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tv   HLN News  HLN  November 15, 2009 5:00pm-6:00pm EST

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which it occurred, the identity of the victims, and the manner in which the case was investigated. all of these things must be considered. consulting with the secretary of defense, i have looked at all the relevant factors for each detainee. it is important that we are able to use every forum hospital to hold terrorist accountable for their actions. just as a sustained campaign against terrorism requires a combination of efforts, so must be legal efforts by an attending to bring terrorists before the court. i want to thank the members of congress, including lindsey gramm, carl levin, and john mccain, who worked so hard to strengthen our national security to reform the military commission system. .
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>> these detainee's will not be transferred to the united states for prosecution until all legal requirements are satisfied, including those in recent legislation requiring a 45-day notice and report to congress.
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i have are spoken to the governor and mayor and look to making sure all security related concerns are addressed. i have every confidence we can safely hold these trials in new york as we have so many previous terrorist trials. for the many americans who lost friends and relatives in the attack of september 11th, 2001, and on the uss cole, nothing can bring back those loved ones. but they deserve the opportunity to see the alleged plotters of those events held accountable in open court, an opportunity that has too long been delayed. today's announcement marks a significant step forward in our efforts to close at guantanamo and bring to justice those individuals who have conspired to attack our nation and our interests abroad. for over 200 years, our nation
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has relied on a faithful adherence to the rule of law to bring criminals to justice and provide accountability to victims. once again, we will ask our legal system in two venues to rise to the challenge. i am confident it will answer the call with fairness and justice. >> what do you say to those who say [unintelligible] why couldn't it terrorists be prosecuted there? >> as we look at the protocol we worked out with the department of it -- did the department of defense and made a determination that we can be most successful in bringing the cases involving the 9/11 detainee in federal court in new york. >> how much of a factor for you was it that in the case of the 5 9/11 detainee's, you are returning to the scene of the crime? >> that is something that
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typically happens in criminal law. cases are typically tried in the places where the offense occurred. that was one of the factors. there are a number of other factors that went into making that determination, including the nature of the people who were the victims, largely civilians in new york. in addition, this is a matter that happened in this country as opposed to overseas, which is different from what we might do with regard to those who will be tried in the military commissions. but that's a fundamental tenet of american jurisprudence -- crimes are tried in the places where they occur. >> will actually be able to stand trial? will they be found mentally competent and their harsh interrogation techniques like water boarding, they will still be able to go to trial to fight that? >> i would not have authorized the bringing of these prosecutions of less i thought the outcome, in the outcome, we
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would ultimately be successful. i will say i have access to information that has not been publicly released that gives me great confidence we will be successful in the prosecution of these cases in federal court. >> can you say where you expect these military commissions to be held? can you give an approximation of how many more cases your expect to bring to a civilian trial in the united states? >> we have not made any difference to -- we have not made any determination as to where the military commissions will take place. we are in the process of reviewing other cases to decide whether they will be brought in federal court or military commissions. i expect we will be making additional announcements in the future. >> some critics have spoken out saying this is a very bad decision. congressman peter king has said this makes n.y. more of a target. how do you respond? >> new york has a long history of trying these kinds of cases.
