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CNN Crossfire

Interview With Joseph diGenova; Interview With Gerry Spence

Aired December 17, 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)

RUDOLPH GIULIANI, MAYOR, NEW YORK CITY: I think the death penalty is the appropriate remedy to consider.

(END VIDEO CLIP)

BILL PRESS, CO-HOST: Is death the right punishment for American Taliban John Walker?

(BEGIN VIDEO CLIP)

COLIN POWELL, SECRETARY OF STATE: It's important to note though that Taliban is finished and Al Qaeda is in the process of being finished off in Afghanistan, but our work is not done.

(END VIDEO CLIP)

PRESS: And what is next in the war on terrorism?

ANNOUNCER: Live from Washington, CROSSFIRE. On the left, Bill Press. On the right, Tucker Carlson. In the CROSSFIRE: former U.S. Attorney Joseph diGenova; and in New York, criminal defense attorney Gerry Spence. And later, former deputy national security adviser James Steinberg and retired lieutenant colonel Robert Maginnis.

PRESS: Good evening. Welcome to CROSSFIRE.

Oops. Before the weekend we were told U.S. and Afghan forces were closing in on Osama bin Laden, but now it looks like he may have flown the coop. So where is he? Nobody knows for sure. But President Bush says, we'll find him somewhere, even if it takes a whole year. What's that mean for American forces in the war on terrorism? That debate with two military experts coming up.

But first, young American John Walker may be more than just the confused young man fighting with the Taliban he first appeared to be. According to "Newsweek," he has admitted to U.S. officials that he was a member of the al Qaeda network, that he trained in their camps as a terrorist and that he even met Osama bin Laden himself.

So, should he be tried as a traitor? Is the death penalty too good for him? That's our first debate. Tucker Carlson is out of town. Joining us as co-host tonight, Larry Elder, radio talk show host at KABC AM in Los Angeles, where I got my start, many years ago.

LARRY ELDER, GUEST CO-HOST: That's right.

PRESS: Larry, good to have you here.

ELDER: Bill, nice to see you. Thanks for having me.

Mr. Spence, if some of the things that Bill said in the opening are accurate, and I have not interviewed John Walker, you have not interviewed him, I have not read the transcript, I assume you haven't; that he was captured with an AK-47, that he says he's a member of al Qaeda, that he says he met with Osama bin Laden. He even warned America of a biological attack at the end of Ramadan. What's there to talk about? Isn't this treason?

GERRY SPENCE, CRIMINAL DEFENSE ATTORNEY: Well, first of all, to have treason, I think there isn't any question, before you can have a case for treason, you have to have a declaration of war. There isn't much question about that. And although this may be a war, there certainly hasn't been a declaration of war.

What we're really talking about here is trial by "Newsweek," isn't it? Trial by "Newsweek." I mean, what they said in "Newsweek" is now what we take to be the facts in this case without cross examination, without the presentation of proper witness, without hearing from the so-called defendant himself, only "Newsweek" and now we're going to see what we can do so prosecute this kid.

You don't -- let me ask you one thing: Don't we still have in this country for American citizens something that is called the presumption of innocence?

ELDER: Well, Mr. Spence, I think we do have something called the presumption of innocence, and nobody is saying that we string him up right now. All I'm suggesting is, assuming the reports are accurate, that he professes to be a member of al Qaeda, that he knew after September the 11th that his enemy was America, that he warned of biological weapons, that he says he met with Osama bin Laden, something that your rank and file fighter would not have done; doesn't this suggest at least that there is a case to be made that this man has committed treason?

SPENCE: You know, if you want to play that kind of game, then yes, you can say assuming A, B, C, D, E, F and G and all of the elements of treason, and you ask me to assume them, yes, that's true.

That doesn't mean anything except that we're making, you know, assumptions about the guilt of a man who has not even had a chance to talk to his lawyer, who has been interrogated for nine days without a lawyer.

What do you think -- what do you think it would look like if you even, even you, had been interrogated nine days without a lawyer? ELDER: Even me.

PRESS: God forbid we won't go there. But, Joe diGenova, tough prosecutor, former prosecutor, let me ask you -- now, I'm not defending what John Walker did. But he's 20 years old, Joe. I mean, he's not even old enough to buy a drink. Of course, for a Muslim that may not be a problem.

