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Is the Justice Department Protecting American Lives or Violating Civil Liberties?

Aired November 27, 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 OF THE UNITED STATES: We are removing suspected terrorists who violate the law from our streets to prevent further terrorist attack. We believe we have al Qaeda membership in custody, and we will use every constitutional tool to keep suspected terrorists locked up.

(END VIDEO CLIP)

TUCKER CARLSON, HOST: Is the Justice Department protecting American lives or violating civil liberties? This is CROSSFIRE.

Good evening and welcome to CROSSFIRE. Members of the al Qaeda terrorist network are in the United States and some of them are now behind bars. That was the headline today from Attorney General John Ashcroft.

Federal charges have been filed against dozens of individuals since September 11th, Mr. Ashcroft said, and that was about all he said. The Justice Department has refused to release the names of the suspected terrorists or even in many case what they've been charged with.

We are at war, said Mr. Ashcroft. Against civil liberties, respond his critics. Both sides invoke the McCarthey era. Civil libertarians accuse the government of overreaching, hysteria and undue secrecy. The attorney general says that divulging the names of those detained would create a blacklist.

Homeland security at what price? That's our CROSSFIRE tonight.

Joining us from New York City, Stanley Cohen, a criminal defense attorney whose clients include those accused as well as some previously convicted of terrorism. And in Washington, former U.S. Attorney and Independent Counsel Joe Digenova. Bill Press.

BILL PRESS, HOST: Joe Digenova, let's start with these detainees that the attorney general talked about today. You know, we've all read these horror novels about terrorist governments when there's a knock on the door in the middle of the night and the government takes people away and we don't know what they're charged with. Here in this country now we've got hundreds of people rounded up after September 11th. We don't know how many. We don't know who they are. We don't know where they are. We don't know what charges have been filed against them. What's the difference?

JOSEPH DIGENOVA, FORMER U.S. ATTORNEY: Oh, there's a complete difference, Bill. We have a system of government that's functioning. The attorney general is acting well within the bounds of the Constitution. The information he gave out today indicated the number of people who are now incarcerated or detained for both visa violations and for criminal law violations, both state and federal.

The situation here is a lot different. These individuals, for the most part, are having their status overseen by federal judges. And if not federal judges then by immigration law judges, administrative law judges. They have a right to counsel. In the federal system if it's a criminal case they have a right to appointed counsel. In the administrative law process of the INS, they are entitled to counsel but they have to procure their own counsel.

All of these people are non citizens. They are here on visitor's visas. They have the responsibility to obey the law. Every one of them has violated the law. The attorney general is acting properly and within the bounds of the Constitution.

PRESS: Then why -- if he's acting properly, why is he keeping it such big secret?

DIGENOVA: Because...

PRESS: I'd like you -- I'd like you to listen if I can...

(CROSSTALK)

PRESS: ...to what Attorney General Ashcroft -- the unbelievable reason he gave today for why he's keeping this list a secret.

DIGENOVA: I will listen closely.

PRESS: Here's the attorney general.

(BEGIN VIDEO CLIP)

ASHCROFT: They are not being held in secret but I'm not going to develop some sort of black list of individuals who have been held. We will not further provide a list to Osama Bin Laden of all the individuals with whom, about whom, he has an interest so that he might know that.

(END VIDEO CLIP)

PRESS: Now Joe, this is silly. First of all, I think Osama Bin Laden has more important things on his mind now than reading the "New York Times." But secondly, what, we are going to let Osama Bin Laden decide what civil liberties we allow in this country?

DIGENOVA: No.

PRESS: Then why don't we want him to know who is on this list?

DIGENOVA: Actually -- actually, that is not a civil liberty, what the attorney general was talking about. There is no right to have your name publicly announced unless you as a defendant or a detainee want it announced.

The attorney general said -- the attorney general made something very clear today. He said that if any one of these individuals wants to make their name public they have the legal right to do so, either on their own or through their lawyers. None, interestingly enough, has chosen to do that since they were detained.

CARLSON: Now Stanley Cohen, you heard Joe Digenova. And even though you're a defense attorney who represents people accused of terrorism -- sometimes convicted of terrorism -- you've got to realize nobody's civil liberties have been violated.

Everybody in custody has been accused of a crime. Everybody there has a right to a lawyer. Everybody has a right to habeas corpus review. These people are accused of crimes.

And in return, the United States has netted real terrorists, members of al Qaeda who were sent here to kill Americans. This is how the justice system is supposed to work, is it not?