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the person who bombed the world trade center in 1993 was tried there. the blind sheik was tried there. new york has a hard in system. we have talked to the marshal service there. an analysis was done about the capabilities that exist in new york. i am quite confident we can safely hold people there and we can protect the people who's around the courthouse area and bring these cases successfully. i do not think that criticism is factually-based. >> at least one 9/1 family member has spoken up and said they are afraid this trial in a civilian court will give the defendant that platform to spew their rhetoric and it ridiculed u.s. justice system. are you concerned about giving them that opportunity? >> i am confident that what ever judge is assigned to this case will maintain the dignity of the proceedings and make sure the only thing that gets on the record is that which is relevant
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and that is the focus on whether it should be on guilt or innocence. i'm confident that our particular judge, whoever he or she might be, and all federal judges to have that capacity. >> if you cannot assure an outcome and a sure these people be convicted, what happens if they are not convicted? will there be indefinite detention for those who are not convicted? >> i would not have authorized the prosecution of these cases unless i was confident the outcome would be a success. >> a lot of 9/11 family members and relatives of the victims have said consistently, whether it's a military commission or civilian court, as my colleague pointed out, there are concerns that some judge could decide somebody had done something wrong in the prosecution and
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spring these guys and ksm could be wandering the streets of anywhere. how do you assure family members that is not going to happen? that these guys are not going to be let go or eggs on gatt -- exonerated a technicality in be set free? >> i look at the great work done by lawyers from the department of defense, the office of military commission, the part of justice. i am a prosecutor myself and i look at the evidence. i have considered the problems these cases present and i am quite confident we will be successful in the prosecution efforts. if i was concerned about the forum not leading to a positive result or if i had a concern, a different concern, we would perhaps be in a different place, but the reality is, i want to be as assuring as i can, based on all of my experience and based
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on all of the recommendations and the great work in research that has been done, i am quite confident the outcomes in these cases will be successful ones. >> if you are saying this to a poll rule of law, if you are picking different forms for different defendants based on where you can be sure the outcome will be a conviction, and using military condition -- using military commissions where you are less sure, how is that fair? >> it's not a question of looking at outcome. the question of trying to decide where a case is more properly brought. if one looks at what has happened in federal court, we have certainly done and have a great deal of experience with bringing terrorist cases when it comes to cases that violate the wars of law. there is a greater experience with regard to military commissions, so those are among the factors we take into consideration. we are not looking for outcomes, trying to decide where we can get a better outcome in one case
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or another. we look a variety of factors contained in the protocol which is publicly available and make a case by case determination. >> all five of the ones going to military commissions, was that because there were military targets like the col questione the 9/11 target for primarily civilian? >> there are some factors that go into it. on the bombing of the cole, that was an attack on a united states warship, so that is appropriately placed in a military commission. the other was an attack on our soldiers. that was among the factors we considered whether they go into a civilian federal court or a military commission. >> victims and family members of people who [unintelligible] would not be charged with 9/11 [unintelligible]
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to you expect all five men to go on trial together or will have separate trials? >> we are charging them with the most serious offenses appropriate. we are, as i indicated, seeking the most serious punishment. i expect to ask for the death penalty when it comes to the prosecution of those five individuals. that is an indication of how serious fight these cases, how consequential, how negatively consequential their actions were and how ultimately they must face the ultimate justice. >> the canadian supreme court is hearing arguments about a transfer to canada. his lawyer suggested he will be transferred to the united states to be tried. will he be transferred here for trial and, if the canadian
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courts direct the government in canada to request him to be transferred to canada, would you consider that request or with the commission trials here trump that? >> we will with that matter -- at this point, it's one of the cases designated for a commission proceeding. as the case proceeds, we will see how it should be treated. >> harsh interrogation techniques -- inevitably, lawyers will seek full disclosure of circumstances of how these detainees were treated while they were in u.s. custody. they will want to get as much of that before the jury as they can. what is the department's position on whether the defense will be entitled to know the full story of how these detainees were treated while they were in u.s. custody? >> among the questions that have to be asked in that regard is relative. how relevant were the
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statements? will the statements be used? i don't know what the defense will try to do, it's hard to speculate and hard to know what our response will be. i'm quite confident that on the basis of the evidence, we will be able to present, some of which as i said has not been publicly discussed before, we will be successful in our attempts to convict this man. >> [unintelligible] >> we will see what motions they file and what responses we make. a judge will ultimately make that determination. >> [unintelligible] >> it was a surprise. he was a great lawyer and has been a great friend to the justice department. we have a good relationship with him. he has contributed in a significant way to the success of this administration and i think to the success of the
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effort to close at guantanamo. he's a friend of mine and those who have tried to place on him, i think an unfair proportion of the blame, as to why things have not proceeded perhaps as we had wanted with regards to guantanamo, i think that is simply unfair. he is a great lawyer and has been a great white house counsel. he was an early supporter of this president and i know he leaves with the thanks of the president and certainly with my gratitude. >> [unintelligible] can you talk about how far off you think that is? >> as i have said before, i think it will be difficult to close the facility by january 22nd. one of the things i think is most problematic in that regard is trying to relocate people who