But, he's 20 years old, an age where most of us did things we are not proud of. Even President Bush, remember last year during the campaign, about himself he said over and over again when I was young and irresponsible, I was young and irresponsible. I'm not suggesting that drunk driving arrest is the same as fighting for the Taliban. But given his age, doesn't that argue for treating him as something less than a hardened criminal?

JOE DIGENOVA, FORMER U.S. ATTORNEY: No it doesn't, Bill, and I'll tell you why. The very people that he was fighting against in Afghanistan and elsewhere, American soldiers, young men and women, 18 to 20 years of age, same age, made a different decision than he did, purposefully, to defend the United States. He made a purposeful decision as a man of 20 years of age to fight his own country, to bear arms against them, and to levy war against the United States, as is prohibited by the Constitution.

I agree with Gerry that, by the way, we don't know all the proof that exists in the facts, but as a matter of assumption, I think it's clear that the United States should reserve the right charge him with treason. It may not ultimately do that. But he's an American citizen. He'll be tried in a civil court, if he gets back here, and the option of treason and the death penalty ought to be made available.

That doesn't mean we'll ultimately do that, but certainly the facts as we know them now justify treating him as a traitor.

PRESS: Well, I want to ask you about those points you made and, by the way, congratulate you for not jumping, like Rudy Giuliani and some others have said to date, which is basically off with his head, even before the trial. Off with his head.

He seems to be -- he's been talking for nine days with or without an attorney. He seems to be cooperating, Joe. Isn't he more valuable to us as maybe a witness against some of these other guys...

DIGENOVA: He may very well...

PRESS: ... and if he does cooperate, wouldn't that argue for a lesser sentence than the death penalty?

DIGENOVA: Bill, look, all of this is part of the process by which the American government should deal with him. If he decides to cooperate fully, if he -- he might even be a witness against Mr. Moussaoui right here across the river in the eastern district of Virginia. He might end up being a witness against Mr. bin Laden, if bin Laden unfortunately is taken alive. The bottom line is this: we must leave our option open. The president ought to not decide one way or the other, and he might be a good cooperating witness. We might be able to work a deal with him where he service some prison time, pleads guilty and testifies about the nature of the conspiracy that Mr. Moussaoui across the river is charged with as possibly the 20th hijacker on September 11.

ELDER: Joe, I want you to follow-up on what Gerry said about this not being a declaration of war. He clearly is right about that, but Congress did pass a resolution of war authorizing the use of force. Is that close enough?

DIGENOVA: Yes it is. And, in fact, if you go back and look at the case law on treason, a state of war has to exist. There doesn't have to be a declaration of war for treason to be done.

But that is an argument that a defense attorney will make.

ELDER: Gerry, what's your reaction to that, that the declaration of war is close enough in order to meet at least that element of the crime of treason. You don't buy that?

SPENCE: Well, you see, we haven't read the same cases, but I guess Joe and I are like the United States Supreme Court, if we did read the same case, we would probably come out with a five-to-four decision.

ELDER: Now, how did that come into the question?

SPENCE: But, you know, folks, suppose he wasn't fighting our forces at all. That's an assumption against in him suggesting that he's guilty. Suppose he was, suppose he was fighting against the Northern Alliance, where we ourselves fought against the Northern Alliance. So, is everybody who has fought against the Northern Alliance now deemed to be a traitor, including the United States of America?

I mean, this -- these are a lot of important and serious facts that need to be worked out before we begin to make assumptions. And I would have much preferred it if this program, in support of the basic proposition of the presumption of innocence of all people, would have said assume this, this, this, and this, all of which presume his innocence. Why didn't we start there instead of the other place?

DIGENOVA: Let me just say that I think, Gerry talks about him fighting the Northern Alliance as opposed to the United States. Let's assume that's true. One thing is certain: once he was taken prisoner and he was in that compound where the CIA agent was murdered, he was fighting us because he was part of the resistance in that prison.

He was actually among the people that were in the very bottom part of the prison that they actually had to flood when they got them out. They were all armed with various types of weapons. There's no doubt that at that point at a minimum he was fighting the U.S., but in addition he's admitted that he was a member of al Qaeda and their personal declaration was against the United States of America. SPENCE: All those admissions, Joe, if they were admissions, came first of all from a man who has interrogated nine day also without a lawyer. And, secondly, that came as hearsay, utter, gross hearsay from "USA Today." So, let's see it the way it is.

DIGENOVA: "Newsweek" may be -- "Newsweek" is reporting them and that is hearsay, but the point is, if those statements are true, he has admitted being party to levying war against the United States.

