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MR. SMITH: Today on "Face the Nation," detainee destiny. Should the Guantanamo detainees be tried on U.S. soil? Not in my backyard! The tribunal tempest: Justice, or the only way to win convictions? And the photo file, the presidential reversal on the release of thousands of pictures of prisoner abuse. We'll debate all those issues.
President Obama reverse course when he decided that unpublished pictures of detainees should not be released, citing the safety of U.S. forces abroad. He has also promised to close the prison at Guantanamo Bay by next January, but where will those detainees go? And kinder, gentler tribunals, will that keep us safe? We'll have the debate between the Executive Director of the ACLU Anthony Romero and Congressman Peter King, Republican of New York.
Then we'll talk about President Obama's upcoming Supreme Court pick with Joan Biskupic of USA Today and John Dickerson of Slate magazine. But first, debating the detainees on "Face the Nation."
MR. SMITH: Joining us from New York, Congressman Peter King. And here in our studio, Antony Romero.
Good morning to you both. Let's start with the news about the tribunals. The headlines from this -- no evidence admitted gained from harsh interrogation techniques. Hearsay -- some hearsay it will be admissible in court. To you, Anthony Romero, is there any good news in this?
MR. ROMERO: Well, of course, there's good news in the fact that we're not going to use evidence gleaned from torture. But there are four problems with continuing with the military commissions, as I understand them from the Obama White House. First, by continuing with the Bush military commissions, we're going to delay justice. It will take years before we see justice in these commissions.
MR. SMITH: Because there's already, they said, at least 120 days before this can begin.
MR. ROMERO: Partisan squabbling in Congress, a legislative change, surely litigation on behalf of the detainees. This is not going to render swift justice for the 9/11 families or for anyone. Second of all, I think what's important to underscore is that the tribunals themselves are under the jurisdiction of the Department of Defense. That's a mistake. That's the same Department of Defense that authorized, enabled and allowed torture to occur. It lacks the credibility to undertake that effort.
MR. SMITH: And ironically enough, at least three very high- ranking flag officers from the Department of Defense have said in very specific language they don't think these work.
MR. ROMERO: They don't work. And in fact, it should be the Department of Justice, not the Department of Defense.
MR. SMITH: And quickly, what are your other points?
MR. ROMERO: Third would be that to give it to the Department of Defense and to put them in the saddle would be a propaganda victory for our enemies. And finally, the fact is that it's an ineffective system of justice. I've been there. I've spent weeks at Guantanamo. It's not going to work. We have the best system of justice in the world. And rather than jury rig or fix an already broken system, we ought to use the one that works.
MR. SMITH: Peter King, when you heard this news this week about the tribunals continuing, did you think it was good news or bad news?
REP. KING: I thought it was certainly a step in the right direction. And it's another acknowledgment by President Obama that we do live in a very dangerous world and that very serious measures have to be taken. I disagree with virtually everything Mr. Romero said. The fact is that these military tribunals, even under President Bush, as far as I can tell, there were more rights for defendants than were given at Nuremberg As far as the hearsay rule, the fact is there were already so many restrictions over hearsay, now the burden is going to shift a bit. But primarily, it's what had already been in effect.
And as far as torture with confessions, the fact is we've had cases thrown out already in these tribunals because we felt that the confessions were obtained under duress.
As far as accusing the military of sanctioning torture, that's just the same libel that's been perpetrated by the ACLU continually here. The fact is, obviously, in every war in every instance, there are going to be abuses. But to say that people at top levels in the administration or the past administration or this one that were carrying on is just wrong. Even President Obama, the reason he's not releasing the photos is because he said those who have been guilty or are responsible have been found and punishes. So I don't know what purpose the ACLU serves in constantly tearing down the United States, constantly attacking our government, and now it's not just President Bush, it's President Obama.
MR. ROMERO: May I --
MR. SMITH: Hang on one second because we're going to get to the photos here in just a couple of minutes. Why do you think the president made this decision?