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are going to be approved for transfer, finding places where they can be safely placed both for the nation that will host them and for the american citizens. i'm not sure we're going to be about to complete the process by january 22nd, though we are constantly in the process of trying to do exactly that. >> the detainees that will be brought to u.s. soil, can you give us a sense of whether they will be distributed to federal prisons throughout the country or will there be one central location? >> my expectation is they will be housed, as all defendants are, you're the places where the trials will occur. >> when the thing chart -- when the thing charges will be filed? >> that's hard to say. we will seek to bring these indictments as quickly as we can. we have to follow the laws have been passed by congress with regard to notification and a 45-
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day waiting period. i expect we will have indictments' relatively soon. >> you are charging them with the most assyrians -- less serious offenses for opera. you have not said it will be charged with the 9/11 attacks. are they going to be charged with that conspiracy specifically or something less or related to it? >> they will be charged for what we believe they did, and that is to mastermind and carry out the 9/11 attacks. >> how close a call was the decision to send them to civilian court and given the gravity of the issue [inaudible] classified evidence and the torture issue. >> i have only been attorney general for eight or nine months. i think this is the toughest decision i have had to make as attorney general, trying to balance the need to ensure we maximize our chances of success
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and hold accountable the people who committed these heinous offenses. while at the same time, and during to what i think has been a guide for this administration, adherence to the rule of law. balancing of those factors, taking into account the desires of the victims and trying to protect classified information, taking all these things into account. it has been a very difficult decision, but i'm comfortable with the decisions we have made with regard to the placement of people both in civilian court and the military commissions. >> you say you are comfortable with the legal reasons for these decisions and how you expected to play out legally. how concerned are you about how it plays out politically? some people suggest some folks are dipped and of bringing this to trial. >> my job as attorney general is to look at the law, apply the facts to the law, and ultimately do what i think is in the best interest of this country and our
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system of justice. those are my guides. to the extent there are political consequences, i will have to take my lumps to the extent there some way. i think people will, in a neutral and detached way, with the decision i've made today, understand the reasons why i made those decisions, and try to do something rare in washington -- leave the politics out and focus on what is in the best interest of the country, i think the criticism will be relatively muted. having said that, i'm sure we will hear a lot of criticism. plaques -- >> how much of these trials can we expect to be open to the public? >> i would not speculate about any particular motions that might be filed. with regard to the openness of the trials, i think we get a sense of that from other significant terrorist trial that
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have occurred where they were largely open. portions of them will likely be closed so that classified information, sources, and methods are not revealed. but i would expect these trials would be open to the public, open to the world, and open to the survivors and victims of these heinous acts. >> will you try the suspects together or separately and the think they can get a fair trial in new york? >> i expect we will try them together and i expect there is searching, a complete process, we can come up with a jury that will insure the defendants will get a fair trial in new york. >> [unintelligible] >> thank you.
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>> now, former u.s. at its head -- former u.s. attorney general, michael mukasey talks about practices for interrogating detainee's any talks about attorney-general holder's announcement about 9/11 co- conspirators tree he spoke in the nation's capital treatises about 40 minutes. gerry walpin. i also want to thank him for being a stalwart in his own right. as i'm sure many of you know, gerry served as an inspector general until he was not only unceremoniously, but unlawfully removed from that position,
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something he has chosen not to suffer, but rather, to fight, as he usually does, against injustice. [applause] >> at considerable expense to himself, but i would add with the support of his friends. i also want to thank gene meyer for inviting me to this podium. he told me a couple of weeks ago that this time slot had opened up because of a panel on a topic that he didn't mention. i don't know that topic was or whether there was such a panel. [laughter] he said it had to be cancelled for reasons he didn't example plane and asked me if i'd come and say a few words. so since i've been to conferences of this sort and i've seen what happens when people break out into panels, i figured we'd be in a small
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conference room and i'd be delivering some appropriate remarks and to a relatively small audience. the format and venue for these comments has changed somewhat over time. i came yesterday to another event in the grand ball room and realized that this was not going to be what i expected, and, of course, events -- including events this morning, have overtaken this presentation to a certain extent. and so i will, i suppose, apologize in advance if these remarks have a certain improvisational quality to them, but i think it would be a mistake for me to approach a podium here and not mention what happened this morning, notwithstanding the lack of a whole lot of time to prepare. in spite of that, i think it would be fitting for me to return to where i left off last year. [laughter] [applause]
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or at least to that part of the position that was done in a vertical position. when i discussed national issues, security and concerns, it had gotten to the next to the last paragraph of my speech where i expressed the hope that what was then the administration would take a look at what the last administration had done in good faith to keep this country safe and would conclude that those measures were lawful and effective and would, by and large, keep in place the programs and policies that had succeeded in protecting the security of this country for eight years. what i had thought to do this afternoon was to examine briefly a few policies and issues that have been in place since this administration took
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office to see to what extent that last hope was realized and to what extent not. and i have thought to start with the positive, the instances in which wishes were fulfilled and then proceed to the instances in which they were no. as i say, that was before the announcement this morning that the administration intends to bring to this country several detainees, including khalid sheikh mohammed and the operative responsible for carrying out the 9/11 attacks on this country and to try them in a civilian court, in fact, on the court in which i used to sit, the u.s. district court for the southern district of new york, and to bring as well another group headed by a man nade that sherry and to try them stateside at a place yet undisclosed. i still plan to follow, to a certain extent, the format that i had intended to follow and to start with some positive news.
