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CNN Crossfire

Should Government Tell Americans to Exercise?; Should Bush Have Unilateral Authority to Determine Enemy Combatants' Status?

Aired June 20, 2002 - 19:00   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.
ANNOUNCER: CROSSFIRE. On the left, James Carville and Paul Begala. On the right, Robert Novak and Tucker Carlson.

In the CROSSFIRE tonight -- President Bush issued a warning today. There are too many fat people out there. He says the White House workout will reduce waistlines and health costs.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: If you're interested in improving America, you can do so by taking care of your own body.

(END VIDEO CLIP)

ANNOUNCER: After years of leaving you alone, the IRS is watching. They want to bring back random audits. Will checking your return help catch tax cheats?

And who gets on this enemies list? Some accused of fighting alongside the Taliban go through the court system; others are called enemy combatants and remain in military custody. Ahead on CROSSFIRE.

From the George Washington University, Paul Begala and Robert Novak.

PAUL BEGALA, CO-HOST: Welcome to CROSSFIRE tonight. Just when you thought it was safe to file that 1040, the IRS wants to bring back the random tax audit. Plus, American citizens in military custody, with no hearing, no judge, no charges. Are we protecting lives or restricting liberty?

First up, though, the president wants people to spend a little more time sweating for their health. I did my part, Mr. President. I went for my usual run this morning, and I know President Bush did as well. he announced a physical fitness initiative today, saying he'd like to see more of us set a goal of working out at least 30 minutes every day. The White House says that would save the government and private insurers billions of dollars in health care costs. The chairman former Pittsburgh Steeler wide receiver Lynn Swann says being more active is a good idea for everybody.

(BEGIN VIDEO CLIP) LYNN SWANN, FORMER WIDE RECEIVER, PITTSBURGH STEELERS: The plan's really ought to get together and to deliver a strong message to the nation about being physically fit, for children, adults and senior citizens, and how we can derive so many wonderful benefits just by a little bit of exercise. So we want people to make sports and fitness a priority, and move in that direction.

(END VIDEO CLIP)

BEGALA: Will Swany (ph) inspire Americans who aren't Hall of Famers like he is, to get off their fannies and get off the sofa? In the CROSSFIRE, tonight, Amanda Cromwell, a member of the president's Council of Physical Fitness and a player with the Atlanta Beat of the Women's United Soccer Association, and Fred Smith, he's the president and founder of the Competitive Enterprise Institute.

(APPLAUSE)

ROBERT NOVAK, CO-HOST: Ms. Cromwell, I don't know if you can answer this, but I hope you can make an effort at it. Can you tell me what there is in the Constitution of the United States and the laws of the United States and even the regulations of the United States that gives anybody, including the president, a right to tell me how I'm going to live my personal life when it comes to exercise, fitness and diet?

AMANDA CROMWELL, ATLANTA BEAT PLAYER: Well, I can't speak to the Constitution and that right per se, but I can tell you is, he's not going to blow a whistle and tell you to get out of bed at 6:00 a.m. It's your individual responsibility to do that.

NOVAK: He just did.

CROMWELL: No. What he's trying to do is to enhance our opportunities for the public, and then as individuals, their responsibilities, their prerogative to get out of bed, it's their prerogative to go on that hike, on that nature trail that has a free (UNINTELLIGIBLE) for the weekend. He's just giving enhancement of opportunities for the -- to empower somebody and to go out there and improve their general health.

NOVAK: Ms. Cromwell, I'm 71 years old, and I'm in good health. I'm a two-time cancer survivor. I had bacon and eggs for breakfast this morning. I had two hot dogs and potato chips for lunch, and I'm going to have some chicken and rice tonight -- pork and rice, I'm sorry, Chinese take-out -- and I never exercise one minute. What's wrong with my lifestyle? What are you going to tell me? How's my life going to be enriched if you make me run around with Paul Begala?

CROMWELL: Well, I think if you can improve your nutrition, you might feel better.

NOVAK: I feel good!

CROMWELL: Well...

(LAUGHTER)

CROMWELL: Maybe you'd be motivated to go outside and run with Paul.

NOVAK: Why should I do that?

BEGALA: Let me (UNINTELLIGIBLE) into this. I feel so good that I'm going to do something I never on this show and praise George W. Bush. This is one of the best things that he does. He has set a terrific example for us, and leadership by example is something I admire. He runs three miles a day at a very fast clip, around seven minutes a mile, and he's encouraging -- he's not ordering anybody. And this is in a great tradition stretching all the way back to George Washington, who was robust.

Let me read you a quote...

FRED SMITH, PRESIDENT, COMPETITIVE ENTERPRISE INSTITUTE: George Washington (UNINTELLIGIBLE).