PRESS: All right, Joe, let me ask you this: do you believe that John Walker, some have suggested, because he took up arms with the Taliban, that he's no longer a United States citizen. Do you believe he's still a United States citizen?

DIGENOVA: That is actually an open legal question. It is possible to renounce your citizenship by taking up arms. There is -- the Supreme Court has spoken equivocally on that question.

SPENCE: Well, if he isn't a citizen, Joe, excuse me for interrupting you, but I'm afraid I'll never get to say this, if he isn't a citizen, he can't be tried for treason.

DIGENOVA: You are absolutely right. And therefore he should be tried before a military tribunal.

SPENCE: You love those, Joe?

DIGENOVA: I think they're a great idea in wartime.

PRESS: Hold it, Gerry, just a second. But under -- that's the purpose of my question, Mr. diGenova, because under President Bush's executive order a United States citizen cannot be tried in one of his military tribunals.

DIGENOVA: That's absolutely correct.

PRESS: OK. So, as a United States citizen, therefore, doesn't he have rights that have not been extended to him? His Miranda rights were not read to him. He has been interrogated nine days without an attorney.

(CROSSTALK)

DIGENOVA: The issue here is, this interrogation, he was a belligerent, a combatant against the United States in a war zone. Those rights do not apply in a war zone overseas.

ELDER: And, Gerry, at least you didn't make the argument that he was only 20 years old and therefore could not be held responsible for what he did, because the average age of these enlisted men on these aircraft carriers is 19. At least you didn't make that argument, Gerry.

SPENCE: Well, of course, you know, -- but, you know, -- it always hurts me when people take, look at a 19-year-old who has been over there since he was 16 years old. 16 years old. You know what happens -- I can think of all the things that I did between the time I was 16 and 19, and I don't even want to tell you and much less think about them. And, you know, we're now talking about treason, putting a boy to death because of the exposure that he has had for four years over there.

You know, we've changed our mind and positions in four years in ways that are shameful sometimes ourselves. So, maybe we ought to approach this more like human beings rather than like, you know, hangmen.

DIGENOVA: I don't know. I find this to be a rather civilized discussion, myself. Of the options, I don't find it to be terribly uncivilized.

PRESS: And for that civilized discussion, we thank you both. Joe diGenova, thank you for joining us.

SPENCE: Thank you, Bill.

PRESS: Gerry Spence, up in New York, thanks very much for being with us.

And when we come back, in our next segment, the big question. Where, where, oh, where is Osama bin Laden? How did he escape, if he did? And how are we going to find him? Coming up next.

(COMMERCIAL BREAK)

ELDER: Welcome back to CROSSFIRE. I'm Larry Elder. With the collapse of the Taliban and the installation of an interim government in Afghanistan, the question becomes: what next in the war on terrorism? Will Osama bin Laden ever be captured? Will the U.S. move on to other countries, such as Iraq? Many believe that Saddam Hussein continues to develop weapons of mass destruction and that sooner or later, he will have to be dealt with.

Our guests tonight, former Clinton deputy national security adviser James Steinberg, vice president for foreign policy studies at the Brookings Institute, and retired army lieutenant colonel Robert Maginnis, vice president for policy at the Family Research Council -- Bill.

PRESS: Colonel Maginnis, I know we invited you on the show to talk about where we go next in the military war on terrorism, but I do have to start with this question; I mean, the al Qaeda -- there are still al Qaeda fighters active out there in the hills of Afghanistan. We have no idea where the Taliban leader Mullah Omar is. We have no idea where Osama bin Laden is. Isn't it premature to talk about the next military operation when this military operation ain't over yet?

LT. COL. ROBERT MAGINNIS, U.S. ARMY (RET): Well, Bill, I have spent 20 years as a military planner and we were always thinking two or three steps down the line. So, it's not unusual for Tommy Franks down in Central Command to say what are we going to do next month, next year. What about this country. And they're constantly going through, every day, many of the options. Yeah, you know, Osama bin Laden is not in hand. Perhaps 20 other of his former leaders. And Omar is not in hand. Eventually, we'll find him or at least get some DNA to verify that they are dead. But I wouldn't be too concerned about that. We're after him.

PRESS: Well, I'll tell you what I'm more concerned about, which is what is the next step? And it seems to be even the new leader of Afghanistan, Hamid Karzai, has said that the next step -- because we just can't walk away -- the next step has to be making sure that we have in Afghanistan a coalition government that is in place, that can run that country, can't do what we did before when we were helping the Mujahideen.

