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CNN Talkback Live
Should the Bush Administration Release the Osama bin Laden Tape?; Who Should Handle the Case of John Walker?
Aired December 10, 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.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: He bragged and boasted in ways that made it absolutely clear that he was responsible.
(END VIDEO CLIP)
LEON HARRIS, HOST: It's the video that sparked a debate in Washington. Osama bin Laden, reportedly talking about September 11th.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: He was laughing at the fact that some of the guys on his planes, the planes that they'd hijacked, didn't know that they were going to their own death. I mean, this is incredible.
(END VIDEO CLIP)
HARRIS: Should the administration release the tape? And do you want to see it?
An American who died in the line of duty is laid to rest, as another American, this one a Taliban fighter, waits in military custody for a decision on his fate.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: There is no love lost between the Marines here at Camp Rhino and someone who fought for America's sworn enemy.
(END VIDEO CLIP)
HARRIS: Who should handle the case of John Walker -- the military or the courts? And do you believe he's a traitor, or just a misguided kid?
(APPLAUSE)
HARRIS: Hello, and welcome to TALKBACK LIVE: "America Speaks Out." I'm Leon Harris. Osama bin Laden bragged about the September 11 attacks, and he did it on tape. Now, that's the word we're getting from U.S. officials, and right now the president and the Security Council are debating whether or not to make that tape public. Well, should the American public see this tape? With us today to share their opinions, Jonah Goldberg, syndicated columnist and editor of the "National Review" online, and syndicated columnist, Julianne Malveaux.
Good to see both of you.
JULIANNE MALVEAUX, SYNDICATED COLUMNIST: Hi, Leon.
HARRIS: Good to see you again.
MALVEAUX: Yes.
HARRIS: We're going to check in with them in just a minute. But now, let's check with CNN's Kelly Wallace. She's standing by at the White House. She has the latest on this issue for us -- Kelly.
KELLY WALLACE, CNN WHITE HOUSE CORRESPONDENT: President Bush and his advisers discussing whether to have this tape released. Excuse me, I'm hearing myself there.
And the big question, really, Ari Fleischer, the president's spokesman, saying no decision has been made yet, but the president trying to strike the right balance here. A balance between being forthright with the American people, giving the American public as much information as possible. At the same time, not compromising the ability to gather intelligence information in the future.
Now, we understand a decision could come as early as today, Leon. And the sense we're getting from senior administration officials, even the Deputy Defense Secretary Paul Wolfowitz, saying the administration would like to release it. So currently, an assessment being made, a recommendation by the president's national security council team, will be made to the president. In the end though, Leon, it's the president's decision.
On the plus side, certainly, many U.S. officials say releasing this tape, which U.S. officials say shows that bin Laden had advance knowledge of the September 11 attacks, would put to rest any doubt that might still exist in the Arab and Muslim world about bin Laden's role in the attacks.
On the other side, there might be concern that because the tape is amateurish, Leon, and the audio is not so great, there could be concern that some in the Muslim world might think that the Bush administration is spinning here, and is doctoring a tape to get out its side of the story.
There has also been concern, certainly, about whether this tape could obtain any coded messages for any sleeper cells around the world. The administration, Leon, seems less concerned about that. Ari Fleischer, the president's spokesman, saying this tape more of a spontaneous conversation. Apparently, it was some time in November, we understand. Bin Laden speaking with, meeting with a cleric, talking about the terrorist attacks. The administration saying this not a pre-packaged propaganda tape, so less concern about that. But again, they're still discussing it. A decision could come as early as today. And we'll just have to see what this administration decides to do. Leon, back to you.
HARRIS: All right, Kelly, since we haven't seen the tape, have you talked to anybody who has seen the tape? Do we know who has seen the tape?
WALLACE: We know, Leon, that just a select few in this administration have seen the tape. President Bush has seen the tape. Vice President Dick Cheney, we know. He acknowledged on the Sunday morning talk shows yesterday. That deputy defense secretary, Paul Wolfowitz, we believe has also seen the tape. So, a select few.
The transcript of the tape, though, definitely circulating amongst many more officials. Ari Fleischer, the president's spokesman, as well, has read that transcript. The reaction really, Leon, from all officials, they say it's -- deputy Defense Secretary Wolfowitz said he was sort of disgusted by it.
He said bin Laden clearly, plainly shows knowledge of the attacks. He was pleasantly surprised at the total collapse of the World Trade Center, more damage than he had anticipated. That he also was pleasantly surprised because some of the hijackers involved in the attacks did not know that these would be suicide missions, and is apparently happy with that.
So again, administration officials say that this tape, if it is released, would sort of speak for itself and show exactly what U.S. officials have been saying all along, that bin Laden was definitely behind and had a direct responsibility in these attacks.
HARRIS: As if there's any question about what kind of a jerk this guy is. That idea of him laughing, knowing that these guys didn't know they were going to their deaths, that's incredible.