BEGALA: Was very physically robust. He was a huge and strong man, it was one of the things people admired about him. Let me quote, though, from one of my favorite presidents, John Fitzgerald Kennedy, who told us: "Our growing softness, our increasing lack of physical fitness is a menace to our security." That's what JFK said back in 1960, and we're even fatter than we were then. It's a security issue, too, isn't it?

SMITH: That's an interesting point, because this program starts not with Kennedy, a little earlier, it starts with Eisenhower and then it becomes Kennedy and then -- every president has had these same lectures, the same White House experiences. And during that period, from 1958 until today, Americans are getting fatter and fatter. Maybe it's time for government to shut up and stop trying to encourage this.

(CROSSTALK)

SMITH: But there's something going on.

(CROSSTALK)

SMITH: Well, maybe, but it suggests really that government nagging is not necessarily good. My wife, my friends, my co-workers all tell me I ought to exercise and lose weight. I know it. I don't need to pay my tax dollars to create government spectacles of people in better shape than I am, basically trying to live a better life.

BEGALA: But, Mr. Smith, Amanda and I have to pay our tax dollars to subsidize you. Right? Either through insurance...

SMITH: (UNINTELLIGIBLE) created health care programs.

BEGALA: Either through insurance, or through government insurance, like Medicare or Medicaid. It costs the American taxpayers billions of dollars to subsidize people who are not fit. It's the second leading cause of preventable death. Why not prevent it? SMITH: Well, look, there is no doubt that obesity and lack of exercise are serious health problems. One of my friends, Michael Fumento, of the Hudson Institute, did a book on "Fat of the Land." Very few things are more dangerous than obesity.

But nonetheless, during the period of time when Americans have gotten chubbier, all of our -- not all -- but most of our waistlines have expanded, we are still living longer lives. Now, we could live even longer if we jogged more and we lost a little weight. But do we really want to give up those extra few years of happiness to spend those years of misery on a stairmaster eating granola?

CROMWELL: Maybe you can be more productive. Maybe you don't know how good you can feel. You said you felt good.

NOVAK: I'm very productive. I work harder than most people 20 years younger than I am. Ms. Cromwell, you know, I have a good deal of respect for the White House, for the White House lawn. Now, you're in this president's Council on Fitness. I want you to take a look at what you did to the White House today. Just take a look at it. I mean, look at that zoo!

(LAUGHTER)

NOVAK: Can you...

CROMWELL: That's me.

NOVAK: Can you believe that? I mean -- that is just -- I mean, why don't they go on into some park? Look at that. Now, isn't that ridiculous, I mean, really?

SMITH: We may end up -- we may end up winning the war on terrorism by having them laugh themselves to death, I think.

NOVAK: How do you defend that?

CROMWELL: That's great activity going on right there. There are so many things. The wall climbing, the soccer, the football.

BEGALA: You missed it. The goaltender just got kicked right in the rump by one of the kids. It was great.

NOVAK: Let me give you an example. James Street, the mayor of Philadelphia, wants Philadelphia to lose 76 tons collectively. And, you know, Philadelphia has seen a lot of problems. I never heard of fat people being the problem. And a Philadelphia resident who's quoted by the "Chicago Tribune" -- we'll put it up on the screen -- agrees with me. He says: "Tell me why the mayor is worried about fat people when he could be worried about this broken city. He could be putting lights on the streets instead of this."

Isn't this really a very minor league problem compared to some of the problems we have in this country? And, really, in some of the broken down cities we have? CROMWELL: There are many problems that we, you know, don't even want to get in to. I agree with that. But this is a major problem. Obesity in our country I think is over 60 percent. And if we can -- he had four pillars, the president spoke of today, and it's, you know, watch nutrition, preventative screenings, physical activity every day -- that could be walking up a flight of stairs as we spoke about. Doesn't have to be going out...

SMITH: My elevator -- my elevator went out today, so I walked down 10 flights of stairs.

(CROSSTALK)

SMITH: No, my goal is to ban all elevators. That's probably what we're going to do in this new program.

BEGALA: But you know, obesity, we lose 300,000 people a year because of obesity. Costs us, all of us $100 billion, according to an article I saw in the "Wall Street Journal" last week, and it leads to high blood pressure, high cholesterol, diabetes. I mean, all kinds of (UNINTELLIGIBLE). My favorite one from the Centers of Disease Control said obesity leads to bladder control problems. For that alone, isn't that a good reason to work out, America, so you don't have to wear those terrible adult diapers?

(CROSSTALK)

SMITH: I think, look, it's a serious problem. But why, then, do we get government involved? I mean, you know, there's a real risk here when we see this continuing program of nagging and nurturing and these kind of exhibits. This is not new. Every president since -- I don't think -- I'm pretty sure George Washington didn't do that kind of a thing, but certainly since Eisenhower forward, we've had this kind of circus atmosphere. Let's all get together and run around and so forth.