MR. ROMERO: I think the president is being ill informed. I think if the president spent as much time as I have sitting in those military commissions at Guantanamo -- several weeks I sat there in the back of that courtroom -- he would see the debacle of justice. He would see that there's no way to resurrect these military commissions. It's like a toxic waste dump. You can't just build a new house on a toxic waste dump. You have to move the house.
And we have the best system of justice. Our courts are well- equipped to handle this. Look, we had the blind sheikh prosecuted, convicted, serving time. Padilla, prosecuted, convicted, serving time, the dirty bomber. Mr. Reid, the shoe bomber, prosecuted, convicted, serving time. Our prisons are equipped to hold them. We have super max prisons that can hold these people.
MR. SMITH: Congressman, what about that idea, because there is a significant history of terrorists that have been tried and convicted in U.S. courts and are currently in prison?
REP. KING: In almost every instance, including the blind sheikh, there were cases where the investigations began here in the United States, but from beginning to end there was the Justice Department involved, the FBI involved from the start.
And these cases, we're talking people, many cases, battlefield arrests. We're talking about people like Khalid Sheikh Mohammed where you can't always have the CSI team, you can't have somebody there to give Miranda rights. Yet this is a wartime situation. It's a wartime situation with combatants who don't comply with the rules of war. So to say that we can -- it's absolutely insanity to say that we can be trying these people in the southern district of New York or northern district of Virginia. It just won't work.
MR. SMITH: Let me ask you this then, Congressman. Some people suggest, though, with these tribunals it's just a way to make the (fix in ?). Some of those folks who have been brought into detention, many have been released, hundreds have actually been released. Some there are on what could best be described as fragile circumstances. In order to get a conviction, is the tribunal the only way to get them?
REP. KING: In many cases, yes. And there's going to be other cases I don't know if the tribunals will work. And that's why the reports coming out of the administration, there can be up to 50 of these detainees who are very violent, very dangerous, but there may not be enough evidence, and the government may be looking for a form of preventive detention.
And the fact is I think President Obama is being very well- advised. He now as president of the United States sees the security reports. He gets the classified information. He knows how dangerous this world is. He realizes what would happen to allow these people back into the United States, bringing them into the U.S. where they may be entitled to more rights, end up being released, and we would have terrorists in the United States. But he also realizes we're talking about justice. There's also justice for those who were killed on September 11th.
I just came from ground zero a half hour ago where they were doing a whole program to prepare for another attack. When you realize what went on down there and to see this great compassion and concern that Mr. Romero and the ACLU have for Khalid Sheikh Mohammed and others and the venom they have toward the president of the United States, I wish that was reversed a bit and they had the venom and bile toward --
MR. SMITH: Go ahead.
MR. ROMERO: I think what's important to underscore, sir, I live eight blocks from the ground zero site. I love there. I was there that day as well. We lost one of our board members who was a police officer who died in the World Trade Center. We all understand the importance of the events of that day.
REP. KING: I know him, too, by the way.
MR. ROMERO: And what's significant here is that this is about American values. We don't change the rules to have a certain outcome. We have a government, we have the FBI, the CIA, the Department of Defense, the State Department, all of whom have been involved in these cases for eight years. They should bring all the muster and energy, the brightest minds and prosecutors, to throw the weight of the entire government at these cases.
If you convince a neutral judge with established rules that have not been changed that they should be convicted, lock them away. But if you don't, they walk. That's the American system. You don't change the rules to have a preordained outcome.
MR. SMITH: Very quickly, Congressman.
REP. KING: There's nothing in the system that goes against American values. Again, if you look at commissions over the years, you go back to the Nuremberg trial, the fact is this is American values. We cannot surrender in the face of the enemy. We can't have unilateral disarmament. We have to apply American values to the real world. The real world is these are vicious terrorists, and the ordinary rules of evidence in many of these cases would not apply. And unfortunately, there's no CSI guy in Afghanistan.
MR. SMITH: Let's move on to the interrogation photos because this is another significant reversal of Obama policy. It was quite clear, two courts have already decided these photos should be made public. And then apparently on the advice of General Odierno and Defense Secretary Gates, that these photos should be held. What do you think?
