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CNN Crossfire

Interview With Laura Murphy, Interview With Douglas Kmiec

Aired November 15, 2001 - 19:30   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)

JOHN ASHCROFT, ATTORNEY GENERAL: And foreign terrorists who commit war crimes against the United States in my judgment are not entitled to, do not deserve the protections of the American Constitution.

(END VIDEO CLIP)

TUCKER CARLSON, HOST: Tonight, trials by military tribunal, interrogation of thousands of Middle Eastern men, listening in on prisoners' calls with their lawyers.

In the war on terrorism, is the Bush administration going too far? This is CROSSFIRE.

PAUL BEGALA, HOST: Good evening and welcome to CROSSFIRE. I'm Paul Begala sitting in for Bill Press. The war effort in Afghanistan is called "Enduring Freedom" but civil libertarians here at home are charging that freedom itself is under fire. Over a thousand people have been arrested and placed in custody since September 11. Even though many have been released, the government won't tell us their names or the charges against those still behind bars.

Now, President Bush has signed an executive order giving the government broad powers to try, convict and execute foreigners suspected of terrorism, using secret military tribunals without the constitutional protections of civil courts.

In addition, investigators are fanning out across the country to question 5,000 mostly Muslim men who are visiting the U.S., and the administration is talking about slowing down the visa process for Muslim men and women.

With the United States at war with ruthless terrorists, are these necessary steps to pursue justice or are they a dangerous threat to our liberty?

Joining us tonight, Professor Douglas Kmiec, a former Justice Department official in both the Reagan and Bush administrations, now the dean of Catholic University of America's School of Law, and Laura Murphy, the director of the American Civil Liberties Union's Washington office -- Tucker. CARLSON: Laura Murphy, thanks for joining us. Let's just run through this very quickly. We are at war. Osama Bin Laden is a war criminal. If we catch him, why not try him before a military tribunal? It's constitutional and there is precedent for it. Both Lincoln and Roosevelt, among others, tried war criminals before military tribunals.

If it's good enough for Lincoln and FDR, why is not good enough for us?

LAURA MURPHY, AMERICAN CIVIL LIBERTIES UNION: Well, when we are officially at war, when war has been formally declared, a whole other set of tribunals come into play and we have to comply with the Geneva Conventions and Osama Bin Laden becomes a prisoner of war.

What we are talking about here is what goes on in U.S. borders. And the question is, why should the Constitution apply? And I want to know, what do we stand for? What are the principles we believe in?

We have been able to successfully prosecute terrorists under our existing laws. The bombers of -- the 1993 World Trade Center bombers. The -- Timothy McVeigh. we prosecuted spies during the Cold War and as recently as Aldrich Ames.

There is no limit on what our courts can do and our courts guarantee a fair trial, a right to see the evidence against you, a trial by jury. And somehow this is now in the way of prosecuting terrorists. I just don't buy it.

CARLSON: All right. Let's make no mistake. This executive order was crafted for Osama Bin Laden and people like him. So let's consider -- hold on -- let's consider the options. What are they? Let's say we catch Bin Laden and we bring him to the Hague so he can spend three years spewing propaganda, so his followers can commit more acts of terrorism, perhaps kidnap people to win his release. Is that -- is that what we do?

MURPHY: Every time a U.S. citizen has been tried by a military tribunal...

CARLSON: We're not talking about U.S. citizens. We're talking about...

MURPHY: But wait a minute. I'm saying what we have stood for as baa nation, when our citizens have been tried by secret military tribunals abroad, we have protested and we have said that this violates all kinds of international treaties.

What I'm talking about is here, and it's beyond Osama Bin Laden. The thousand of detainees that are being held could be subjected. All the attorney general needs to show is that there is a reason to believe that these people have some relationship with al Qaeda. They don't have to prove it beyond a reasonable doubt.

So there are thousands of people who could potentially be tried by these tribunals in our country. And the question is, why did the president and the attorney general say at the outset that we could fight the war on terrorism and not violate our civil liberties? It seems like this is a betrayal of that promise.

BEGALA: Professor Kmiec, as the dean of a law school, let me give you a hypothetical. Let's say that you a foreign-born -- a foreign person, non-U.S. citizen living in the United States. You are arrested, held without charge.

You are put on a ship off the coast of the United States and you are given a secret military trial. You don't get to pick your own lawyer, you don't get screen the jury. You can be charged with evidence that you don't even get to review because it's secret. You can be charged with evidence that is from hearsay, that is from illegally-obtained searches, that is from all manner of unconstitutional methods within the United States border.

