Andrea Boccelli, all next on LARRY KING LIVE.

We begin in Washington with United States Senator John McCain. The first thing we are going to look at, Senator -- and thanks again for joining us -- is a little discussion about John Michael "Mike" Spann who worked for the United States Marine Corps for eight years and then the CIA. The first casualty of this war. His father, John, held a little press conference today. Here is a little bite of what he had to say.

(BEGIN VIDEO CLIP)

JOHNNY SPANN, FATHER OF CIA OFFICER MIKE SPANN: Michael was a loyal and patriotic American. And he loved his country very much. He was a cherished son. He was an amazing brother, a devoted father, a loving husband. And our family wants the world to know that we are very proud of our son, Mike, and we consider him a hero.

(END VIDEO CLIP)

KING: Senator McCain, soldiers, as Colin Powell said here Monday night, should expect to die, that is why they are soldiers. Should CIA officers expect it as well?

SEN. JOHN MCCAIN (R), ARIZONA: Oh, I think so, Larry. In fact, many times, people who are involved in the CIA work -- it is more dangerous in many respects than the regular military type of operations. But no matter whether they served in or out of uniform, they are unique. They are wonderful. We cherish their memories and long after we forget their names, we will remember what they did.

KING: It is rare that we learn their names, right? When you visit CIA, there's -- Nathan Hale is the first known tragedy, then there's a lot of stars next to names that are not listed.

MCCAIN: That is true. And in Vietnam, they did some of the most dangerous flying with Air America. And they did some other very dangerous work as well. And I'm sure that there are many of their stories that will never be told.

KING: Are you surprised that he is, at this later date in the conflict, the first casualty, that it took so long?

MCCAIN: I am. I am. But I also am gratified, as all Americans are. It is a testimony to the planning, the technology, the skill and the bravery of our men and women in the military, and our leadership. This has been a very successful operation so far and one which has exceeded almost everyone's expectations. And that is the way it should be. We always want it to exceed our expectations, but it has been a marvelous display of American power and American capabilities.

KING: I will get back to it in a moment. One quick question in the domestic front: There is a story in paper today that you are close to getting this soft money thing through. How close?

MCCAIN: Well, we are seven signatures away in the House on a discharge petition. The House leadership regrettably refuses to allow the bill to be debated and voted on, so we have to go this route of getting 218 signatures on a so-called discharge petition.

They are about seven signatures away. I hope we can get it in the next few days or so. And if you want to support or oppose campaign finance reform, that is fine. But I think it deserves a fair up or down vote and I'm very disappointed that we have to go this route and don't have it disposed off as we did in Senate a long time ago.

KING: Do you see any connection with it and 9/11.

MCCAIN: Well, I think it obviously caused all issues to recede in importance, at least for a period of time while we got our nation geared up for this struggle that we are involved in.

But, I also see the dramatic increase in the so-called soft money, that is the unlimited contributions. They are double and quadruple of what they were before. I also see more and more of this pork barrel spending, special interests projects, that are directly related to these huge campaign contributions. There is war profiteering going on right now, Larry, if you want to know the truth.

KING: War profiteering. MCCAIN: Yes, because they are getting money for projects that are unneeded, unwanted and unnecessary and unrequested that are being put into these bills in a fashion that I haven't seen since I have been here. One reason is is because we are spending more money.

KING: Boy, that is a phrase that you got to go back to World War II to hear.

MCCAIN: Yes.

KING: War profiteering. Last month, were you not critical of the military strategy at that point?

MCCAIN: No, I was not. I -- for the first few weeks of the campaign, while they were getting assets in place and operations underway, I thought it was important to say that I thought it was necessary for us to bring to bear all the weight of American air, land and sea power to bring about a conclusion as quickly as possible.

I received a note from Secretary Rumsfeld saying he agreed with me. And I think what we have seen is one of the most effective and intense air campaigns in history. And of course our -- now our operations on the ground are also doing exactly what is not only what I think is necessary, but is clearly very successful.

KING: Secretary Powell said the other night that we can now expect casualties. Do you agree?