So, isn't the next -- isn't that the next step? Forget about where we go militarily. Isn't the next step nation-building, to borrow a phrase, in Afghanistan?

MAGINNIS: Well, we are clearly committed, Bill. We just opened up our embassy against since 1989, today. So, we're showing evidence that we're there to help cobble together a government that has been in disarray for many years.

Karzai has the commitment from Secretary Rumsfeld yesterday that we are going to do the right thing. We're going to make sure the country is safe as best as we can. We're going to provide a lot of humanitarian support.

But, meanwhile, our objective there is the destruction of the al Qaeda and the Taliban. The Taliban is about gone, but al Qaeda isn't, and they are elsewhere in the world, up to 60 countries.

PRESS: The point is, shouldn't we make sure Afghanistan is secure before we start bombing somewhere else?

MAGINNIS: Well, Bill, it doesn't take a lot of our force to do that. Quite frankly, we're going to have peacekeepers working out of Kabul with the Northern Alliance and the Eastern Alliance and whatever other alliance they're forming up in the future. We're going to have people there.

But it's not going to take the large part of our force. We are going to have the flexibility to go elsewhere as we must.

ELDER: Mr. Steinberg, even if there doesn't appear to be any evidence linking Saddam Hussein to the terrorist attacks of September 11, and so far I haven't seen any smoking gun that links them; isn't that irrelevant? Isn't he still embarking on weapons of mass destruction and sooner or later we are going to have to deal with him?

JAMES STEINBERG, FORMER DEPUTY NATIONAL SECURITY ADVISER: Larry, there are a lot of countries that are trying to develop weapons of mass destruction. Just look next door to Iran and North Korea. So, we have got to deal with those problems, absolutely. But we have got to deal with them in a way that doesn't disrupt our ability to do deal with this immediate threat to the United States, which is the al Qaeda network. We have got a tremendous coalition working with us right now. We have them on the run, but we can't lose sight of that priority. That's what we need to focus on right now.

ELDER: But we have not had inspection in Iraq in three years. What do you think he is doing?

STEINBERG: We know what he's trying to do.

ELDER: Let me put up a graphic for you. This is a director of his nuclear weapons program, and here is what he said: "Even before I left Iraq, the government was spreading it's weapons development sites across the country, in mobile units, in military barracks, and well- camouflaged buildings, both to evade inspections and reduce exposure to air attacks," end of quote.

What else is there to say?

STEINBERG: But what we know is that there are limitations even if we have inspections. So, that's not the way to deal with this problem. The way to deal with this problem is to make clear to Saddam Hussein the consequences of his trying to share this information and share this technology with the terrorist. That ought to be our priority. We ought to make clear to him if we get any evidence that he's working with any terrorist group, not just al Qaeda, that we'll take action.

But right now, what we're trying to deal with, a lot of countries that are trying to develop weapons of mass destruction; we need a broadscale effort that doesn't just focus on Saddam, as dangerous as he is, but on the broader part. And that means a broad international consensus to deal with him, not taking this problem on on our own without the support of others, because it will backfire on us.

ELDER: If we don't get a broad consensus, we do nothing?

STEINBERG: What we do is, we aren't going to be effective unless we have a broad consensus, because we can't solve this problem simply by trying to wish it away. We will need military support from others, we'll need political support from others, to take this problem on.

MAGINNIS: There's ample evidence that Saddam Hussein has given complicit use of Baghdad to at least five state department identified terrorist groups to include al Qaeda and the James Intelligence Review has documented a number of case where they have gone to Afghanistan in the last couple years and, of course, we all know about Mohamed Atta and his alleged but growing emphasis on contacts in Prague that perhaps led to 9/11.

PRESS: Whoa. The "New York Times" yesterday reported that after three months of investigation, there is zero evidence that that meeting had anything -- first of all, there is very little evidence that that meeting ever took place. And there's zero evidence that it had anything to do with 9-11.

The focus should be, it seems to me, don't you agree, on al Qaeda. And if we're talking about al Qaeda, aren't we talking more about Sudan, Somalia, Yemen, Saudi Arabia, the Philippines, Indonesia. Why do you keep talking about Saddam Hussein.

MAGINNIS: Bill, I read the "New York Times," I don't rely upon it totally for my intelligence information. But I will tell you, the Malaysia, Indonesia, the Philippines, Sudan, Yemen, a number of other countries to include Lebanon with Hezbollah, and even the Palestinians -- don't forget, Saudi Arabia is complicit in funding some of these radical Islamic countries. Are we going to go after them?

