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Analysts Discuss Guantanamo Tribunals, Supreme Court Rulings, Media Leaks

June 30, 2006 at 6:30 PM EST
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JIM LEHRER: And now to the analysis of Shields and Brooks, syndicated columnist Mark Shields, New York Times columnist David Brooks.

Mark, the Supreme Court military tribunals decision, legalities aside, what’s the message of what the court today?

MARK SHIELDS, Syndicated Columnist: ┬áWell, the message is that the — to the Congress, that you have a responsibility, and the administration does not have a blank check, in the words of Justice Breyer, just to totally circumvent, whether it’s the Geneva convention or U.S. constitutional law.

This administration since 9/11 has pushed, I think, assiduously, conscientiously, aggressively the expansion of executive privilege and executive authority, executive power. And this was the first time they’ve put a constitutional break upon it since — with one exception. The only time Congress asserted any authority of its own was John McCain’s torture amendment and legislation which passed at the end of last year.

JIM LEHRER: Big blow, David, to the president’s authority, as President Bush sees it, at least?

DAVID BROOKS, Columnist, New York Times: I think pretty significant. It’s certainly the end of an era.

I think they had tried to run — the administration had tried to run an executive branch-only kind of war on terror, and I think they did that for understandable reasons.

Go back to 9/11. People really thought the White House was going to get hit again in the subsequent weeks. And many people thought they would die going to the White House or going to the Capitol, and they felt we got to act, we got to act, to hell with the rules.

Well, it’s now been four and a half, five years, and now it’s time to regularize it. And so the courts are really saying, “Hey, you got to go back to Congress. You got to work within the system.”

And I’m struck by the widespread relief, even among Republicans, who say, “OK, we understand why they were so aggressive, but now it really is time to do this in a normal way with the checks and balances.”

JIM LEHRER: Why didn’t, in this last four and a half years, didn’t the administration go to Congress on its own? Why did it wait for the court to do this in such a dramatic way yesterday?

DAVID BROOKS: I think there are two reasons, both within the administration. I think there are some within the administration, most famously in the vice president’s office, who say this should be the power of the executive, this should simply be the executive’s authority.

I suspect — and I don’t know this for a fact — but I suspect that there are others in the administration who said, “We’re going to act this way. We’re probably going to get scaled back by the courts, but we’re going to act this way anyway because we think it’s important to do it given the enemy.”

JIM LEHRER: And so force the hand of the courts?

DAVID BROOKS: Right. Essentially to take advantage while they could, suspecting they’d probably get rolled back.

MARK SHIELDS: Overlooked in this, Jim, to a considerable degree, beyond the politics, is this is a vindication of the military justice system. And these Navy lawyers — I mean, you talk about taking on Goliath. They took on the civilian leadership of the Pentagon, and they took on the administration’s top guns, and said…

JIM LEHRER: The lieutenant commander of the Navy, who was one of the lead lawyers…

MARK SHIELDS: The lieutenant commander of the Navy, God love him…

JIM LEHRER: … for Hamdan, yes.

MARK SHIELDS: That’s right, and stood up and said: There is a responsibility. There is regular order here. There are laws. They have to be recognized.

And, you know, it’s a wonderful thing that we still produce men of this kind of profile in courage, because it did require a profile in courage.

Finding the next step

Mark Shields
Syndicated columnist
I think they [Congress] see it probably at this point as having some political advantage, to still be arguing about terrorism and the president's concern for it and protecting the country with the Republican Congress three months before an election.

JIM LEHRER: And now, the courts said you can do it one of two ways, administration. You can do it in the military courts that now exist, or Congress can come along and fix this thing for you and make everything all right. What do you think should be done and will be done?

MARK SHIELDS: I'm not sure what should be done. I think they'll probably go to Congress, because I think they feel that's their best bet. And I think they see it probably at this point as having some political advantage, to still be arguing about terrorism and the president's concern for it and protecting the country with the Republican Congress three months before an election.

JIM LEHRER: Will the Democrats stand aside or will they be a problem?

MARK SHIELDS: That's a good question. I think the key person to watch in this is McCain. I mean, I think what John McCain does will be fascinating, because what we've seen McCain do, the torture law and the president with his signing statement basically abrogate it, and McCain is still, you know, upset about that and angry.

