CNN LARRY KING LIVE
Interview with Patrick Leahy, Orrin Hatch, Michael Chertoff
Aired December 6, 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 U.S. calls them the world's most wanted terrorists, who are they? What did they do? And how can they be stopped? With us, Assistant Attorney General Michael Chertoff of the Justice Department's criminal division.
And then, Attorney General John Ashcroft on Capitol Hill defending the administration's antiterror tactics and slamming its critics. We'll get reaction from Democratic Senator Patrick Leahy, chair of the Judiciary Committee. And G.O.P. Senator, Orrin Hatch, ranking member of the same panel.
Plus a high-octane debate between former prosecutor turned "Cour TV" anchor Nancy Grace and former chief Democratic counsel for the House Judiciary Committee, Julian Epstein.
Plus Shelby Lynne sings "All of a Sudden You Disappeared."
They're all next, on Larry King Live.
You saw him testify last week, he begins our program tonight. He is Michael Chertoff, assistant attorney general, the criminal division of the U.S. Justice Department.
Before we get in to looking at some of these pictures and running down the array of people who are wanted, a couple of things to cover. Did you watch the attorney general today?
MICHAEL CHERTOFF, ASST. ATTORNEY GENERAL: I was actually there in the Senate hearing room.
KING: How did he do?
CHERTOFF: Well, I think he did magnificently. I think he laid out in a very straightforward manner, understandable both to the senators and to the American public, why it is that what we are doing to prevent and disrupt terrorist acts is both necessary and constitutional and well within what accepted practice has been in other similar circumstances.
KING: Before this decision was made about tribunals and all the rest, were you consulted?
CHERTOFF: well, you know, the president has the opportunity to consult with his top officials from all the departments. Obviously he took advantage of the consultation that he needed to reach the decision to at least open up the constitutional cupboard, and take down all of his tools for dealing with terrorists, and one of those, of course, is military commissions.
KING: Did you have any qualms about it?
CHERTOFF: Well, I think when you look historically at what has been done back in World War II and in past periods of crisis, you realize that this is really a necessary and quite sensible tool to deal with people who commit war crimes. We deal with not only domestic criminals, but people who have actually violated the law of war, in this case by murdering thousands of Americans.
So it's well within the constitutional limits. It's accepted by history, in fact some of our greatest presidents have had military commissions. And I think the president, by taking personal responsibility for making the decision about who is going to be prosecuted that way, has shown how significantly and how importantly he treats this matter.
KING: How about those constitutional lawyers, Larry Tribe wrote a piece this week, that says Congress should be part of this, Congress should make this decision.
CHERTOFF: Well, of course...
KING: And there is no declared war.
CHERTOFF: Of course, we have had the opportunity to talk to Congress in the context of both the hearings I testified in and today's hearings. I think the president, most people would agree, and Congress itself, has agreed in the past, has the power to be, as commander in chief, has the power to do what he needs to do to wage war.
And that's really the power that's invoked with these military commissions. At the same time, obviously we welcome congressional input, we welcome input from scholars. All of this is going to be available to the secretary of defense and people in his department when they put together the regulations. And remember, Larry, the president has made it very clear, he wants to have full and fair hearings.
He wants to be -- have a model of process. And I think that we can be confident that that's what we're going to have.
KING: You don't believe it needs congressional voting approval?
CHERTOFF: I think both the Supreme Court decisions and Congress's own enactments make it clear that the president has the authority to do this.
KING: How about the point that it is not a declared war and that these conditions exist under declared wars? CHERTOFF: Actually it's interesting. When you go back and you look at the law and you come to understand that, in fact, there doesn't have to be a declaration of war. It's any time there's an armed conflict, and the president constitutionally has the power to determine that such a state exists. I'll give you an example. On December 7, 1941, when the Japanese attacked, we were at war.
I don't think Congress declared war until a day or two there after. But no one doubts that on December 7 there was a state of armed conflict.
Likewise here, when we were attacked on September 11, if not earlier, we were in a state of war. And that was a war that bin Laden chose to initiate, not us. So I think the president has the authority to defend the country and that's what he's relying upon.
KING: Even though, we don't -- who is the declared war against? We did declare war against Japan and Germany, but who is this war against?
CHERTOFF: Well, of course that's the problem with the 21st century. We now have wars not just with states, but we have wars with non-states.
KING: So, there are laws that don't cover this?
CHERTOFF: I think the law does cover it. I think the law is flexible enough and the Constitution is flexible enough to allow the president to do what he has to do in order to protect and defend Americans.
KING: Before -- we are going to show you pictures tonight of the most wanted. Before we get to that, your thoughts on the Walker case, the young man, American, who was with the Taliban.
CHERTOFF: Well, I think it probably surprised everybody to hear that there's somebody who has been apprehended in Afghanistan who claims to be an American. Obviously this is something that we're in the process of looking at, both the Defense Department, the Justice Department, are examining what the options are.