STANLEY COHEN, DEFENSE ATTORNEY: I feel like we are living in Chile or Peru in 1968 or 1971. This is hogwash. What you have here is you've got thousands of persons who've been rounded up.

It's not a question of whether or not their names should be on the front page of the "Times." No one is suggesting that.

The fact of the matter is, family members are calling our offices on a regular basis. People are being moved around. People don't know where they are loved ones are. They don't have access to lawyers, because many of them get all of one phone call, perhaps two minutes per week. Some of them have language problems.

They're not seeing independent judges. Those people who were charged with federal offenses have every -- have all the rights and protections under the Constitution.

I love the man's -- the audacity of the attorney general who sits there and the tells us -- he who has sat on top of the largest attack on fundamental civil liberties and civil rights in the last 50 years -- doesn't want to create a blacklist. He's got a blacklist.

CARLSON: Wait a second, wait a second.

COHEN: He has disseminated the names of hundreds of persons.

CARLSON: Wait. Stanley, settle down here. First of all, let me just get a couple of facts straight. It hasn't been thousands of people detained, it's been over a thousand. COHEN: No.

CARLSON: I don't know what you mean by independent judges. Perhaps you're implying that these judges are somehow corrupt.

But let me ask you this. Is not the headline here that in this sweep of over a thousand people in which nobody has been tortured, nobody has been held in a dungeon, actual terrorists have been caught? Is it difficult for you to admit that this has been a successful sweep?

COHEN: We don't know that.

CARLSON: Lives have been saved. We do know. We've known that...

COHEN: We don't know that. You've asked the question, give me an opportunity to answer. We do know that many of these people have been brutalized. We do know that many of them have been tortured. You don't like to believe it. People have been kicked, people have been denied access to doctors. And when we talk about actual terrorists, arrested for what? I have got a client who has been detained for procurement of steroids.

Now what we've got here is a number of people who have been charged with crimes, none of them related to September 11th. What we have got here is someone who has got his own -- his own blacklist, who is trying to tell the American public, trying to tell the U.S. citizens "see, we are doing something."

The fact of the matter is, we've done nothing but sweep up lots of people. Many of them have been denied access to lawyers. Many of them have been held on secret evidence. Many of them are for all intents and purposes living back in the countries which from where they came, namely Egypt and Syria.

DIGENOVA: Actually, everybody who has been detained is a non citizen who has been here on a visitor's visa of some kind. The United States retains the right under the Constitution to determine the conditions under which people come here to visit and visa status. That is a perfectly properly exercise.

And by the way, all of these individuals will have the right legally -- and have it right now -- to challenge their status. To my knowledge, none has done so. And I want to reiterate, none of them has asked that their name be made public.

PRESS: Now, wait a minute.

DIGENOVA: The attorney general's conclusion here is absolutely correct.

PRESS: No, that's not really the point of what Mr. Cohen just said. The point is that some of their families don't know even where they are. They're not even in contact with their families. At least the families ought to have a right to know what's going on. DIGENOVA: That is -- that is inconsistent with the information that was put out by the attorney general today. If families -- it's frequently the case, by the way, that people who are incarcerated have difficulty reaching their families. That's a common problem with all people incarcerated.

PRESS: All right. Well, here's the real problem that I've got is you mentioned earlier that they've been charged with federal crimes.

DIGENOVA: Yes.

PRESS: We don't know what crimes they've been charged with.

DIGENOVA: That's correct.

PRESS: And in fact the -- the attorney general said today 104 have been charged.

DIGENOVA: That's correct.

PRESS: But they would know not say whether any of them have been charged with anything to do with 9/11. Now a federal offense...

DIGENOVA: Why does that matter?

PRESS: I'm going to tell you why it matters.

DIGENOVA: Does it matter? If they're violating U.S. law, what difference does it make?

PRESS: Wait. Let's say if you come in as a -- on a student visa and you get a job to help pay your way through school. That's a federal offense. Before September 11th nobody would even have looked the other way.

So Joe, what you're defending is the federal government rounding people up on charges that they paid no attention to before September 11th and have nothing to do with September 11.

DIGENOVA: What I am defending -- what I am defending is that on September 11th, 19 people who came to this country -- now listen to this -- legally -- who came to this country, legally -- not illegally -- legally, lived amongst us, purposely hid their desires, executed the worst terrorist act in the history of the 20th century and the United States decided that it was going to strictly enforce laws already on the book and it went out and it arrested and detained a number of people who were in violation of their U.S. immigration status or for whom there was probable cause to believe they had committed a federal crime.

The United States has acted properly here. The attorney general has done exactly what his responsibility requires him to do.