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but obviously, i want to deal to some extent with the decision to bring these detainees here. a decision that i consider to be not only unwise, but in fact, based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us and to return instead to the mindset that prevailed before september 11, 2001, that act like the first world trade center bombing in east and south africa that can and should be treated as conventional crimes and tried in conventional courts. but first, the good news that i promised you. the first cast gory has to do with intelligence gathering. although there was actually an incipient move in congress to repeal the authorities that were put in place under the foreign intelligence surveillance act amendment passed in 2008, that appears to
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have been beaten back and intelligence gathering authorities have remained in place. so what extent they're being used and how is something i can't speak to now because i'm not privy to that. even if i were, considerations of security would not permit that to be discussed in a forum like this. however, i can tell you, based on a report from somebody who was there, that at a meeting between representatives of the department of homeland security and foreign security officials to discuss how the current procedure for tracing money transfers through what is known as the swift system, which monitors international systems, i was described to those foreign officials, and their reaction was that the procedure was the same one that had been in place under the prior administration. u.s. homeland security security officials who were plent agreed and pointed out that this was continuity that you can believe in. [laughter]
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now, that is actually reassuring for two reasons, the first, of course, is the continuity that the program is still working and the second is that theres somebody in homeland security who has a sense of humor. the same appears to be true, at least for the moment, of the proceedings that were in place that we, the department, put in place, to allow the f.b.i. intelligence gathering to continue and to be subsumed with already existing crime-solving functions. we put those procedures into effect in december of 2008, well after over well over a year of consideration and review, and despite pressures to roll back those procedures, they have been left in place, at least for the moment, and the department of justice has indicated that it intends to allow them to work for a reasonable time before making any changes. all in all, an encouraging, if
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not surprising, conclusion. and finally, the administration has said that it will continue to recognize the state secrets privilege when litigation threatens to disclose national security information and to bring such litigation to an end, even when the government is not a party to it. the administration professes to have a somewhat narrower view of that privilege than we did, but nonetheless, it's in place. however, when it comes to dealing with detainees and with those in our own government who have been involved in intelligence gathering, and when it comes to the events of today, i think the record is left encouraging. beginning with the detention and apprehension of prisoners on the battlefield, proceeding through obtaining intelligence from those who may be in proceedings of it, prosecuting those who can be charged with war crimes and detaining those who may not be chargeable with war crimes but who, nonetheless, were captured while engaged in combat with u.s. and allied troops who may very well target evangelical yans, who do not wear uniforms
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or follow any recognized chain of command and who, therefore, can be detained as unlawful combatants and are much too dangerous to release. here again, the plan seems to be to abandon the view that we are involved in a war and to apply for seizures appropriate to a war, which is the view that was adopted after september 11 and to return instead to a september 10, 2001, criminal justice model of the sort that prevailed in the 1990's, when we had the first world trade center bombing in 1993, the bombing of our armed forces facility in saudi arabia, the attack on the u.s. cole that killed 17 sailors, the attempt to attack another destroyer, called the sullivan, that would have succeeded except for the fact carrying the missiles sank. the bombing of our embassies in east africa, in kenya and tanzania, and eventually the attack on september 11, 2001,
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that killed almost 3,000 people. that -- all of that seems to have followed sweeping proclamations that as that change of attitude announced in january, 2009, that implicitly, at least, suggested that the at least, suggested that the prior administration had without proper treatment or asked -- or access to legal treatment. the prospects for we would abandon harsh interrogation techniques and we close the detention facilities at guantanamo within a year. what has followed has seemed to be a system in which policy is fashioned to fit antecedent rhetoric rather than being caught out in advance with arguments then formulated in support of it. with respect to interrogations' carried on in the past, because of the least implicit suggestion the prior administration had sanctioned
