• With: Alberto Gonzales, Former U.S. Attorney General

    This is a RUSH transcript from "The O'Reilly Factor," April 22, 2013. This copy may not be in its final form and may be updated.

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    O'REILLY: "Unresolved Problems" segment tonight. There are two very intense questions concerning the captured terrorist now being treated in the Boston hospital. Should he be given Miranda rights.

    And should he be classified as enemy combatant to take him out of the civil system as far as interrogation is concerned. White House says it will be a civilian case. But should it be.

    Joining us now from National Tennessee, Alberto Gonzales, a former attorney general under President Bush, the younger. So, we understand that this guy, Dzokhar, has been given Miranda rights in the hospital. He has already been Mirandized.

    And he does have an attorney appointed to him. Some people are saying, and "The Wall Street Journal" is among them, that's not smart, that they could have labeled him an enemy combatant and interrogated him without all of the protections. And you say.

    ALBERTO GONZALES, FORMER U.S. ATTORNEY GENERAL: Well, I think the White House has made a calculation, the Department of Justice has made a calculation that they can bring this gentleman, this person, I'm sorry, to justice. And also get the information that may be important to prevent future attacks and also provide answers that may help bring closure to the victims and the families of the victims.

    You know, there are some challenges, of course, with respect to the designation of enemy combatant. People forget that, once that happens, they're dealing with an American citizen.

    And what he will do is follow habeas petition, challenging that designation, raising again this question, does the president, on his own authority, can he designate American citizen as enemy combatant, which is which was an issue that came up with respect to al-Awlaki.

    And when that happens, then we'll go into court. And, hear this, defendant will force the government to present evidence to show that in fact, this person is an enemy combatant. And I think the government is probably not -- doesn't want to do that.

    O'REILLY: All right. I understand.

    GONZALES: It's going to complicate their criminal trial.

    O'REILLY: So, we'll tie it up and take it into a direction that's just not a worthy exercise. OK, and then that's valid and reasonable.

    Now, when you get a guy like this though and it becomes purely a civil crime, purely a criminal action. By the way, he's being charged at the federal level with terrorism crimes.

    And if convicted, he could receive the death penalty, which I believe he will. But it makes it a lot more difficult then to squeeze for more information about al-Qaeda, about what his dead brother knew, and what happened, and who gave him all the arms, and all of that.

    I mean, if the guy doesn't want to do it, he didn't have to do it, correct.

    GONZALES: Well, here, we have a situation where he has information that we want. And we have something that, I'm assuming, he wants which is his life.

    And so, there is a possibility that we will get the information that we desperately want. And, of course, there are criminal cases where a defendant will sing like Sinatra out of either guilt or a desire to be famous.

    And so, it is possible. And, again, I'm assuming the Department of Justice, in consultation with the White House, has made a calculation that we can bring this person to justice in our criminal court system and get the information that we need.

    Now, nothing prevents the president at some future time if, in fact, things are going badly and outcome is we are not getting the information that we think we need. He could always designate this person as enemy combatant. But then, of course, we face the same problem of --

    O'REILLY: Sure. It has to be litigated on. But you have just insinuated that it might be up to the federal government to bargain with this guy and say, "We won't give you the death penalty if you spread it out and give us everything you know."

    But, boy, that doesn't go over to the public, Mr. Attorney General, you know that. There's a vengeance in the air. And they want this guy to get what Tim McVeigh got.

    GONZALES: And I understand that. And, again, this person may give up information freely and he may not.

    And there may have to be some kind of bargain reached. And it may be sufficient for the victims and the families of the victims if they do get information, they do get answers that helps them achieve closure. But I understand there will be some people that will be unhappy if the government decides to go that way. I'm not suggesting they should go that way.

    O'REILLY: Last question, the FBI. You just heard Brit Hume and I debate the FBI. And, you know, this is the second time now, with Hassan and now with this guy going over to Russia and coming back and blowing people up in Boston.

    Do you, did that you give you pause? Do you think there might be something wrong.

    GONZALES: I think it's worth exploring. And I agree with Chairman McCaul. I think that it's the role of Congress to ask questions.

    We do have the example of what happened to Hassan and you had the FBI, again, coming out initially and saying, "You know, we did everything right."

    And so, I think, under the circumstances, it's necessary and we need to find out whether or not the FBI did its job. Based on what's been disclosed publicly, I would say that they did. But, again, I don't know what I don't know.

    O'REILLY: I don't know. If they were watching him closely, you know, it's a disturbing situation. Although I think the bureau did a great job tracking these people down in four days. That was amazing how they did that.

    GONZALES: No question about it.

    O'REILLY: We want to fair to everybody. Mr. Attorney General, thanks for coming on.

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