We need to gather the facts, need to make a decision about how Mr. Walker ought to be treated. Hopefully that will happen in short order. In the meantime, he is in the custody of the United States and we'll see where the facts take us.
KING: Secretary Rumsfeld said the same thing last night, but he did say that the man did fight against not only the Northern Alliance, but Americans as well.
CHERTOFF: Well, that appears to be the case. But again, we want to develop all the facts. We want to know when did he join up? Why did he join up? What did he do?
KING: In this case, though, if there were charges, this would be brought back and he would be charged in a United States court, in a trial? CHERTOFF: Well, as I understand the law, military commissions, as the president has initiated them, would not apply, because we have an American citizen. The law certainly allows to us bring someone back here to be tried for federal crimes. It would also, I think, allow a court martial under certain circumstances.
Again, these are some of the options that I think we have to look at in determining what the appropriate steps are.
KING: But he, not being in the service, couldn't be court martialed. CHERTOFF: Actually, that turns out not to be true.
KING: You can court martial a civilian?
CHERTOFF: I think you can court martial people who fight for the enemy. Again, I'm not a military law expert, but I'm told that that is at least a theoretical possibility.
KING: Will you expect a decision soon?
CHERTOFF: I hope we will make a decision soon. But as I say, we need to get the facts, and make a cool judgment about what's appropriate.
KING: Will you, as a former prosecutor yourself, will you talk to the father? Will that input be wanted?
CHERTOFF: I don't know that I would talk to the father. I think usually, when we make decisions about charging, at least initially, we don't make those based on family issues. We make it based on the facts and the law.
KING: Let's run down this, Michael, and you tell us what we know about. We have the 22 most wanted terrorists to show you and we will begin with the obvious No. 1, Osama bin Laden.
This is the most wanted person now in the world, right?
CHERTOFF: I think that's fair to say. And he's a very bad guy. I mean, he's been behind attacks on the United States since perhaps as early as 1992 and 1993. He had some relationship with the World Trade Center bombing, he has claimed credit for being behind the attack on American soldiers in Somalia. He was responsible for initiating the bombing of the East African embassies in 1998. He's declared war on us. He's made no bones about it.
KING: He has a lot to answer for.
CHERTOFF: A lot to answer for.
KING: No. 2 is Aiman al-Zawahiri, I hope I pronounced that right. He's been indicted for his alleged role in the 1998 embassy bombings, right?
CHERTOFF: That's correct. And a lot of people consider him to be the kind of brains or the philosopher behind bin Laden's organization. He is a physician, he's from Egypt, he is someone who has been a radical terrorist for a long period of time.
KING: Do we have any idea where he is?
CHERTOFF: I think we're looking for him right now.
KING: Third, Mohammad Atef. The Pentagon has said it has credible reports he was killed in the U.S. airstrike south of Kabul last month. How credible?
CHERTOFF: If that's true, of course, he won't be our problem any longer. I think we're trying to verify that. I think he's the military commander of al Qaeda. And he's been responsible for playing a role in the terrorist acts really, since the beginning of that organization.
KING: Now, explain something before we look at the next one. Are these war criminals or terrorists? Do they come under a Nuremberg concept? How do we classify these?
CHERTOFF: They could come under both. They violate American laws against committing terrorist acts, but they also commit war crimes. They're belligerents, they attack unarmed civilians, without provocation or military purpose. They fight without uniforms. So, we're not forced to choose. We have both options here.
KING: Let's look at No. 4, Abdul Rahman Yasin. What can you tell us, Michael, about him?
CHERTOFF: Yasin is someone who goes back to the World Trade Center bombing in 1993. You'll recall that was the first effort to destroy the World Center. He was one of the plotters in the bombing, a number have been convicted. He is still at large and is under indictment.
KING: No. 5 is Abdullah Ahmed Abdullah.
CHERTOFF: He is again one of the people charged in the East African embassy bombings. We have a number of those who were charged there. It was a large conspiracy. An interesting part of that is, that they sent people in, years in advance to open businesses, to get residences, to plan, and lay in wait until the moment came that they were called to do their duty.
KING: That is one of the more amazing aspects of this story, isn't it?
CHERTOFF: It is, the use of sleeper agents.
KING: We'll be right back with Michael Chertoff, assistant attorney general, criminal division Justice Department. This is LARRY KING LIVE. Don't go away.
KING: We're with Michael Chertoff. Let's look at another, and then we'll look some groupings. And this is Khalid Shaikh Mohammed.
CHERTOFF: Well, he is a fugitive, Larry, that's at large from one of the plots that didn't go off. Ramzi (ph) Yousef (ph), who's one of the masterminds among the terrorists had a plan to blow up 12 airliners over the ocean and kill hundreds of people. They actually tried a test run and exploded a small device on a plane, killed somebody. Ultimately, through good luck and good investigative work the plot was foiled. This particular individual is one of the fugitives in the case. Ramzi Yousef, himself, however was convicted, is spending life in jail in a maximum security prison.