MCCAIN: Yes, I think we have had to expect them all along. We have had some wounded, as you know as well, as the tragic loss of this young CIA employee, but I think it is entering a very dangerous phase because you've got people everywhere with weapons and it is a very unpredictable situation, especially as we get into the business of trying to flesh the al Qaeda people out and apprehend or kill bin Laden.

KING: Militarily, what is the difficulty?

MCCAIN: Well, you've got a situation where the terrain is the most unfriendly, perhaps, of any place in the world, though you might argue that triple canopy jungle in Vietnam is just as difficult. But it is one of the most difficult.

And you have people who are very familiar with the territory. You have people who are fanatics, who are willing to obviously give up their lives to protect bin Laden. But, I also believe that we are getting closer and closer. And I think we will either capture or kill him, but it is very difficult and dangerous types of operations. Going into these caves is a very dangerous enterprise, to say the least.

KING: On October 26, an op-ed piece in the "Wall Street Journal", you said, our enemies harbor doubts that America will ever use force with firm determination to achieve our ends, that we will use all force necessary to achieve unconditional victory. Do you think they still doubt that? MCCAIN: I don't think they do. In fact, it is very interesting to see a change in attitudes and comments on the so-called Arab street now. The Arab countries in the region that, at first were very sympathetic to bin Laden and very critical of the United States and our actions, and now there seems to be a very different tune being played there, in sort of a acceptance of the fact that the United States is doing what is right and necessary, not only for the United States but for, frankly, these moderate regimes as well.

KING: Do you see the capture or death of bin Laden as an absolute must?

MCCAIN: Yes. Yes, I do...

KING: Because?

MCCAIN: Because -- well, because he represents -- he is the terrible evil that has been inflicted upon thousands of innocent Americans. He has claimed credit for it and deserves the credit for it. And I think that it is clear that as long as he is either alive or free, that we will continue to face threats to our very way of life. And by getting him, as the president I think has so appropriately emphasized, doesn't end it. But, certainly, we can't get to the beginning of the end until we until we take care of Mr. bin Laden and his network. But he represents, he represents to everyone in the world what must be eradicated.

KING: This war, thus far, is a war much more committed to by the people than the one you fought in, agreed?

MCCAIN: Totally agreed.

KING: Does that make it easier for the fighting man?

MCCAIN: I think it makes it so much better for the men and women in uniform. You know, I didn't learn a lot of these things until I got out of prison, but I have known too many Vietnam veterans that were embittered, much less disillusioned by the fact that they didn't feel that they were supported by the American people. And whether that was justified or not is another discussion.

But I don't think there is any doubt that these men and women in the military are exuberant over the fact that they know that the American people are solidly behind them. You probably saw the clips of the U.S.S. Enterprise returning the other day to Norfolk, and you know, it was just -- made my eyes tear up to see the kind of reception that those young men and women on that aircraft carrier got when they arrived home, and got from all over America.

KING: We'll take a break and come right back. As we go to break, here are some scenes of Senator John McCain, when he was in Vietnam. We will return right away. Don't go away.

(COMMERCIAL BREAK)

KING: By now knows the John McCain story, 5 and a half years of prison, offered the chance to go home early -- refused. Yet you, you do not consider yourself heroic. Why not?

MCCAIN: Because I failed on several occasions, that I did not live up to the standards that I believe had been set for me, and I had set for myself. And I did, however, achieve whatever level I was able to thanks to the sustenance and help and support and love of my fellow POWs. I've often said that I -- my great privilege was to serve in the company of heroes. I observed a thousand acts of courage and compassion and love. And I will always be grateful for the opportunity of knowing those great and wonderful men I was there with.

KING: Are you still close to many?

MCCAIN: Oh, yes. Not a day goes by that I don't -- I don't get some advice and counsel, and sometimes orders from my old buddies.

KING: What can the -- what can the people back home be prepared for, and what can the military man be prepared -- what can you tell us about war, that maybe we don't know?

MCCAIN: Well, I think we ought to understand that there is no greater thing in life than to serve a cause greater than yourself. And there is no greater epitome than risking one's very life in the service of one's country and its cause.