And then, by a four to one vote, or maybe even three to two, you are found guilty -- not beyond a reasonable doubt, but good enough for us. And you are executed. There is no appeal. There is no -- there is no rights. This is enduring freedom?

DOUGLAS KMIEC, CATHOLIC UNIVERSITY LAW SCHOOL: Well, it isn't, but it's not what the president of United States has done. The president has issued a -- an order that is well grounded in precedent. It's well grounded in the authority that the president has as commander in chief.

BEGALA: Which of those things did I get wrong, then? Which of those things that I mentioned that are not allowed under the Bush executive order, because I read it and it looked like it was.

KMIEC: Paul, there is a lot of hyperbole around the table. It's not necessarily a secret trial.

What the president has indicated in his military order to the other commanders is that we are going to observe the strictures that protect classified information, where it's not necessarily information that comes from illegal searches.

When you actually look at the rules and regulations the were promulgated by MacArthur and Eisenhower in World War II to implement exactly what we are implementing now, namely the next stage of a military, tactical measure -- namely military tribunals -- what they provided for was greater latitude with regard to the admissibility of evidence, greater protection of national security, greater protection of the identity of the -- of the intelligence community that is risking their lives to gather this evidence.

But nevertheless what the president provides for and I think what will be provided is a full and fair trial, consistent with humane treatment by international standards and, quite frankly, consistent with what the Constitution allows.

BEGALA: Well, I'm just curious as to why a distinguished legal scholar has so little faith in the constitutional system of courts. Laura Murphy named some of the examples. Let me tell you, Ramzi Yusuf, who was behind the 1993 attack on the World Trade Center, sentenced -- in a -- in a constitutional court, not off some kangaroo court on a boat -- to 240 years plus life. the terrorists who were behind the bombing...

KMIEC: And I'm not sure -- I'm not sure that is a proportionate penalty, quite frankly, in light of the charge.

BEGALA: Well, there are more. There are the four terrorists who -- who were bombing our embassies in Africa. Tried and convicted. Terrorists who tried to come to America to bomb LAX Airport on the millennium. Tried and convicted. Timothy McVeigh -- tried and convicted. Amir Kanzi, the man who murdered two CIA employees here in Northern Virginia. Tried and convicted.

KMIEC: And let me...

BEGALA: Can you name a case where our courts have failed us?

KMIEC: Well, let's just look at what was necessary to obtain the convictions that you mentioned.

BEGALA: Evidence.

KMIEC: Yes. Several hundred witnesses, nine months of trial, frequently the disclosure of classified information -- including some information that may well have played into the September 11th attacks -- the disclosure of the monitoring of Osama Bin Laden on -- through wireless mechanism, which immediately shut down the ability to monitor his movements. So we paid a very heavy price.

The thing that you have to remember, I think, is that our Constitution envisions this process. Miss Murphy is exactly correct when we are talking about article three courts, the regular criminal justice system and peacetime.

The Supreme Court of the United States in unanimously upholding military tribunals in wartime upholds them because they are not an exercise of judicial power. They're an exercise of the war power under the supervision of the president and military commanders and the Supreme Court's review.

And they will have a review of what goes on in military tribunals by habeas corpus, at least in terms of jurisdiction -- not in terms of the sentences applied -- basically provides that these military tribunals, so long as they observe their proper authority, so long as they charge a war crime -- are quite frankly well within their constitutional boundaries.

MURPHY: You know, it's very sad that we are dragging out this relic from World War II that has never been used in the intervening years. We have tried a number of -- of, you know, people who have been engaged in terrorist activity against the United States.

We have a law called the Classified Informations Procedure Act that protects classified information so that only a summary of the evidence is presented to judge and jury. So people have not walked away with boatloads of classified information. And this is the same Supreme Court that upheld Japanese internment. And in periods of war...

CARLSON: Wait a second.

MURPHY: Wait a minute. In periods of war we have made terrible mistakes that we have come to regret.

CARLSON: Now, wait. Wait a minute. Stop it. Stop right there.

MURPHY: And this is going to be one of those mistakes.

CARLSON: You are acting -- and by bringing up that incident, that tragic incident, the internment of many American citizens of Japanese descent...

MURPHY: The same court.

CARLSON: Hold on. You are acting as if people for whom this executive order was crafted are ordinary American citizens. They are not.

Let me finish. They are foreigners. Specifically, they are foreigners accused of terrorism. Now Dick -- who are they? Dick Cheney, as he often does, summed it up well. I want you to listen to the vice president describe who these people are.