And it isn't working, because whatever is causing us to be fatter -- look, I think it's basically evolution. We spent 10,000 years learning how not to starve to death and working ourselves to the grave every day. Isn't it possible that we ought to spend a century kicking back, enjoying life and relaxing?

BEGALA: And with bladder control problems and...

NOVAK: You can work out all the time you want, you won't look as good as Amanda.

(CROSSTALK)

NOVAK: Thank you very much. Fred Smith, thank you.

(CROSSTALK)

NOVAK: The IRS says tax cheats are slipping through the cracks and randomly auditing tax returns will catch them. Next, should the IRS be allowed to be taken an even a closer look at your tax return? And one accused Taliban American went to court, another to a military brig. Who's the combatant, and who isn't?

Also, our "Quote of the Day," standing up against charges of insider trading by Mrs. Clinton.

(COMMERCIAL BREAK)

BEGALA: Welcome back. A dreaded letter may hit your mailbox soon. No, not a draft notice, maybe something even worse -- an audit notice from the Internal Revenue Service.

The IRS is bringing back random audits, with plans to give about 50,000 taxpayers the exquisite pleasure of spending a little time explaining the way they filed their taxes. And about 2,000 very lucky taxpayers will be chosen for an excruciating detailed line-by-line audit. The IRS says that fraud went up when random audits stopped in the late '80s. And now, because of Enron and other corporate tax scandals, tax folks think it's time to take a closer look at how we're filing our forms.

In the CROSSFIRE, Bob McIntyre. He's the director of Citizens for Tax Justice. Bob, thanks for joining us.

(APPLAUSE)

NOVAK: Mr. McIntyre, in the interests of tax justice, explain this to me. Paul Begala and I pay a lot of taxes. And we don't cheat. Our accountants won't let us cheat, and we are afraid to cheat. Now, why should people like us, and there's lots of us, be harassed by the federal government, go through an excruciating torture, when the real problem is people who don't pay any taxes at all and the IRS ignores them? You can't audit somebody who doesn't pay taxes. Why don't they go after them?

ROBERT MCINTYRE, DIRECTOR, CITIZENS FOR TAX JUSTICE: Well, you know, you've raised a right point, but you shouldn't call it part of their audit program so much as a research project. They want to find out who's cheating and who isn't. So when they find out that Bob Novak and people like him are honest, they won't audit you.

So your chances of being audited will get a lot lower after this research project is done. They used to do it every four, five years in the past, and then Republicans in Congress for the last decade demagogued it and called it random audits. It's not random anymore than any other -- a drug trial is random. You have to find out where the cheaters are.

Once you do, Bob, your taxes will go down, because the cheaters will have to start paying, and you'll be less likely to be audited, like any other honest person, because they would have figured out that a return like yours doesn't need auditing.

NOVAK: You know, Torquemada, when he was doing the Spanish inquisition, called it a research project.

MCINTYRE: No, he didn't.

NOVAK: But the fact of the matter is, Mr. McIntyre, that if I am selected as one of the researchees, and I have to hire -- I have to pay extra to an accountant, extra to a lawyer, I have to go through that agony, it doesn't make any difference if you put a research label on it. It's still torture.

MCINTYRE: Now, wait a minute. Wait a minute. We are going to have 2,000 people that are going to have the intense audit. That's not 1 percent of the taxpayers, that's not .1...

NOVAK: Why do we need any of them?

MCINTYRE: Because they have to find out by looking intensely at people what kinds of things are likely to be the things that cheaters do.

NOVAK: Why not go after the people who don't pay taxes at all?

MCINTYRE: Well, that's how you find the people who are cheating on their taxes, if you look at their returns. And if you don't do it in a scientific way, well, you're wasting your time. And that's why, by the way, you know, in the last year, 25 percent of the people they audited was a waste of time, because they didn't know how to look. In the future, they'll be auditing less honest people and more tax cheats, and that's good.

BEGALA: Let me suggest a way to short-circuit all the research. They asked Willy Sutton why he robbed banks. He said, "because that's where the money is." OK, we know where the money is. It's with the rich. Now, let me read you -- there has been some research done on this by the Transactional Records Access Clearinghouse. They're people who collect a lot of data, associated with the Syracuse University in New York.

And this is what they have concluded. We'll put it up on the screen and I'll read it to you. "The IRS has drastically cut back on the number of these cost-effective audits directed at individuals reporting $100,000 or more, although they're the most productive in locating tax underreporting. The decline in high-income audits occurred even though the highest level of tax underreporting was uncovered among this group." Why don't they just go to where the money is?

MCINTYRE: Well, they will be. That's the whole point. And they obviously will focus more on the high incomes than on average people, for the simple reason that it's pretty hard to cheat when you get all your income from wages. But they need to figure which high income people to go after. If it turns out that certain kinds of things indicate a higher likelihood of cheating in this research tat they do, which they used to always do, then they'll go after the people likely to cheat. That's all this is about.

