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CNN Newsnight Aaron Brown

Interview with Senator Patrick Leahy; First American Combat Death in Afghanistan Confirmed

Aired November 28, 2001 - 22:00   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.
AARON BROWN, HOST: Larry, thank you. And good evening again, everyone. The day had to come and here it is. Today, we learned of the first American combat death in Afghanistan. It was confirmed, who he was, confirmed where he died. It tells us something about this new are.

Mike Spann wasn't a G.I., but a CIA operative. Not a teenager thrown into uniform, but a former Marine in his 30s, trained, willing, ready for the kind of covert stuff that will be crucial in this war.

He didn't die on a battlefield with a frontline you could plot on a map. He was inside a prison in the Afghan town of Mazar-e-Sharif. He was gathering intelligence on the Taliban. He was killed in a vicious prison revolt we couldn't see from the outside. It is a sad truth that in a day or so, it is the way these things work. His name will be forgotten, except by those who worked with him and loved him through his too short life.

But tonight, he is where he ought to be, at the beginning of the program. It is believed that Mike Spann, father of three, was killed at the very beginning of the Taliban riot. His father gave a moving tribute to his son today. And you will hear that in just a few moments.

A sad postscript showing how chaotic it's been at the compound in Mazar. He was killed, they say, on Sunday. It wasn't safe or possible to get his body out until today. And it was not the only body recovered too long after a tragedy. Other heroes who died in the line of duty pulled from the rubble not days, but now months after their deaths.

We said last night that we might rankle some of you by talking about this conflict between national security and civil liberties in the fight against terrorism. And in fact, we got more than a dozen e- mails before we were off the air. And some of you were very rankled. Others, glad to see we were pushing this issue to front and center. Though we confess, there were more of the former than the latter.

Tonight, we'll look at it again. Military tribunals this time. Senator Patrick Leahy and White House counsel Judge Alberto Gonzalez, as hearings begin in Congress. Also, we've been getting a lot of e- mails about the mystery guest segment. A lot of you seem to enjoy seeing me put on the spot. I know they do in the control room. We'll try it again tonight, though I promise not every night.

My favorite e-mail came from a man who said, "What is this mystery guest thing? Some cheap ratings ploy?" Well, yes, sir. That's exactly what it is. We will stoop to a cheap ratings ploy. We'll just never lie about it or anything else. I promise.

We begin with our whip around the world. CNN's David Ensor is in Washington tonight. David, the headline, please?

DAVID ENSOR, CNN CORRESPONDENT: Well, Mike Spann comes from a fairly typical small town in Alabama. His father called him and ordinary guy. CIA Director George Tenet said today that Mike Spann was quiet, serious and absolutely unflappable. And tonight, Aaron, he's being called an American hero.

BROWN: David, back to you shortly.

Now to the place where he died, Mazar-e-Sharif. CNN's Alessio Vinci, the headline, please?

ALESSIO VINCI, CNN CORRESPONDENT: Aaron, despite the body of Mike Spann, also a lot of Northern Alliance fighters and the -- some -- between 400 and 600 Taliban prisoners died in that uprising. Red Cross officials have begun collecting the bodies. They, themselves, don't even know how many in the end will be picked up.

General Dostum, the top Northern Alliance commander, visited the area yesterday and said, "This was a plot to kill to me."

Aaron?

BROWN: Back to you shortly as well.

And to the White House now, our senior White House correspondent John King. John, a busy day there. The headline?

JOHN KING, CNN CORRESPONDENT: A very busy day, Aaron. Tomorrow, we are told the President will offer a very spirited public defense of those new controversial powers for law enforcement agencies. You just mentioned one, those military tribunals. Mr. Bush will say yes, this is a country of freedoms and liberties, but he will also say we are told, the government cannot allow our enemies to use those freedoms against us.

And here in Washington today, the government taking additional steps to protect Americans, it says, against the threat of bioterrorism attack. A more than $400 million contract by this time next year, the government will have enough of the small pox vaccine to inoculate every single American.

Aaron?

BROWN: John, thank you.

Back with all of you in just a few moments. There was no surprise when it was officially announced today that an American CIA agent died in Mazar-e-Sharif. It had been known, that not confirmed for days. We'd been reporting on it. But the confirmation itself and the name attached to a CIA press release was, nevertheless, an important marker in this whole sad affair.

CNN's David Ensor has been working the story from Washington today. David, good evening to you again.

ENSOR: Good evening, Aaron.