PRESS: So let's -- let's make an analogy here. There have been lots of crimes -- bloody, horrible crimes -- committed in this country by members of the Mafia. What if after those crimes the federal government had said, "let's round up a thousand Italian Catholics and hold them in prison," Joe, "on any charges whatsoever?"

DIGENOVA: But that...

PRESS: How do you like that?

DIGENOVA: Well, I -- Bill, the bottom line is as an Italian American I have observed the -- the acts of the federal government in pursuit of the Mafia and I applaud what the government has done to destroy the Mafia in this country. But they have never made...

PRESS: But they didn't round up innocent...

DIGENOVA: No, no, no. And neither did they in this case.

PRESS: How de we know?

DIGENOVA: We know. We know. And you know, they'll be able to litigate this question if they like. We know right now every one of these individuals has either illegally been here in violation of their visa status or for whom there was probable cause that a federal judge has found they violated federal law.

PRESS: We don't know that.

CARLSON: OK. Wait, hold on. Let me address what you said we know, which is that some of these people have been tortured because they have been denied appropriate medical care.

COHEN: That's right.

CARLSON: Now, you will agree that that's ludicrous hyperbole.

COHEN: No.

CARLSON: But I want to -- I want to confront you with what that reasoning leads to. Now, there's a debate going on in Europe now about what should be done with suspected terrorists or should they be extradited here? And people who believe some of the things that you believe think, well, perhaps they should not be because our justice system is somehow not fair.

I want to read you a really remarkable quote today from a spokesman for the Belgian Justice Ministry, who said this is a moral quandary they are facing. "One is looking for a solution if Osama Bin Laden or whoever is arrested somewhere in Europe."

In other words, even if Osama Bin Laden were somehow apprehended in Europe, the Europeans would really wonder whether it would be appropriate to extradite him here, allow him to be tried here.

This is someone who lives in a country where justice is meted out in soccer stadiums and somehow the U.S. justice system is not good enough. Don't you think that it's time to kind of tone it down a little bit and be honest that this is a pretty fair system? COHEN: The fact -- the fact of the matter is we have extradition treaties. We have -- the leadership of countries in Europe and the United States who agree that people can be extradited under certain terms and conditions.

I realize that whenever the United States tries to get someone or asks that someone be extradited and European countries say, "not unless you abide by the rules," the United States then says, "We are going to change the game, we're going to change the rules of the game."

The fact of the matter is there are countries in Europe that have signed treaties with the United States and the United States with -- with Europe that says we will extradite people under certain terms and conditions. If they don't exist, we are not going to comply.

Those are issues that have been worked out by governments. They've been worked out hundreds of years. And the fact of the matter is they may not serve the political mood of the country now is not reason to throw the baby out with the bath water.

CARLSON: But I'm wondering -- and as an attorney if you'll address sort of the larger question of justice here -- just to take the example of Osama Bin Laden. Here's a person who has killed thousands of American citizens.

COHEN: I don't know that. Neither do you.

CARLSON: I think we know that because he's admitted that on videotape.

COHEN: No, he hasn't. No, he hasn't. He's admitted supporting after the fact acts which contributed.

CARLSON: I think you need to watch CNN more carefully. But look seriously, the guy has admitted it, he's guilty of it. Why is it -- why is it against the common understanding of justice he be tried here? Because some treaty says that we have the death penalty, therefore he can't be extradited?

COHEN: No, no.

CARLSON: Please.

COHEN: Because -- because if we are to be different than that which we despise, if we are to be -- as Joe says -- a nation of law and order and rules, we've got to play by the rules that we've established. We don't pick and choose on what days we want to apply Rule A and on what day we want to apply Rule B.

These are treaties. These are the hallmark of international commerce and interchange between governments, and you can't when it suits you go by one set of treaties and then go by another.

DIGENOVA: Let me -- let me just agree with Stanley on this point. If the Europeans are luckless enough to capture Osama Bin Laden, they will figure out a way to deal with this and so will we, ultimately. But the truth is Osama Bin Laden will never be taken alive. This will not be a problem. And I must say being lectured by the Europeans who brought us the Holocaust, Kosovo and Bosnia is really a treat.

PRESS: On that point, we will take a break. When we come back, some -- over 500 young Arab men in Michigan have received a letter asking them to come in voluntarily for questioning. Could this be racial profiling? We are going to get into that when we come back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ASHCROFT: When a crime is committed or there's a threat, a potential crime to be committed, Americans are asked -- citizens are, individuals who come here and enjoy the freedom of this country, are asked responsibly to help protect the body politic. Not just Americans but others who are here visiting.