KING: Is planning a crime?
CHERTOFF: Absolutely, conspiring, planning, we don't have to wait for the bomb to go off. We can apprehend you, and put you in jail for planning it.
KING: Now, let's look at some groupings. Here we have the most wanted, these folks linked to the 1996 Khobar Towers bombing in Saudi Arabia.
CHERTOFF: Well, I think, Larry, a lot of people will remember this, this was a military dormitory, in Saudi Arabia, a water truck was driven up, a large explosive was set off.
KING: Nineteen airmen killed.
CHERTOFF: Nineteen airmen killed, a lot of local people were killed. It was not al Qaeda, it was Hezbollah, which is a separate group, although they sometimes work together.
KING: Do we know where these four are?
CHERTOFF: We think they're in and around the Middle East. We want to get them, and we want to put them on trial and convict them.
KING: Our next grouping are the most wanted suspects linked to the August 1998 embassy bombings.
CHERTOFF: Well, of course that's the group we've talked about, some of whom we've talked about already, this was a large group, there was the simultaneous, or near simultaneous bombings in Nairobi and in Tanzania. This was the culmination of a plan that was in the works for years. And one which involved people who were both infiltrated and who worked from outside.
KING: Now who's looking for them? Do we use agents of other countries, too?
CHERTOFF: We use all kinds of things, we use our intelligence agencies, we use the FBI, we use Interpol, we get help from friendly countries. Pakistan, has for example in the past, sent us people, other countries have sent us people. So we basically put the alert out worldwide and we take them where we can find them.
KING: Isn't this a lot of people still to be at large? CHERTOFF: It's a lot to be at large. But remember, most of these crimes were committed overseas. This September 11 event was really, other than the 1993 World Trade Center, the first on American soil by an international terrorist group.
KING: The next grouping we'll look at is the most wanted linked to the June 1985 hijacking of now famous TWA 47.
CHERTOFF: Well, again, Larry, you'll remember that this hijacking had a tragic end when a Navy diver was killed, and thrown out of the plane in Lebanon. Again, this was Hezbollah, another affiliated terrorist group. And one of the top people in that organization is someone named Imad Mughniyeh who we have been looking for very, very assiduously.
KING: That's a long time, though. What's this 16 years?
CHERTOFF: And that's the point. We will never forget, we will never relent, we will never give up. If it takes 30 years, we will find him and bring him to justice.
KING: Do you want him alive?
CHERTOFF: Well, that's a hard question. Obviously, if they wind up getting killed, that eliminates them as a threat. And a lot of what we're concerned about, of course, is that these people are threats for future acts. But if we do capture them alive, what we want to do is visit the full measure of justice upon them. If that means the death penalty, if it means life imprisonment, we are going to do what the law permits us to do.
KING: Now, do we have a problem if they're taken in other countries, which is likely to happen, you have extradition problems, some countries you don't have extradition with.
CHERTOFF: Well, we do deal with those problems and we have had to deal with those in the past. We try to negotiate a resolution, we've generally been able to extradite people, occasionally we have to give assurances that's we won't seek the death penalty and we've done that. Our goal is this, we want to incapacitate terrorists for the longest possible time, and we're going to do whatever it takes to achieve that result.
KING: Couple of other things, Michael. Detentions, people being detained. Do you buy that?
CHERTOFF: Well, Larry, again it's important to remember, everybody who is detained is detained either on a charge of violation of law, criminal law, immigration law, or because a judge has authorized a material witness warrant. All of these people get review in front of a judge, an immigration judge or a federal judge. Everybody has the right to a lawyer. Everybody has the right to call their family or to call people on the outside.
Nobody is held incommunicado. So a lot of what you hear about secret detentions and things of that sort, simply aren't -- isn't true. What we're doing is applying time-tested legal procedures in a fair way to people where we believe we have to be concerned about the safety of the United States.
KING: How about the voluntary interrogation of easterners in the United States.
CHERTOFF: Well, again, using intelligence information --
KING: No question of legality?
CHERTOFF: No question of the legality, we've taken intelligence information that's specific about types of visas that are used, where people come, the types of passports that are issued and travel patterns, and we've developed from these characteristics a sense of people who might have information that would be useful to us. We're not saying that they have done anything wrong. They may not even know that they have information that's of help to us.
What we're saying is you're a guest in our country, help us, volunteer with us to help track down terrorists.
KING: And if you don't help, there's no rub against you, or there is?
CHERTOFF: Well, it is a voluntary program. There's no punishment for not helping. Obviously, we want to get as much help as we possibly can.
KING: Now "The New York Times" reports that the justice department has refused to let the FBI check out its records to determine whether any of the 1200 people detained after 9-11 had bought guns. Why?
CHERTOFF: Well, actually, the attorney general talked about this a little today. The law that established this quick check program, apparently has a restriction in it that forbids us from using certain categories of information for any purpose other than auditing the program itself. Lawyers looked at this when they determined there was a legal restriction. That legal restriction was abided by. Because again, our approach, here is we want to follow the law, we want to apply the law with full vigor, but we don't want the break the law.
