Taking Liberties?

TERENCE SMITH:

For a sampling of opinion, we turn to Melanie Kirkpatrick, associate editorial page editor of The Wall Street Journal; Christine Bertelson, editor of The St. Louis Post-Dispatch editorial page; Rachelle Cohen, editor of the editorial page of The Boston Herald; and John Diaz, who heads the editorial page of The San Francisco Chronicle.

Welcome to you all.

Christine Bertelson, did the Attorney General persuade you of his arguments today?

CHRISTINE BERTELSON:

I think the Attorney General is always a very impressive figure. He argues his case very well. I think he was stubborn on many issues, he conceded on others. I thought that the whole tenor of the hearings was a lot more friendly than I had expected.

But one thing that came through very strongly with Mr. Ashcroft, as it had in his political life in Missouri, is that he tends to believe that he is right, he is on the side of the right, the good guys are fighting the bad guys, and the good guys need as much power as they want to get the job done and that he doesn't want to brook a lot of criticism from his colleagues and from the American people.

TERENCE SMITH:

And you, Christine Bertelson, were your objections in any way resolved by what you heard today?

CHRISTINE BERTELSON:

Not entirely, but I think it was very encouraging to hear him say that he's interested in working with Congress and having Congress confer with the Department of Defense to establish rules for military tribunals that many Americans would find acceptable and that would make America's judicial system look fair in the eyes of the world, which is extremely important.

TERENCE SMITH:

Melanie Kirkpatrick, you've written in responsible of these measures in the past, in The Wall Street Journal. When you listened today, what did you think was the most effective argument?

MELANIE KIRKPATRICK:

I thought the Attorney General showed strength and determination. This is war, and he sounded like a wartime leader. There's a sound legal basis for every action the administration has taken, and I thought the Attorney General did a good job of explaining that.

His most effective part of the testimony, I thought, though, was when he raised an al-Qaida manual into the air and then red excerpts from it, showing, through the words of this training manual, a manual that tells terrorists how to kill, he showed that terrorists are being taught how to use the American judicial system, the American criminal justice system and play games with it.

TERENCE SMITH:

John Diaz, what about that? You've been critical of some of these measures in the pages of The San Francisco Chronicle. What about that point about the manual that seems to be a road map to abuse of the system?

JOHN DIAZ:

Well, Terry, I think if you look at some of the substantive criticisms that we've had, I don't think Attorney General provided much comfort on a number of those. I think really the problem is not the courts.

Really, you know, this newspaper as much as any, wants to be tough on terrorism, but we really have to balance it against these civil liberties. They really help define the way of life that we're defending.

And really, when the Attorney General talks about these being carefully crafted, I think the substance of the proposals that the administration came forward are far wider, give far greater latitude to law enforcement than what the Attorney General characterized during his testimony today.

TERENCE SMITH:

Rachelle Cohen, what's your view of both the questions that were put to the Attorney General and his answers?

RACHELLE COHEN:

Well, in terms of his answers first, John Ashcroft, well, to quote from that nursery rhyme "When he is good, he is very, very good and when he is bad, he is horrid." When he is on the issue of military tribunals, detainees, who they are, how they've been handled, he was absolutely brilliant.

When he was trying to defend the indefensible and on that issue, I would consider indefensible, some of the questions he was asked about, the ban on using this gun registry, he didn't have good answers, he wasn't strong, he melted under some fairly tough questioning by Massachusetts Senator Ted Kennedy.

That might have been a minor part of the overall proceedings. On the major part, I think he was tough and strong, and I think it will play well with the American public.

TERENCE SMITH:

Christine Bertelson, did you get any reassurance about the use of military tribunals?

CHRISTINE BERTELSON:

I think it's too early to say that there's reassurance. As I said, I think that it's a good thing that he's willing to listen to what Congress has to say. It's up to Congress to come forward and lay out its concerns very clearly to the Department of Defense, the devil's in the details, so I think we'll have to wait and see what happens.

But what did concern me was that he did not budge on this issue of sharing the list of folks who purchase guns at gun shows with the FBI — he would not be boxed in to saying, "I'll make sure that everybody who is being detained has right to counsel, knows they have right to counsel."

He said, "I'll make that list available of people who provide pro bono counsel, but you can't force counsel on people." Those were not encouraging.

TERENCE SMITH:

Melanie, what about those provisions? Did they make sense to you?

MELANIE KIRKPATRICK:

Yeah, yeah, I think so. Military tribunals are a common sense and well-established way of dealing with unlawful combatants.

And Washington used them, Lincoln used them, FDR used them. They've been upheld by the Supreme Court, so I think that they have a… They're a very useful tool for President Bush.