Well, over at the CIA, they are not surprised that the first American killed in Afghanistan was one of their own. They've been there longer than the military, since September 11, and in some cases before that. And they do, some of the most perilous work of all.

(BEGIN VIDEOTAPE)

(voice-over): At the U.S. Central Intelligence Agency, the flag has been lowered to half staff to honor the first American combat casualty in Afghanistan. 32-year-old Mike Spann had been two years at CIA, eight in the Marine Corps before that, seen here in a recent family photo.

In Winfield, Alabama, a grieving father spoke with pride.

JOHNNY SPANN, MIKE SPANN'S FATHER: When he decided to leave the military service to work for the CIA, he told me he did so because he felt that he'd be able to make the world a better place for us to live. We recall him saying someone has got to do the things that no one else wants to do. And that is exactly what he was doing in Afghanistan.

ENSOR: CIA officials say they believe Spann was killed Sunday at the beginning of the prison uprising in Mazar-e-Sharif, which has since been suppressed. But that it wasn't until daybreak Wednesday that U.S. officials were able to get to the part of prison fortress where his body lay.

At the time of his death, Spann was in the fortress gathering intelligence from Taliban prisoners, U.S. officials say, "about Taliban intentions and whereabouts." He was armed when he died.

In a statement, CIA Director George Tenet said, "Mike fell bringing freedom to a distant people, while defending freedom for all of us here at home. Mike Spann was an American hero," said Tenet, "a man who showed passion for his country and his agency through his selfless courage."

There are 78 stars on the wall in the lobby at the CIA, one for each CIA officer killed in the line of duty since the agency's inception in 1947. A 79th star will now be carved.

UNIDENTIFIED MALE: Do you blame anyone for his death?

J. SPANN: Osama bin Laden. (END VIDEOTAPE)

ENSOR: Spann was part of the special activities division at CIA. These are covert operations specialists, often former military personnel. They're adept with firearms. They're trained for dangerous missions like the ones Spann was on.

Alongside U.S. troops, there are hundreds of CIA officers all over Afghanistan risking their lives to wrap up al Qaeda and the Taliban. They may be extraordinary brave, but these are ordinary people with families and plenty to lose. Mike Spann left behind a wife, two daughters and an infant son -- Aaron.

BROWN: David, thank you. It's all very sad. Thank you, David Ensor in Washington.

Mike Spann died within the walls of a prison that, as you could see, is also a fortress. It made retaking it a terribly bloody affair. Most of the men who died inside were the hardest of the hardcore Taliban fighters. And they asked for what they got. And that is the nature of war.

They're also fathers and sons. And their deaths are a reminder that war, even when the cause is just, is a horrible human endeavor.

Once again, CNN's Alessio Vinci in Mazar on the videophone. Good morning to you.

VINCI: Good morning, Aaron. Well, this was a prison uprising with no -- through no attempts to bring it to a peaceful end, no attempt to negotiate a peaceful surrender. Within hours, the prisoners took the weapons. The United States military the jets bombed the compound repeatedly. They followed by intensive exchange of fire between the two sides. The result was a lot of people died.

(BEGIN VIDEOTAPE)

(voice-over): This was one of the last shots fired in nearly three days of battle. A Northern Alliance tank crushed the walls of a building, trapping inside and possibly killing the last Taliban prisoners held inside the basement, which had been filled with fuel and set on fire.

The death toll of the uprising so high, Red Cross officials are still not sure how many bodies they will recover. But they say there will be hundreds.

OLIVER MARTIN, RED CROSS: The aim of the recovery of bodies and their burial, of course, first it's for -- to provide some dignity to the person dead. But more the aim, a major aim is really to try to identify, because behind every single dead body, you have a family.

VINCI: Red Cross officials concede many of the dead will be buried without being identified. The courtyard is littered with bodies and body parts, some beyond recognition. Most of the prisoners were killed on the first day of the revolt, as U.S. missiles rained down. Other victims perished in a ferocious exchange of fire, which spared just a few.

Northern Alliance General Abdul Rashid Dostum lives in this fortress, but was near Konduz at the time of the attack, negotiating another Taliban surrender. He returned to take a firsthand look.

"It was a planned attack," he said. "We were informed by different sources that there was a group of people who were planning suicide attacks under the pretext of surrendering."

Dostum did not elaborate why security was not increased at the fortress, but said the Taliban surrendered a day early. And the compound was not fully prepared for their arrival. The main battle is over, but General Dostum and Red Cross officials say there are still a handful of Taliban prisoners buried underneath the rubble alive. And they do represent a threat. Taliban leaders who negotiated the surrender with General Dostum also surveyed the aftermath. They say they regret the incidents, but denied it was a planned attack. Most of the captives were foreign fighters, they say, who acted on their own initiative.