(END VIDEO CLIP)

PRESS: Welcome back to CROSSFIRE. Uncle Sam wants you. That's the message the Justice Department has sent to more than 500 young men from the Middle East who are now in Michigan on work or student visas. Uncle Sam wants you to come in voluntarily to answer questions about possible connections to September 11th.

It's either proper procedure at its best or racial profiling at its worst Which is it?

Former U.S. Attorney Joe Digenova defends the Michigan letter. Criminal defense attorney Stanley Cohen, joining us from New York, condemns it. Tucker.

CARLSON: Stanley Cohen, I hope you won't compare this letter going out in Michigan to the internment of Japanese Americans during the Second World War. But just in case you do, let's get straight from the very beginning what this letter is asking. And -- and I want you to listen to Jeffrey Collins, who's the U.S. Attorney for the Eastern District of Michigan, describe his intent here. Here's Mr. Collins.

(COMMERCIAL BREAK)

JEFFREY COLLINS, U.S. ATTORNEY: These interviews are strictly voluntary. If in response to that letter they would contact the United States attorney's office and let's say for whatever reason they opt out, they would prefer not to be interviewed, we will respect that. There will be nothing said and no further action will be taken.

(END VIDEO CLIP)

CARLSON: Now, this is less than is required at a traffic stop. You get pulled over and the policeman asks for your identification and registration. You have to give it, you have no choice. In this case, someone gets a letter, doesn't want to answer questions, calls him, says no thank you. And end of story. What in the world could be wrong with that?

COHEN: Well, if all they do is no thank you, you don't have to come in and that's the end of it, nothing is wrong with it.

The problem is -- talking about Joe's point before -- isn't it interesting that while these crimes were hatched in Germany and in France and in Spain and perhaps in Britain that they're just asking Muslims and Arabs to come in to help further voluntarily the investigation and not people who are blonde haired and blue eyed from Europe? You think there's something...

DIGENOVA: There's a reason for that.

COHEN: Why is that?

DIGENOVA: There weren't -- there weren't a lot of guys named Kurt and Mario among the hijackers.

COHEN: No, but we do know...

DIGENOVA: 100 percent of the hijackers were Muslim Arabs.

COHEN: But we do know that -- we do know that these plans were hatched in Germany, they were hatched in Spain with the support of people...

DIGENOVA: Yes, by Arab Muslims.

COHEN: That's not correct. That's not correct.

DIGENOVA: Oh, it is correct. Oh, no, you're wrong. That is 100 percent accurate.

COHEN: I have to differ with you, Joe. We now know for example there have been Indonesians that have been drawn in, there have been Germans that have been implicated in these events, there have been Spanish that have been implicated. But they haven't been asked to volunteer.

DIGENOVA: They were all Arabs and all Muslim.

COHEN: No, that's not true.

DIGENOVA: I'm afraid you're dead wrong.

COHEN: I'm afraid you're dead wrong, Joe.

DIGENOVA: You're just...

COHEN: The reality of it is...

DIGENOVA: And by the way, this is not -- this is not profiling. COHEN: It is absolutely profiling. When you turn around and you send out -- when you send out 500 letters or what will be 5,000 letters to only Muslims and Arab men between the ages of 18 and 33...

CARLSON: It's perfectly rational. It's perfectly rational.

COHEN: You can try to go through -- you can try to go through any hoop you want. That is profiling and it may very well be unconstitutional.

PRESS: Whoa, hold on one sec.

(CROSSTALK)

PRESS: Why isn't it profiling? Answer the question.

DIGENOVA: Because the Supreme Court has fully approved profiling of specific groups of people on a fact-based basis. For example, in the case of the United States versus Mendenhall, they approved drug -- drug profiling of people who get on a plane and have a certain type of behavior. The same thing is true in this case. All of the terrorist...

COHEN: It has never been upheld in this type of case. It has been upheld -- people when they go to an airport, it's been held, can be singled out when there's reasonable suspicion of involvement in criminal activity.

PRESS: Joe, Joe...

DIGENOVA: The Supreme Court -- the Supreme Court has recognized profiling as legitimate, factually-based way to identify...

COHEN: Not when it's based on race or religion, Joe.

DIGENOVA: This is not based upon race or religion.

PRESS: Let me tell you...

DIGENOVA: This is based on facts.

PRESS: Whoa, no it's not. I want to tell you what it's based on.

DIGENOVA: Oh, it is.

PRESS: I've got a copy of the letter here. In the interest of time I'm not going to read the whole letter. But the letter says...