And that's why these young men and women are so incredibly brave and it's also why sometimes we pick the young ones. But I think it's also important to understand that as they are flying in combat, or marines are on the ground, or special forces, or carrying out dangerous missions, yes, they are afraid -- they're afraid. Anyone who's not afraid is crazy. But they control that fear and they channel it into the most efficient fighting men and women in the history of this world. They are better trained, better technologically equipped, and they have higher morale and esprit than perhaps any time in the history of our military, and that's saying a lot given the heroes that preceded them. So we can be exceedingly proud of them -- wherever they are, serving their country. And the next time you see one of them, the nicest thing and the best thing you can do is walk up to one of them and say thanks for serving.

KING: I had the honor of interviewing, some years back, the late General Chapey James the first black four star general. And we were talking about whether military men like war and he said nobody hates war more than the warriors. You agree with that?

MCCAIN: Absolutely. Chapey James, by the way, was one of the great American heroes, he broke many barriers. And no one loved him more than those pilots that served under his command in Thailand. He was just a marvelous, great American I had the privilege of knowing him.

Yes, no one hates war more, because no one knows the tragedy of war better than those who serve. No one knows how terrible it is to lose a comrade or to watch one become wounded, or lost in combat as the veteran does. No one hates war more. And yet, at the same time, we have had veterans and those who served like Chapey James who volunteered to go back time and time again, and put it on the line for the sake of their countrymen.

KING: What is it like, do you think to fight someone who is absolutely willing to die for his -- absolutely willing to commit suicide for his cause?

MCCAIN: I think it makes it much more difficult, just as the kamikaze pilots in World War II posed a much greater threat to our Navy ships and aircraft carriers. It makes you have to be much better protected and much better early warning capability than perhaps you would have to have. But I also think it makes -- it steels your resolve and it makes it much clearer to you exactly what you are facing.

I am -- there's not a doubt in my mind that etched in the minds of every American fighting man and woman that's fighting for America today, in freedom and democracy, is the picture of those planes flying into the World Trade Center. And I know it is daily, a motivation to them to serve above and beyond the call of duty.

KING: Take a call for Senator John McCain, Philadelphia, hello.

CALLER: Yes, Senator M --

(AUDIO GAP)

KING: Have you gathered an opinion?

MCCAIN: I really don't listen to him very much.

KING: Neither do I.

MCCAIN: Only on occasion, so I really don't have much of an opinion. I got to tell you I'm on Imus a lot, and I -- I enjoy being on the Imus show, and enjoy listening to it because he has smart people on his program. Including Larry King from time to time.

KING: Yes, he has been on this show many times, and it's basically for high school graduates and up.

MCCAIN: Absolutely.

(LAUGHTER)

KING: Good to have a little light moment, though, isn't it, John? Do you envision -- well, give us your picture as to where we go from here, like, Iraq?

MCCAIN: Sure. This --

KING: The president was very forceful the other day and Colin Powell backed that up.

MCCAIN: Then I -- I'll try to make it brief, but this is really the major challenge that lies ahead of us, as well as the challenge of finishing the job in Afghanistan, which is as we have discussed earlier is still a very dangerous situation. But the president from the beginning has made it clear, we will hold responsible nations that harbor terrorist organizations. It is clear that Iraq is in violation of their own cease-fire agreement. It is clear that Iraq pursues weapons of mass destruction, reports -- published reports that Mohammed Atta met in Prague with Iraqi intelligence people.

The indictment is long and compelling of Saddam Hussein and what he is doing and attempting to do. Particularly in the acquisition of weapons of mass destruction and the means to deliver them. The president has demanded that Saddam Hussein allow the inspectors back in. Saddam Hussein can allow that to happen, he can stop his acquisition of weapons of mass destruction, and he can spare himself and his people a lot of pain and suffering.

I think, one, we ought to move forward demanding that inspectors; two, encourage and assist the opposition groups, both within and without from Iraq, and then examine all other options and use those that are going to be necessary. Unless Saddam Hussein decides that he wants to be a -- a peaceful member of the world community, which I have serious doubts about.

KING: And those options including ground troops going in?