(END VIDEOTAPE)

VINCI: Aaron, the Northern Alliance is holding an additional 6,000 Taliban prisoners in the nearby city of Shebra Ghan (ph), about an hour and a half away from here. General Dostum said they have been treated well, but security there has being stepped up now -- Aaron.

BROWN: Alessio, do we really have any idea how many more of these foreign fighters are still in the country?

VINCI: Well, we do have -- received some reports that some of the foreign fighters who left Konduz after it was taken over by the Northern Alliance a few days ago are coming towards here, towards Mazar-e-Sharif, towards the Balk (ph) province.

There is a large Pashtun population here. And we do understand that some of them may have saved records in area. However, the commanding -- the Taliban commander in that area of the Balk (ph) province are now said to be under the control or at least on the side of the General Rashid Dostum. So it is conceivable that, at least for now, they would not seek any kind of confrontation with Northern Alliance forces.

BROWN: Alessio Vinci, thank you for your work today again.

We also got a look today at pictures of the airstrike that was aimed at taking out the Taliban leader Mullah Mohamed Omar. If it shows anything to a layman's eye. it's that hitting the target is probably the easy part. These are precision guided bombs, dropped from F-16's and B-1 bombers.

You can see one after another, hitting what the Pentagon says is a Taliban leadership compound. They ordered the strike on reports that Mullah Omar was there. Today, a Taliban spokesman said no, he is just fine. It may be true. It may be not. It'll all take some time to sort out.

Also today, our first look, still pictures only, of Marines in action and choppers in the air. About 1,000 Marines in the southern part of Afghanistan. They've been setting up a base and patrolling an area not far from Kandahar. And back in the northern part of the country, about two dozen soldiers have been sent to beef up security at an airfield in Mazar-e-Sharif. They're members of the Army's 10th Mountain Divisions, based at Fort Drum in upstate New York.

On to Kabul. When the city fell, you could clearly see the relief and the joy nearly everywhere you looked there. It was written on the faces of shopkeepers and children. You could see it on the faces of women, whose faces had not been seen in some years.

The picture today is somewhat more sobering. The Taliban government is gone, but winter is on the way. And with it, some very tough times for lots of people.

Here's CNN's Harris Whitbeck.

(BEGIN VIDEOTAPE)

HARRIS WHITBECK, CNN CORRESPONDENT (voice-over): Two bags of charcoal, five woolen sweaters, blankets, plastic sheeting, a stove, pots and pans. 10,000 families around Kabul getting help to cope with winter, a winter the U.N. high commission for refugees says will be especially harsh.

DANIEL ENDRES, SR. EMERGENCY OFFICER, UNHCR: Afghanistan has not received aid for quite some time during the last three months. And people did not manage to prepare for the winter properly.

WHITBECK: Aid agencies now are scrambling to get help to those who need it most. Among them, Zamira, mother of five children. She's living in a borrowed room, after her house and fields were burned during fighting between the Taliban and the Northern Alliance.

"This is the first aid we've gotten in five years," she says. "We need to feed our children." Her children helping her, she carries the precious goods into their room on the outskirts of Kabul.

(on camera): Getting blankets and cooking utensils is one thing, but finding the food to cook is a different story.

(voice-over): Zamira says she needs rice and flour to feed her children. The U.N. says its world food program has the food to deliver, but still can't get it to those who need it because of the lack of security and political instability.

UNIDENTIFIED MALE: What is at times difficult is when you don't have access to the people, And that is the most challenging situation. We have relief items for about 500,000 people in stock. And we can bring them here any moment, but it is not always possible to get to the people.

WHITBECK: Winter's approach, one more reason the people here hope Afghan leaders meeting in Bonn will be able to quickly hammer out their differences.

Harris Whitbeck, CNN, Kabul, Afghanistan.

(END VIDEOTAPE)

BROWN: People in Afghanistan are hoping for a breakthrough in Bonn. And so is the United States, but the Northern Alliance wasn't making forming an interim very easy today. Northern Alliance suggested that the former king of Afghanistan should be approved by a traditional gathering of tribal leaders before he comes out of exile. And perhaps more importantly, they said their country doesn't need an outside security force, a U.N. force, because as their chief delegate put it, "there is security in place already."

Back home, word that the government is about to spend a half- billion dollars to defend against smallpox, something that may not even exist anymore, outside of a few government labs in a couple of countries. It may be the fear of smallpox actually outweighs the risk, that reassuring the public trumps public health. Just the same, no one at the White House is taking any chances.