MR. ROMERO: Well, we're all concerned about the safety of our soldiers. That's obvious. What's also true is that it's not the photos that put them at risk, it's the policies that authorized torture and abuse, that was authorized at the highest levels and that went down the chain of command, across the theaters of war. When we're talking about 2,000 photos that talk about abuse or torture under American custody, we're not talking about a few rogue apples, we're not talking about a few rogue soldiers. We're talking about decisions made at the highest levels of our government. And the only way to deal with that would be to have investigations and prosecutions, to ensure accountability.
MR. SMITH: We'll get to that in just a second.
Congressman, should these photos be made public, or should they be kept secret?
REP. KING: Absolutely not. They serve absolutely no purpose. And it is absolutely wrong to say this was approved at the highest levels of government. Not just President Bush but President Obama, President Obama has said that those who were guilty of this have been punished, it was a few people. And the fact is, anyone involved in this, this is absolutely disgraceful conduct, they should be punished to the fullest extent of the law. But to somehow think that by floating all these pictures out there, somehow we're going to find that somebody at a high level was involved, this is absolutely wrong. It does put our troops in danger, and it serves no purpose other than, again, to denigrate and downgrade the military of the United States.
And this canard is always out there, people at the highest levels approved it. I don't know of anyone at the highest levels approved Abu Ghraib. But if President Barack Obama for a moment thought that somebody at a high level had approved it, he would go after them. This is not --
MR. SMITH: But the idea of these harsher interrogation methods have been part and parcel of the Bush administration going back all the way back to 2002. That's been documented. And people who were convicted in the Abu Ghraib travesty feel, especially the lower-level folks, feel like they were scapegoated by this. Might these pictures not in fact show that this was endemic and part of the process?
REP. KING: No, because there was no connection at all between the CIA memos and the interrogations that were carried out. The extra interrogations of Khalid Sheikh Mohammed and others have nothing to do with what an MP Reservist might have been doing at Abu Ghraib. That was out and out torture. That was out and out humiliation and debasing of prisoners. And there's no way that they knew what was going on as far as the CIA examining Khalid Sheikh Mohammed. That is a phony argument that's thrown out there and they're trying to melt it all together. The fact is the CIA memos are very precise, very direct. What those others were doing was off on their own. And the ACLU is trying to melt it all together so they can just attack the United States.
MR. SMITH: All right. Anthony Romero, is this an issue of transparency or security?
MR. ROMERO: Absolutely it's about both. And to be clear, the government chose not to make this a question around national security. There are exemptions under the Freedom of Information Act the government chose not to claim. This is a question about, how do we redress the secrecy that was endemic in the Bush administration.
This lawsuit, I might remind the public, is a lawsuit we filed in October of 2003. We asked for any and all documents related to torture and abuse at Guantanamo, at Abu Ghraib and in Bagram. The 2000 photos, the sheer volume of them show that these were not a couple of isolated instances. We're likely to find photos from across all the theaters of war. They are likely to show exactly those enhanced interrogation techniques that were authorized by the Office of Legal Counsel at the highest level. And frankly, that's why we need them in order to ensure accountability.
MR. SMITH: Two courts, Congressman, have already said these photos should be made public.
Is the only way for the White House to keep them secret to classify the pictures?
REP. KING: I think the president should declare an executive order. And I would just say, let the American people decide if they want to believe the American Civil Liberties Union or President Obama. I'm a Republican. I have no political reason to be defending President Obama, but here is a president who came to office on very much of an anti-war policy, been very critical of certain policies of the Bush administration. He has looked at all these. He has looked at the photos, he has looked at the cases, and he says that those who are guilty have been punished. And rather than spread this out over the next several years and have it in media all over the world to satisfy the ACLU, I say let's get behind our president.
MR. SMITH: Congressman, what about the idea, though, that the damage has already been done, and it won't matter what further pictures are shown, that the dye has already been cast?
REP. KING: More picture, more damage. And I say no good comes out of it. No good comes out of it whatsoever except some voyeuristic thrill that maybe some people get from looking at it. The reality is the damage has been done and more damage can be done as well. And I'm standing with the president.