KING: Tough to be a democracy, isn't it?
CHERTOFF: It is tough and it's particularly tough when you're under attack. But everybody in the Department of Justice, takes the oath to the constitution. We all live in this country. We all believe in its enduring values and we are determined not to sacrifice them.
KING: Are you angry at those who criticize it?
CHERTOFF: You know, I think there is clearly room for honest and robust debate about some of the things we're doing. And I think, you know, we take it in the spirit in which it's given. I for one welcome the opportunity, because I think when we get to talk about what we're doing, people understand that what we're doing is constitutional, sensible and designed to protect Americans.
KING: Isn't that what makes this country unique?
CHERTOFF: I think that absolutely is. And I think...
KING: So if...
CHERTOFF: ... honest debate --
KING: .... we ban that, or looked askance at that, then we would be like a lot of other countries.
CHERTOFF: Well, we certainly not going to ban debate. Obviously, you know, people who unfairly characterize what we do, are not doing us a service or doing the country a service. But I think in the main, certainly when we deal with Congress, we're having an honest and open discussion about serious matters. And I think we ought to welcome that.
KING: You like testifying?
CHERTOFF: Well, you know, I did it on my birthday, Larry, I can say it was one of the more challenging and interesting things to do. Maybe not the thing I would choose to do on my next birthday.
KING: Thanks, Michael.
CHERTOFF: Thanks a lot.
KING: We'll be calling on you again. Michael Chertoff, assistant attorney general, criminal division, United States Justice Department.
Two prominent members of the Judiciary Committee are next, Senators Patrick Leahy and Orrin Hatch. Don't go away.
KING: You can't get two more important members of Judiciary than the two with us now, because Senator Patrick Leahy, Democrat of Vermont, is chairman of that body. And Senator Orrin Hatch, Republican of Utah, is its ranking member.
Your reaction, Senator Leahy, to appearance of John Ashcroft today?
SEN. PATRICK LEAHY (D-VT), CHMN. JUDICIARY COMMITTEE: Well, I thought it was good. As Senator Ashcroft, we still call him Senator Ashcroft, but as Attorney General Ashcroft said himself, he was happy to there, thought it was very appropriate...
KING: Do you think he did well?
LEAHY: I think he stated what he wanted to state. I think he felt that he had over three hours' time, an opportunity to answer every question that was asked of him, whether individual senators agree or disagree with answers is of course up to each individual senator. But had a very fair hearing, and he had an opportunity to speak out.
KING: Did he change your mind on anything?
LEAHY: Well, I think he probably solidified my mind that if you're going to have these military tribunals, you're going to have to have some congressional guidelines to lay out. I mean the things like, is there a right of appeal or not? And where? If you have a death penalty, is it by unanimous vote or by just a majority vote? Do you have a right to counsel? Do you have a right to see the evidence against you?
I think those are the things we should lay out. I think if we did that, both the president's hand would be strengthened as would the attorney general's.
KING: Senator Hatch, how did he do?
SEN. ORRIN HATCH (R-UT), RANKING MEMBER, JUDICIARY COMMITTEE: I thought he did very well, and I suspect that what they will come up with in the end is the code of military justice and follow that pretty carefully.
In the case of the death penalty, I it requires unanimity on the court. And I suspect that they will have some right of appeal as well. But the important thing is, is that we do what we have to do to protect the American citizens and I think General Ashcroft is doing a great job.
KING: He made a good case?
LEAHY: He made a very good case. But as Michael Chertoff, you can see, is a very, very bright guy, and is doing a great job as the head of the criminal division.
KING: Was there was any area of his testimony you disagreed with?
HATCH: No, not really. I think he handled himself very well, and you'll notice that when we started in these series of hearings, that there were quite a few people who did not think that military tribunals were constitutionally sound.
There were those who had difficulties with the detainee situation, some were moaning and groaning about overhearing the conversations between attorneys and their clients in the case of about 16 out of 150 plus thousand prisoners. But all of that now seems to be pretty much established as all of these liberal law professors have come in and said, we basically agree.
LEAHY: Just to be absolutely certain on that. I don't think anybody said you couldn't have a military tribunal. What a lot of people said, however, you have to have some guidelines. KING: You're saying Congress has to give...
LEAHY: Yes, not only to fill our own laws, but also we have to have some kind of an example to send to the rest of the world. I have been in the Oval Office of different presidents when they have been on the phone calling other countries and saying, you can't lock up this American, you can't put him before a secret tribunal, you can't have them in there without knowing what the charges against him are or without any defense counsel.
We don't want to be in a position the next time we make a call like that, have whoever is on the other end of the line say, aren't you the country with those same kind of tribunals? We're better than that. We can protect ourselves. We don't have to shred our Constitution or our laws to protect ourselves. We're the most powerful nation on earth. There isn't a single person in this country that doesn't want to get the terrorists response for the atrocities of the 11th.