Do we know any more about the setting of the tape? I know the other ones that we saw were him out somewhere in the middle of some desert or some rocks or whatever. Do we know anything about the setting of this one?
WALLACE: Yes, Leon. David Ensor, my colleague, getting some great information about this. This again appears to be the Osama bin Laden talking with or meeting with a cleric and others. Apparently, I believe, he's sitting down with pillows around him. He may be hosting some dinner of some sort.
It's, again, very amateurish. It's not quite sort of the tapes that we've seen released by Osama bin Laden and the al Qaeda network in the past. And again, he is talking about the attacks. And David Ensor getting some other information: that bin Laden apparently saying that he was listening to the radio in advance of the attacks, to get word of the news reports of the coverage.
And after learning that the first plane hit the North Tower, bin Laden apparently indicating more destruction is coming. And again, very much surprised by the damage, saying it was more than he had anticipated what happened in these attacks. And also, apparently very pleased that -- rejoicing, in a way, that some of these hijackers did not know that they were going to be part, in the end, of a suicide mission -- Leon.
HARRIS: Incredible. All right, thanks, Kelly. Kelly Wallace at the White House, appreciate that.
Let's get to the guests right away, then. Let's start, ladies first. Mom taught me that.
Julianne, let's start with you. You weigh in for us right now. What's your opinion on this? I'm assuming you think this tape should be released.
MALVEAUX: Oh, absolutely. I don't see any reason that we wouldn't release this tape. I understand there are probably seven tapes that haven't been released. I remember the call that Condi Rice made a month or so ago, saying please don't give bin Laden this platform. And I don't think we want the continuing saga of Osama bin Laden. But this tape seems to be news, and if it is news, we ought to see it.
The fact is that when we hide this stuff from the American public, it causes people to ask questions. We're already on a slippery slope with our civil liberties. People are raising question about who is doing what, when and how. I think this tape would dispel a lot of nonsense.
I mean, if, as people say -- as you said, Leon, if this idiot is sitting there laughing about losing his own people, laughing about this damage, I think that anyone who has questions will be swayed by it. And this issue of spinning because it might be tampered with, the administration compounds that by holding it longer. If this tape -- if they've had this tape for two weeks, we should have seen it 10 days ago.
HARRIS: And it's not just the American public raising questions. It's the wider Arab community and Muslim world, as well. Jonah, what's your opinion? What do you think?
JONAH GOLDBERG, "NATIONAL REVIEW": Well, I'm not sure how much distance there is between Julianne and I on this. I totally believe that the American people have a right to see this tape. I'm not entirely convinced they have a right to see the tape right now.
We all recognize the right to know. We all recognize the First Amendment. We all recognize that this tape would probably be -- would satisfy a lot of curiosity for a lot of people. We heard earlier how the administration is trying to strike the right balance. Well, part of that balance is by telling us what's on it.
And so the news isn't so much that this -- the news has already been broken, in a sense, unless everyone in the administration is lying. What people want now is the more sensational, emotional impact of seeing the tape. And I'd like to see the tape, too. What I don't see is why we necessarily have to see it this afternoon, versus seeing it next Monday. To me there's nothing inherit on the tape that says we have to see it right now. And if there are other considerations, why can't the administration think through what all the possible permutations are, and eventually release it.
We have almost all national security type issues -- American people, through Freedom of Information Act and all those sorts of things, have a right to see these things. They don't have a right to see them right away on their own timetable.
MALVEAUX: But, Jonah, to raise the notion that we think the whole administration is lying, that's not what it is. We have troops over there. We have people over there who are raising questions, and in raising those questions, we deserve answers.
If this guy is really a monster, let's see it. Bring it on.
GOLDBERG: I agree. I just don't know why we have to see it right this second.
MALVEAUX: But they've had it for two weeks.
HARRIS: OK, hang on, gang. We'll get back to you. We're going to take a break right now. Stick around. We'll talk some more about this. When we come back, our national security correspondent, David Ensor, is going to join us as well. We've just heard he's got some new details about that tape.
(APPLAUSE)
(COMMERCIAL BREAK)
HARRIS: And we are back. We're continuing our conversation about whether or not the White House should be releasing this tape that allegedly has Osama bin Laden on it, celebrating what happened at the World Trade Center and the Pentagon.
Joining us right now is our national security correspondent, David Ensor. He's got some new details for us about this tape -- David.
DAVID ENSOR, CNN NATIONAL SECURITY CORRESPONDENT: Well, that's right. I've been talking to officials who have actually seen the tape, who have looked at it, who have gone through it carefully. And they say that it is evidence from the man's own lips of his involvement in the attack on the World Trade Center and the Pentagon.
Three specific examples they cite: first of all, that he says he tuned into the radio on the day the hits were supposed to occur, in order to hear the news coverage of them. Secondly, he says that he knew for several days that the attacks would say come. And thirdly, that he says that his estimate of how much damage the attack on the World Trade Center towers would do was low -- that he was surprised by the fact that the towers were completely demolished. He'd expected less damage than that.
