Caught in the Crossfire: Should Bush Have Unilateral Authority to Determine Enemy Combatants' Status?
[Aired June 20, 2002]

NOVAK: American John Walker Lindh faces criminal charges in federal court, charged with helping the Taliban try to kill Americans. Yasser Hamdi, also called a Taliban-American, is in a naval brig in Virginia. He doesn't face civilian charges and he's not seen a lawyer. Hamdi is being held under military authority because he's been declared an enemy combatant.

Prosecutors got a judge to stay an order from a lower court that would give a public defender access to him. Is Hamdi a combatant or does he deserve his day in civilian court? In the CROSSFIRE, attorney and former counsel to the House Judiciary Committee, Julian Epstein, and former federal prosecutor Joseph DiGenova.

(CROSSTALK)

BEGALA: Thank you very much.

Mr. DiGenova, let me begin by citing a document I know you revere as much as I do. It's the United States Constitution. Amendment Six says in part -- I'll put it up on the screen, I know you know it by heart...

JOSEPH DIGENOVA, FORMER FEDERAL PROSECUTOR: I do. I know it by heart.

BEGALA: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Some of these men are American citizens and they've been afforded none of those rights. Why?

DIGENOVA: Because this is war. And the Sixth Amendment begins in a prosecution. This is not a prosecution. These men were captured in the theater of battle. And as a result, the president of the United States, under Supreme Court precedent, has a right to declare them enemy combatants and to commit them to the custody of the United States military.

The Supreme Court ruled that two U.S. citizens who were German agents in 1942 who came ashore not only could be put on trial in front of a military commission, with no right to a civil trial, but were summarily executed at the end of that process. So the law is well settled here. This is not a criminal process. We are at war and we are at war with a dirty, rotten enemy.

BEGALA: In fact, though, let me read to you from that Supreme Court case. This is what the Supreme Court said back in the '40s. It said, "an enemy combatant who without uniform comes secretly through the lines -- let me put it up on the screen -- for the purpose of waging war by destruction of life or property, a familiar example of beligerents, who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war, subject to trial and punishment by military tribunals."

These men, some of them, are not being given even a trial in front of a military tribunal. We have American citizens. The Supreme Court clearly says they have got to go to military trial. Bush and Ashcroft say no. Why?

DIGENOVA: Paul, there is no question that if they were going to be punished...

BEGALA: They're in the brig, sir.

DIGENOVA: Well, no, but, Paul, you missed the other part of the law. And that is when you are at war, the president has the right under the Constitution to commit people to custody, under international law as well, for the duration of the conflict when they are captured. And that is what is happening to these individuals. The fact that they are American citizens means absolutely nothing. Once they go to the other side and become enemy combatants, their citizenship is irrelevant.

NOVAK: Mr. Epstein, I'm going to give you an authority who is so overpowering for people of your ideological bent that I'm sure you will get up and say, "I surrender, I won't even argue that point." And you know who that is?

JULIAN EPSTEIN, FORMER COUNSEL TO HOUSE JUDICIARY COMMITTEE: Laurence Tribe.

NOVAK: Laurence Tribe. Constitutional law professor at Harvard University. Laurence Tribe is the king of the liberals. He wears a crown. He has a scepter. And let's put on the board what he said. "It seems clear that releasing captured soldiers who belong to an enemy force committed to the murder of American civilians, whether that force is the army of a nation state or of a transnational organization like al Qaeda, is suicidal."

What do you think of that?

EPSTEIN: I agree with it, and I agree with almost everything that Joe said.

NOVAK: You can leave.

EPSTEIN: But I think there's a lot that isn't being said. And I actually wrote a piece that was very similar to Laurence Tribe's piece in last Friday's "Washington Post." Let me say, in conventional time, in conventional wars, Joe is absolutely correct. Combatants to not enjoy many of the constitutional rights, the Sixth Amendment rights. Once you engage in a war against the United States, you forfeit many of those rights, including the right to an attorney.

The issue here is we're dealing with a very unconventional war, because what many had termed the asymmetrical nature of the al Qaeda war against us, which is to use civilians in the population here as a method of attacking us.

The problem here is that the president's position right now is that he should be able to unilaterally determine which civilians are combatants, and then be able to put them in a black hole for some indeterminate period of time, without any right to counsel, without any right, necessarily, to a hearing, even a habeas hearing, although that's somewhat ambiguous.

And I think that, you know, yes, if somebody can properly be determined a combatant, than I think everything Joe is saying is right. The problem that I think that we don't want to fall into, Bob, is to give the president, with no involvement of the Congress, virtually no judicial check, the unilateral authority to say, you Bob Novak, I think you have some connection to terrorism, therefore I am going to put you in prison for an indeterminate amount of time.