We go back there and our senior correspondent John King. John, good evening to you again.

KING: Good evening to you again, Aaron.

This is one of dozens of precautions the administration is taking, emphasis on precaution, to better prepare the country for the threat of bioterrorism. A little quick math, the government has about 77 million doses of smallpox vaccines on hand. It has already contracted for 54 million more.

Now a 400 million plus contract for 155 million more doses. Meaning, by the end of next year, if you add all this up, nearly 290 million doses of the smallpox vaccine, more than enough to vaccinate every man, woman, and child in the United States. As you noted, few view this as a very serious threat, but Tommy Thompson, the Health and Human Services Secretary today saying he views it as a necessary precaution. And he says perhaps the knowledge that the government has all these vaccines on hand will prove deterrent to anybody that might be hunting for smallpox as a weapon --Aaron.

BROWN: A couple things that I noted that went on at the White House today. There was a meeting to try and move economic stimulus. Did the President get anywhere?

KING: Not very far. There was another meeting on Capitol Hill tonight. The leadership getting together with both parties, along with the Treasury Secretary Paul O'Neill. They emerged from that meeting to say that they needed to meet more just to decide the procedure to get about meeting to discuss the substance.

The President today weighed in on this one in a speech here in Washington. He noted the economy was slowing before the September 11 attacks, that in the days immediately after, he called on Congress to pass a stimulus. He wanted to sign it by Thanksgiving. He obviously didn't. The President today raising the stakes in the political battle.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: This country is waiting for action. And in the time that we have been waiting, more than 415,000 workers have lost their jobs. Further delay could put more Americans and more families at risk. So let's move.

(END VIDEO CLIP)

KING: The House has already passed a $100 million plan. The Senate has yet to act. One proposal that might bring a compromise at least in the Senate would be a month long holiday. No payment of the Social Security or Medicare payroll taxes. That brought some word of progress on Capitol Hill, but the administration is critical of the proposal.

The House doesn't trust the Senate. The Democrats are criticizing the Republicans. Everyone in both parties has at least a bit of criticism for the administration. We ask ourselves everyday when will things get back to normal. It appears that Washington might be ahead of the rest the country.

BROWN: And one more thing, before we let you go, and that's the political leader, Spanish prime minister was in town today. This is especially interesting because of Spain's position on the military tribunals and the al Qaeda suspects they hold.

KING: That is right. You will discuss this in further detail, I believe, later in the program. Spain has 14 al Qaeda suspects in custody. The question is what would happen if the United States asked for extradition?

Spain, as well as the entire European Union, does not like to extradite suspects anywhere where they might face the death penalty. And they would here in the United States. Or they also oppose in Spain and the European Union those military tribunals.

But the two leaders brushed this aside today. And there's a reason why. Mr. Bush is going to have here in Washington on Friday, a European union delegation. That delegation will meet with senior U.S. Officials. They want to deal with this in one big lump. The European Union countries will be represented by their delegation, because this not only a potential conflict with Spain, but with a number of other countries as well.

These two leaders here. The President and prime minister are friends. They had a positive meeting today. They will leave the negotiations on the very tough issue of those military tribunals to a delegation due to arrive here in Washington on Friday -- Aaron.

BROWN: John, thank you. A full plate from you tonight. John King at the White House. When we come back, as John said, we'll take a look at balancing civil liberties and public safety again. That's coming up. And later, a mystery guest. I guess it wouldn't be NEWSNIGHT without one. We'll be right back. (COMMERCIAL BREAK)

BROWN: Again tonight, we're going to spend some time on this knotty question of the balance between civil liberties and national security. In a CNN Gallup poll released today, 60 percent of those polled say the administration has found the right balance here. Only 10 percent think the administration has gone too far, just 10 percent. 26 percent think the administration has not gone far enough.

These are remarkable numbers, given how dramatic some of the administration's newly assumed powers are. And the most dramatic of these executive orders, the President's authorizing military tribunals to try terrorist suspects. And the rules of evidence would be vastly different. The verdicts could not be appealed in the courts. The trials themselves could be kept secret.

It is not how you think of American justice. But then you never thought a September 11 could happen either.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: I would say to your request...

BROWN: It came up in today's Senate hearing and at the afternoon White House briefing.

ARI FLEICHER, PRESS SECRETARY: Well, the President in his authority as commander in chief has wide powers to act as he thinks is appropriate for the nation.