MCCAIN: I think every option -- every option is going to be examined by the president. And I think it's best that those options be kept open and I wouldn't describe any -- prescribe any one of them at the moment, although, certainly that option cannot be ruled out, if step by step it becomes necessary.

KING: If you were president, elected president would Rumsfeld and Powell be on your team, too?

MCCAIN: Oh, yes, and Cheney. I made it -- introduced Dick Cheney the other night at a dinner, which was he kind enough to speak at. And I said if I had been elected president, you would have been my nominee for vice president. And he stood up and said, well, if you would have been president I would have -- agreed to be your vice president.

I think this is the strongest team, and we have had some very strong teams throughout our history, as far as national security is concerned, than we have ever had. This team gets along and this team works well together, and they work for the president of the United States. And I -- I see a minimum, frankly, of the kind of infighting which is traditional around this town.

KING: We will take a break and come back with more moments with Senator McCain and then our panel discussion on the question of civil liberties in this country. And don't forget, we are going to close it off tonight with Andrea Boccelli, one of the great, great tenors. What a sound! Don't go away.

(COMMERCIAL BREAK)

KING: Let's take another call for Senator McCain, hopefully in the sanity end. Virginia Beach, hello. CALLER: Hi. Senator McCain, I was wondering if you think that biological warfare, do you think it is really something that we should be concerned about, as a viable threat, or should we be more concerned with the terrorists going out at us with something like nuclear weapons, or a conventional type of attack?

MCCAIN: You know, I wish I could say with some definity, with some -- real knowledge, because, I have got to tell you, I, like everyone else, was surprised by the way they used airplanes as the weapon on September 11.

But I will tell you that there is concrete evidence that Saddam Hussein has his highest priority, the development of biological weapons. And that, I think, should disturb all of us and he has been working on it for a long time and he has been working on it without anybody checking and without inspectors in the region. So I think that biological weapons by nature of their ability to impact so many people, is one of the greatest threats that we face.

KING: How is your national service idea coming along?

MCCAIN: We are picking up steam. I was pleased the president has strongly proposed and endorsed the idea and I'm hoping next year we could have some hearings and give these young Americans -- young and older Americans -- an opportunity to serve their country. There is no doubt that is what Americans want to do now more than ever. That is one thing I learned in my presidential campaign.

But by the way, I want to mention, a couple weeks ago, it was at dinner in New York for the wonderful Mayor Rudy Giuliani, you were the master of ceremonies. I didn't know you were such a funny guy. You really did a great job and it was a great dinner honoring a great mayor.

KING: Thank you. That was one of the best. I had a lot of fun. It was a great -- you were great, the whole -- it was wonderful night.

MCCAIN: It really was.

KING: Thank you for the compliment. Champagne Illinois, hello.

CALLER: Hello Larry.

KING: Hi.

CALLER: I am honored to talk to you, and to Senator McCain. And I hope, as a loyal, what I consider to be a loyal American, that this gentleman is going to join the Bush campaign, and I hope some day to be president. But I wanted to ask this gentleman as a loyal American, what he really feels is happening with our close look at John Ashcroft's moves looking at Arab-Americans.

KING: We are going to be discussing that coming up. What's your opinion, Senator McCain? MCCAIN: My opinion is that we are at war. My opinion is that there are certain extraordinary measures that need to be taken and we are taking in every aspect of life. I would like to see -- I'm not a lawyer -- and I would like to see a very good comprehensive explanation as to exactly what the Department of Justice is doing, how are they doing it, what we can expect, what is a military tribunal? Is it the uniform code of military justice or is it a special procedure? Exactly what it is?

In other words, I think the American people need a more detailed explanation as to exactly what is going on. I think the American people understand that we are facing a very unique challenge and unique measures need be taken, but I think a fuller explanation needs to be rendered.

KING: Would you understand it say, giving an absurd example, if a group of former P.O.W.s commit some terrorist acts, out of anger, therefore, all former P.O.W.s are now subjected to questions when they get on airplanes, called into district attorney, you among them, would you would accept that?

MCCAIN: No, I would not. And I don't think that that is going on now. I think, I don't --

KING: No, but I mean as an example -- if it went on, you would not accept it?