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torture, the department justice pressed the argument successfully that previously classified memorandum that describes the limit of coercive questioning the train the cia personnel engaged in should be revealed along with the legal reasoning underlying how those limits are said should be disclosed with the results that our enemies are now to be made aware of precisely the legal and factual limits of how they can be treated if captured and trained accordingly. they could be used by soldiers in the field and was generally available on the internet. when he was a candidate, the president was -- the president said it would be absurd to give miranda warning says captured on the battlefield. but the armed forces have been directed to provide such warnings to those captured on the battlefield in afghanistan. in addition, cases involving
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claims the cia personnel acted unlawfully in the course of interrogating prisoners which were reviewed by career prosecutors in the justice department and found insufficient to justify prosecution, except for one case against a contractor that was in fact prosecuted, and the subject of those investigations, were so notified at the time. they're now being reviewed again, even though the determination in those cases were fact-specific. facts have been developed. as from all reports, the attorney general who directed that that second review take place did not himself read the prosecutor's mem days. and, of course, there has been this morning's disclosure that the government intends to bring to the united states that those who participated in the september 11 attack will go to
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trial in the u.s. district court in new york, including the self-proclaimed mastermind of that attack, khalid sheikh mohammed, as well as the principal organizer of the attack. and others associated with him, i believe three or four others, are to be brought here and tried in military courts. you may recall that president bush attempted, by executive order, authorized military commissions to try these and other terrorists, and the supreme court said he could not do so absent congressional authorization. so congress passed the military commissions act to provide that authorization. thus, the military commissions are fully authorized by law and indeed, the trials would have already begun. you may recall that khalid sheikh mohammed and others attempted to plead guilty and achieve their rewards by the
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military tribunal. but now that procedure is to be sort circuited, actually, long-circuited would be more accurate, so they can be brought to this country and tried in a civilian court. we should all be aware that those cases which were scheduled already to have begun will will now have to start from scratch with the filing of indictments, the customary motions addressed to them and the like. whether khalid sheikh mohammed will will dupe kate the demand here that he be -- duplicate the demand here that he will be permitted to plead guilty here for things that he boasted he did, including on al jazeera and in a letter to his wife, i don't know if he will or not. but if not, he can avail himself of the full array of procedural steps, including discovery and public presentation of evidence that can turn the criminal proceeding into both a cornucopia of information for those still at large and a
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circus for those in custody. i would remind you that the moussaoui case, in which the defendant pleaded guilty, took about a year in the trial phase and four years from beginning to end, with the defendant acting out and using the courtroom as a forum for his views. and that, again, was a case in which he pleaded guilty. the tribunal and the facility at guantanamo will put together, with the explicit purpose of handling trials involving classified information and the presentation of evidence at that time in controlled circumstances. along with rules of evidence that have, as the touchstone for add mibblet, whether the evidence is reliable and relevant, not whether it conforms to awful the requirements of the federal rules of evidence. you should recall that unlike the case of a man named act mad galani recently brought here from guantanamo to stand trial
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in the embassy bombing case, the cases against these defendants were not investigated, nor was evidenced gathered on the assumption that they would be presented in a federal court with evidence and witnesses secured in the manner that they have to be secured in order for presentation in a federal court. that's only a hint of the difficulties presented by this staff. without even touching on the security issues that would be raised by trying to confine and try prisoners who present risks of the sort presented by prisoners like this, including security for the courthouses and jails involved, security for the judge and jurors involved and the like. this step appears to have resulted simply from a commitment to close guantanamo within a year, because regardless of the reality on the ground, it has a poor image, along with a desire to exceed what the law requires in order to show the world that we can do not only what the law requires, but more.