We have had strong, strong, almost total bipartisan support of the president in the fighting in Afghanistan. What we want to do is two years and three years and ten years from now, be able to look back and say, we followed our laws and our principles.
KING: Anything wrong with that?
HATCH: No, and you'll notice that the attorney general has made it clear that they will have guidelines and they will have procedures that will work. And anybody who doesn't think that we will is nuts, to be honest with you.
KING: Are you saying Senator Leahy is nuts?
HATCH: (UNINTELLIGIBLE) but he is not nuts.
LEAHY: He says this to me, often, Larry.
HATCH: It's good to bring him into reality every once in a while, because, look, they haven't even come up with the procedures yet. The Department of Defense has to do that. And here we are criticizing the procedures well in advance, when they're trying to do everything they can to try and stop terrorism in our country, and to try and make sure American citizens are safe.
There's no question that this country is not going to tolerate an abuse of constitutional principles.
HATCH: That's right, it's like Larry Tribe said, he said, civil liberties are not just to protect the American citizens from government. They are there to protect Americans citizens from terrorists, and I think of the loss of civil liberties of almost 7,000 people on September 11. We have to do what's right. The attorney general is doing what is right, the president is doing what's right, and we need to back him. KING: It is different times, isn't it?
LEAHY: You don't have to shout, Orrin.
LEAHY: They're different times.
KING: He's overruling you.
HATCH: Well, that's typical.
LEAHY: Larry, you said they're different times. They're different times, but it's the same Constitution. It is the same Constitution we had during World War II and World War I. It is the same Constitution that we've had during assassinations of presidents.
KING: We put Japanese Americans into camps.
LEAHY: We put Japanese Americans -- because it was a very, very popular thing to do. We had a very...
KING: This is popular too.
LEAHY: We had a very political Supreme Court that upheld it then, subsequently, every court looked back and said this was an egregious mistake, it was done because it was popular. It was a blight on our Constitutional history, and since then, we have spent tens of millions of dollars in reparation to those Japanese Americans, whose lives were taken away from them.
So the thing is, sometimes it's not always popular to follow your Constitution, but it's always right to follow it.
KING: If this show were on in 1942, you would probably be defending the internment.
HATCH: I don't think so.
KING: You don't think so?
HATCH: I thought that was wrong then, I think most people -- it is easier to look back in retrospect. But we learned a lot from those years. There have been military tribunals, military commissions since George Washington. And in every case they have been found to be constitutionally sound. Now, that doesn't mean you can do anything you want to do. We have learned a lot from it. This administration knows a lot. Senator Leahy and myself and others have commented that we need certain minimum constitutional standards.
But let's just be honest about it. I suspect that the standards will be very similar to our code of military justice and that's what our young men and women are judged by in the military and why would we give Osama bin Laden or any of his cohorts any more constitutional rights than we give them under that code of military justice? KING: You don't think it needs a congressional vote of approval?
HATCH: It never has, although Congress can certainly weigh in as we are doing, and give its advice.
KING: We'll be right back.
LEAHY: Of course, some disagree -- some disagree.
HATCH: Not many.
KING: We'll be right back with Leahy and Hatch on this edition of LARRY KING LIVE. Don't go away.
(BEGIN VIDEO CLIP)
JOHN ASHCROFT, ATTORNEY GENERAL: To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.
(END VIDEO CLIP)
KING: We're back with Senators Leahy and Hatch, the chairman and ranking member, respectively of the Judiciary Committee on this edition of LARRY KING LIVE. Are you concerned, Senator Leahy, about the detention of non-citizens?
LEAHY: Well, I'm concerned when you have such a large number. I think that the attorney general deserves -- or has to tell us exactly why they're being held. I don't think we should be detaining anybody any longer than you absolutely have to.
There are certain rights and certain abilities to detain people. But when you detain a thousand people or 500 people, or whatever the number is, I think you have to make it very clear we're doing it as short a period as possible under strict requirements of the law.
When you see mistakes like the Pakistani who really wasn't wanted for anything but sort of forgotten there, the man dies of a heart attack. You can't have these kind of things, because again, we have to set the example for the rest of the world. Can we detain people as material witnesses? Of course. Can we detain an immigrant who is out of status and illegal? Yes, but carefully.
HATCH: As you know, they're detaining people who are charged with crimes or have violated our immigration laws or are material witnesses. They should detain these people. Now, they have to do so within constitutional constraints, and I think we have to be very careful that we don't detain people who should not be detained. In these cases, virtually everybody, I think everybody who has been detained, is for one of those three reasons and those are valid reasons.
KING: Couple of other things, the anthrax thing. Your letter was opened today, right?
LEAHY: It was opened. It's interesting. It's a copy, really, of the one that was also sent to Senator Daschle, and there obviously was enough anthrax in there, whoever sent it, intended that if either Senator Daschle or I opened the letter, that it would kill us. But it's very, very tragic. It did kill people. It killed totally innocent people along the line, would have killed more if we hadn't found it.