Another thing they point out -- and this is perhaps the new development -- is that on the tape, bin Laden is having a dinner. He's sitting on the floor in a room, which they believe was in Kandahar, sitting next to a sheik who apparently was crippled, and some other people. And he's kind of joking, he's kind of amused by the whole thing.
He's amused, for example, about the fact that he says that some of the hijackers didn't even know what they were going to be doing -- that it was a suicide mission, for example -- until they were boarding the planes. So he was in a way bragging, I suppose, about how well set up this, these attacks were, and certainly no one can disagree with that. But he was pleased about it. He found it a joyful, a joyful happy thing, that these things were so well-planned, and went, from his point of view, so well.
Officials here saying that they hope the tape will be released. They expect it to be released. The question really is timing. But they believe that when the world's public, and in particularly, the Muslim world they're interested in, sees this tape, if there are any doubters left, there won't be any left after they see this. That's the view, at least, of the officials I have been talking to.
HARRIS: Interesting.
ENSOR: Back to you.
HARRIS: David, what do we know about the timing of the taping? Do we know when this tape was made?
ENSOR: Well, the people who have seen it say that, burned in the corner is the date, November 9. Now, anybody who has a camcorder knows if you leave the batteries out for a few days, that date gets to be wrong. But the feeling is that it's a primitive, amateur recording that was made on or around November 9th.
HARRIS: Good deal. David Ensor in Washington, thank you very much. Appreciate it.
Let's get back to the audience here in Atlanta. We have an interesting comment here from Barbara. Barbara, you say that you don't think this tape should be shown.
BARBARA: No, I don't. We're at war right now. This is public enemy No. 1. And we already know he did it. We know he did it, so why glorify watching him gloat about it? If I lost somebody in the World Trade Center and I'm watching him laughing about it, it would make me so angry. And I think our feelings are so high right now, it could make vengeance come out. People could start going out, smashing heads, making people really angry, and for what?
We already know he did it. Let's see it later on when things are a little calmer. It serves no purpose to see it now.
HARRIS: That's interesting. Jonah is pretty much in line with what you were saying, about holding off.
What do you think about the comment Barbara just made here a moment ago, about the families of those who were lost in the World Trade Center and the Pentagon, as well. Should there be any sensitivity at all toward what they might want in this case?
GOLDBERG: Absolutely, although I'm not sure how much the government should be factoring in -- I'm not sure I agree with all those sentiments, I'm not all that that worried about fomenting rage in the United States. I think Americans are pretty angry as it is.
I do think that the only real argument for delaying the tape -- and again, I agree that the tape should come out, but I think the timetable is the question -- is that we all know that -- we can all guess it's not about national security, because already the place is leaking like a sieve about what's on the tape.
And second of all, "The Washington Post" reported it was up to Karen Hughes, who is not in the National Security chain of command, to decide when and how the tape is going to be released. So it seems to me that the only people that are left, that need to be persuaded that Osama bin Laden is guilty, are the people in the Middle East.
And if you're going to have a PR campaign to persuade those people, that takes a little time to prepare. You have to do it right, and you have to be careful about it. So a couple days to wait for this tape -- we only heard about it over the weekend. Doesn't seem to be a big deal.
MALVEAUX: Oh, Jonah, you know, it's not as if -- we've heard about it over the weekend, but they've had it for two weeks. If we want to talk about spinning this, then we're as guilty of propaganda as anyone else is. I'm really sensitive to the comments that Barbara raised about the families. But, as with anything that appears on our airwaves, those families have the right, the responsibility to simply turn it off.
If you know bin Laden is coming on and that's going to take your blood pressure over the top, don't watch it. At the same time, there are people who want information, who want to connect the dots. And I think would be very useful to put that tape out there.
Our administration does not look good manipulating information. If you are saying we're waiting for an opportune time -- maybe we'll use it after we repackage it and find a good day. Well, what's a good day for bad news? I don't think there is one.
We didn't pick a good day to look at those 9-11 recordings. There will never be a good day to hear this. So let's just hear it. Let's get it over with. Let's move on. Let's persuade those who need to be persuaded with facts, not with spin.
HARRIS: Well, let me get...
GOLDBERG: This network itself has refused, as all the news networks have, have refused to run any footage of the 9-11 attacks, because for very much the same reasons that the woman in the audience was talking.
(CROSSTALK)
HARRIS: But listen, there's another agreement that networks have also acceded to, and that was the White House's request to not run any tapes of Osama bin Laden that we had -- the tape, for instance, that we saw from the al-Jazeera network, because they were saying there was a possibility there was some sort of encoded message. We have an e- mail here about that, too.
Lynn in Pennsylvania says: "I don't think there's a coded message on this tape, and if there was one, we are as ready as we're going to be."