(BEGIN VIDEO CLIP)

DICK CHENEY, VICE PRESIDENT OF THE UNITED STATES: They don't deserve to be treated as a prisoner of war. They don't deserve the same guarantees and safeguards that would used for an American citizen going through the normal judicial process.

(END VIDEO CLIP)

CARLSON: That's right. They are not American citizens. If they are guilty, they hate America.

MURPHY: No...

CARLSON: And the bottom line is they are not protected by the United States Constitution. Period.

MURPHY: But how do they -- how do we know? You are just saying there's a group of people out there. We all know that they are guilty. And if I listen to the professor's arguments, it seems as though he's not satisfied with the length of time it takes to prove someone guilty in this country and he's not satisfied with the outcome.

He thinks that the -- the life imprisonment or 240 years is not proportionate to the crime. Well, we have a system where the -- that the American people can trust. We have not had a system of Star Chamber justice. And we need to...

CARLSON: Why don't you just answer -- wait. Wait. Why don't you just answer one question.

MURPHY: Sure.

CARLSON: We can boil it down to this. And this is hypothetical but I think it gets to the root of what you may be saying. If Osama Bin Laden were captured today, should he be read his rights? That's what you seem to be arguing.

MURPHY: Oh, listen. This is...

CARLSON: That's a good question, don't you think?

MURPHY: I'm not talking about Osama Bin Laden. I'm talking about the thousands of people who could be subject to these tribunals within our borders.

The Fifth Amendment applies to all persons. It just doesn't specify citizens. And we have a history in this country of guaranteeing due process, especially when the loss of life is at stake.

So you have a trial where you don't know the procedures because they haven't been published yet. And you have a two-thirds vote and you don't have evidence available to you. And there's no chance that -- the outcome of the decision of that military tribunal can be reviewed by any court in the land, including the U.S. Supreme Court.

BEGALA: Professor Kmiec, Laura Murphy is not the only one raising Cain about this. Some very distinguished conservatives have done so. Let me read to you from today's "New York Times".

William Safire -- who of course worked for President Nixon and is nobody's liberal -- weighed in in a piece that he titled "Seizing Dictatorial Powers." Safire writes: "Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we're letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts."

Now, except for insulting kangaroos and their legal system -- which seems far superior to me than what Bush is trying to pass through -- what is your answer to that?

KMIEC: I admire Mr. Safire. He's a good writer. But he uses a lot of hyperbole in that instance. We have here a historically grounded, constitutionally authorized practice.

Let's look at the authority the president has. He has the authority as commander in chief, he has the authority delegated to him by the joint resolution that Congress passed after September 11, which says not only respond to the attacks on September 11 but any future act of terrorism. He has the statutory structure of the Uniform Code of Military Justice very specifically says that if not practicable under the circumstances to observe the particular process that Miss Murphy has described in light of the national emergency, that he need not do so.

Now, he is not acting precipitously. He has crafted an executive order that defines with very careful scope people who are committing and engaging in terrorist acts, people who are aiding and abetting terrorist acts, and people who are harboring terrorists.

This isn't thousands of detainees. What we have is we are mixing lots of different stories here. We are creating a parade of horribles.

We have to have, first of all, trust in the people that we have elected to these government positions. Secondly, we have to have an understanding of all of the parts of the Constitution. And I have both. Because I have faith, first of all, that this president has not acted precipitously to widen the military campaign beyond what he said we do. And second, he has -- he is using this military order as a way of not just punishing those who committed the crime on September 11, but also preventing future acts of terrorism. That is very important in terms of the effectiveness of the trial.

CARLSON: OK. Well, we have a lot more to talk about. People are comparing some of the executive orders that President Bush recently handed down to the internment of Japanese Americans during World War II. Is that fair or not? That's one of the questions we will take up when we return on CROSSFIRE in just a minute.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES: Those who flew airplanes into the World Trade Center, who commandeered airplanes that either crashed in Pennsylvania or into the Pentagon of the United States, and those who assisted them in doing so, committed the kinds of criminal activity that would qualify as war crimes.

(END VIDEO CLIP)

CARLSON: Welcome back to CROSSFIRE.

Do foreigners suspected of terrorism have constitutional rights? Do they deserve a jury trial in the United States? Should their conversations with their lawyers remain secret? No, no, and no, says the administration. Yes, yes, and yes, says the ACLU, among others. Has the war on terrorism spawned an attack on civil liberties? That's our CROSSFIRE tonight.