BEGALA: But it is true that high-income people are now less likely to be audited than they were several years ago, and poor people, $25,000 and less, are more likely. That's the world turned upside down, isn't it?

MCINTYRE: Audits are down on everybody, except for the low income.

BEGALA: Why is that?

MCINTYRE: Well, Congress. We got a Congress that says it hates the IRS. And so they don't fund it, but they told them they had to audit the low incomes more.

NOVAK: Mr. McIntyre, I have followed your work with admiration for years. And what are you after, we have to tell the audience, is a redistribution of income -- taking away from the rich and giving to the poor, which they've tried in the Soviet Union, they've tried in China. It never works, and it defines (ph) its own level.

But I can't understand why you won't admit -- there isn't a question -- I don't think Paul understands. It isn't a question of a problem for the IRS of going after rich people; it's going after people who don't pay any taxes at all, who refuse to pay taxes. Why not force the IRS to combat that? You don't need an audit for that. You know they don't pay it.

MCINTYRE: Well, if you have a good way for them to find the people who aren't...

BEGALA: I do.

MCINTYRE: ... then I think we should do that, too.

BEGALA: I do. It's called -- let me give you one? Enron. According to your organization, the Citizens for Tax Justice, Enron paid no tax from 1996 through 2000. There are a host of enormous and profitable corporations in this country that pay less tax than all of these good people in our audience. Why don't we go after them?

MCINTYRE: Well, we should go after them. We should go after all of the tax cheats. But the only way they're going to find on the individual side, which is what this random audit is about, this research project, they just have to find out what things on a return are an indicator that someone is likely to be cheating.

NOVAK: Let me suggest, we can get away from this intrusive evasion of privacy by the federal government by abolishing the income tax and going to a straight national sales tax. If rich people like Begala buy -- how many cars do you have? Three cars and a truck?

BEGALA: I ride a bicycle to work every day.

NOVAK: ... and all those things, they have to pay taxes. Well, people with more modest income don't have to pay so much.

MCINTYRE: You want to get the American people mad at you, put that one through. I mean, you're going to be raising taxes on three- quarters of the population and slashing them on the rich people. We don't want that. NOVAK: Well, I want that.

MCINTYRE: I know you want it!

BEGALA: Bob wants it.

NOVAK: The time -- the time is up. Mr. McIntyre, Bob McIntyre, thank you very much.

MCINTYRE: Thanks.

NOVAK: Coming up in the CROSSFIRE news alert, Bill and Hillary slip through the fingers of law enforcement again.

And the "Quote of the Day." She's helped a lot of people put their houses in order. Now she's straightening out her own.

(COMMERCIAL BREAK)

NOVAK: In the CROSSFIRE "Quote of the Day" -- Martha Stewart faces Wall Street analysts and defends herself against suggestions she was involved in the Imclone insider trading scandal that swept her up in its wake. Stewart sold nearly 4,000 shares of the biotech company the day before federal regulators said they wouldn't look at Imclone's new cancer drug, a decision that sent its stock into a nosedive.

The home decorating expert is a friend of Imclone's former CEO who now faces insider trading charges. But Stewart told the analysts that she had no advantage when she decided to sell her stock. Her quote: "I had no insider information. The sale was based on information available to the public that day."

I believe that, and I believe the reason people are getting on Martha Stewart is that people like you hate rich people and she is -- not only a billionaire but a good-looking billionaire.

BEGALA: I happen to like Martha Stewart. I haven't jumped on her at all. I think she ought to be given every benefit of the doubt. She's presumed innocent. And I do think the reason the media is hammering on her is because she's famous, not because she's rich. There are a lot of rich people are caught up in this scandal. But it is true, the media target people who are famous. But you know, like I said, I think she ought to be given every benefit of the doubt. And Martha, I'm there with you.

NOVAK: They're targeting billionaires, and that's bad news for James Carville.

BEGALA: Good thing we have Bob to take up for the forgotten and misforgotten (ph) billionaires.

But ahead on CROSSFIRE, a CNN news alert. Find out whether a smallpox vaccine is coming to an arm near you.

And the difference between a criminal and combatant. Making a call on which is which. (COMMERCIAL BREAK)

NOVAK: Welcome back to CROSSFIRE. We're coming to you live from the George Washington University in downtown Washington, D.C.

Still to come, how does the government decide who makes the enemies list in the war on terror? But now, it's time for a look at those quirky political stories that you might not find anywhere but in our CROSSFIRE "News Alert."

New York State Comptroller H. Carl McCall is in bad shape as a candidate for governor. He's running way behind Republican Governor George Pataki, even behind in the race for the Democratic nomination. So where does a liberal Democrat go when he needs votes? To the criminal element, of course.