How about the fact there may be some sort of a message hidden in there? You would be actually serving Osama bin Laden's purpose by airing this tape.
MALVEAUX: The administration doesn't seem to be that concerned about that, Leon. The administration has said that's not their concern. They don't think there are coded messages. They're much more concerned about the timing of the release.
And so I think that we have fall into something we talk about coded messages. I don't think that's what's happening.
HARRIS: All right, speaking of timing, we have to hit a break right now. So, back in a moment. Don't go away, folks.
(APPLAUSE)
(COMMERCIAL BREAK)
HARRIS: All right. Now, quickly, let's get back to Julianne Malveaux and to Jonah Goldberg to give us a final thought on the topic this morning -- this afternoon, rather, about this tape at the White House, of Osama bin Laden celebrating what happened, or laughing about what happened at the World Trade Center.
Final thought here, from both of you. How soon do you think we will see this tape?
GOLDBERG: I think we'll probably see it by the end of this program. You know, I do think there's a little bit of transference, where the media screams at people because they want the video, and they claim that, therefore, the public wants the video just as bad. But we're going to see it. And it will be very emotional, and also very edifying.
HARRIS: Julianne?
MALVEAUX: I agree that we'll probably see it within the week. I don't think we'll see it at 4:00, Jonah. But we'll probably see it within the week, and I do think it will be edifying. I think that's the purpose. People want information. Even those who believe that bin Laden is guilty want to see more. As you said earlier, all of us have said the Muslim world also needs to see him in all of his butchery. And so I think the sooner it's released, the better. And the administration doesn't serve itself at all by holding it.
HARRIS: All right. Here's hoping you're right, Jonah.
(LAUGHTER)
HARRIS: I'd like to see it here. Right here, on CNN, by 4:00. Jonah Goldberg and Julianne Malveaux, good to see both of you. Thanks for coming. We appreciate it.
MALVEAUX: Thank you, Leon.
HARRIS: We're going to move on and change topics right now. We'll talk about the American who was caught fighting with the Taliban. He is now in Marine custody at Camp Rhino, in southern Afghanistan. But the big question is, what is next for John Walker? Should he face a trial or tribunal, or should he just be sent home to his parents, a slap on the wrist, there?
Well, Attorney Victoria Toensing, a former official at the Justice Department, is with us as you see there, in Washington. Thank you very much for coming in.
VICTORIA TOENSING, FORMER JUSTICE DEPARTMENT OFFICIAL: Good day, Leon.
HARRIS: Ron Kuby, First Amendment attorney and talk show host with WABC radio. They're going to give us their views in just a moment. But first, let's get the latest on the story from Kathleen Koch, who is standing by at the Pentagon -- Kathleen.
Do we not have Kathleen? I guess we don't have Kathleen. We have some problems at the Pentagon.
Let's start with the debate, then. Victoria, we'll begin with you. What are your thoughts about this? What do you think should be happening to John Walker next?
TOENSING: Well, Leon, before we have any discussion, let's both of us make it clear we don't have all the facts. We are only making this discussion on the facts that we have available to us.
HARRIS: That is true.
TOENSING: But what I see is, is a -- you know, we lawyers are always concerned about that -- but what I see is a man who is the same age as our fighting men and women, who voluntarily joined a militia. Not just the Taliban, but al Qaeda -- a group that he had killed Americans, was fighting Americans. And he took up arms in that conflict with them against Americans.
And so it fits the Constitutional and legal definition of -- what do I want to say. HARRIS: Treason?
TOENSING: Treason. Terrorism was the word that was coming into my mind, and I couldn't push that one aside.
HARRIS: Hey, listen, far be it for me to put words in a lawyer's mouth, all right?
(LAUGHTER)
HARRIS: Well, Ron, what do you think about this?
RON KUBY, RADIO TALK SHOW HOST: Well, I certainly agree with Victoria, to the extent that we don't have all the facts. We don't even have the most important facts. Let's assume he did not kill Americans. He didn't injure Americans. He didn't attempt to shoot at Americans.
We have this young man who, admittedly, is the age of our fighting men. But also, I think we have to recognize, as President Bush said, sort of a poor fellow. Sort of a diluted "schlub," and you wonder how in the hell did this guy end up here?
Assuming he didn't know he was attacking Americans, and assuming he wasn't actually firing at Americans, it's hard to fit the legal definition of treason. It's not at all clear that he had information that the United States of America was now a combatant.
For all we know, Mr. Walker thought he was fighting the usual butchers and cutthroats of the Northern Alliance. So it's a difficult case, and it's especially difficult in the absence of a formally declared war, to actually try somebody for treason.
HARRIS: See, and the funny thing is, I have interviewed probably three or four different people in the past week about this, and no one is really clear about what the Constitution does say about this. I've heard someone saying something about there needing to be two eyewitnesses.
TOENSING: That's real clear, Leon.
HARRIS: Pardon me?