MCCAIN: No. No, I would not, and I don't think that is going on now.

KING: All right, but things have to be suspended. You are saying war is hell, war is different?

MCCAIN: I think it we are in extraordinary times, they require extraordinary measures, particularly when we are talking about noncitizens of the United States of America. But I, again, just want to emphasize, I think it would it be very appropriate if the attorney general, and/or people who are associated with him, came on and said look, here is what we are doing, here's how many people we've got, here is what these people can expect if we believe they are guilty of certain crimes and here is the procedure that is going to be used. You see my point?

KING: Yep. How do you win something, as one of the callers said last night, as ephemeral as a war on terrorism? It could go on for a hundred years.

MCCAIN: What you do is you take out these organizations. You remove their sanctuary, which is so important to their ability to organize and orchestrate, and you keep them on the run. We will always be faced with acts of terror.

Oklahoma City is an example of that. We will be always be faced with a threat, but we can reduce that threat to an absolute minimum, and the best way to do that is keep them on the run, and there is no place on earth where they can find sanctuary. Because once they find sanctuary, then they can organize, set up financial networks et, cetera.

KING: We will all never be the same.

MCCAIN: No. But -- but the strength and indomitable will and courage of America has again shown itself as the most extraordinary nation in the history of the earth.

KING: As always, John, thank you.

MCCAIN: Thank you, Larry.

KING: Senator John McCain, Republican of Arizona, vice chairman, Select Committee on Intelligence. Richard Shelby will be joining us, the senator serves on many committees. I looked ahead to Senator Shelby because I want to ask him about that tragic death today in Afghanistan. He is part of our panel. They are all next, don't go away.

(COMMERCIAL BREAK)

KING: Welcome back to LARRY KING LIVE.

We are going discuss anti-terrorism and civil liberties. The panel: in Washington, Senator Richard Shelby, Republican of Alabama, vice chairman Select Committee on Intelligence; in New York, Nancy Grace, former prosecutor, now anchor of "Trial Heat" on Court TV; back in Washington, Laura Murphy, director of the Washington national office of the American Civil Liberties Union, the ACLU; and also in Washington, Julian Epstein, former chief minority counsel for House Judiciary.

Senator Shelby, before we get to the subject at hand, a young man in the CIA was killed, as you know, today. His father held a press conference. We are going to show you a clip of it. And then I want to ask you a question about him. Here is the clip.

(BEGIN VIDEO CLIP)

SPANN: He had an extensive career serving our nation, first as a Marine Corps officer and then as a CIA officer. When he decided to leave the military service to work for the CIA, he told me he did so because he felt that he would be able to make the world a better place for us to live. We recall him saying someone has got to do the things that no one else wants to do. That is exactly what he was doing in Afghanistan.

(END VIDEO CLIP)

KING: Young Mike Spann was killed Sunday, body discovered today. And I understand you spoke to the family there in Alabama, right, Senator?

SEN. RICHARD SHELBY (R-AL), SELECT INTELLIGENCE COMMITTEE: I did, Larry. I talked with his father, that was just shown on television earlier today about his son. And I also had an opportunity to talk to his wife, Shannon, and express my condolences. And both of them are very proud, proud of the son and proud of her husband. And I told her we were too. And, you know, he had a distinguished record as a Marine officer, graduate of Auburn University, proud Alabaman, proud American. And basically, his wife, Shannon, said that he loved America. He loved what he was doing.

And I said to her -- I said what do you want me to tell people? She said basically tell them that he cared about America and that is why he was doing what he was doing.

KING: And our thoughts and prayers are with his family tonight.

All right, Nancy Grace, let's start with you. I know you think what the attorney general is doing with regard to calling people in and the like, all of this as we all know what the story is, is correct. Why?

NANCY GRACE, FORMER PROSECUTOR: Well, as far as calling people in for voluntary interviews -- No. 1, they are here availing themselves to our education system, to our economy, to all the privileges of being in America. These interviews are voluntary. These -- what is the problem with getting a letter in the mail, Larry. That is not a constitutional violation. They are using America. Why not go in to a voluntary conversation and they can take their attorney with them. I don't see a problem.