KING: Does that feel weird, funny?
LEAHY: I was a prosecutor, I had people threaten me before. I understand that. But I also worry very much that if we have somebody out there, whether it's home-grown or from overseas, who is killing innocent people, and has a terribly deadly weapon. The anthrax, the authorities tell me, the anthrax in there could...
KING: Wipe out a lot of people.
LEAHY: Could kill an enormous amount of people.
KING: Are you personally worried?
HATCH: Well, you know, I worry that we're not doing everything we should for the American people. That's our job here. And you know, I have a lot of faith. I just move ahead and keep doing what I have to do. I just count on things working out.
KING: We have an item just in, Israeli war planes have hit the Palestinian police headquarters in Gaza early Friday with at least two large explosions, ambulances with sirens blaring toward the scene, local residents said other Palestinian Authority installations also hit. Strikes occurred around 8:00 p.m. Eastern time tonight. Any reaction, Senator Leahy, to that continuing struggle?
LEAHY: You know, I think that's one of the saddest things in the world, sad for people on both sides. Yasser Arafat obviously cannot control his own people, became a weak reed in the process. Prime Minister Sharon has taken steps that many feel go beyond necessity.
Certainly the people who were there being blown up by suicide bombers, however, I'm sure feel that anything that would secure their safety is justified. It is so easy to say if you could just turn the clock back two or three years and look at mistakes that were made and stop them. I think the United States has become dramatically involved for the sake of the people on both sides, because otherwise you just will see this as going continue and continue, punch, counterpunch, punch, counterpunch.
KING: Senator Hatch? HATCH: The people who got killed last weekend, the Israelis, would be the equivalent of 1,200 to 1,500 Americans. Now if that happened in our country, you think we would put up with that? Listen, I don't blame Sharon at all. And I think Arafat needs to get, pushed around a little bit by the international community to start doing what he really has committed to do.
And that is, put these people from Hamas in jail and not just let them out through a revolving back door.
KING: You were a prosecutor, Senator Leahy. Any early thoughts on this young American, Mr. Walker, found with the Taliban?
LEAHY: I'm like Michael Chertoff. It's hard to know what is going on there. One, to begin with, I can't understand why somebody raised here in the United States, with everything available to them, is over there joining the Taliban.
LEAHY: An extraordinarily repressive of women, repressive of human rights. What is he doing over there for anyway? We have to sort out the laws, what to do when he comes back here.
Incidentally, make sure Orrin, you fully understand, if I was being blown up in Tel Aviv by suicide bombers, I would want action taken. My point is...
HATCH: I'd take action.
LEAHY: My point is there were so many mistakes made in past years, I think that Arafat doesn't have the strength to lead. I really don't. I don't know who takes his place, but I don't think he can bring about peace.
KING: What do you think about young Mr. Walker?
HATCH: Let me put to it you this way: We were very strong supporters of the mujahadeen. We felt that they were freedom fighters. We knew that some of them were bad. I think (UNINTELLIGIBLE) hates this country, some of the Taliban people, who later became Taliban hate this country.
This young man, unless there's something really dirty about him, that is really bad, really criminally active, he's an idealist. And I have a rough time wanting to do a lot against an idealist who really believed in what he was doing. But we have to look at all the facts.
KING: Even thought the actions he took may have affected Americans?
HATCH: Well, if he did, if there's that kind of dirt, if there's that kind of crime, maybe. But personally, I would like to go after the Taliban. I would like to go after those who corrupted this idealistic kid and I would like to give him a break if I can. Now, you know, we have to get all the facts before we make that determination. But my natural inclination is to try and, you know, hopefully rehabilitate this young man.
KING: A softer heart for Hatch than for Leahy?
LEAHY: But I think we have to wait until we get him back and find out what the facts are.
HATCH: I agree with that.
LEAHY: Because I think it would be premature for anybody, Justice Department or anybody else, and they have not done this, they have not pre-judged this. I think the Justice Department is right in not pre-judging. I still sit here puzzled, idealistic or not, how in heaven's name somebody could think that a regime like the Taliban as repressive as they are, could be appealing. I think that bothers all of us.
KING: Thank you both very much as always, Senator Patrick Leahy, Senator Orrin Hatch.
As we go to break, we are going to show you shots of the bodies of two of the people killed by accidental shooting. These are being returned to Ramstein Air Force base in Germany. This happened earlier today and we'll be back with Nancy Grace and Julian Epstein and more on tribunals and things. Don't go away.
KING: We now welcome to LARRY KING LIVE, two people who know how to go at it. I am just going to be the referee. In New York is Nancy Grace, former prosecutor, and now anchor of "Trial Heat," on Court TV. And in Washington, Julian Epstein, former chief minority counsel for House Judiciary.
First, your thoughts on, we'll start with you, Julian, on Mr. John Walker and the Taliban.