Yesterday, Mr. McCall said ex-convicts should get preference in receiving government subsidies for college tuition. If you're an ex- offender, said the candidate, I think you ought to get a preference. I guess Mr. McCall thinks of the state prison as just one big prep school.

BEGALA: Well, they ought to get some kind of skills from it there to learn something other than how to be a really good criminal when they get out. So, give them some education.

NOVAK: You agree with Mr. McCall?

BEGALA: I think they should get an education.

NOVAK: (UNINTELLIGIBLE).

BEGALA: The Supreme Court today ruled that executing the mentally retarded is cruel and unusual punishment and, thus, unconstitutional. President Ronald Reagan had signed legislation banning the execution of the retarded on the federal level years ago, and many states have done the same.

But when he was governor of Texas, George W. Bush did not support such legislation, and the Supreme Court intervened to stop Texas from executing a man with a mental age of seven. President Bush today had no public comment on the Supreme Court's action.

NOVAK: I believe Governor Bill Clinton of Arkansas presided over the execution of a mentally retarded prisoner. Were you against that?

BEGALA: Yes, and he wasn't retarded. He had shot himself after -- guilty knowledge of his crime. It's very different from being retarded. But, yes, I'm against it in all cases.

NOVAK: Well, I'm with Bill and you're against Bill for once.

OK. All right. The Clintons, speaking of the Clintons, are the artful dodgers of American politics. They go up right up to the edge of lawlessness seeking political advantage, as did President Clinton granting clemency to four men convicted of swindling the government of millions of dollars. All four live in the Hassidic Jewish village of New Square, just north of New York City.

Now on election day in New Square in 2000, Senator Clinton received 1.400 out of 1,412 votes. Yes, all but 12 votes. Candidate Hillary Rodham Clinton sat in on a clemency hearing for the swindlers. Today, the U.S. attorney closed the case without taking action against the Clintons. But it's not over, Bill and Hillary. The feds are still looking into your politically motivated pardon. Stay tuned.

So, for those of you scoring at home, the Clintons have been cleared on Whitewater, cleared on the travel office, cleared on the file matter, cleared on the vandalism, cleared on Madison Guaranty. Cleared on Vince Foster's suicide. The right wing is 0 for life going after the Clintons. They ought to get a life!

NOVAK: And so...

(APPLAUSE)

And so was O.J. Simpson. They were right in there on O.J. Simpson.

BEGALA: These were honest people. If you don't like their politics, just screw with their politics, but they're honest people.

Speaking of not a very honest person apparently, is there something in the water in Florida that leads Republicans to break the law? W.B. Childers (ph), one of the state's most prominent Republicans, has been indicted on charges of bribery, money laundering and vote buying on the county commission in Escambia County, Florida.

Childers is the former president of the Florida Senate, his influence so vast, that a "St. Petersburg Times" columnist wrote during the 2000 recount, quote, "if George W. Bush becomes president, he'll really owe it to W.D. Childers. This is because Childers had put changes in the state's election law that wound up favoring candidate Bush. Childers is scheduled to stand trial on Monday. Bush is scheduled to headline a fundraiser in Florida tomorrow.

NOVAK: You know what I have to say to you? What I say to you almost every night: President Bush won the election. Get over it!

BEGALA: President Bush stole the election, and that's why I can't get over it.

Later on CROSSFIRE, your "Fireback" on our president's priorities, especially when it comes to exercise, where I think he's right.

And coming up, making a particular kind of enemies list, how to determine whether someone is a criminal or a combatant?

(COMMERCIAL BREAK)

NOVAK: American John Walker Lindh faces criminal charges in federal court, charged with helping the Taliban try to kill Americans. Yasser Hamdi, also called a Taliban-American, is in a naval brig in Virginia. He doesn't face civilian charges and he's not seen a lawyer. Hamdi is being held under military authority because he's been declared an enemy combatant.

Prosecutors got a judge to stay an order from a lower court that would give a public defender access to him. Is Hamdi a combatant or does he deserve his day in civilian court? In the CROSSFIRE, attorney and former counsel to the House Judiciary Committee, Julian Epstein, and former federal prosecutor Joseph DiGenova.

(CROSSTALK)

BEGALA: Thank you very much.

Mr. DiGenova, let me begin by citing a document I know you revere as much as I do. It's the United States Constitution. Amendment Six says in part -- I'll put it up on the screen, I know you know it by heart...

JOSEPH DIGENOVA, FORMER FEDERAL PROSECUTOR: I do. I know it by heart.

BEGALA: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Some of these men are American citizens and they've been afforded none of those rights. Why?

DIGENOVA: Because this is war. And the Sixth Amendment begins in a prosecution. This is not a prosecution. These men were captured in the theater of battle. And as a result, the president of the United States, under Supreme Court precedent, has a right to declare them enemy combatants and to commit them to the custody of the United States military.