Joining us, Laura Murphy, who is the director of the Washington office of the American Civil Liberties Union, and Douglas Kmiec, a former Reagan and Bush Justice Department official, who is now the dean of the Catholic University's School of Law.

And speaking of taking liberties, here is Paul Begala. BEGALA: Professor Kmiec, you are known as a rigorous and brilliant legal mind, and I took the liberty of looking up some of the things that you -- that you have written.

Last summer the Cato Institute -- a libertarian think tank -- sponsored a -- a conference, mostly on why we don't like Clinton but particularly in the legal area.

You spoke on a topic of expanded executive order, describing how President Clinton has expanded the power of the executive in his term -- something that I loved and I aided and thought was terrific.

Let me ask you now if you are going to be intellectually consistent. Here we have president who is conducting -- or ordering secret military trials, suspending the rules of evidence, suspending jury trials, all without a declaration of war from the Congress, all without a vote by the Congress, and all without a specific case-by- case review from any court.

Are you ready to say now that this president has expanded, or is your criticism only involved when President Clinton was trying to protect the environment?

KMIEC: Well, I think we have be careful not to suspend the nuanced vocabulary. I don't think there are secret trials. I don't think we are suspending the rules of evidence. I think...

BEGALA: But wait, you said that twice. They can be secret. They can put you on ship and conduct a secret trial, right?

KMIEC: What -- what can happen is that classified information can be protected and evidence can be introduced without introducing the actual witness. You can use secondary sources, and therefore hearsay objections are not necessarily going to block the proceeding.

But that's quite different than a secret trial where -- where the evidence is made up and the rules of evidence are totally suspended. There are rules of evidence. They just happen to be different than the rules that apply in federal courts.

BEGALA: I'm glad you said that. Here's the rule of the evidence.

KMIEC: But let me ask your -- answer your original question.

BEGALA: OK.

KMIEC: I used to prepare executive orders for President Reagan and President Bush. The first paragraph of every executive order, of course, is a citation of authority.

One of the things we happened to notice about the former president was that he very often just used what we call the vesting clause under the Constitution. "By the authority vested in me as president of the United States I declare," even though were relevant specific statutes that applied to that subject. One of things that is true if you look at President Bush's order this week is he does cite his authority as president of the United States, but he also cites the resolution that was passed by Congress and he also cites title ten of the United States code, which is the -- as I mentioned before -- the provisions of the code of military justice that authorize exactly the types of variations that we're talking about.

CARLSON: So that -- that doesn't make you feel better, Laura Murphy?

MURPHY: They haven't consulted with Congress and in fact...

CARLSON: Oh.

MURPHY: The respective chairmen of the judiciary committees have raised concern about how this administration has run -- had run headlong...

CARLSON: Yeah, they're made because their power is being, you know, because their feelings aren't being asked.

MURPHY: No, no, no. But they have authority here and they have not declared a war. They had an opportunity to declare a war in early September and they chose not to. And so the power of the executive that he is -- that he is citing is extra-Constitutional in our view. It really doesn't comport with the principles that this nation stand for.

And let me just remind you that in 1942, when this tribunal was imposed, two of the people who were prosecuted under this tribunal were naturalized American citizens. They originally came from Germany. They became U.S. citizens. So the precedent that this has established is that these tribunals down the road could actually be used against American citizens and that was upheld by the Supreme Court.

CARLSON; I thought -- wait, just a minute ago you said oh, that's all ancient history, that World War II business. But let me get -- let me get to...

MURPHY: No. They are dragging back that relic.

CARLSON: Let me get back to something that is great fundraising boon for the ACLU. I know this is in your direct mail already.

It's this executive order that would allow the Justice Department to listen in on conversations between suspected terrorists who are incarcerated and their attorneys.

Now, this is being spun as the greatest assault on civil liberties since -- since the internment camps. But I want to read to you from the actual decision, the guidelines that are coming out of the executive branch (UNINTELLIGIBLE). "Apart from disclosures necessary to thwart an imminent act of violence or terrorism, any disclosures to investigators or prosecutors must be approved by a federal judge." This gets to the heart of what this executive order is about.

MURPHY: No, no.

CARLSON: It's to get information that would prevent an imminent terrorist attack. It's not to build a case.

MURPHY: You are reading a very narrow section of the Bureau of Prisons regulations. What happens in the first instance is that the attorney general gets to decide whether or not can he listen in, and he doesn't have go into the court to get a court order to allow him to listen in.