TOENSING: You have to have two witnesses to an overt act. That's in the Constitution itself. Unusual for any other crime, but it's very -- it's specified. But that's not hard.
The crime is taking up arms against the United States. And the Supreme Court, a couple of hundred years ago, made it clear that it's not a Jane Fonda kind of thing. It's not talking against our troops when they were fighting in Vietnam. You have to be in the act of taking up arms. That's clear in the case law. So that's not a problem.
KUBY: Victoria is right about that. The problem isn't what the law says. The problem is what the facts show. He had to take up arms against the United States, knowing he was taking up arms against the United States of America. And until we have those facts, I would right now just settle for bringing him back and giving him some sort of huge national spanking on television, like, what the hell was this guy thinking?
TOENSING: I think a spanking is too much, when there is an organization he joined that was killing women in the public square.
HARRIS: From what I saw, he needs a bath before you give him the spanking. Believe me.
Let's check in with Kathleen Koch. She is at the Pentagon and we have that problem straightened out. Kathleen, what's the word from there?
KATHLEEN KOCH, CNN CORRESPONDENT: Leon, the word from here is that John Walker is still talking to different people. That, according to the Pentagon this morning. We don't know if these are military officials, if these are intelligence officials, and they say that he is having conversations with them.
Now from the start, apparently, we are being told that Walker has been cooperating and that he has been providing what the Pentagon believes is very useful information. Now, they won't characterize it beyond that. They won't say if this is information about these Bin Laden training camps that he says he attended on two different occasions, where he reports that he did see Osama Bin Laden himself.
We don't know if this is information about the Mazar-e Sharif prison uprising, in which Walker was wounded and the CIA agent Mike Spann was killed.
So this is the sort of thing that the U.S. military, U.S. intelligence is interested in getting from Walker right now. And there are hints -- the chairman of the joint chiefs of staff, General Richard Myers, over the weekend said that all this would be taken into consideration when the decision is made just what to do with Walker. So perhaps they might go easier on him if he's more helpful. Leon?
HARRIS: All right. Kathleen Koch at the Pentagon. Thank you very much. We just got an e-mail while Kathleen was giving us that report from (UNINTELLIGIBLE) in British Columbia. And here's -- here's a novel one. "John Walker should be left in Afghanistan with the Northern Alliance." How about that? That wouldn't solve anything, I don't think.
But let's -- Victoria, I want to ask you this one. Does intent matter at all in this case? Because as I see it, he didn't go over there to -- with the intention -- at the beginning, he did not go over there with the intention of fighting against the United States. He happened to go over there with a different intent entirely and was sort of pulled into it, if I'm to believe his story that we have heard so far. He was pulled into this war because of his alliance with the Taliban. Does that make any difference at all?
TOENSING: Well, it doesn't look like intent does. Knowledge, perhaps, could be significant.
But we don't have to question his intent because of course we know about the e-mail he sent his father when our servicemen and women were killed in Yemen, and he said that that was fine with him. They deserved it because they were in -- the American military was in a Muslim country. So it's not like he was unknowing that these were bad people.
He was also attracted to this kind of Islamic religion, he said, according to his father.
Now where were you? You had to be in the dark ages if you didn't know this was a group that treated women so poorly that they weren't even allowed to go out of the house without a man, they weren't allowed to be educated, or even allowed to work or even allowed to have health care.
I mean, that someone -- this is not a higher-calling kind of religion that he was into. It was dastardly organization.
KUBY: I -- I totally agree with you. But let's just keep in mind this is the same dastardly organization that prior to September 11 the Bush administration gave $43 million to allegedly to liquidate the opium poppy crop. This is the same dastardly group of people that the Clinton administration had no difficulty working with.
So to the extent that we want to condemn him for aligning himself with the Taliban -- I certainly agree it shows appalling judgment and this is a young man deluded by religion, as so many good young people have been deluded by religion. It just doesn't make it a capital offense or necessarily even a criminal offense.
HARRIS: You know, it's funny...
TOENSING: Well, it's a treasonous offense, though, and the punishment is up to a -- a court of law.
HARRIS: OK. You -- you talk about capital punishment. We pose that audience -- question, rather, to our audience. And we actually have a couple of Marines here in the audience. And the responses we got weren't quite exactly what I was expecting. Brian, what did you think about this? Do you -- what do you think should happen to John Walker?
BRIAN: I think he should come back and stand trial but not a military tribunal but a trial by his peers in the United States.
HARRIS: You think -- so you think it should just be a matter for the -- the normal, regular system?
BRIAN: Let's get the story out and find out and let him -- let's find out what happened.
HARRIS: All right.
TOENSING: But is a U.S.... BRIAN: What made it...
TOENSING: He's a U.S. citizen, Leon, so he can't be tried in a military tribunal.
HARRIS: Exactly. Exactly. That's one of the restrictions on that. But Brian, as -- as a Marine. I mean, he's out there and you've got Marines on the ground out there fighting against the Taliban. You don't have a sense that...