The Supreme Court ruled that two U.S. citizens who were German agents in 1942 who came ashore not only could be put on trial in front of a military commission, with no right to a civil trial, but were summarily executed at the end of that process. So the law is well settled here. This is not a criminal process. We are at war and we are at war with a dirty, rotten enemy.

BEGALA: In fact, though, let me read to you from that Supreme Court case. This is what the Supreme Court said back in the '40s. It said, "an enemy combatant who without uniform comes secretly through the lines -- let me put it up on the screen -- for the purpose of waging war by destruction of life or property, a familiar example of beligerents, who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war, subject to trial and punishment by military tribunals."

These men, some of them, are not being given even a trial in front of a military tribunal. We have American citizens. The Supreme Court clearly says they have got to go to military trial. Bush and Ashcroft say no. Why?

DIGENOVA: Paul, there is no question that if they were going to be punished...

BEGALA: They're in the brig, sir.

DIGENOVA: Well, no, but, Paul, you missed the other part of the law. And that is when you are at war, the president has the right under the Constitution to commit people to custody, under international law as well, for the duration of the conflict when they are captured. And that is what is happening to these individuals. The fact that they are American citizens means absolutely nothing. Once they go to the other side and become enemy combatants, their citizenship is irrelevant.

NOVAK: Mr. Epstein, I'm going to give you an authority who is so overpowering for people of your ideological bent that I'm sure you will get up and say, "I surrender, I won't even argue that point." And you know who that is?

JULIAN EPSTEIN, FORMER COUNSEL TO HOUSE JUDICIARY COMMITTEE: Laurence Tribe.

NOVAK: Laurence Tribe. Constitutional law professor at Harvard University. Laurence Tribe is the king of the liberals. He wears a crown. He has a scepter. And let's put on the board what he said. "It seems clear that releasing captured soldiers who belong to an enemy force committed to the murder of American civilians, whether that force is the army of a nation state or of a transnational organization like al Qaeda, is suicidal."

What do you think of that?

EPSTEIN: I agree with it, and I agree with almost everything that Joe said.

NOVAK: You can leave.

EPSTEIN: But I think there's a lot that isn't being said. And I actually wrote a piece that was very similar to Laurence Tribe's piece in last Friday's "Washington Post." Let me say, in conventional time, in conventional wars, Joe is absolutely correct. Combatants to not enjoy many of the constitutional rights, the Sixth Amendment rights. Once you engage in a war against the United States, you forfeit many of those rights, including the right to an attorney.

The issue here is we're dealing with a very unconventional war, because what many had termed the asymmetrical nature of the al Qaeda war against us, which is to use civilians in the population here as a method of attacking us.

The problem here is that the president's position right now is that he should be able to unilaterally determine which civilians are combatants, and then be able to put them in a black hole for some indeterminate period of time, without any right to counsel, without any right, necessarily, to a hearing, even a habeas hearing, although that's somewhat ambiguous.

And I think that, you know, yes, if somebody can properly be determined a combatant, than I think everything Joe is saying is right. The problem that I think that we don't want to fall into, Bob, is to give the president, with no involvement of the Congress, virtually no judicial check, the unilateral authority to say, you Bob Novak, I think you have some connection to terrorism, therefore I am going to put you in prison for an indeterminate amount of time.

And there are easy ways to fix this. The problem here is that there are easy ways to fix this.

NOVAK: In wartime, Julian, the president does have powers as the commander-in-chief.

EPSTEIN: Enormous powers.

NOVAK: I mean, who else...

EPSTEIN: Enormous power, but he is not omnipotent.

NOVAK: Who else -- who else...

EPSTEIN: Enormous power, but he is not omnipotent.

NOVAK: Let me ask you a question before you answer, please. Who else is going to make that decision? Are we going to have -- are we going to get a jury -- a grand jury to do it? Are we going to have an AVA (ph)/ACLU council have a little tea party?

EPSTEIN: No. The answer is Congress. And I think, look, the president...

NOVAK: The Congress is going to decide who's a combatant?

EPSTEIN: No, no, I think the president has taken it on the chin with respect to the, I think, passion for unilateralism. They haven't wanted to work with the Congress on the Department of Homeland Security, they haven't wanted to work with the Congress here to clarify rules. I think they could work with Congress very easily to clarify rules about when somebody ought to be able to get counsel so they an petition on the habeas procedure. What ought to be the determination? What is the criteria for determining whether or not somebody's a combatant or not?

Do you believe that the president ought to have just unilateral authority to say you...

(CROSSTALK)

EPSTEIN: Well, I think the problem is is that you can have a legal -- you should have -- you should engage the Congress right now to set up a set of rules so that they can be made on...

DIGENOVA: I take the Franklin Delano Roosevelt position from World War II. It was he who ordered the military commissions to try the eight German saboteurs who came onshore on the Eastern Seaboard, and they were tried in military commission.