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that a military trial at guantanamo, a facility that i have visited and that is actually less harsh than most medium security mass it is, forget maximum security that, such a trial might actually be seen by the public and the rest of the world as fair and successful appears to not have anyone under authority. in a book, jack goldsmith, who served in the office of legal counsel, describes what he calls cycles of aggression and timid tee, beginning with watergate, followed by the church committee hearings followed by the pullbacks in the cold war, followed by another period of pullback and demoralization, followed by criticism after the september 11, 2001, attack of a failure to be sufficiently aggressive, a failure to both collect and
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connect the proverbial dots. we now appear to be in a cycle where the pendulum appears to have swung yet again in the other direction, and with a willingness to disclose the limits of how we gather intelligence and to risk that defendants will turn legal processes into a soushes of intelligence for themselves and for a forum for expressing their views. if i thought that i or my family or my fellow citizens had three lives to live, i suppose i could be persuaded that we should live one of them as a social experiment to see whether the result here is one that we want to live with. but i don't and they don't and you don't. it would take a whole lot more credlousness than i have available to be optimistic about the outcome of this latest experiment. and with that, i'll be happy to take questions. [applause]
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>> there are two microphones, one near the front and one near the back. and i would ask as a due process matter to at earn nature between microphones -- alternate between microphones. sir? >> thank you, general. i enjoyed your speech very much. this morning former mayor coach of new york, someone you're acquainted with, said that new yorkers should not worry about khalid sheikh mohammed and others being detained because the manhattan detention center is a very secure place and that he trusts the judgment of the attorney general sending the prisoners there totally. your reaction to mayor koch's
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statements. >> yes, it's a very safe place. but if you ask the wrong question, you're sure to get the wrong answer. [applause] of course it's secure. they're not going to escape. [laughter] the question is not whether they're going to escape, the question is whether -- not only that particular facility, but the facility in the large will then become the focus for mischief in the form of murder by adherence of khalid sheikh mohammed, and i would suggest that it raises the odds very high. it is also whether the proceeding, even assuming that it goes forward within the lifetime of everybody in this room, is one where confidential information is able to be kept
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confidential and where a trial is able to proceed in an orderly fashion. >> do you have any -- i know this is impossible to be accurate, but do you have any forecast or thought as to where some of this is likely to lead in the next few years? i'll leave the question there. >> do i have any prediction about where this is likely to lead in the next few years? there was a famous legal philosopher named yogi berra who said, "i never make predictions, especially about the future." all i can tell you is that for the reasons i've referred to, i can't see anything good coming out of this. i certainly can't see anything good coming out of it very quickly, an i think it would have been far preferable to have tried these cases in the
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venue that congress created for trying them and where they were about to be tried. yes. >> what is your view on the enemy combatant standard? do you think that should remain the viable legal standard, or do you think perhaps we need another paradigm to be created to deal with these types of individuals in the war on terror? >> well, if the enemy combatant standard is applied as it has been applied or as it was traditionally applied before the modern day, then it should be adequate to the task. just to take a couple of steps back -- several steps back in history, some of you may be aware that, i believe in 1943, a group of german soldiers -- actually, two groups of german soldiers landed off long island, one group, and off florida, another, and landed with the intent of committing
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sabotage. interestingly, notwithstanding that the landing is the most vulnerable part of any operation like that, the insertion is the most vulnerable part, they landed in uniform, and they buried their uniforms on the beach. and i would suggest to you that the reason they did that was that they very well knew that if they were apprehended at that point in the operation, the only basis they would have for claiming p.o.w. status was the fact that they were in uniform and followed a recognized chain of command and at least could argue that they should be detained rather than executed. as it happens, when they were picked up, they were in civvies and they were tried, convicted. they were tried to direct order of president roosevelt before a military commission sitting in the united states, convicted, executed and their appeals heard within three months. indeed, the opinion in the case was issued after they were
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already deceased. we're not that quick today. [laughter] >> general, as i understand it, at the end of your term, the policy of the justice department in matters involving foreign intelligence was to gather intelligence against the threat, rather than necessarily against particular individuals who may be part of the threat. if the current administration is reversing that and going back to a law enforcement model, do you foresee that they will change that intelligence-gathering policy as well? >> well, i'm having a hard time in the context of gathering intelligence against a threat as opposed to particular individuals. there are always individuals involved when you listen to a conversation. it's a conversation between people and generally you have reason for believing that one or both is engaged in activity
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that threatens the security of the country, otherwise, given both relatively small manpower -- person power, i should say -- devoted to this effort, it would be a colossal waste of time to listen to anything else. so i think that they continue to gather intelligence against the threat. the threat. the questi >> in your practical view, how do you think the court would manage the process to find a jury that is fair and unbiased in the southern district of new york, and has not had any news coverage of these particular individuals? [laughter] >> as it happens, i did it in a case involving a trial relating to the 1993 world trade center bombing.
