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'Special Report' Panel on Gitmo Detainees' Defiant Response

This is a rush transcript of "Special Report With Bret Baier" from March 10, 2009. This copy may not be in its final form and may be updated.

BRET BAIER, HOST: Five Guantanamo Bay detainees — most linked to the 9/11 attacks — got together in what they call a Shura Council and they came up with a six-page document that authorities have now released.

In that, quoting from this document, they say: "To us, they are badges of honor about the attacks, which we carry with pride. Killing and fighting you," about the U.S., "destroying you and terrorizing you, responding back to your attacks are all considered to be great legitimate duty in our religion.

"Our religion is a religion of fear and terror to the enemies of god — the Jews, Christians, and pagans. We are terrorists to the bone. So many thanks to god."

This coming out on a day we have just learned, breaking news from two sources, according to FOX, one counterterrorism official and one senior defense official, that the Taliban's new top operations officer in southern Afghanistan was, in fact, a prisoner at Gitmo in 2007.

So, let's bring in our panel: Fred Barnes, executive editor of The Weekly Standard, Kirsten Powers, columnist of The New York Post, and syndicated columnist Charles Krauthammer.

Fred, we are just learning about this operations officer being — used to be in Gitmo.

FRED BARNES, EXECUTIVE EDITOR, THE WEEKLY STANDARD: Yes.

BAIER: Not a surprise.

BARNES: The Associated Press refers to the latest free detainee who went back and became a terrorist again. There have been a lot of them. The recidivism rate has been very high.

And, of course, it's an argument for keeping Guantanamo open. It is the perfect place to have them. It is kind of a country club, even though they claim a terrible prison.

And you can't let them go. You can't let them go on trial in the U.S. because they didn't get their Miranda rights and so on, so that won't work.

I think the best thing to do would be to have a military commission in private, sentence them, leave Gitmo open and let them stay there for the rest of their lives, and not make them martyrs by executing them.

Their document — I love their document. They refer to the conspiracy charge against them as a very laughable accusation. There was just laughable stuff in here in this propaganda document where they talk about "We have news for you. You will be greatly defeated in Iraq, among other places."

Maybe they just haven't gotten the word. They lost there.

BAIER: Kirsten?

KIRSTEN POWERS, COLUMNIST, THE NEW YORK POST: I don't think in country clubs you're actually held against your will, so I really wouldn't compare it to a country club. I think it is, at the end of the day, a prison. These are a lot of bad people, not just these people, but there are a lot of bad people down there.

But that said, I think that these people should be tried and they all should be tried. And you can't keep people without charging them. The Supreme Court has said that.

And, you know, look, they have said they did it. They're proud that they did it. Put them on a stand and let them say that in front of a jury and try them and put them in jail. That's how they should be dealt with.

I don't think that even President Bush did not want to keep Gitmo open.

BAIER: Charles?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: I guess the commander of — the enemy top commander in southern Afghanistan, he used to be in Gitmo, failed the 12-step rehab program they had for him when he was released in Afghanistan, probably the step about remorse and compassion.

Look, these guys are telling us who they are in this document. It's not a legal document. They don't recognize the authority of the courts, civil or military, whether established by Obama or Bush.

This is a propaganda document. And it tells us they are self-declared enemies and it is absolutely insane to want to treat them as criminals. This is a War on Terror and they are telling us "We are your enemy. We're not criminals."

That means in all other wars — as in all other wars — they ought to be detained without trial and without a lawyer and without Miranda, the way the Germans and Italians and Japanese prisoners in the Second World War were retained, until the war is over. And the war ends when Al Qaeda surrenders.

Until then, it's their war, which they started. They are the enemy. We detain them without excuse.

I think having them in detention and denying them habeas corpus is a principal that we ought to establish, and for another reason — we have more prisoners in Afghanistan held in Bagram Airbase prison than in Gitmo.

And if the Gitmo guys have the right to a lawyer and Miranda rights and a blog and all kinds of rights that you want to give them here in the U.S., why not the guys in Afghanistan?

And if you establish that, how does an American soldier take a prisoner in Afghanistan? He has to collect shells and accompany the prisoner on the flight to the United States in order that he can testify.

It is absurd. This is a war. It is not criminality.

BAIER: It is a complicated issue, Kirsten, for this administration. How have they dealt with it so far in your eyes?

POWERS: Of course, it is very complicated, and it is much easier to talk about in theory than to actually have to deal with and to actually have to be letting people go who we know are dangerous, which is why I think it is important to try them.

But I do think that actually what Charles has brought up is probably going to become another issue. Human rights groups are already bringing it up.

BAIER: About Bagram in Afghanistan?

POWERS: Yes, but I think the difference is that the Supreme Court has ruled that the Constitution follows people who are in the United States, so it's not a matter of your nationality. I don't think it necessarily applies in that case. And I'm not a lawyer, but I think it's a slightly different case.