And there are easy ways to fix this. The problem here is that there are easy ways to fix this.

NOVAK: In wartime, Julian, the president does have powers as the commander-in-chief.

EPSTEIN: Enormous powers.

NOVAK: I mean, who else...

EPSTEIN: Enormous power, but he is not omnipotent.

NOVAK: Who else -- who else...

EPSTEIN: Enormous power, but he is not omnipotent.

NOVAK: Let me ask you a question before you answer, please. Who else is going to make that decision? Are we going to have -- are we going to get a jury -- a grand jury to do it? Are we going to have an AVA (ph)/ACLU council have a little tea party?

EPSTEIN: No. The answer is Congress. And I think, look, the president...

NOVAK: The Congress is going to decide who's a combatant?

EPSTEIN: No, no, I think the president has taken it on the chin with respect to the, I think, passion for unilateralism. They haven't wanted to work with the Congress on the Department of Homeland Security, they haven't wanted to work with the Congress here to clarify rules. I think they could work with Congress very easily to clarify rules about when somebody ought to be able to get counsel so they an petition on the habeas procedure. What ought to be the determination? What is the criteria for determining whether or not somebody's a combatant or not?

Do you believe that the president ought to have just unilateral authority to say you...

(CROSSTALK)

EPSTEIN: Well, I think the problem is is that you can have a legal -- you should have -- you should engage the Congress right now to set up a set of rules so that they can be made on...

DIGENOVA: I take the Franklin Delano Roosevelt position from World War II. It was he who ordered the military commissions to try the eight German saboteurs who came onshore on the Eastern Seaboard, and they were tried in military commission.

President Roosevelt said, my decision is that these people were enemy combatants, they came ashore, they got into civilian clothes, they were outside the rules of war, I'm going to try them in a military commission. That is all that President Bush has done. He's doing exactly what President Roosevelt did.

(CROSSTALK)

DIGENOVA: But they were on trial. None of these people are on trial. They are being held indefinitely -- they are being held indefinitely, as they can be, under international law. If they were put on trial in a military commission, they would, of course, be entitled to counsel.

BEGALA: Yasser Hamdi is accused -- he was born in Louisiana -- he's accused of fighting alongside the Taliban and al Qaeda against America. Clearly an act of war against us, if true. John Walker Lindh, reportedly from California, again, allegedly fought against America and, in fact, in his case, in his presence a CIA officer was murdered in Afghanistan. If true, even worse, if you ask me, than even what Hamdi did, and yet Walker Lindh goes before the full free American courts and Hamdi sits in a brig. Isn't this an incoherent prosecution strategy?

DIGENOVA: Actually, there's a legitimate reason for that. If it were my decision, by the way, I would have never had any of these individuals in a civilian court. They all would have been in military custody and subject to military commissions.

The reason John Walker Lindh is there is that he is of no intelligence value anymore, and they had determined that he has no intelligence value. Mr. Hamdi and Mr. Al Muhajir, the dirty bomber who was captured, both of whom have information that is important to the United States -- that is why they are being held by the military, to be interrogated, because they have intelligence value.

(CROSSTALK)

NOVAK: ... one question I want to ask you. The only reason -- I mean, you don't care about these wretched people. You care about what it means as a threat to the rest of us. And, you know, I get very upset at the invasion of my liberties when they made me take your shoes off in the airport, but these things are not in any way an infringement on my liberties, or on yours, or on Paul's, or Joe's. Why worry about these things?

EPSTEIN: I think that once you take the position that a president can unilaterally, either himself or through his surrogates, make the decision that any American citizen can be detained for years on end without any charges being brought against him, without an attorney being present, I think that is an invasion of your liberties.

Secondly, Joe's precedent in 1942 case of Quirin was very clear that these people were combatants. When the White House in the days after Padilla was put into the military brig, the White House even came out and said -- and "TIME" magazine reported on this -- that the evidence of how far this guy has gotten along was very, very questionable.

I don't mind stripping combatants from their constitutional rights. I don't they ought to have it. What I do mind is the president having unilateral authority to make these determinations with no judicial checks, no guidelines, and as Paul says, it's being done in a very nilly-willy way.

(CROSSTALK)

BEGALA: What checks should there be on the president's power to name people as combatants?

DIGENOVA: None whatsoever. None whatsoever. And the reason is that the Constitution is designed to provide the core war power to the president of the United States. You cannot have a committee deciding who is the enemy. That's why you have a president. That's why the executive power and the use of the Army is in the president of the United States.

BEGALA: Gentlemen, that will have to be the last word. Julian Epstein, thank you both very much.

EPSTEIN: Thank you, Paul.