BRIAN: I mean, I've got an 18-year-old son. I mean, I have the -- I -- I still think he's deserves a trial.
HARRIS: Interesting. Joseph? You are also a former Marine. You -- your thoughts on this.
JOSEPH: Well, definitely something has to be done with him, because I'm certainly sure he wouldn't hesitate to shoot one of our men over there. They've got women and children, kids home here too.
When he was being interrogated there, when they had him on the ground -- you saw the video -- it was his chance right there, I think, to come over to our side. The side that he should have been on. And like the lady was saying there, he would have to live in the dark ages not to know what was going on, that the people over there coming in to get his organization were Americans and that the people he was -- I'm certainly sure, again -- he wouldn't have hesitate to kill one of our boys over there.
So I don't think we should offer any leeway either way there. I mean, he would have tried to kill one of our boys and he should be treated just like any of the other terrorists over there.
KUBY: Right. But he sort of was living in -- in the dark ages. He was in Afghanistan. It's hard to find an age darker than that one. And I agree. Maybe he wouldn't have hesitated to kill Americans, but you can't be charged for what you would or wouldn't do. You can only be charged for what you did.
And right now, the facts as we know them, there's no indication that he attempted to kill an American or that he did kill or injure any American. Obviously, if those facts change then the charges in the whole situation becomes much more serious.
TOENSING: Well, he doesn't -- the law doesn't require that. And you -- you know that. It only requires that you take up arms against the United States in a conflict.
HARRIS: All right. The laws of television require that we take a break right now. So we're going to do it.
KUBY: Two eyewitnesses and a formal declaration of war, none of which you have yet.
HARRIS: All right. Stick tight. We're going to get back to it in a bit. We're going to take a break right now. But folks, what do you think? Who should get custody of John Walker? You can check in with our debate there. Just go to our web site. We are going to have more on the online viewer vote at cnn.com/talkback. AOL keyword, of course, CNN. Back in a moment.
(COMMERCIAL BREAK)
HARRIS: And we are back and we're picking up our discussion about what should happen to John Walker, this American who was fighting for and with the Taliban. Ron Kuby and Victoria Toensing are with us as well.
And joining our discussion, just got this e-mail in, too, during the break, from Luke in Boulder, Colorado. "John Walker is a child and should be treated like one." Sounds like the public spanking, as you mentioned, Ron.
KUBY: Well, I don't know who's going to get custody of him, but don't send him to my house, alright?
HARRIS: I wanted to ask you-- I want you to listen to an interesting perspective. We have some here people in the audience who are actually from Israel.
And during the break we were talking about what would happen in -- if there has been precedent like this in Israel? And if so, what would happen? And Ati (ph), you were giving us a story just a moment ago about a case in that was something like this. And what do you think would -- I mean, the reaction would be in the public in your country if something like this were to happen?
ATI (ph): OK. First of all, the public reaction is obviously would be anti-the person and they'd want -- they'd have all the kinds of discussions about having a specialized death penalty for him because there is no death penalty in Israel.
But what has happened in former cases like in Mordechai Banunu's (ph) case where he sold military secrets to the newspaper, he was not -- he was not given the death penalty. He was just put away. I think that the case would be kind of the same.
It's a bit different than this certain case because, from what I understand, the Taliban was not an official enemy of the U.S. before September 11 and for sure it is an enemy of Israel so it would be unquestionably treason in this case.
HARRIS: Interesting. And then there hasn't even been an official declaration of war in this case, either. Let's go to the phone. We've got Robert in Georgia who's been rather patient waiting for us. Robert, you there?
ROBERT: Yeah, I'm here.
HARRIS: What's your comment?
ROBERT: Well, I agree 100 percent with Mr. Kuby. We don't have any proof whether this man, you know, took arms against the United States. From what I -- from some of the reports that I've heard, he was fighting in Pakistan and then came over to Afghanistan.
Let's not rush to judgment, because in this country there is such a thing that's called due process and innocent until proven guilty. That -- that separates us from the Taliban and that is all I got to say.
HARRIS: All right. Thanks, Robert. We appreciate that. Victoria, do you know of any precedent -- is there anything like this in the past that may be even close to this case, so as to give us some sort of guidance as to where to go on this?
TOENSING: No, no. Certainly. Well, in 1942, the German saboteurs came to the United States and they were caught before they had done anything and were tried in a military tribunal, and six of them were put to death. And one of those saboteurs was a United States citizen.
That probably has more to do with the military tribunals. I just think it's important, Leon, that we do establish for people that neither the Constitution nor case law has ever said that Congress has to declare war. All there has to be is a conflict and that doesn't mean that Congress had to declare it.
KUBY: Well, it's -- you know, in -- in all honesty, it's very much an open question, because there weren't treason trials for the Korean war and Vietnam war, even though there were a lot of GIs who actually defected, joined the NLF and took up arms against their comrades.