KING: And do you also favor all the other measures they have imposed?

GRACE: Yes, I do. We have to remember: These are not ordinary times, these are extraordinary times. And when you talk to me about theory and a legal textbook, go tell it to that widow in Alabama and you will get a very different story.

KING: Laura Murphy, why do you disagree?

LAURA MURPHY, DIRECTOR, ACLU, WASHINGTON OFFICE: Well, I think these interviews are going to be counterproductive. They are not voluntary. They are coercive in nature. They are not based on individualized suspicion. They are based on ethnic origin, nationality. In fact, the international chiefs of police have said that these interviews are a fine example of racial profiling.

And in today's "Washington Post", the former director of the FBI, William Webster, said that this is not a productive way of investigating terrorism, that individualized suspicion, putting people under surveillance for a period of time, getting the cooperation of these communities -- if you push these FBI investigations and local police investigations on these communities, they will be fearful. They will not want to cooperate. And they will feel like they are already put under a cloud when they haven't been proved, engaged in any crime.

KING: In your opinion, Laura, is it -- is the act itself unconstitutional?

MURPHY: Well, I can't say that it is unconstitutional. and we certainly are looking at individual instances where there maybe constitutional violations. But per se, I just think it is wrongheaded, a bad policy and unfair.

KING: Senator Shelby, what do you think?

SHELBY: Well, I believe that what the Justice Department is doing, I think, they are doing for reasons. These are extraordinary times. I believe and I -- some of the best lawyers that I have talked to have said to me that this is constitutional, that there is precedent for it.

But I also believe, Larry, that it is important for the Justice Department, headed by the attorney general, to come to the Congress, come to Senate and the House, and explain what are they doing and why they are doing it. And I believe the American people have a little better grasp of it and feel for it if they do that.

KING: Julian Epstein, what do you think?

JULIAN EPSTEIN, FORMER JUDICIARY COMMITTEE MINORITY COUNSEL: Well, I try to separate these things out if I could just a little bit, Larry.

I don't have so much a problem with the interviews, per se, so long as they are done the right way, so long as they are done cooperatively within the communities. I think the issue about the tensions, when you have people that, even by administration officials' own admissions, have not -- have no discernible connection to any type of terrorist activity, yet they are being detained for one, two and three months.

I think that, one, as some law enforcement officials have pointed out, that's counterproductive to the extent that you may abort an ongoing investigation by virtue of the detention.

GRACE: Larry...

EPSTEIN: Two is s I think if there is nothing solid there...

KING: Let him finish, Nancy.

EPSTEIN: ... I think it is, I think it is un-American. I think the point where the administration really crosses the line, Larry, is where it thinks that it can do it without the Congress. Congress has given the administration some extraordinary powers. It has given the FISA power to the administration so that it can keep evidence secret when it wants to try a terrorist. It's given, essentially, the end of the warrant requirement. When you are involved in a terrorist investigation, you can essentially conduct surveillance without the normal trappings of probable cause.

When it goes -- when it thinks it can go without the Congress like the military tribunals, then I think it has really crossed the line. When it thinks that it can get rid of the attorney-client privilege without a showing that the people being surveilled, being -- where the attorney-client privilege is being pierced, there is no showing of any misconduct of criminal activity, then I think they have crossed the line.

KING: All right, Nancy.

(CROSSTALK)

He brings up a good point, Nancy. The question would be: The government should never break the law because when they do that, they are just like the governments they are fighting.

GRACE: Well, I agree with you 200 percent. But you have just heard it here on your show, Larry. When you have two of the leading civil libertarian lawyers and political lawyers on your show saying those letters and those voluntary discussions are constitutional, that is out of the window. There is nothing wrong with speaking with people of Mid-Eastern descent voluntarily.

Now, as to the detainees that Julian Epstein brought up, they are all behind bars right now for legitimate purposes, ranging from fraud in INS, felony charges, material witness charges. Is anybody tonight suggesting they are innocent of those charges? And coincidentally...

EPSTEIN: Those are the 106.

(CROSSTALK)

GRACE: ... there may be an al Qaeda connection to top it all off.