And they talk about this wall between turning this information over to the prosecutors, yet their justification for getting this is that they need to get all the information necessary to put together this mosaic to -- to bring a stronger trial. And I -- they are -- they are contradicting themselves.

On the one hand they say that you have to have a court order before it's turned over to the prosecutors, yet on the other hand they say they need this information in order to effectively prosecute terrorists. This is an abomination.

CARLSON: Prevents people from flying planes into buildings. I mean, come on.

MURPHY: Wait a minute. If a person cannot talk to his or her lawyer in confidence, then -- and they know that the government is listening, do you think this person is going to be effectively represented by their counsel?

CARLSON: I'm not sure that's the biggest concern right now.

BEGALA: No chance. Well, that's -- that's the problem, is that we don't care about the trial. You don't have the right to counsel.

MURPHY: You want to throw it out. Throw it all out.

BEGALA: ...standards of evidence. And I took the liberty of reading the president's executive order. The standard of evidence is there. It says anything is admissible if it would -- and I quote -- "have probative value to a reasonable person."

KMIEC: Exactly.

BEGALA: It clearly includes hearsay, as you told us. It would clearly include illegally sized evidence. I -- it would clearly include evidence from, say, a torture session, would it not? What would it exclude?

KMIEC: It would not. And quite frankly...

BEGALA: Tell me why it wouldn't include evidence from the rubber hose gang.

KMIEC: Well, because the -- the executive order itself talks about and provides for humane treatment, the avoidance of torture and...

BEGALA: Avoidance?

KMIEC: And well, I don't -- you can pick the words. The actual words aren't in front of me.

But it's very clear that the president in writing the order was protecting the -- the rights for humane treatment under international standards. In terms of the -- of the standard of proof, that is exactly the standard of proof that has unanimously been upheld by the Supreme Court of the United States and that makes common sense in the context of a military action.

BEGALA: Let me -- let me just ask you quickly...

KMIEC: Paul...

BEGALA: For example, I don't have problem with interviewing these 5,000 foreigners who are visiting. I'm not maybe as hard line as the ACLU. So let me give you my reasonable person test. Does anything in this trouble you at all?

KMIEC: Yes, it does. Of course, we haven't seen the rules and regulations yet.

MURPHY: That's important.

KMIEC: I have studied the rules and regulations from World War II issued by -- in the European theater and the Pacific theater. If those rules and regulations are re-issued -- and I fully expect some version to of rules and regulations to look just like them -- then I have very little difficulty.

CARLSON: Well, then, no problem.

MURPHY: Well, wait, wait. If they look just like them then that means citizens can be...

BEGALA: They can come after American citizens like they did in 1949.

MURPHY: Absolutely, Paul. Absolutely.

KMIEC: No.

CARLSON: We are going to have to -- unfortunately, we are going to have to leave it there. Ms. Murphy, Mr. Kmiec, thank you both very much.

KMIEC: Thank you, Tucker.

MURPHY: Thank you, Tucker.

CARLSON: Everyone in America agrees on virtually everything these days, except Paul Begala and I. We disagree passionately.

We will show you in our closing comments, which are coming right up. See you in a minute.

(COMMERCIAL BREAK)

CARLSON: OK, Paul. The most telling moment tonight? Laura Murphy did not answer question if Osama Bin Laden is captured, should he be read his rights. You really think this is a battle between people still living in a world of abstractions and theories and those who recognize the reality, which is we are at war. Act accordingly.

BEGALA: And we are a democracy and we ought to act accordingly. George W. Bush...

CARLSON: And they're not part of it.

BEGALA: When George W. Bush was governor of Texas, he executed the innocent, the elderly, the retarded. Now...

CARLSON: There is absolutely no evidence...

BEGALA: Now he is suspending the right to trial. Now he is suspending the right to counsel. He executed an innocent...

(CROSSTALK)

CARLSON: What are you talking about?

BEGALA: Of course he did. Oh, there's no doubt. He executed people whose lawyers fell asleep...

CARLSON: Al Qaeda is not innocent. And to -- to act as if they have the same...

BEGALA: So why have a trial?

CARLSON: ...constitutional protections that we as American do is ludicrous and insane...

BEGALA: Professor Kmiec could not mention a single case where our real system had ever failed us.

CARLSON: Because we didn't have time.

BEGALA: From the left, for the book-touring Bill Press, author of "Spin This," available on amazon.com, I am Paul Begala. Good night from CROSSFIRE.

CARLSON: And from the right, I'm Tucker Carlson. Join us again tomorrow night for another edition of CROSSFIRE.

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