President Roosevelt said, my decision is that these people were enemy combatants, they came ashore, they got into civilian clothes, they were outside the rules of war, I'm going to try them in a military commission. That is all that President Bush has done. He's doing exactly what President Roosevelt did.

(CROSSTALK)

DIGENOVA: But they were on trial. None of these people are on trial. They are being held indefinitely -- they are being held indefinitely, as they can be, under international law. If they were put on trial in a military commission, they would, of course, be entitled to counsel.

BEGALA: Yasser Hamdi is accused -- he was born in Louisiana -- he's accused of fighting alongside the Taliban and al Qaeda against America. Clearly an act of war against us, if true. John Walker Lindh, reportedly from California, again, allegedly fought against America and, in fact, in his case, in his presence a CIA officer was murdered in Afghanistan. If true, even worse, if you ask me, than even what Hamdi did, and yet Walker Lindh goes before the full free American courts and Hamdi sits in a brig. Isn't this an incoherent prosecution strategy?

DIGENOVA: Actually, there's a legitimate reason for that. If it were my decision, by the way, I would have never had any of these individuals in a civilian court. They all would have been in military custody and subject to military commissions.

The reason John Walker Lindh is there is that he is of no intelligence value anymore, and they had determined that he has no intelligence value. Mr. Hamdi and Mr. Al Muhajir, the dirty bomber who was captured, both of whom have information that is important to the United States -- that is why they are being held by the military, to be interrogated, because they have intelligence value.

(CROSSTALK)

NOVAK: ... one question I want to ask you. The only reason -- I mean, you don't care about these wretched people. You care about what it means as a threat to the rest of us. And, you know, I get very upset at the invasion of my liberties when they made me take your shoes off in the airport, but these things are not in any way an infringement on my liberties, or on yours, or on Paul's, or Joe's. Why worry about these things?

EPSTEIN: I think that once you take the position that a president can unilaterally, either himself or through his surrogates, make the decision that any American citizen can be detained for years on end without any charges being brought against him, without an attorney being present, I think that is an invasion of your liberties.

Secondly, Joe's precedent in 1942 case of Quirin was very clear that these people were combatants. When the White House in the days after Padilla was put into the military brig, the White House even came out and said -- and "TIME" magazine reported on this -- that the evidence of how far this guy has gotten along was very, very questionable.

I don't mind stripping combatants from their constitutional rights. I don't they ought to have it. What I do mind is the president having unilateral authority to make these determinations with no judicial checks, no guidelines, and as Paul says, it's being done in a very nilly-willy way.

(CROSSTALK)

BEGALA: What checks should there be on the president's power to name people as combatants?

DIGENOVA: None whatsoever. None whatsoever. And the reason is that the Constitution is designed to provide the core war power to the president of the United States. You cannot have a committee deciding who is the enemy. That's why you have a president. That's why the executive power and the use of the Army is in the president of the United States.

BEGALA: Gentlemen, that will have to be the last word. Julian Epstein, thank you both very much.

EPSTEIN: Thank you, Paul.

BEGALA: A civil and important debate. Thank you.

Later, your chance to sound off. Coming up in our "Fireback" section, why the left is a better place to be, because one of our viewers, at least, thinks we're better looking.

And next, we'll take -- Bob and I will take each other on, when we get to "Round 6."

(COMMERCIAL BREAK)

NOVAK: You know, a false impression was given that there's been no IRS audits. There were a lot of IRS tax audits under the Clinton administration. Under President Clinton, we audited Paula Jones, Juanita Broderick, Gennifer Flowers, Billy Dale, Katherine Prudon (ph) -- that was the woman who taunted Al Gore at a hearing, at a rally, the Western Journalism Center and Judicial Watch. Was that just coincidence that they were audited?

BEGALA: Just let me make sure I have got the conservative position straight tonight, Bob. We don't trust the government to encourage us to exercise, we don't trust the government to audit our taxes and run a fair system, but we do trust the government to grab American citizens with no public showing, no going to a judge, no lawyer, no hearing, no trial, nothing, because Bush tells us they're terrorists, and they may well be. But just because he says so, we're going to put them in jail? That's a breathtaking level of faith in the federal government for you, a conservative, Bob.

NOVAK: You know what I'd like you to do? I'd like you to tell me, was it just coincidence that Paula Jones, and all the -- Gennifer Flowers and all these people audited by the IRS?

(CROSSTALK)

NOVAK: You don't have any idea? You think it was just kismet?

BEGALA: You know what, they weren't snatched up and put in a Naval brig the way an American citizen was in Chicago O'Hare. He may well be a terrorist, and if so I'm glad that they got him, but we ought to have some due process of law.

NOVAK: Which one of those people would you release, of those terrorists?

BEGALA: I would have a hearing, Bob. I bet you that law enforcement got it right. My faith is with them, but it's not a blind faith.