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that part is not all the difficult, provided the standards are followed. they don't have to have been comatose for the last 10 years to serve on a jury. what they have to be able to do is promise they will decide the case based only on the evidence from the courtroom and not what they hear on the outside and there has to be good reason to believe they will fulfil that promise. jurors like that can be found. that part of the process, i have great faith in. is the rest of it that worries me. >> i believe is john darby shire who has come out with a book to remind we conservatives we need to remain gloomy and dismal. i tried to follow that advice. [laughter] trations than others. [laughter] in all seriousness, what advice , hope our counsel can you give those of us who have become
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increasingly dismayed at what we see coming out of the current administration in what truly is an extension fight for the -- example is ten shall fight for the future of this country? >> what your eyes and ears and your common sense tells you is the best and only way to fight fair, and and if you do it against people who are making an argument based on a refusal to face facts, then you're likely to prevail. i say you. i should add that one of the benefits of leaving public service is i got to become a member of this organization, so i should say we, rather than you. [applause] and i want to hasten to add, i don't mean to criticize public
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servants, including judges. i just felt uncomfortable belonging to it when i was on the bench and when i was attorney general, so i didn't. but great to be here. i should add also that if i had to be in any venue today after what was announced this morning, i'm glad it's this one. [laughter] [applause] >> general muke casey, could you speak to the position whether it's defense i believe to try khalid sheikh mohammed in the southern district of new york versus the eastern district of virginia, where zacarias moussaoui was tried in, versus the western district of pennsylvania and the differing jury pools you might get there as well as the courtroom facilities? >> i understand -- i am a mart san of the southern district -- partisan of the southern district of new york. i know of no jurisdiction where you can get people who are
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better prepared to deal with it, and that includes prosecutors, judges and jurors. i am not aware of precisely enough of the facilities in the eastern district of virginia or -- is it the middle district of pennsylvania or the western? i'm not sure. right. but enough to make a comparison. but saying that if you have to do it anyplace, it's a good place to do it. you have to have venue in all three places. to say you have to do it there, that is the place to do it, and it's not the only place it can be done. >> judge, what do you think it means for the military commissions going forward? it seemed like for a while that the president was interested in using the military commissions, and now isn't he signaling that he won't use them now?
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>> if i had the gift of clairvoyance, which i don't, i could answer that. although i don't know that even if i could discern the intent now, that it would be the same as the intent announced before or the intent as it will appear tomorrow. my speech, as i said, had a certain improvisational quality. i think that the policies that have been announced and adopted with regard to what we've been talking about also have a certain improvisational quality. >> judge, this morning attorney general holder responded to a question about whether this opens the door now for these cases being thrown out on a procedural technicality, and either with defects in evidence or the procedure itself. and attorney general holder's response was we shouldn't worry about that, because he's seen things we haven't seen and that's not going to happen. i was wondering if you could comment a bit on whether that's
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an appropriate answer given the severity of the charges here and in a time that people are questioning whether or not they like this evidence at all, especially people in the current administration, we should trust their judgment that this is just going to be ok. >> well, i don't know what he's seen, so i can't very well respond to his level of confidence. i have been a judge and i've spoken to a whole lot of other judges, and betting the farm on the outcome of that process is always -- always involves a risk. the speedy trial act, which applies to mr. galani, who was indicted, i believe, back in the 1990's, if not, 2000, to some extent there's already a motion to dismiss based on a speedy trial violation. whether there would be permission from the government
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to bring the charges again because of something that is seen as an overriding circumstance, i can't tell you. but it is one government and he was in custody at least since 2004. this is five years later. the period of time provided for in the speedy trial is 90 days, less excludable time. there are going to be legal problems. the same -- i don't know whether the same will hold true with respect to -- that is the speedy trial act issues, will will hold true with respect to those who have not yet been indicted in connection with -- that is in the civilian courts in connection with the trade center bombing, but i suppose there's an argument that says, look, we were charged before a military commission in guantanamo. it's one government. and we're entitled to a speedy trial.