MR. ROMERO: Congressman King, in the America I know, every fact gets known, whether it's a year from now, five years from now, 20 years from now. These photos will be released to the world community. And the question for this president, as he inherits a terrible mess, a terrible mess left to him by his predecessors, is, how do you make a clean break with that past? How do you ensure that you put us back on a footing that's going to restore our standing at home and abroad? And the release of the photos, the release of the documents, the release of the memos that we have been arguing in court for six years is an essential part of ensuring that our government get back on track. That was a promise he made to us. And great presidents have to make difficult decisions to put a country back on track from the mess they inherited. That's our role. That's our role, to help President Obama do the right thing.
MR. SMITH: Very quickly, Congressman King, former Vice President Cheney wants material gleaned from harsh interrogation methods made public to show that those methods were effective. Should they be made public?
REP. KING: Only if it doesn't damage the national interest. Let me just answer Mr. Romero. The America I know wants a commander in chief who wants to protect our troops, who wants to win wars. And we have a very difficult war ahead of us in Afghanistan. The president is dramatically increasing the number of troops, is going to take a lot of tough action there. I don't want people in the CIA and our military wondering whether the ACLU is going to be coming after them in three or four years. Fine, if these photos come out 20 years from now, fine. The war will be over, we'll win the war, hopefully we'll have defeated Islamic terrorism. But I don't see an America where we have to put everything out there and not care about the risk to our troops. I stand with the president on this.
MR. SMITH: Let me put that question to you, Mr. Romero, this notion that these results of harsh techniques be made public. Are you on the side of former Vice President Cheney?
MR. ROMERO: I actually agree with Vice President Cheney. Show me the proof. You can redact the documents and make sure that any information gleaned doesn't jeopardize national security. We shouldn't have classified information. But show us the extent to which that information is actually valid. We heard Robert Mueller, the director of the FBI, say in an interview just recently that there was no credible evidence obtained --
REP. KING: Okay -- (inaudible) -- because time is running out. Can I say something?
MR. SMITH: Very quickly, Congressman.
REP. KING: Yeah. The fact is George Tenet, who was appointed head of the CIA by Bill Clinton, says they did work. The fact is General Hayden, who was appointed to head the NSA by Bill Clinton and then head of the CIA by President Bush, said they did work.
MR. ROMERO: Show me the proof.
REP. KING: The current director of national intelligence, President Obama's man, says they did work. So again, if I have to believe these people of the ACLU which delights in tearing down the U.S., I stand with our government.
MR. SMITH: Finally, detainees, President Obama has said he wants Guantanamo closed by next January. What should happen to the people who are left?
MR. ROMERO: They should be transferred to established criminal courts, courts that have been able to handle such cases -- the blind sheikh, Padilla, Moussaoui, I didn't mention before, Reid. We have the capacity, we have the prisons that can hold them. We have the finest system of justice in the world. Let's use it. Let's not make a new one up.
MR. SMITH: Congressman, where should they end up?
REP. KING: They should stay at Guantanamo until the president finds out where they should go. Even Senator Webb, a leading Democrat, today said that Guantanamo should be kept open beyond January. The Democrats in the Senate adopted a resolution, an amendment, saying that there should be no Guantanamo detainees brought into this country. So more and more we're finding the American people on one side, the ACLU and the troglodytes from The New York Times on the other where they belong. And I think President Obama is making the right decisions. He made a mistake on Guantanamo. I expect to see that reversed by next January.
MR. SMITH: You expect to see it reversed? They should keep it open you're saying?
REP. KING: I think he's got to keep it open at least until we can find out where they can go. President Bush wanted to close it, President Obama wants it closed, but he made a mistake by setting an arbitrary deadline, realizing how dangerous this is to release dangerous people into the United States and a court system that cannot accommodate them.
MR. SMITH: Congressman, thank you very much.
Anthony Romero, thank you very much.
MR. ROMERO: It was my pleasure, Harry. Thank you.