TERENCE SMITH:

Any other steps that were outlined, like detention, including now some more than 600 detained — only some of those have had the charges spelled out against them, only some of those have been identified.

MELANIE KIRKPATRICK:

Yes, but I was very reassured by the Attorney General today. I thought he did a good job of explaining the legal basis for doing it and also explaining why we need it, this is wartime.

TERENCE SMITH:

Well, John Diaz, if it's wartime, what about these military tribunals, and what about the other side of that argue argument, which is whether or not secrets, sources and methods can be adequately protected in civilian trials?

JOHN DIAZ:

Terry, there is no question that there may be some kind of measures that need to be taken because of this wartime situation.

But if you look at the military tribunals, the executive order that the president signed, it goes into some dangerous territory in terms of admission of evidence, in terms of a two-thirds majority with a chain of command that could somehow take away the independence of the jury.

The fact of the matter is, is nobody is really arguing here that, if Osama bin Laden or any of his cohorts are caught in Afghanistan, that they may need to go to some kind of streamlined, more secretive process.

But the president's order, as it's cast, could apply to any of 20 million non-citizens in the United States and really, without any opportunity for judicial review. Note in the previous segment, when they asked about the… The Attorney General whether there would be some chance for appeal, and he said, "Yes, basically to the President of the United States or the Secretary of Defense." That's not the kind of justice system this country stands for.

TERENCE SMITH:

Rachelle Cohen, is that the sort of appeal that would be satisfactory to you, to the secretary of defense or the president?

RACHELLE COHEN:

I think it's a definite possibility. The president is the commander-in-chief. He would obviously be at the top of that pyramid.

But on the issue of tribunals, we are obviously talking about what has become a moving target. We don't know the details, as Christine said, the devil will be in the details. And some of those 3,000 Defense Department lawyers that Ashcroft alluded to are working them out even as we speak.

But I think most people know what they don't want, and Ashcroft also alluded to that. People don't want someone knocking on Osama bin Laden's cave and warning him, you know, reading him his Miranda rights. I think they don't want a repeat of the O.J. trial on court TV.

So I think the American public is going to be very content at the end of the day with what the defense department will come up with.

TERENCE SMITH:

Christine Bertelson, what about the proposal for, in effect, eavesdropping on conversations between attorneys and clients who are held in federal detention are you comfortable with that?

CHRISTINE BERTELSON:

Absolutely not. I think that's way over the line and I think Ashcroft's explanation that the people on whom the surveillance might be put into effect will be notified is ludicrous.

TERENCE SMITH:

Ludicrous, Melanie?

CHRISTINE BERTELSON:

Yes.

MELANIE KIRKPATRICK:

Absolutely not. It is a reasonable expectation. The al-Qaida manual that the Attorney General showed today explains how al-Qaida members are taught to use their lawyers to communicate with their brothers, as the manual puts it, on the outside. So listening in on the conversation is a perfectly reasonable thing to do.

TERENCE SMITH:

John Diaz, what do you think of that?

JOHN DIAZ:

Well, I think the key in terms of monitoring the attorney-client conversations, which is lacking in the Bush proposal, is some kind of judicial review.

Why not have the prosecutors go to a judge and show that there is some reason to believe that those conversations need to be monitored? I don't know why, for the life of me, the Bush administration is showing so much contempt for the judiciary and all these anti-terrorism proposals.

Remember, over the years, federal judges and state judges and local judges has been very deferential to prosecutors, since 1968, there has been something like 20,000 requests for wiretaps, for example, and only a few dozen have been rejected. I think that's what's missing here is the checks and balances that we've come to count on in this country.

TERENCE SMITH:

Melanie Kirkpatrick, you're shaking your head.

MELANIE KIRKPATRICK:

I am. Actually, there is judicial review, Terry. Any piece of information that is picked up in monitoring one of these conversations, before it can be used, before it can be sent to the prosecutor for use in the trial against the accused terrorist, a judge must approve it.

TERENCE SMITH:

Rachelle Cohen, you know, there's also this proposal to go out and interview some 5,000 mostly Middle Eastern men, foreigners, in this country and a number of law enforcement agencies in localities have said, no, they doesn't want to do that. They think that goes over the line. What does that say to you?

RACHELLE COHEN:

I think that's a clear dereliction of duty on the part of some of the local officials. Portland, Oregon, I think was the one that recited editorially.

On the other hand, when the same offer was made to, or the same request made of the New York City Police Department, they jumped at the chance, which I think tells you a little bit about the reaction of local police vis-à-vis terrorists. These are extraordinary times, and yes, we feel uncomfortable with the nature of racial profiling.

But good police work requires some level of identification of possible suspects. I don't think this really goes beyond that.

TERENCE SMITH:

Okay. The argument will continue, I expect. Thank you, all four, very much.