EPSTEIN: I beg your pardon, Nancy, those are the 106 that are being -- that there may be some criminal charge that is being brought. Most of them have nothing to do with terrorism.

There are 500, for which there are only very minor immigration violations that we know of and most importantly, and Senator Shelby will speak to this...

(CROSSTALK)

KING: Let him finish.

EPSTEIN: Nancy, none of us, including the United States Senate, and the United States House of Representatives are being given the information that they need so that we can asses this. You said the other night on the show, that the president doesn't need congressional authority to use these military tribunals.

Well when Abraham Lincoln used them after the Civil War and he didn't have congressional authorization, the Supreme Court struck it down. When President Roosevelt used it during World War II he did have congressional authorization, and it was upheld.

(CROSSTALK)

KING: Got to get a break. I got to get a break. Please try not to interrupt them. Let's let our other panelists get in. I got to get a break, we'll be right back. (BEGIN VIDEO CLIP)

JOHN ASHCROFT, ATTORNEY GENERAL: We believe that when we have arrested violators of the law that we think have been associated with terrorists, that that is a valuable component of depending the United States of America. And we've only detained individuals who have been in violation of the law, or who have been, by a federal judge, deemed to be a material witness and subject to being held in that respect.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: Laura Murphy, in times of war, aren't things different? We are seeing a scene now of bodies coming out today from ground zero. This occurred, still going on, and more bodies are being found, and we know that close to 4,000 were killed. Aren't you -- doesn't that say things are a little different?

MURPHY: Listen, our institutional headquarters are ten blocks from ground zero in New York. Nobody wants these people who perpetrated these horrific crimes prosecuted more vigorously than the ACLU, but we want to do so in accordance with the laws of our land, with the Bill of Rights and the Constitution.

And this unilateral power that the attorney general and the president is seeking is just wrong headed and ill advised and in some cases unconstitutional. The military tribunals, for example, are not rooted in a declaration of war as they were during World War II. They are just set up to be secret, unfair, to allow no juries, to let people be tried with not knowing the evidence against them, to allow people to be put to death with two thirds of members of the tribunal. We -- this is -- these are the very proposals we fight internationally. We cannot let this happen, on our watch.

KING: Senator Shelby, does what she just said give you pause?

SHELBY: No, no, not at all. Larry, I think about the victims in New York at the Trade Towers. I think about the victims over at the Pentagon. I think about the victims on the USS Cole, the two embassies in Africa, Khobar Towers. I can go on and on.

I agree that people ought to have their day. Justice ought to be met. And I believe that the military tribunals that President Bush is talking about, that there is precedent, legal precedent, for them, that they are Constitutional. I also believe, as I said a minute ago, that the attorney general and perhaps the president should explain more to the American people because I think there would be fewer questions asked.

KING: You disagree with that, Julian? Do you disagree with that?

EPSTEIN: I do disagree. I think that they are probably unconstitutional. It is not a matter of settled law, but the Supreme Court upheld them when Congress authorized it. The Supreme Court struck them down after the Civil War with President Lincoln when it wasn't authorized.

If it were true, what Senator Shelby is saying, and I respect him deeply, that the president can simply suspend the legal system entirely, and that is what these tribunals do, for 18 million people living in this country who are not American citizens, and anyone else in the rest of the world, when the president merely deems that there may be some attenuated connection to an undefined act of terrorism, then I think the notion that the president should be able to have that power alone, without any check from any other branch of government, I think is an extraordinary statement. And that is essentially what the White House legal position is today.

Secondly, Senator Shelby, who I think was a defense attorney at one point, I think will appreciate the point that I made earlier, which is, I think the administration goes too far by piercing the attorney-client privilege before they have shown that the attorney- client privilege is being used in an abusive way. In other words, you have to show what's called a crime fraud exception to that privilege. You must show that that conversation between client and attorney is being used to further a crime, and I'm not sure that has been shown here. And I think the absence of any oversight is going leave a lot of these very essential questions about our system of justice unanswered.

KING: Nancy, you want to respond?

GRACE: Yes, I do. Julian, apparently then, would agree with the military tribunal ordered by President Bush if Congress approved.