DIGENOVA: Feel free to read it all.

PRESS: We don't have time. The letter just says you've been -- your name has been brought to our attention because you come from a country where there are some known terrorists. That's what it's based on.

DIGENOVA: That's right. That's a rationale basis.

PRESS: Well, wait a minute. No, wait a minute. That -- because Osama Bin Laden comes from Yemen, that everybody from Yemen is a terrorist?

DIGENOVA: No, no. What it means is that because all of the people involved in al Qaeda are Arab Muslims, that people in that community may have access to information which can be helpful.

Now remember, all the people that they're interviewing are people here on visitor's visas. They have a duty to cooperate with the United States under their visa status. The government has a duty to interview them in investigating the case.

They can decide not to cooperate. Now it may very well be that if they don't cooperate they may not get their visa renewed. That's true too. And the United States has a right to not renew if they don't cooperate.

CARLSON: Now, Mr. Cohen, let me ask you to address that -- that question. I mean, the United States government is asking visitors to our country to come in and help with the fight against terrorism. Don't you think...

COHEN: The United States government...

CARLSON: Hold on. Anyone who's not willing to do that ought to leave? Isn't that at the very least their civic duty? Go ahead.

COHEN: The United States government -- the United States government is asking certain groups of citizens to come. If you read the letter it talks about coming from particular countries where terrorism is fostered.

DIGENOVA: That's right. That is right.

COHEN: That includes Germany. It includes Ireland, it includes Spain, it includes Italy. But yet we don't see one person who is blonde haired blue eyed or Christian or Jewish being brought in and asked to cooperate.

What we've got is profiling. We are focusing on a particular group with a particular background and particular religion. Not because of what happened on September 11th, if you follow the letter, but because they come from countries connected to terrorism. It's pernicious. It's unconstitutional if it's forced upon people.

DIGENOVA: It's not unconstitutional. It's factually based. It's not unconstitutional. It's perfectly legitimate.

COHEN: And I wonder why it's necessary -- I wonder why it's necessary given the fact that in the days following September 11...

CARLSON: OK. Mr. Cohen, I'm afraid we are going to have to -- we're going to have to end it there. This debate is not done, unfortunately. But we thank you both. DIGENOVA: Thank you.

COHEN: Thank you.

CARLSON: Joseph Digenova, Stanley Cohen. Happily, Bill Press and I will continue this debate when we return with our closing comments, and we'll also take up the question: should Saddam Hussein be next? Of course he should. I believe Bill disagrees. But you can find out when we return in just a moment on CROSSFIRE.

(COMMERCIAL BREAK)

CARLSON: You know, Bill, Stanley Cohen's point of why aren't they detaining or questioning Jews or Christians -- members of al Qaeda are to a man radical Muslims. This is a depressing fact for the millions of reasonable Muslims out there. But it's a fact nonetheless. If you want to catch members of al Qaeda, you ask radical Muslims, by definition. It's not profiling, it's a response to the factual.

PRESS: No, you've got it wrong. I'm sure the members of al Qaeda are radical Muslims, but not all -- not every Muslim is a terrorist.

CARLSON: But nobody said that.

PRESS: John Ashcroft is suggesting that...

CARLSON: Oh my God.

PRESS: ... by rounding these people up on no evidence of any crime committed and detaining them...

CARLSON: Rounding them up?

PRESS: He is rounding them up. Where are they?

CARLSON: Every single one has committed a crime. Have all your friends disappeared all of a sudden? Is that why you're...

PRESS: Let me mention something else. So here's George Bush yesterday at the White House saying Saddam Hussein had better let the inspectors back into Iraq or else. it sounds to me like, Tucker, Bush has already decided he is going to bomb Iraq next. Big mistake.

CARLSON: I hope so. I hope so. This is unfinished business. One piece among many from the Clinton administration who allowed our inspectors to be kicked out of there and Bush...

PRESS: George Bush.

CARLSON: You know, look, they've got sarin gas in Afghanistan. Can you imagine what Saddam Hussein is going...

PRESS: Pardon. May I remind you that Saddam Hussein -- it's hard getting them straight -- is still there not because of Bill Clinton but because George Bush -- 41 -- didn't do the job, Tucker.

CARLSON: And eight years of Clinton didn't make a single difference...

PRESS: But there is no -- no -- here's the problem. No connection between 9/11 and Saddam Hussein. No right to bomb Iraq.

CARLSON: The guy has weapons of mass destruction designed for us. We should do something about it.

PRESS: No connection to 9/11. From the left, I'm Bill Press. Good night for CROSSFIRE.

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

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