BROWN: The question may be less about the power to act, than whether that power is being widely used. One side points to history and necessity.

UNIDENTIFIED MALE: They were extensively used in the Civil War. There's evidence that they were used within our founding period in the Revolutionary War. They're part of military strategy.

BROWN: A strategy used in 1780 against a British spy named John Andre. Used again after the assassination of President Lincoln. And exactly the right remedy today, uncommon trials for uncommon criminals.

UNIDENTIFIED MALE: These are not ordinary criminal defendants, in the sense that even someone who commits as grievous a crime as an isolated murder or rape or kidnapping does not have as their fundamental purpose, bringing down an entire society.

As a result, these people are what common law lawyers, the famous one being Sir Edward Cooke, called the enemies of mankind. They make themselves by their actions, outlaws of all civilized people.

BROWN: President Bush issued his executive order authorizing the tribunals only two weeks ago. But the legal research behind it has been quietly in the works for some time. These two attorneys from Denver began promoting the use of tribunals five years ago. SPENCER CRONA, DENVER ATTORNEY: There will fair adjudications by professional military jurists. We won't have trials when verdicts are read, if they're guilty verdicts, those that were found guilty will be threatening the lives and families of civilian jurors.

BROWN: And further, supporters argue, even successful, but public trials like the one recently completed in New York where those responsible for the American embassy bombings in Africa were sentenced to life, damaged the country's intelligence community.

UNIDENTIFIED MALE: We achieved it at a very significant cost. Once you disclose the identity of an intelligence informant, once you disclose their methods of gaining intelligence, once you disclose their location or their previous locations, you place them at risk. And you certainly make their utility for future work, in terms of intelligence gathering virtually impossible.

BROWN: That is one argument. Here is another.

CHARLES LEVONDOSKY, "CASPAR TRIBUNE": I think the military tribunals are a violation of the Constitution and a violation of our basic thrust toward liberty.

BROWN: Levondosky is a conservative editor of a conservative editorial page in Casper, Wyoming. Other conservatives like William Safire in "The New York Times" agree, calling the President's tribunal idea, "his own dismaying departure from due process." The argument can be reduced to something both simple and important. Who are we as a country?

UNIDENTIFIED MALE: Are we trying to find the guilty party or are we just trying to execute people? Because we're not going to find the guilty party when we're using tribunals.

BROWN: And then there is a third argument. That the tribunals, however troublesome, may be the best short term solution to a complicated international problem of terrorism.

PAUL WILLIAMS, PROFESSOR, AMERICAN UNIV. SCHOOL OF LAW: It is only a stop-gap mechanism. Because we can articulate what we believe is a justifiable standard of due process. But at the end of the day, if we want to win this terror war, we have to create some type of international tribunal and apply international standards, not American constitutional standards but international standards.

(END VIDEOTAPE)

BROWN: We continue to look at both sides of this issue. Now first, the administration's side. Earlier this afternoon, I talked with the White House counsel, Judge Alberto Gonzalez.

I assume that the administration knew from the beginning that this would be seen as an extraordinary action, military tribunals. Explain as I guess simply as you can why tribunals with a different standard of evidence, a different threshold for guilt or innocence trials held in secret, why that is necessary? ALBERTO GONZALEZ, JUDGE: Well, it may very well be an extraordinary remedy in this case, because we are in an extraordinary time. And we are at a time where I think this country has been brutally attacked. And the President felt it was appropriate during very unique, extraordinary times to have an additional tool, to more fully protect the American people. The question here is whether or not tribunals constitute a fair forum to provide justice to terrorists who commit real acts in this country.

And we have tribunals that have existed for many years in that country. They are recognized and used throughout the world. And the question is not whether or not a military tribunal is in of itself unfair. I mean, what you have to do is look at the procedures in place and to determine whether or not a tribunal is in fact fair. And we believe that the framework that the President has set out here provides a basic framework for the Secretary of Defense to promulgate rules and regulations.

That will ensure a full and fair trial, as required by the order signed by the President.

BROWN: Judge Gonzalez, let me ask perhaps a more philosophical question. There has come up -- it's been raised, as you know, by conservatives and liberals alike. And that goes to the question of moral high ground. Does the United States give up the moral high ground here, when let's say the next time the Chinese arrest an American and that person is tried in secret and sentenced in secret, and the American government complains?

GONZALEZ: Well first of all, there is no -- I think it's wrong to presume that these trials will be in secret. There may be a need that -- for some trials or portions of those trials to be in secret, in order to preserver sources and methods of information that we don't want to disclose. Because this is not just about trying -- capturing and trying one individual. This is about going after a global network of terrorists.