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yes. >> judge, i have a question about the finality of this morning's decision. considering how long this may take, hypothetically speaking if there were a change in administration in three years, acknowledging this double jeopardy when the jury is impaneled, is there a way that this decision may not be final, that this case could be sent back to a military court? >> actually, there are two complications with this morning. i heard reference to -- although i have not seen the reporting, this is straight here say -- that there is in fact a statute that requires notification of congress 45 days before folks like this are brought over so they can do something in response. i don't know whether that's the case, if it is, and whether they're going to do anything in response. i don't know. but the question of the government's -- what rights aliens have when in custody of the u.s. government is one that
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is, at the least, unsettled under the law, but the degree of contact between the alien and the united states has a whole lot to do it. that's why there was such an effort made to keep out those who were coming in after the release of prisoners that took place, because once they set foot on american shores, they have rights that they did not have above. if these people are brought here, notwithstanding that they're brought here against their will, the likelihood of it being very easy to then send them back to another area that is remote, secure and humane, it seems to me, is open to question. so it ain't going to be that easy. yes. >> general, what do you make of the critique that some enemy combatants held in guantanamo
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are not actually enemies of the united states, but maybe enemies of faxal interests in afghanistan? that some warlords in afghanistan are simply picking up their factual enemies and declaring them enemy combatants to the united states? . >> if people have trained in a terrorist training camp, as people and at guantanamo have, i do not know they are subject to that objection. yes? >> judge mukasey, a concern has
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been expressed by many that in trying these particular people in article 3 courts, we may actually, and in order to get convictions, compromise the law that we have for criminal decisions. would you care to comment? >> yes, that is the real concern. it applies not only to a speedy trial but to a lot of other protections. there's a certain hydraulic pressure that is applied in cases like this. it tends, at times, to distort rules when certain -- when the stakes are very high. if those pressures are brought to bear here, it will be felt across the board in all criminal cases. once the rules are created here,
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it is nearly impossible to confine them solely to terrorist cases. >> general, is it true that something less -- if something less than capital murder charges are brought for the 82 a lesser charge, -- or they plead to a lesser charge, if they get deported, they can come to this country? >> i suppose it is conceivable they could be deported. it is also conceivable they could not. i would not gamble on that. secondly, to the extent that they are in the prisons, they are a threat there as well. each of these people would be virtually at a totemic figure in a prison. i have heard it suggested that they can be kept in solitary confinement. mr. reed, who was serving -- he
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is out in florence, colorado. he is in solitary confinement and has challenged the special administrative measures that have kept him in solitary confinement. the administration chose not to contest that. he is now free to meet with his fellow prisoners. others may do that if they are similarly confined. >> thank you, a judge, and i must say that he is again showing his great service to america, even though he no longer has an official position, by expressing these views so we can all hear them. hopefully people will follow them. we owe him a great debt. let's give him a great round of applause. [applause]
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>> no one has ever been elected to the senate for nine terms. >> in a few days, west virginia center, robert byrd, will become the longest serving member of congress in history. the director of the bird center on the life and continuing legacy on -- of senator robert byrd. >> on "prime minister's questions" the prime minister discusses unemployment, a call before british troops, and the national health-care service. that's tonight at 9:00 eastern, here on c-span. >> c-span's 2010 student camera contest this year. $50,000 in prizes for middle and high school students. just create a five-eight minute video on one of our country's greatest strengths or challenge of the country's basic. it should show varying points of view. the deadline is january 20th.


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