There were treason trials in World War II where you had a declared war. It's just an open question and perhaps an unnecessary complication in light of the fact that Mr. Walker seems to be doing what every good, decent good American criminal does when he or she is caught, and that is decide to become a government witness.
It's the one sure road to absolution. Decide you're going to cooperate, you're going to provide information. That seems to be what he's doing.
And under a proper set of circumstances they might give him a pass entirely. And he might be in a position to explain how he -- this sort of guitar-strumming, Cat Stevens wannabe -- managed to infiltrate the Taliban when our very own CIA couldn't do that.
HARRIS: You know, you raise...
TOENSING: We'd agree there, Ron.
HARRIS: OK. You raise something there that strikes me as interesting: the idea of -- of Walker cooperating. If he were not cooperating, would that make the case against him any different or any worse?
TOENSING: It doesn't...
KUBY: Well, it... TOENSING: ...make the case different, Leon. I mean, the facts are the facts of his criminality.
But what happens, any prosecutor -- and I have certainly been there a good number of times -- is that somebody wants to come forward and cooperate with the government and express his or her sorrow at having committed the crime. Any good prosecutor will listen to that and take that into consideration in charging the individual.
HARRIS: All right. We've got another comment here from the audience. Joe.
JOE: Yes.
HARRIS: What are your thoughts?
JOE: Well, I don't think that treason applies because for one thing, he was with the Taliban before the -- September 11 and before the United States considered the Taliban an enemy. And I agree he may have had very poor judgment, but that also there hasn't been a declared war. So it seems treason, we have to be at war before you can be accused of treason.
HARRIS: All right. If not treason, then he was -- if was shooting, if he had a weapon and was using it, then would that make him say, liable for attempted murder, if nothing else?
JOE: Well, he was shooting at the Northern Alliance. They -- American troops were -- weren't on the ground and he had -- he probably had no knowledge of what's going on. He wasn't watching CNN.
So he didn't know -- he might not have even known the Americans were involved. And we aren't official allies with the Northern Alliance, and if somebody is shooting at the Northern Alliance, that doesn't make them taking arms against the United States.
TOENSING: I think he...
HARRIS: So it sounds like you might have been talking to Walker's lawyer. What do you think, Victoria?
TOENSING: Well, that he stayed past October 7. If he had withdrawn after September 11 or even before the Americans that started fighting there, you might have an argument. But the fact that he stayed after October 7 -- I assume that he could recognize the U.S. planes flying overhead. That -- that's just not a fact that is going to go in his favor.
HARRIS: Let's take a check on our viewer poll, see what we've got coming in so far. I think we're going to take a look at that. And right here so far -- the question, of course, is "who should get custody of John Walker?"
68 percent of those polled or answering the poll say the U.S. justice system. 23 percent say he should go to the Northern Alliance. That's what we got from one of our e-mailers. And only nine percent say that he should go to his parents. So he's -- he's in for more than just a spanking, Ron. He's going to get worse than that.
KUBY: Looks that way, doesn't it?
HARRIS: Yeah, it does. If it's up to our viewers, at least. Ron Kuby, Victoria Toensing, thank you very much for being with us today. We sure do appreciate you taking the time and giving us your insights today. We will talk to you later on.
Now, just ahead. Hunting Osama Bin Laden in the mountains of Tora Bora. What's next in the military effort? We'll find out when we ask General David Grange right after the break, so don't go away.
(COMMERCIAL BREAK)
HARRIS: I actually might want to use the microphone for this one. There we go. TV works better when you can hear it, too.
Now, the search goes on for Osama Bin Laden right now in the mountains of Tora Bora. That's where the al Qaeda fighters have been holed up. And the U.S. military and the coalition believe that Osama Bin Laden may be in there.
Joining us now to talk about the war right now, and the military strategy in Tora Bora, is CNN Military Analyst retired General David Grange. Good to see you again, General.
GENERAL DAVID GRANGE (RET.), CNN MILITARY ANALYST: Good afternoon.
HARRIS: Give us your view right now on the latest on what's happening right now and the strategy under way.
GRANGE: Well, I think it's going to be a pretty tough phase, finding Bin Laden or Omar. And we need to find both, someone does, and either bring them to justice or bring justice to them -- kill them.
The cave conplex situation is very difficult. It's a tough military operation. The weather is -- is tough in the higher elevations and it's a very complex system of caves and fortifications. The people from the anti-Taliban that are doing most of the ground fighting right now against the al Qaeda or other mercenaries know the area very well. They fought in it against the Soviets.
Now, we have some American troops on the ground, obviously, supporting them with advice as well as calling in airstrikes. But it's -- it's a very tough nut to crack and my personal view is that we will probably have to get more U.S. ground troops involved.
HARRIS: Before that happens, they are going to have to start dropping some more of this heavy ordnance. I read this morning about the -- the daisy cutter. This -- was it the BLU-82? It's supposedly the -- the largest bomb we've got in the arsenal. And what good does that do? And what is special about this one?