And the idea that, you know, American troops are being put in that position, in that legal position, still bothers a lot of military people and people close to the military.

JIM LEHRER: Yes, go ahead.

DAVID BROOKS: Well, I've noticed that on Capitol Hill they're chomping at the bit to get involved in this, because they have felt that their branch of government has been disrespected and they really want to get aggressive.

And I think there are -- I mean, there seem to be -- Arlen Specter has been very aggressive in trying to -- and some people, like Senator Frist, want to give the administration essentially what they have.

Others -- and this is an ally of John McCain, Lindsey Graham of South Carolina, who's a military judge, wants to create a military system with congressional approval. And from what one is hearing so far, there tends to be pretty bipartisan interest in that, Carl Levin and Lindsey Graham.

And there seems to be -- I have trouble believing that too many Democrats or Republicans are going to want to seem weak on terror. So I suspect they're going to want to regularize something, something maybe not what the White House wants, but something acceptable to the White House, and maybe even in a bipartisan way.

JIM LEHRER: But something that also introduces some of the -- are considered routine protections of individual rights for defendants and all of that that are not part of the system as created by the administration.

DAVID BROOKS: Exactly. And as many people have pointed out, there's a Geneva Convention aspect to all of this. There's this Article 3 thing, which was in the opinion, which really does impose Geneva Convention restrictions on what they can do, and I think that'll be in there, too.

JIM LEHRER: What about the court itself? Did you expect the court to come down this way?

DAVID BROOKS: Oh, I think -- I mean, of the people who really follow the court, I think few, I think there were few who suspected this. They were surprised by the breadth and comprehensiveness of the attack here. And, you know, it was a pretty slam-dunk sort of thing. And it was a body blow, no doubt about it.

Upholding an unfortunate practice

David Brooks
New York Times
It politically absolves him [Tom DeLay], but I doubt it will create another wrath and the other good thing about this is the courts decided: We're not going to get in the business of redistricting. It's a political problem.

JIM LEHRER: Now, the court also this week had another decision on congressional redistricting, a complicated case came out of Texas, but the bottom line here was the majority said it's OK to redistrict between what's called mid-census. It used to be, by custom, every 10 years, but in Texas they did it in mid-10 years, and they said that's OK. Is that a big deal?

MARK SHIELDS: It's a big deal. It's a big deal in the sense that it's an epitaph and eulogy for Tom DeLay. I mean, it's Tom DeLay -- perhaps his most long-lasting legacy to the Republican majority in the House was providing those six seats from Texas.

JIM LEHRER: Because the redistricting as enacted by the Texas legislature resulted in six more Republicans being elected?

MARK SHIELDS: That's right, six being elected. And at the same time, it cost Tom DeLay, directly or indirectly, his leadership and his seat in the House of Representatives. So it didn't come at no cost to him.

I think that, in a micro sense, it's probably going to cost Henry Bonilla, the Republican in that incredibly long district through Texas that goes on forever through three time zones and 400 zip codes, I think it could cost him his seat because that's what they did say, that district had to be redrawn.

It does give a green light to other states to do it. I think, having watched the political costs to DeLay, that an elected representative who spends his time, energy, effort in redrawing districts...

JIM LEHRER: Every time his party wins?

MARK SHIELDS: ... that's right -- is probably not going to win the enduring respect and affection of his constituents.

JIM LEHRER: Yes. Do you agree with that, David, that this is not going to set loose every time a party wins control of the state legislature, they're going to rush in and change the congressional district lines?

DAVID BROOKS: Right, I agree. It took a hyper-aggressive Tom DeLay to do this, and I doubt there are too many other Tom DeLays. I mean, many are saying he's vindicated by this, and maybe it absolves him, he's morally pure now.

But it politically absolves him, but I doubt it will create another wrath and the other good thing about this is the courts decided: We're not going to get in the business of redistricting. It's a political problem.

And I think they said to us, as Americans, you guys solve this thing, because everybody knows that redistricting is terrible, but it's not going to be the courts. It's going to have to be a citizen movement to fix it.

Congress speaks its mind

JIM LEHRER: OK. Another issue that I know is sensitive for you, because it involves your employer, the New York Times, the House passed this resolution last night condemning the New York Times for publishing the anti-terror financial monitoring story. And there's been a lot of back and forth on this.

