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[Aired June 10, 2002]

In the CROSSFIRE tonight.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: We have a man detained who is a threat to the country.


ANNOUNCER: What do you do with a dirty bum who wants to set off a dirty bomb?


JOHN ASHCROFT, ATTORNEY GENERAL: The military may detain a United States citizen who has joined the enemy.


ANNOUNCER: Tonight, the fallout from the rights of the accused to the wrongs a dirty bomb would cause.


UNIDENTIFIED MALE: And they spread the material by foot and hand.


>From the George Washington University, Paul Begala and Tucker Carlson.

TUCKER CARLSON, CO-HOST: Good evening a welcome to CROSSFIRE. Tonight the Republicans are keeping track of who's a friend and who isn't, and the Democrats are feeling unfriendlier than ever. But first, the fallout from the alleged plot to set off a radioactive dirty bomb perhaps here in Washington. Officials say the plot was only in the discussion stage, but a U.S. citizen has been in detention since May 8. Jose Padilla, also known as Abdullah Al Muhajir, was picked up at Chicago's O'Hare Airport as he flew in from Pakistan. He's now being held at a Naval brig in Charleston, South Carolina. Attorney General John Ashcroft says Padilla was acting as an al Qaeda operative and doesn't get the same rights as run-of-the- mill accused criminals.


ASHCROFT: We have acted with legal authority both under the laws of war and clear Supreme Court precedent, which establishes that the military may detain a United States citizen who has joined the enemy and who has entered our country to carry out hostile acts.


CARLSON: So how do you treat alleged dirty bombers? In the CROSSFIRE tonight to tell us is Julian Epstein, who is the former chief democratic counsel to the House Judiciary Committee and former Deputy Attorney General George Terwilliger.


PAUL BEGALA, CO-HOST: Gentlemen, thank you for joining us on a very important topic. George, let me just begin -- it seems to me the most striking thing is the news today of course of about a dirty bomb. We're going to have an intelligence and military expert in a minute to talk to us about what that is and what it could mean to us.

So I want to get to you all on the legalities of it. We're now apparently going try this man outside of the traditional constitutional American system of justice, the civilian courts and instead of in military system. Why does Bush and -- do -- Bush and Ashcroft have so little faith in the traditional American system of justice?

GEORGE TERWILLIGER, FMR. DEPUTY ATTORNEY GENERAL: Well, first of all, Paul, I haven't heard anybody say that he's going to be tried outside of the system. He's being detained outside the criminal justice system for the -- for the time being.

BEGALA: What's the need behind that?

TERWILLIGER: Well, I don't know. I wasn't there and didn't make the decision, but my guess would be that the need has to do with preserving sources and methods by which the information was obtained, which led to his detention in the first place.

Look, we're in a war here, and the fact of the matter is that the criminal justice system is designed at the soonest, earliest opportunities to make information about the government's investigation and what's in its files available to a defendant and his lawyer. That may be counter intuitive in this situation where what we're doing is interdicting an ongoing plot to set off a dirty bomb.

BEGALA: I -- this is not the first alleged terrorist that we've come across. I agree we're in a war. I agree we have to do what we have to do to win that war and if this guy is guilty of what he's done, I'm glad we've got him, OK, and salute law enforcement who found him. Let me give you a few examples of real terrorists already tried and convicted in the free American system of courts without compromising any of our sources and methods. Take a look up here.

First, we all remember Sheikh Abdel Omar -- Omar Abdel-Rahman. He was one of the masterminds in New York City -- of a plot to try to blow up landmarks in New York City. Ramzi Yousef, who was -- and Eyad Ismoil who were convicted of the bombing of the World Trade Center in 1993.

Mir Aimal Kasi shot up and murdered many people out in front of the CIA headquarters. He was a Pakistani-born terrorist, and here's Zacarias Moussaoui, not yet convicted, not convicted at all but being tried in the civilian courts.

Why should these men, none of whom are American citizens, have more rights than the guy who today we shipped over to the military system?

TERWILLIGER: Well, I'm not sure they should. But that's not the question. The question isn't who should have the most rights. The rights that really belong at the forefront of our discussion here are the rights of the American people to be safe from terrorists. We tried to use the criminal justice system as a counter terrorism weapon and it still has a place, but in the war that we're in now, and the threat that we face, the criminal justice system doesn't supply with us enough tools to get the job done.

CARLSON: Now, Julian Epstein, the federal government stops a plot to set off a nuclear device in an American city and the headline here according to you and many liberals is the terrorist has had his rights violated because he's in a military jail rather than a county jail. Aren't you missing something?

JULIAN EPSTEIN, FMR. COUNSEL HOUSE JUDICIARY COMMITTEE: You make things up Tucker. Nobody said that.


EPSTEIN: I never said that ...


CARLSON: That's your position.

EPSTEIN: I haven't heard -- I mean you know your favorite thing is to create straw men and then to have us knock them down. Nobody is saying that. I think, first of all, I would second what Paul said. (UNINTELLIGIBLE) the much criticized FBI and the Justice Department, if in fact it's true, they have intercepted a plot like this and if it is true, I hope that the people involved, including this dirty bomber, has the full weight of the law exerted on him and on the people that are involved in this.