And in convicting one person, we don't want to give up sources and methods that may be necessary to go after additional terrorists. But there is no objective here to hold these trials in secret. If the necessity arises, portions of those trials may in fact be in secret.

But getting back to whether or not we have given up the moral high ground: absolutely not. Military trials have been used and recognized all around the world. What the United States has traditionally objected to with respect to the use of secret trials is the fact that these trials are not free from a fair and independent evaluation of the evidence.

Here in this country, military commissions will be under the jurisdiction of the military. There's federal statutes that require that the decisions by all military officials involved in military proceedings like this one be free of any influence, outside influences, that would in any way coerce or result in an improper verdict. BROWN: And the criticism from -- and I'm sure you are aware of William Safire's criticism the other day of conservatists to this -- what is it that they just don't get that seems so obvious to you?

GONZALEZ: We'll, you will have to ask Mr. Safire that, sir.

BROWN: Well, but, I mean, you've read -- I assume you read or at least have heard about the criticism -- I guess the question is what is it that people who are critical of this, some of whom are conservatives and some of whom are not, simply do not understand?

GONZALEZ: Well, I think that some people may be making presumptions, like the one that you made earlier, that these trials would all, in fact, be secret. You know, this is -- we have only taken the first step in the creation of these military commissions. The Secretary of Defense is in the process now of promulgating the rules and regulations that will govern the way these military commissions will operate.

The Secretary of Defense will consult, in fact, and has already begun informally consulting with other agencies like the Department of Justice and will continue to consult with other agencies in this government to make sure that in fact we do have full and fair trials in these military commissions.

And once these regulations are, in fact, are promulgated, my expectation is is that they will be made public and the public will have the opportunity to judge for itself whether or not, in fact, the Secretary of Defense has complied with the order of the commander in chief that these trials be full and fair.

BROWN: All right, Judge Gonzalez, I said this to you earlier as you were sitting down. I'll say it again. I can only imagine how busy you are these days. We appreciate very much your time. Thank you.

GONZALEZ: Thank you so much.

BROWN: In a moment, we will take another look, a different view, Senator Patrick Leahy as NEWSNIGHT continues.

(COMMERCIAL BREAK)

BROWN: Back to the debate now on fighting terror and protecting the country and civil liberties at the same time. And, again, a reminder that this debate does cross party lines. It includes law and order liberals and conservative civil libertarians.

We hear now from Senator Patrick Leahy, who is the chairman of the Senate Judiciary Committee. I spoke with the Senator earlier this evening.

(BEGIN VIDEOTAPE)

Senator Leahy, let's start with today's hearing in your committee. Did you hear from the Justice Department what you wanted to hear?

SEN. PATRICK LEAHY (D), VERMONT: Well, I heard a lot of explanations of why they have taken some of the steps that they are.

I think the concern, though, at the end of hearing expressed by both Republicans and Democrats was that we are still saying but -- what kind of consultation, what are the steps you followed to do this. The Congress worked very hard with the president on the anti-terrorism bill in an effort to protect us against what had been a horrible event on September 11. And, apparently, the administration was planning all throughout that time to go ahead and take these unilateral steps. They -- even though they were asked specifically during that time, never told us they were.

And I think what happens, it breaks down a sense of trust. We have all been working together on this. Those of us who are anti- terrorist, and that's all of us, don't consider ourselves as Republicans and Democrats. We consider ourselves as Americans trying to protect all of America. And this has hurt some of the sense of confidence here. And what we hear out of it too is that it's going to be doubtful that it would be very much of anything to protect us against terrorists.

BROWN: Are you are saying the Justice Department or the administration has been acting in bad faith, that they sent a bill to the Congress and they knew all along they had something in their hip pocket they would do no matter was Congress did?

LEAHY: Well, I'm not going to define how I feel about it. I'm just saying that it seems passingly strange that we spent so much time working with them. We don't, in good faith, we asked him specifically if they were going to do something like military tribunals and did not get an answer that they were going to do that.

So I think that the hearing was helpful in this sense: It gives us a better idea of what they were thinking when they did this. And it certainly raised some serious issues of how effective this could be in helping in the fight against terrorists and it sets the scene for the kind of questions that will be asked of the attorney general when he comes up here next week. I think that the attorney general should know that there is a lot of concern by both Republicans and Democrats.

BROWN: What is it specifically about the tribunals that troubles you so much?