GRANGE: Well...
HARRIS: What specifically in regards to a cave situation like the one we are talking about now?
GRANGE: Really for caves, what you need more is penetrating bombs and what they call skip bombs, those that can hit on slant angles, penetrate concrete, steel, or layers of pretty -- 20 meters or so -- feet of dirt to explode inside.
But these daisy cutters, really these are a combination of fuel- air explosives. And the fuel. The fuel and the explosives together to give an overpressure. The problem is getting it inside a complex to destroy it. And that's the challenge. And though we have very good technology on some of this stuff, I think some of the caves, the depth, the angles that they're constructed, you're going to still have to put some troops in there.
HARRIS: Yeah. But from what I understand, the -- the other big thing about this bomb is that it sucks all of the air out of every place around it. Correct? Is that part of the -- and that's part of the strategy as well, sucking the air out of the caves?
GRANGE: Well, yes. Except where they have compartmentalized the complex so only where you have penetrated and can get the fuel in to explode, and you have access to open passageways does that have the effect. You have some sealed-off, compartmented areas that you may not get to. And so you're not going to get the entire complex with one of these bombs.
HARRIS: All right. Now, considering where happen to be in the campaign right now, are we going to be looking at some -- I guess an upgrading very soon, then, of the level of activity on the ground by this -- the Marines or special ops forces or whatever?
GRANGE: I think the Marines are focused south of Kandahar to do the interdiction missions, both reconnaissance and attack on any targets of opportunity of hard-core Taliban or al Qaeda that try to slip out of Afghanistan into Pakistan or are -- just move around freely, I think, because the area is so confusing on who is where and different people kind of holed up in different areas of Afghanistan. The southern area south of Kandahar would be Marines.
Now, the problem is going to be how much gumption, how much drive -- are these anti-Taliban forces going to continue the attack on the Tora Bora complex?
The money is an incentive. Their hate for maybe the Taliban is an incentive, but they may just say, "Winter is here. I'm going to lay off and wait until the spring." So if that happens, are we going to put American ground troops or other international allies on the ground to take up some of this ground fight? That's the big question. I personally feel we need to put some other forces in that area to assist the anti-Taliban in that effort.
HARRIS: Well, interesting. So then based upon the fact that these Marine have been on this interdiction mission, down there on the roads around Kandahar for this long and they haven't come up with Mullah Omar or Osama Bin Laden, does that necessarily mean that -- that confidence is -- is highest now that Osama Bin Laden and perhaps Mullah Omar are definitely inside those caves in Tora Bora?
GRANGE: I think we had the -- our -- our Department of Defense as well as one of our allies has -- has a pretty good picture from intelligence-gathering means, both human intelligence, signals and -- and satellite and other means, that they may be.
However, some of these complexes I wouldn't doubt if they extend to Pakistan itself. They've already slipped over -- slipped over earlier and they just have the hard-core fighters staying there.
The one thing I -- I've picked up from Bin Laden and Omar's comments and they way they've been acting is do as they say not as they do. In other words, let's die for our cause. But I'm going to leave. I'll see you. I'm moving out. You stay here and fight to the death.
HARRIS: Exactly. I will start this mission, leave, and let you guys clean it up.
GRANGE: I think they are little cowardly is -- is the way I'm looking at it right now.
HARRIS: You know, that's what -- that's what's happened with the Taliban. They've kind of been -- if you want to have any sympathy for them -- left to hang out to dry on this. You're saying -- what do you think is the situation with them right now? Have they just pretty much become a local issue now?
GRANGE: Well, the problem is the anti-Taliban, the civil war that -- that happened with the Northern Alliance and the Southern Alliance against the Taliban, that's almost completed.
I mean, yes, you have pockets of resistance, and some are substantial, up by Herat, up by Mazar-e Sharif, right outside of Kabul. The roads are full of bandits. Individual warlords that are attacking different people for their own personal gain.
But a lot of the Taliban, as an example, that were turned over in Kandahar, their leaders left them. They are there by themselves. And so it's really kind of poor leadership. And so, you know, I would not want to be a Taliban warrior now with the lack of leadership and the pressure that the international community and the anti-Taliban is putting on my forces.
HARRIS: That's -- that's not a job with a very bright future, that's for sure. General David Grange, thank you very much. Always good to have you with us.
GRANGE: Thank you, Leon.
HARRIS: Take care. Well, that is going to pretty much do it for us today. We had some very interesting discussions today. Still not clear exactly what is going do happen -- what should happen with John Walker. But we've got a whole range of ideas that run from hanging the guy all the way to spanking him publicly. We'll see what happens with him. We'll stay on top of that story.
But that's going to wrap up things for us today. Join us again tomorrow at 3:00 eastern for more TALKBACK LIVE.
Now let's check in with Wolf Blitzer. He's standing by. He's got more on what's coming up in the next hour of news on CNN.
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