NOVAK: Coming up in "Fireback," when it comes to bias in the media, you'd think it's written all over Paul Begala's face.

(COMMERCIAL BREAK)

NOVAK: Welcome back. It's "Fireback," when viewers fire back at us. Our first e-mail tonight is from Arthur Wainwright of Decatur, Georgia. He says: "Bob Novak said the U.S. has the highest standard of living and the longest life expectancy of any country in the world, including Canada. That's the truth. Bob Novak is wrong, according to U.N. Human Development Record for 2001, life expectancy in the U.S. is almost 77 years. Twenty-four countries have a longer life expectancy than the U.S."

I apologize. I was wrong, but you're wrong, too, Arthur Wainwright. It's only 14 countries. We have a life expectancy over 77 years. The highest is Japan with 80. Canada's only 79, and I would like to live two years less than have to be bored to death in Canada.

BEGALA: Canadians, send all your mail to Novak.

"The world is topsy turvy -- bad economy, high unemployment, terror attack warnings, dirty bombs et cetera, but the president is telling us to do jumping jacks? What next?" From W.B. Howard in Paris, Texas, in East Texas. Well, W.B., at least he's doing something right. You know, you can do a jumping jack. I'm proud of him. I'm doing a pull for him when he does something right, and jogging is about the only thing I think he does right, so.

NOVAK: This is from John in Tulsa, Oklahoma. He says: "How can anyone in this country who's over 35 years old" -- that includes Begala -- "even begin to think there is no liberal bias in the mainstream media? It's as plain as the hammer and sickle on Begala's face."

Let me take a look. No, John. No hammer and sickle there.

BEGALA: No. This is a pin actually commemorates September 11, and it shows my patriotism...

(CROSSTALK)

BEGALA: Bill Herndon in Monrovia, California writes: "The media may be leaning left, but it's pretty obvious why. The people who are on the left are much more intelligent and better-looking than those on the right."

Oh, Bill! A very good point! Although, I think Bob is eye candy, too. George Stephanopoulos got the job for his looks. Bob is here for his looks, too.

NOVAK: Just another pretty face. Next question, please?

MARY ALICE HAMNET (ph): Hi, Mary Alice Hamnet (ph), from Columbus, originally from Honolulu, Hawaii. If the federal government is so concerned with the fitness of its citizens, why are they serving McDonald's now in the Smithsonian?

NOVAK: What was the question -- they...

HAMNET (ph): If they are so concerned with the fitness of its citizens, why are they serving McDonald's in the Smithsonian Museums right now?

NOVAK: I'd like to know why you moved from Honolulu to Columbus? That's a better question. I would say that all this is a lot of hypocrisy.

BEGALA: Actually, Mary Alice, when I worked for President Clinton in the White House, he brought in Dr. Dean Ornish (ph), one of the foremost cardiologists and nutrition experts in the country, and one of the things he did was replace the hamburgers with veggie burgers at the White House mess. Bob, I ate one every single day. It fed me well, gave me energy, helped keep me (UNINTELLIGIBLE).

NOVAK: That's what your problem is.

Go ahead.

KEVIN BAVARD (ph): Hi, I'm Kevin Bavard (ph) from Charleston, West Virginia and also from (UNINTELLIGIBLE) college. And I want to know, Mr. Novak, why do you not believe that the president has the First Amendment right to freedom of speech to advocate healthy living? And also, a day after we learned that Southwest Airlines is going to be charging twice for obese passengers, isn't the president just trying to be a good fiscal conservative and save the American public some money?

NOVAK: Well, I'm all for Southwest Airlines charging the big fatties there. But what I don't like is the president getting on my back on how I'm supposed to live. I don't tell him how he's supposed to live.

BEGALA: He could use the advice from you, Novak. You live quite well. Yes, ma'am.

ELIZABETH MYER (ph): Hi, I'm Elizabeth Myer (ph) from Anchorage, Alaska, and I wanted to know how are enemy combatants that are U.S. citizens any different from domestic terrorists such as Timothy McVeigh?

BEGALA: That's a great question. Timothy McVeigh was a terrorist, and he was caught, tried, convicted, sentenced and executed in the free, open system. You know, I think that's what we ought to do with terrorists. We should keep our Constitution. We should try these people in public court, prove to the world that, in fact, they are guilty, and then we can do what the law says.

NOVAK: But Julian wants the House Judiciary Committee to decide their status. You don't want that, do you?

BEGALA: No, I don't. But they should have to go in front of a judge, at least, or a military tribunal.

NOVAK: That's even worse.

BEGALA: A military tribunal then. What's wrong with that?

NOVAK: How about the commander-in-chief? That's a military tribunal.

BEGALA: From the left, I'm Paul Begala. Good night for CROSSFIRE.

NOVAK: From the right, I'm Robert Novak. Join us again next time for another edition of CROSSFIRE.

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