We don't know yet. These are too hard in some cases to crack. But first, we have to get the low hanging fruit, the Somalias of the world, and then we absolutely have to go after Iraq, because they have, as that gentlemen that you quoted, 11 tons of uranium...

PRESS: Because we don't like him. There is no connection.

MAGINNIS: ... perhaps enough enriched uranium for three weapons.

ELDER: You mentioned that we have a lot of neighbors, bad people who have bad weapons. However, not all of them have used them. We've got a situation here with Iraq where he used them against his own people. He used them in the Iraq/Iran war. Doesn't that elevate him?

STEINBERG: What we are seeing is because the effective use of our pressure and our force over the years has kept him contained, has made it impossible for him to do that. We need to keep that pressure on. But we don't need for us to get isolated in doing this. What we need to make sure is that we keep our eyes on the situation, that we make clear that if there's any evidence that he's moving in that direction, that we take action. But for us to...

ELDER: We can't keep our eyes on the situation. As he said, that's the point. He said they are already doing it. He's decentralized it. He's moved it all over his country. Even if we send inspectors back in, we're still not going to find it.

STEINBERG: That's right. We're not going to find it doing it that way, but we've got to make sure is that he's not going to use it. We've had an effective policy up until now that has made sure that since we put this pressure on him, he hasn't.

MAGINNIS: Just last week, Secretary Rumsfeld indicated they know of biological agents being developed in vans that he is roaming all over. Now, that's the stuff that's in the unclassified version. I suspect there's a lot more behind the scenes.

PRESS: I ask you again, doesn't the focus have to be on 9-11? That's the legitimate cause for our action and there is no connection between Saddam Hussein and 9/11.

MAGINNIS: These terrorist groups, Bill, overlap. You have got Iran playing with Hezbollah. You've have Saddam Hussein playing with al Qaeda. They're all over the entire region, so we have to take one at a time and we're going to do that methodically then, eventually, Iraq. PRESS: And we have to go. Gentlemen, we thank you for coming in. Colonel Maginnis. Jim Steinberg. I have a feeling we'll be talking about this again and we'll see you back here. Thank you.

And when we come back, this is exciting. In the world of music over the weekend, a great new voice was discovered. Should Placido Domingo be worried? We'll reveal who the mystery voice was in our closing comments. Coming up.

(COMMERCIAL BREAK)

PRESS: You know, Larry, we have a very important public service to perform right now because we know, folks, this is the busy time of year. You were all busy over the weekend, lots of errands, lots of shopping to do. You couldn't watch television all the time. You might have missed a couple of important pieces of video. If you did, we want to show them to you.

These are must see videos. These videos could have more of an impact on humanity even than that Osama bin Laden tape.

All right. Here's number one. Music, please.

(BEGIN VIDEO CLIP)

RUMSFELD: Where's Timothy Murphy? Happy birthday to you , happy birthday to you, happy birthday dear Timothy. Happy birthday to you.

(END VIDEO CLIP)

PRESS: Well, you see that. That mysterious voice we were talking about, that great baritone there is actually, there he is, secretary of defense, now secretary of war, Donald Rumsfeld, over with the troops in Afghanistan, serenading one of our armed forces. Good for him.

ELDER: Well, Bill, I just happen to have a piece of videotapes for you. You've heard of the three tenors?

PRESS: Yes.

ELDER: These are the three Democrats. Charlie Rangel, Charlie Schumer, and your president and mine, Bill Clinton. Do we have that?

(SINGING)

(LAUGHTER)

ELDER: Look at that soul. Oh yeah.

(LAUGHTER)

PRESS: Listen, I got to tell you one thing. All right, now, but...

ELDER: They've got more soul than they can control. You know that?

PRESS: Here's one. Yeah, but here's another one that was over the weekend, a guy who is looking for a job. Will his job be with the Metropolitan Opera? Here he is, let's see. Rudy Giuliani.

ELDER: Let's take a look at this.

(SINGING)

PRESS: I have to tell you...

ELDER: The strongest tape I can think of against term limits. Let him run again.

PRESS: Great job, Rudy, but the Metropolitan is not your role.

From the left, I'm Bill Press. Good night for CROSSFIRE.

ELDER: I'm Larry Elder. Join us again tomorrow night for another edition of CROSSFIRE.

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