Who's getting the best of it, David?

DAVID BROOKS: Well, you know, I have no public opinion about the legitimacy of publishing this story. I will say the hostility toward the paper and maybe toward any national institution these days is so phenomenally high.

Somebody had mentioned -- you know, if this story had appeared in the Washington Times, people would have said, "Oh, good news, the administration is fighting terror," and they would have thought nothing of it.

But because there is now such hostility toward the Times in many quarters -- and I think there would be toward any national institution, because the country has become so polarized, nobody's happy with institutions that try to be national institutions, that the bitterness and hostility on the part of the Congress, on the part of other journalists, is now so high it's put everybody, but especially the Times, in this incredibly difficult position.

JIM LEHRER: Well, the Wall Street Journal, which came out with a very, very tough editorial criticizing the New York Times, which is extremely unusual for papers to go at each other.

DAVID BROOKS: You know, I've worked at both places. And, believe me, in my day at the Journal, you know, we disagreed, but there was a sense we're all in the same business. But that editorial, that I suspect Walter Yeoman (ph) had a lot to do with, was incredibly tough. And I think it's symptomatic of the larger hostility on the Times.

MARK SHIELDS: I think there's a political angle to this. First of all, added to cross-dressers, agnostics and other sort of "miscreants," we now have those who read David Brooks' column on the regular basis, subscribers to the New York Times. This is a target group.

I mean, there's no question about it. I mean, the administration has chosen, selectively, politically not to go after the Wall Street Journal, which...

JIM LEHRER: Or the Los Angeles Times...

MARK SHIELDS: Or the Los Angeles Times, who also published the story.

JIM LEHRER: And, also, by the way, for the record, the Washington Post also had it in late editions, because they were catching up, but they had it out there as well.

MARK SHIELDS: That's right. But to single out the New York Times. Richard Clarke, the terrorist chief under both Bill Clinton and George Bush, said there was nothing in this.

I went back and checked that the administration had been bragging about its disruption by monitoring bank accounts and transactions since right after 9/11, the Treasury Department. In the middle of the 2004 campaign, I got a press release from the White House boasting about $142 million in transactions have been interrupted. So, you know, it seems a little bit of an overreaction to me.

JIM LEHRER: What about the president's reaction and the vice president's reaction? I mean, they personally went after the New York Times.

DAVID BROOKS: Well, you know, I think Mark has identified the core thing. It's partly sincere, I'm sure. I'm sure they sincerely believe it.

But the Times has become a symbol. If you remember, the president attacked the Times in his convention speech in the last election when we were in New York. And the Times has sort of become a symbol.

And I personally face it when I go in and interview people in the White House, the venting, the rage, and the, "How can you go to work for those people?" And I don't know what explains it, but it is a remarkable political attack.

Honor vs. freedom of speech

Mark Shields
Sydicated Columnist
I listened to the people advocating it, and they talked about our fighting men and women. If they really were remotely authentic or sincere about our fighting men and women and honoring them, how about body armor?

JIM LEHRER: Speaking of symbols, the desecration of the flag amendment, the burning of the flag amendment did not get its one vote it needed, the 67th vote it needed to become a constitutional amendment, as far as the Senate is concerned. How do you read that?

MARK SHIELDS: This one really made me angry.

JIM LEHRER: Made you angry?

MARK SHIELDS: It made me angry, because I listened to those speeches. I listened to the people advocating it, and they talked about our fighting men and women.

If they really were remotely authentic or sincere about our fighting men and women and honoring them, how about body armor? How about armoring Humvees? How about not cutting veterans' benefits? How about not putting our troops in a position where they're ordered to perform torturous acts? How about sending enough troops into battle? I mean, I just -- I mean, this was hypocrisy at its worst.

DAVID BROOKS: Mark and I burn each other's columns. We find that emotionally satisfying. I recommend that to everybody.

No, I think it's a stupid idea. I sort of respect the immense popular support it has, and I somehow think people must associate it with something real. Personally, I think you should be allowed to burn the flag. I think that's in the Constitution, so I think the mucking of the Constitution with this amendment trivializes it to me.

JIM LEHRER: Thank you both very much.

MARK SHIELDS: Thank you.

DAVID BROOKS: Thank you.