JULIAN EPSTEIN, FMR. DEM. COUNSEL, JUDICIARY CMTE.: Well, I think that we really have to learn more about that before we can make a judgment at this point. I think the key two questions are, one, was he a member of the Taliban volitionally, or was he, somehow against his will, was he drugged, was he brainwashed?
Secondly, was he engaged in war crimes? And war crimes are the key thing here. War crimes by definition, are pretty much crimes against civilians, military actions against civilians.
If he was volitional and engaged in war crimes, then I think there is a strong case to be made for having the law prosecute him.
KING: And that would be charged in a criminal court in the United States?
EPSTEIN: In a criminal court in the United States.
KING: Nancy, what's your view?
NANCY GRACE, COURT TV: I'm shocked, actually. Was he drugged? Was he coerced? You just heard an interview with him earlier, his words were, my heart became attached to the Taliban. Don't talk to me about bringing this young man back to America, so he can try a Patty Hearst defense and say he was coerced to fight the Northern Alliance and America by the Taliban. I'm not buying it. didn't work for Patty Hearst and it is not going to work for John Walker.
KING: Then what would you do, Nancy?
GRACE: I think that there are two obvious choices. One, he should be treated equally. We're all about equality, right? Treat him like the rest of the Taliban that were attacking the U.S. and the Northern Alliance. Why should he be treated any differently just because he's white?
I say he should not be. Or bring him back for a trial of treason or sedition.
EPSTEIN: A really simple legal point, I don't want to take the whole conversation on this: If he's engaged in war crimes, which are crimes against criminals, and I think there is a case to be made for making a criminal court or...
KING: Crimes against civilians.
EPSTEIN: Crimes against civilians, rather, either in a tribunal, which you could still do if they wanted to expand it, or in a court. The traditional law for foot soldiers, for people who observe the laws of war is repatriation after the war, and not trial. So, I think Nancy, the point is, that you nor I have very much information about this, and better let us get the facts before we start making judgments.
GRACE: I'm pretty sure he fired on the Northern Alliance and on U.S. troops. It's pretty much all I need to know. But I do agree with you. If he is simply treated as a POW, that will allows him to be held until the end of the conflict. No problem. But if he comes here, there are charges, possible charges of treason.
EPSTEIN: I don't disagree with that.
KING: Nancy, let's go to you. Any problems at all with John Ashcroft's testimony or the statements made earlier by Mr. Chertoff here? GRACE: My only problem is that we are taking great liberties in our fight against terrorism and I don't understand why they drew the line at checking gun records. I'm afraid it's boiling down to politics as usual. Listen, Julian, Larry, I don't have any problem with Congress enhancing the theory of military tribunals. I just see them at this point becoming an obstacle to justice.
EPSTEIN: I hate to agree with Nancy, but... KING: Oh, God, a shock has occurred.
EPSTEIN: The position on guns today, I think, was absurd. The position that the attorney general took was that...
EPSTEIN: We that they cannot allow the FBI to conduct background checks on people, to check the NIC (ph) system, the background check data base, on people that are being detained, because the data base can't be shared with other agencies. That's true, technically.
But the easy way around that is to simply have the Justice Department conduct a background check on those people that are being held, and then if it turns out that some of the detainees have been purchasing guns illegally, they can transfer that to the FBI. That was too cute by half. I think that was, you know, for the attorney general to come in and take positions that we have to go to all extraordinary measures during this time and then to be protecting the gun lobby.
Second point is, and Al Hunt made this point in the "Wall Street Journal" today, why is it when now is there evidence that the anthrax scare may be a domestically rooted, that it may be a hate group, why is the attorney general not beginning now to round up domestic hate groups in the same type of drag net operations that he is with the immigrant population?
KING: Nancy, you agree with that?
GRACE: Larry, a response to that?
KING: Yes, you agree with that?
GRACE: The concern here is a lot of people have been rounded up, basically on their Saudi ties or their Saudi nationality. I don't have a problem with the interviews, the detainees, or the voluntary interviews with them.
EPSTEIN: What about domestic hate groups?
GRACE: My concern is, I'm looking for a lead to al Qaeda or Taliban, but if we can show that this is home-grown terrorism, I don't have a problem with it.
KING: Do you have, Nancy, any problem with the whole military tribunal idea?
GRACE: No, I don't. In the sense that in peace time, I would have a huge problem with it and the suspension of certain liberties, Larry. But this is no longer peace time. This is a whole different ball game. We keep talking as if we are in law school, discussing a case under a microscope. These are not lab conditions. There are 4,000 dead people at the end of this island. This is war. And therefore, we have got to remember the Constitution, Larry, is a living thing. The founding fathers wrote it so it could apply to facts, 200 years and beyond. And it will.
EPSTEIN: The point is, I think the debate we're having is very important. I saw Senator Ashcroft retreating on some very, very important things today. On the military tribunals, for example, he was saying something that's very different from the military order in my judgment, which is that the tribunal should only used for war crimes.