I think the problem that we're seeing right now is there appears to be in the same way there was, at least, the apparent disorganization in the administration before 9/11, there seems to be some apparent disorganization on the legal strategy. On the one hand, we see John Walker Lindh and Moussaoui being tried in a civilian court.

Now it looks like -- we don't know (UNINTELLIGIBLE), but it looks like they're going to bring this military bomber to a military tribunal. The problem with that -- the problem with this punitive schizophrenia is that this sets up all kinds of legal challenges for the defense. And the fact that the administration doesn't seem to have its act together in terms of what its legal approach is going to be is only going to help the ...


EPSTEIN: Just a second ...


EPSTEIN: No we don't, but there's a lot of indication because he's being held under the military -- under the Department of Defense right now, that's a pretty good indicator ...


EPSTEIN: ... that we're going to go to the military ...

CARLSON: But isn't -- doesn't it make just as much sense ...


EPSTEIN: There's no problem with doing it. I'm not objecting to it.


EPSTEIN: What I'm objecting to is ...

CARLSON: Julian, let me ask this question. Is it possible that he's being held in a military brig because he needs to be debriefed, because this plot, (UNINTELLIGIBLE) which we don't know, may be ongoing and they may need to get that information ...



CARLSON: ... from him without releasing it to the public.


EPSTEIN: No, I think the reason that he's being held and it's appropriate. There's no reason that he shouldn't be held in military authorities because there now seems to be after a month of questioning some indication that he is actually involved in terrorism, in which case that makes him an unlawful combatant. There's no reason at that point that they ought not to go to the military system.

The problem, however is in the same way that this administration has refused to work with the Congress in creating what it now acknowledges is a much needed Department of Homeland Security, is refused to work with the Congress in creating the proper authorization for military tribunals which, again, the ability -- this blind faith to unilateralism, I think, is only going to help the defense because as we know ...


BEGALA: ... let me -- let me press a point, though. I believe the onus should be on Bush and Ashcroft to abandon our system of justice. I just gave you an example of four cases where terrorists were caught, tried and convicted. You can add the case of Timothy McVeigh where he was convicted and executed or Robert Hanssen, the traitorous spy, when has our system ever failed us to necessitate for the first time in 60 years abandoning it?

TERWILLIGER: Well, it's not a question of abandoning it, Paul. It's a question of utilizing whichever tools are most appropriate to the tasks that are before us now. And what happened on 9/11 was different than what happened before or at least it became apparent that there was a difference in the type of threat that we faced from some of these other incidents that occurred in the past was smaller, less organized and less lethal, frankly.

Now after September 11, we're in a completely different set of circumstances where, as Julian said, use of military authority to parry a threat to the people of the United States on our homeland may be necessary and appropriate.


BEGALA: But there's no case -- there's no case you can cite me where our courts let us down and leaked out sensitive information that could damage our ...

TERWILLIGER: Well, I'm not -- I'm not sure about that. We have had to compromise a lot of things through the criminal justice process, but the criminal justice process will have a place in all of this. It's just not the entire answer. The important thing is that what's happened here is that we have come together as a people to recognize that we have to do some things differently and we are doing them differently.

And, yes, do we have to trust our government to make some decent decisions? We do. Rather, I disagree with Julian in the sense that the administration and Congress are intention about homeland security. In fact, the administration adopted Senator Lieberman's idea.

(CROSSTALK) EPSTEIN: The point is this, let's just go back to George's point for a second. The point is this, Paul is correct that there is ample precedent for using the civilian court to convict terrorists without compromising national security. And there is umpteen examples that Paul pointed to. There's about ...


EPSTEIN: That's correct.

CARLSON: ... military tribunals even for citizens ...

EPSTEIN: That's correct and ...

CARLSON: What's wrong with this? I -- you haven't explained what's wrong with this.

EPSTEIN: Let me explain to you, in 1942 in the Quirin case, which is the last authoritative ruling we've had from the Supreme Court, the Supreme Court said because the Congress by virtue of the declaration of war had authorized these tribunals that they were legitimate. The court said if Congress had not authorized it, it would be unclear whether the tribunals would be legitimate.

So the point is this, in the same way that I think that the administration is resisting working in a cooperative way with the Congress on the Department of Homeland Security up until last week, it is resisting ...


EPSTEIN: It is resisting.


EPSTEIN: Up until last week Tucker ...

CARLSON: (UNINTELLIGIBLE) talking point ...

EPSTEIN: Tucker, listen to what I'm talking about.


CARLSON: ... this is national security.


BEGALA: Julian, I'm sorry to have to cut you off after Tucker's last retort, but I have to. Our producers are telling us we're out of time. Thank George Terwilliger, a former ...


BEGALA: ... Justice Department official. Julian Epstein, my pal from Capitol Hill, a Democratic attorney.