EPSTEIN: Incorrect.

GRACE: Let me correct...

EPSTEIN: No, no.

GRACE: I'd like to correct one thing. You keep saying the Supreme Court struck down the killing of those that conspired to kill President Abraham Lincoln. They did so only after they were all hung! So you cannot...

EPSTEIN: Oh, Nancy, that is very instructive, that we find out that something is unconstitutional after somebody is executed.

(CROSSTALK)

MURPHY: But you know, one of the things we need to understand about the military tribunals is that the ones used during World War II included the prosecution of only seven individuals, and Julian raises a very good point.

There are potentially about 18 to 20 million noncitizens in the United States who could be subjected to these military tribunals. Everybody wants to think that you have to be a member of al Qaeda in order to be subjected to this. Any remote relationship to terrorism will get you involved in one of these tribunals. In 1942 two American citizens were prosecuted in these tribunals, and what's to stop a future president from saying well, national security means that we've got to prosecute American citizens under these tribunals? This is a very dangerous precedent where the government is trying to be judge, jury and executioner, and that is not checks and balances as we know it.

KING: Senator Shelby, will you comment on Julian's statement?

SHELBY: Well, only attorney-client privilege, Julian and I have talked about this, I think we would basically agree on this, and although I'm not a member of the Judiciary Committee when Attorney General Ashcroft comes up next week that will be asked, I believe that what he raised is right on that. We should be very careful there. But I want to say again, that I believe that what the president is doing is Constitutional. It will be upheld and needs to be done, and these are extraordinary times.

KING: Julian, go ahead.

EPSTEIN: Well, no, I just don't. I have supported the president on every aspect of this military campaign. I would say if it was a choice between security and liberty, I would choose security, because your civil liberties don't mean that much to you if you are dead. But again, I think, just to respond to Nancy's point, the reason why congressional involvement was so important, and the court pointed this out in Abraham Lincoln's case, is because when Congress gets involved I think it gets tailored so it can't be used in an abusive way. It can't be used against people who aren't engaged in...

(CROSSTALK)

EPSTEIN: No, I am going to be happy when we follow the Constitution, Nancy, when we follow the Constitution. You believe...

GRACE: George Washington, you left out George Washington who also...

(CROSSTALK)

EPSTEIN: And remember, Thomas Jefferson, when he used the alien sedition act, believed that it was so unconstitutional That he pardoned many of the people that were convicted under the alien sedition act.

KING: Tell you what, guys, we going to do a lot more on this. Obviously we haven't heard the last. Ashcroft is still come to testify. I thank you all for all being with us.

Our guests have been Senator Richard Shelby of Alabama, Nancy Grace of Court TV, Laura Murphy of the Civil Liberties Union, and former chief minority council of house judiciary, Julian Epstein.

Tomorrow night, Senator Joseph Lieberman will be with us, the former candidate of his party for the vice presidency, and former Senator George Mitchell, whose plan is still being kicked around as the answer for the Israeli-Palestinian situation.

When we come back, the great Andrea Boccelli! Don't go away.

(COMMERCIAL BREAK)

KING: Every night we close on a musical note. You won't get one better than tonight. Andrea Boccelli is with us. His new album is "Cieli di Toscana," which means Tuscan Skies. He has a new book called "The Music of Silence." He sang "Ave Maria" at ground zero.

What was that like?

ANDREA BOCCELLI: The very badly, because I felt a big suffering. I had also big bronchitis, but for the first time I didn't think to this and I sang like...

(CROSSTALK)

KING: Tell me about the song you are going to sing tonight with the interesting title in English, "Melodrama." I know it is in your new album. BOCCELLI: I think it is one of the best songs that I have done, because it is very, very inspired. "Melodrama," because it speaks about nostaligy of my life, for the life that I'm not anymore.

KING: We are now going to hear it. Here is the great Andrea Boccelli. Enjoy.

BOCCELLI: Thank you.

(MUSIC, ANDREA BOCCELLI SINGS "MELODRAMA")

KING: We are out of time. Senators Lieberman and Mitchell tomorrow night. NEWSNIGHT next.

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