The text of the Bush order goes way beyond people that commit war crimes. It includes people who may unwittingly aid and abet terrorist actions, who may not even know that they're doing that. So, I think there is some retreat there. There is certainly some retreat with the detainees in terms of whether they should be identified.
GRACE: It doesn't say unwittingly.
EPSTEIN: It doesn't say not, either, Nancy. Lots of retreat, I think, on the detainees, one with respect to whether or not they ought to be able to get attorneys. I think there is a fair amount of evidence that many of them have essentially been denied adequate representation by attorneys. Their attorneys have attempted to contact them, they haven't been able to get through.
This motion that the attorney general made about not wanting to identify the detainees, I mean first saying that they had some type of privacy right, when in fact they can self-identify themselves, nobody really believed that. Then saying there was a legal reason that they couldn't be identified, he had to retreat on that.
GRACE: You're misleading.
EPSTEIN: So, I think -- how am I misleading, Nancy?
GRACE: I have Bush's order right here. And it says nothing about punishing those who unwittingly or were duped.
EPSTEIN: Aiding and abetting. If there's a domestic terrorist as was pointed out in the Senate hearings, Nancy, if aiding and abetting means that if somebody, not knowing that they're renting a car, for example to a prospective terrorist, say that they have got a relationship with them, they don't know that this person is in a terrorist cell, that would be aiding and abetting under the definition. The point, Nancy, here is that if the administration.
GRACE: I don't know how many cases of aiding and abetting you have tried, but I have, and I can tell you that the jury would be looking for intent, to prove aiding and abetting. And that's not what Bush's order says.
EPSTEIN: The point here, Nancy, is that Congress is not the enemy. You had on this show, just before this segment, Senator Leahy and Senator Hatch, two of the leaders of the Congress, the leaders of the Judiciary Committee. Were the Bush Administration to go to them and say look, we need to get authorization for these tribunals, it would remove the constitutional problem. Then you could begin to take care of the other problems of the overbreadth. For example the notion that two out of three jurors on these tribunals could say it's more likely than not, this person somehow involved in terrorism, therefore we should execute them. All of the other due process guarantees...
GRACE: Julian, I don't think anybody brought a problem with a unanimous vote for the death penalty. I don't think the Bush Administration would have a problem with that.
EPSTEIN: But it doesn't say that in the order.
GRACE: But what are you saying is that the only way it's constitutional is if Congress approves it. That's just simply not what the Constitution says.
EPSTEIN: That's not what I'm saying. What I'm saying is that they would be on a lot surer constitutional footing as the Supreme Court said in 1942, if you have congressional authorization, then you're on much surer footing. If you limit it, to which the order doesn't limit it, to combatants, to people that engage in war crimes, you're on much surer footing.
KING: We have not heard the last of this. We thank you all very much and of course we will be calling on you again, since you always liven up proceedings. And they even agreed on something tonight.
Nancy Grace of Court TV and Julian Epstein, former chief minority counsel of the House Judiciary Committee.
Shelby Lynne will close things out for us tonight. And as we go to the break, leading up to Shelby, here is First Lady Laura Bush, lighting the national Christmas tree tonight, here in Washington. There it is. And we'll be right back.
KING: A special note about a very special friend of this program. Dr. Billy Graham, earlier tonight, he was awarded an honorary knighthood in a ceremony at the British embassy here in Washington. It isn't proper protocol to call Americans given knighthood, Sir, but on this one occasion we salute Sir Billy Graham.
Joining us now in Los Angeles, to close things out is Shelby Lynne, singer, songwriter, winner of the 2000 Grammy Award for best new artist. She had a lot of fans before the award though. She is going to sing "All Of a Sudden You Disappeared." It is from her new album, "Love Shelby."
Any quick explanation of this song, why you're doing this one, Shelby? SHELBY LYNNE: I just thought it was appropriate. It is a song about living and losing and loving and it's, you know, we all go through that.
KING: You've loved and lost? You, Shelby Lynne? LYNNE: Oh, a few times.
KING: Did you write this song?
LYNNE: Yes, sir, I did. Yes, I did.
KING: All right, to close things out ladies and gentlemen, tonight we always end up on a high note. Here is the wonderfully talented Shelby Lynne and her own composition from the album, "Love Shelby," "All of a Sudden You Disappeared."
LYNNE: Thank you.
(MUSIC, SHELBY LYNNE SINGS "ALL OF A SUDDEN, YOU DISAPPEARED")
KING: One of the tragedies of September 11 was downing of the of the plane in Pennsylvania. We are going to deal with that tomorrow night with a lot of those people who are relatives of the victims and others. That's tomorrow evening on LARRY KING LIVE. Tom Cruise is our special guest on Sunday. Aaron Brown is standing by in New York. He will host "NEWSNIGHT," and his special guest tonight is the attorney general of the United States, John Ashcroft. In New York, Aaron Brown.
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