And because the law of the land is that these people are supposed to have habeas and the Constitution follows them, then we are obliged to treat them that way.

BARNES: One of the things about this issue — this is one of the least complicated issues I have talked about in years. It is very simple.

And it is not a battle of public relations — that, gee, maybe some of the Europeans don't like Gitmo. Well, tough. This is a question of people who want to kill Americans. They want to kill them here. They want to kill them overseas. That is their whole goal in life.

And to let them go and to even create the possibility where they might be released by some judge is something you don't want to do. They have to stay in prison.

Look, after World War II in the Nuremberg trials, most of those Nazis were executed. I don't think these criminals would be.

BAIER: Now, Fred, but it's complicated when you say you want to close Guantanamo Bay and you don't have a way to do it.

BARNES: That's a complication that Barack Obama created for himself. All he needs to say is "I wish we had another place to put these guys, but we don't, so I think Gitmo is going to have to stay open a little longer." Very simple.

He may not want to reverse himself, but what is his other option? Does he have some other place to put them? Very simple, not complicated at all.

KRAUTHAMMER: Put them in Bagram.

BARNES: But that's not even a country club.

BAIER: Republicans call it intimidation, Democrats call it free choice — at stake, millions in union dues.

(BEGIN VIDEO CLIP)

SEN. TOM HARKIN, D-IOWA: Many can't decide whether or not there is a secret ballot or majority signup. Management gets to decide that. Why can't workers have the same right to make that same decision?

(END VIDEO CLIP)

BAIER: We'll check out the battle over are card check when the panel returns.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. BERNIE SANDERS, I-VT.: Some people give all kinds of reasons why they're opposed to this legislation. In my view, the real reason is that big business does not want to make sure that workers earn a decent wage.

SEN. LAMAR ALEXANDER, R-TENN.: In my view, this legislation we're considering today is the most radical piece of legislation before the congress. It's called the Employee Free Choice Act. It ought to be called the employee no choice act, because it takes away the secret ballot.

(END VIDEO CLIP)

BAIER: It was heated in that hearing today as the Employee Free Choice Act was officially introduced in the House and Senate. The bill would essentially reform labor laws, allowing workers to form unions by simply signing a card or petition, removing an employer's right to demand a secret ballot, increasing unions' ability to organize, much easier.

We're back with the panel. Kirsten, where does this go from here?

POWERS: I think the question is — it looks like it's not going to go forward in the current form that it's in, and the question is what form does it end up in?

The Senate support has started to peel off. Some people, Blanche Lincoln has come out and been pretty critical about it. Mary Landrieu, Senator Pryor, Senator Specter is becoming very squishy about it, and he voted for it in 2007. So, you know, and what Pelosi has done is she has basically punted it over to the Senate and said we're not going to vote on this until the Senate votes because I don't think she wants to have her members have to go up and vote for this if it's going to not make it in the Senate.

So right now I think the answer is we don't really know, but it's unlikely, I think, that it will move forward in its current form.

BAIER: Charles, they're indicating, Democratic leaders are, that there may be some compromise needed to get this bill through.

KRAUTHAMMER: And that's because there are two elements here. The one everyone knows about is essentially the abolition of the secret ballot.

But there is another provision which imposes arbitration on unions and management if after the shop is unionized there is no agreement within four months. And that would be a really radical change. It would be a mediator appointed by the feds. It could be a government employee, but it's a huge intrusion of the government in labor relations.

So I suspect there will be a compromise. They might offer to drop either the arbitration or the card check and the abolition of the secret ballot. And I would be worried about it, because either of those provisions would be really deadly.

BAIER: Fred, there is going to be a push back on this once it hits a vote, I mean gets up that far, even if it gets that far.

BARNES: Right now, as Tom Harkin said earlier on the show, when they bring it to the floor, it's going to have 60 votes and they can have get cloture. Well, that's true. But if they don't have 60 votes lined up, they're not going to bring it to the floor.

And they don't have 60 votes now. They probably have 53 or 54, and those Democrats who were mentioned who are squishy on it, they are not hard no votes. Labor can still get them, but obviously they won't get them in the next few months. It will take a while. The economy is working against it.

But, look, one of the compromises that has been proposed is, OK, we'll have a secret election, but the moment that enough union — enough workers sign up for a union we'll have a snap election. It will be real quick before the company can organize and campaign against having a union. I don't think a business will accept that.

The truth is the business community has not been so worked up on an issue like this in years and they are against both parts of it really fervently.

BAIER: Kirsten, quickly, how hard will the White House push on this?

POWERS: I think that they have been very tepid, to say the least. The support that they — it's a campaign promise that's labor's biggest issue, and I think they have said that they would do it.

But, look, the economy is working against them. This is not the time to do something that business is so against that will be heaping a bunch of challenges on top of them. And I think that is just working against them.

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