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MS. VAN SUSTEREN: What should we do with the Guantanamo Bay prisoners? Republican Senators Lindsey Graham and John McCain just co-wrote an op-ed how to handle the Guantanamo detainees. Senator Graham joins us live.
So you can maybe be able to answer at least some of the questions, help out Senator Sessions and Attorney General Holder. But you can't help get his letters answered, right?
SEN. GRAHAM: Well, let me tell you, he's talking about the Uighurs. The Uighurs are Chinese Muslims that were picked up in Afghanistan terrorist training camps, who came to Afghanistan to go back to take on the government of China. If we send them back to China, they're going to get killed. Our country has ruled they're no longer an enemy combatant threat to us. But Jeff is right, they were caught in a terrorist training camp, they're part of a terrorist organization. Our laws prohibit the releasing of a terrorist in the United States, whether they're coming after us or not. And the president cannot waive that. Jeff is right to ask the question, and the Uighurs should not be released into the United States because they should be released to the Department of Homeland Security and find a home for them. Some of them went to Algeria. We need to find a place for them, not northern Virginia. That's the Uighurs.
MS. VAN SUSTEREN: All right. Well, that's the 17. What about the rest?
SEN. GRAHAM: All right. My belief is that we were attacked on 9/11, that was an act of war, that any person caught who's a member of al Qaeda or an associated group, under the law the Congress passed, is an enemy combatant. They're not a common criminal. And under military law, if you catch someone and they're an enemy combatant, you can hold them off the battlefield as long as they're a threat. And you asked the question, how do we know? My belief is that we need to let the military and the CIA make the initial determination because they know best.
MS. VAN SUSTEREN: A military proceeding?
SEN. GRAHAM: A combat-status-review tribunal.
MS. VAN SUSTEREN: Why haven't we done that?
SEN. GRAHAM: Well, we're doing it for all of them. All of them have had that. But the Supreme Court ruled they have a habeas corpus right to go to a federal judge. And what I've done with Senator McCain is said, wait a minute, instead of letting them pick the most liberal judges in this country, let's create a national security court where you have trained judges who understand terrorism law. And every enemy combatant will go before that court. And if the judge agrees the military was right to say you're part of the enemy force, you're part of al Qaeda, we can keep you off the battlefield forever. Under criminal law, you know very well, you can't hold somebody without trial. But under military law, you can hold an enemy prisoner as long as the war is going on.
MS. VAN SUSTEREN: All right. For the enemy prisoners, I'm totally on the same page with you. All right.
SEN. GRAHAM: There's no law that says release an enemy prisoner to go back to fight you.
MS. VAN SUSTEREN: In what you wrote in the op-ed, though, you said that there's sort of a broad net cast. And what I understood from what you wrote is that there are some people there that were simply scooped up that are not part of this. Is that true or not?
SEN. GRAHAM: I think we've caught some people that were probably identified wrongly. But one in 10 that we've released has gone back to the fight. So what I'm trying to do is find a process. I don't want the system to be seen as unfair, but I don't want to let people go to kill us.
MS. VAN SUSTEREN: I'm with you on that. But the thing is the system isn't moving. We've got --
SEN. GRAHAM: It is moving.
MS. VAN SUSTEREN: Well, we're still holding people who haven't done anything.
SEN. GRAHAM: No, that's not true.
MS. VAN SUSTEREN: I thought you said --
SEN. GRAHAM: Everybody we've held has gone through a military board, and the military labeled them enemy combatant.
MS. VAN SUSTEREN: All 251.
SEN. GRAHAM: Every one of them.
MS. VAN SUSTEREN: Okay.
SEN. GRAHAM: And all of them are going to federal court. And what I want to do is create a national security court that will make sure we don't release information like we did in the blink sheik trial that winds up in a cave in Afghanistan. I want them to have their day in court, in front of a national security court. And if we determine they are enemy combatants, every year we will look at their case, but we are not going to let these people go. There is no choice in military law of trying you or letting you go.
MS. VAN SUSTEREN: All right. We have 20 seconds left. Is the President Obama administration moving towards that?
SEN. GRAHAM: I hope so. If they criminalize this war, if they treat these people as common criminals who robbed the liquor store, we're going to wind up letting them go. They need to be treated as warriors.
MS. VAN SUSTEREN: Does anyone want them?
SEN. GRAHAM: Well, I don't care -- if we can't give them to somebody else, my point is, Greta, if you're a part of the enemy force, we can hold you forever. That's military law for 200 years. Don't criminalize this war. These people are warriors, they're not robbing liquor stores, they're trying to kill us. I want them to have their day in court, but I want to keep them off the battlefield so our kids don't capture them one day and fight them the next.
MS. VAN SUSTEREN: I'm with you with not sending terrorists back out to kill us.
SEN. GRAHAM: I hope the president is listening. This is a big decision he's going to make.
MS. VAN SUSTEREN: Senator, got to go. Thank you.