LEAHY: Well, we see one example today, where Spain holds a number of suspects that we really want to get our hands on. And they say, well now, wait a minute. We are willing to turn them over if you are following your normal judicial process. we are not going to turn them over to an undefined, military tribunal which has the power to operate in secret, has the power, for example, to give the death penalty in far less than a unanimous vote under rules of evidence that they will make up as they go along.

BROWN: I will assume here that you have some concern the country, in this question of military tribunals, gives up the moral high ground when dealing with countries like China and others who may also hold military trials where Americans citizens are involved.

LEAHY: Well, the situation we have is this: If we are on the battlefield in Afghanistan -- and the president is doing, I think, a tremendous job in conducting that war -- we are going to take whatever steps are necessary to defend ourselves.

An entirely different thing -- they shoot at us, we are going to shoot back at them, probably more effectively. That's a lot different than when you're holding court systems here in the United States. And there, the rest of the world looks to us to set the standard.

If an American is arrested in Peru or China or something like that, we are immediately on the phone to them to say, we expect this person to be in trial, to be an open trial, to have a defense counsel. We don't want some secret military tribunal for an American. We wouldn't do that to your people of your country. We don't want you to do it to people of our country. I am afraid that they are going to say, and just which country is this calling us?

BROWN: Senator Leahy, it's always good to talk to you. Thank you for your time.

LEAHY: Good to be with you.

BROWN: Good to see you well.

LEAHY: Thank you.

BROWN: Both sides of the debate today.

Next on NEWSNIGHT, one way to see New York, all of it. The New York of September 10 and the New York of September 11 and beyond.

NEWSNIGHT continues in a moment.

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BROWN: The Web site for the Circle Line Cruises here in New York, feels like an nostalgic trip back to the city that was before. Postcard images of New York, talk about the cruises as a way to escape the everyday. A relaxing and fun way to see the world's most famous skyline. And some of it might be relaxing and fun, but it is also sobering, to say the least, when you cruise past lower Manhattan. And, in a way, that seems to be the draw for a lot of tourists going on board. Here's CNN Gary Tuchman.

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GARY TUCHMAN, CNN CORRESPONDENT (voice-over): Memories of a time gone by, a time that came to an end on September 11. The view of the skyline where the World Trade Center once stood is now much different. But aboard this tourist ship, its a view that is still in demand for emotional and patriotic reasons.

UNIDENTIFIED MALE: Now if you look up the alleyway of these big gray buildings, you'll have your first sighting of the damage. TUCHMAN: The circle line has provided sightseeing cruises around Manhattan for more than a half century. But over the last several weeks, many people, such as Glendora Harting (ph) are using the Circle Line as a way to see where America was struck.

When we went by ground zero, tell me what was going through your mind.

GLENDORA HARTING: That it was a holy place.

TUCHMAN: Glendora lives 30 miles from Oklahoma City. The bombing of the Murrah Federal Building there, she says, made seeing ground zero even more emotional than she thought.

HARTING: I was sad. It made me want to cry.

TUCHMAN: Many people from outside the United States are also taking the cruise to see ground zero. Sondra and Colin Gordon of England haven't been to New York for 34 years.

COLIN GORDON: When I was here in '67, they weren't constructed, and I'm here now and they're gone.

TUCHMAN: Marty Casey (ph) and Samantha Chivers (ph) are also from England.

MARTY CASEY: You've got to be here to see it. I don't think words can actually express how sad you can feel as you go past.

TUCHMAN: The people who ride the Circle Line are still awed by the skyline's majesty. But as their voyage comes to an end, they realize much of their focus has been on the travesty.

UNIDENTIFIED FEMALE: There were no words. I've heard that so many times on TV myself, but it was so sad. So very sad.

Gary Tuchman, CNN, New York.

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BROWN: OK. We are going to leave the scripted part of the program for a second. There's a kind of game of cat and mouse that seems to be going on here tonight. Three times in the course of the evening there's been a page put in the program that had to do with the fact that there was the lighting of the Christmas tree at Rockefeller Center and that we weren't going to show it. And every time the producers put it in, I took it out and they put it back in, and then I'd take it out and they'd put back in. And now I'm taking it out, again -- they did the light the Christmas tree at Rockefeller Center and we are not doing it. We are going to do something, and I'm not sure what it is, in a moment.

Honestly my hands are sweating right now. OK, we have done this every night this week and knowing us we'll beat it into the ground pretty good. In case you missed it, here's how it works, the producers spring a guest on me, I have no idea who I'm about to talk to . And tonight they have aggressively kept me in the dark about what the topic is. I know some of you consider this a cheap ploy, it might be fun we'll find out, so again I'm clueless about the name I'm about to see in the teleprompter.

And so tonight's mystery guest is -- even if you aren't going to do that tree thing at Rockefeller Center, there actually is a story to tell about the holidays, especially here in New York, especially for kids many of them confused about what happened, keep going. Some with just a vague idea, others that saw it understood as vividly as we did -- a delicate spot for our guest, but we know he'll rise to the occasion, he always does -- every year and this year too no doubt. Santa. Not a Santa, the Santa

SANTA CLAUSE: Ho, ho, ho, ho. Hello Aaron! Happy holidays.

BROWN: Happy Holidays. Have a seat.

SANTA: Thank you.

BROWN: You are the Macy's Santa. Do I call you Santa or Mr. Claus or Kris, if you'd like.

AARON: OK, Kris, I think I'll settle on that.

BROWN: How are you doing?

SANTA: I'm quite well.

BROWN: I've been doing this for a long time. I don't think I've ever done this before. How long have you been Santa Claus.

SANTA: Yes, since I was a boy many, many years ago.

BROWN: It must have been remarkable and enlightening moment when you realized that being Santa Clause was not like being one the other guys.

SANTA: It was. To realize that I had a gift and mission and purpose to spread the Christmas spirit every year was quite an honor and quite a special feeling.

BROWN: Is the beard real?

CLAUSE: Of course it is.

BROWN: Oh, OK. Are kids coming in now and sitting on your lap and talking to you?

CLAUSE: Absolutely. I have been at Macy's since the day after Thanksgiving, I come down at the end of the parade and Santa Land is wonderful place that Macy's has set up for me to visit with the kids. I have seen over 10,000 children already. Every day they come in. Today I saw 1,700 of them.

BROWN: Is there anything different about the kinds of things they are asking for this year? CLAUSE: Absolutely. Fire fighter toys, fire fighter action figures, police toys, police action figures are very, very popular this year, more popular than they have been since the 1960s.

BROWN: Seriously -- obviously, how serious can you be if you are interviewing Santa Clause -- but over the years do you see the shifts in the kinds of things kids ask for and sort of what is going on in the world, or is this unusual in that way?

CLAUSE: No. Every time something happens that is major within this country or within the world, it changes the way kids think and what they want. For instance, during Somalia, when the American troops went to Somalia back in 1992, there were children who came to me and asked, for Christmas all they wanted was for there not to be any more starving children in the world.

BROWN: Is that right? And how do you answer that?

CLAUSE: I tell them that's what Santa wants too. Unfortunately my magic is not capable of bringing that about, but I will pray with them and wish for the same thing.

BROWN: I hope it's a terrific Christmas. Do you know what I want?

CLAUSE: No, what do you want?

BROWN: Your voice.

CLAUSE: Ho, ho, ho, ho, ho! I thank you for that. But have you been a good boy this year? That's the big question.

BROWN: You know, I have been working so much, I haven't had time to be a bad boy, but thank you very much.

CLAUSE: I can understand that too. I know you have been very busy.

BROWN: Mr. Clause, nice to meet you, my friend.

CLAUSE: Nice to meet you too. I haven't seen you since you were about this tall, but I'm so proud of you.

BROWN: You didn't think I would grow up good, did you? But one else did either.

CLAUSE: Ho, ho, ho, ho, ho!

BROWN: David, I will never forgive you for this one. We will be right back.

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BROWN: We are already in trouble, we might as well do this page too. Finally, from us tonight, the answer to a question you've wondered about but been to embarrassed to ask. What is it exactly that the queen of England does for a living?

Here's the answer, she opens buildings.

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(voice-over): Today, the queen, greeted by our esteemed boss, Walter Issacson, opened the new CNN bureau in London. It's a really nice building and the queen, decked out in a fine green suit and matching hat, was escorted around by a lot of CNN executives who had been briefed on how one acts when the queen is in the building.

For example, they were told to address queen as ma'am, which they were told rhymes with ham. I am not making this up. These are news people. They needed a briefing. One thing they were apparently were not told is what to do with their hands, but they all seemed to agree that hands should dangle in front of the body, clasped in a most uncomfortable looking way.

We, of course, are honored that the queen took time out of her busy day to open the bureau, and are equally glad that Mr. Issacson is still in London tonight, watching the BBC, and not us.

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He will find out though. I know he will. That's NEWSNIGHT tonight. That may be NEWSNIGHT, period. I don't know. We will see you tomorrow at 10:00. Until then, I'm Aaron Brown. Good night from all of us at this little effort.

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