Beck's Legal Panel on President Obama Leaving Door Open for Prosecution of Bush Officials

This is a rush transcript from "Glenn Beck," April 21, 2009. This copy may not be in its final form and may be updated.


PRESIDENT BARACK OBAMA: For those who carried out some of some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it is appropriate for them to be prosecuted.

With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the attorney general within the parameters of various laws and I don't want to prejudge that.


GLENN BECK, HOST: OK. This is going to be tough, because, America, you know, I have told you before on this program that I am who I am, and I'm going to call them as I see them. This one, immediately, because I don't trust this guy — I immediately go, "Wait a minute, just a second. Just a second."

However, upon further reflection, he may be right and if he is, I will stand by him on this issue. But let's decide.

Video: Watch Beck's interview

As I understand it, President Obama has left open the possibility that the Bush administration officials could be prosecuted for harsh interrogations involving terror suspects, saying that the U.S. lost our moral bearings — like in anybody in Washington is capable of figuring that one out — with the use of these tactics.

He says that the agents themselves would not be in any trouble, but those who devised the legal justifications — they might be. We will go through the legal ramifications here in a minute. But first, I want to ask some questions that I don't know if anybody in the administration are asking.

Thomas Paine said something — in reading "Common Sense" over the last couple of months, this really jumped out at me — he said the great thing about a republic is these people who represent us, they're going to Washington and they will never vote a rod against themselves.

OK. Well, if that's true, many president's men have made tough controversial decisions within the bounds of the law. That is the question here. What are the bounds of the law?

What if every time the next administration disagreed all of these people got into trouble?

Abraham Lincoln, his lawyers and advisors would be in jail for recommending suspending habeas corpus, the section of the Constitution during the Civil War. How about FDR? His lawyers, his advisers, should they have gone to jail for pushing through the National Recovery Administration, which the Supreme Court later struck down — most of it as unconstitutional.

How about Harry Truman? His lawyers, his advisers, should they have gone to jail for recommending taking over steel mills which the Supreme Court said was illegal? How about Bill Clinton? His advisers told him to bomb a plant in the Sudan that locals were saying was just baby aspirin. Should they be in jail as well?

Who is going to stand up to a president and tell him what he should do or what their opinion is or make the tough decisions if they can end up in jail the next administration, just for making tough controversial decisions that their job requires? Who would be able to keep working when they have to deal with that constant threat?

With us now, FOX News senior judicial analyst Judge Andrew Napolitano and "America's Newsroom" host, Megyn Kelly — now with child. Congratulations.


BECK: You're welcome.

KELLY: Coming in October. He's not here yet.

BECK: OK. Judge, let's start with you. I want to know what the law says. I don't care about the spin left or right. What are they talking about on the law?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Well, it depends which law you look at, and the problem with these memos — 175 pages — is the writers didn't look at all the law because they were predisposed to tell the president what he wanted to hear.

Some of the language that they have chosen to highlight in these memos do support their conclusions that torture has to bring you near death in order for it to be illegal. The language that they overlooked was, which was the Geneva Conventions, which is the convention against torture, a treaty —

BECK: Wait, wait. I don't care about the Geneva Convention.

NAPOLITANO: Except that the Supreme Court said we have to because they apply in this environment.

BECK: When? If that was later, that's fine. First of all, I disagree with the Supreme Court.

NAPOLITANO: Oh, we all do sometimes.

BECK: The Supreme Court can be wrong. These guys weren't wearing uniforms. If you're not wearing a flag, the Geneva Convention does not apply to you.

NAPOLITANO: But the statutes that prohibit degrading, inhumane and painful procedures were so twisted and tortured — the statutes, no pun intended — that it will allow anything goes short of death.

BECK: Megyn, you disagree?

KELLY: Yes, I do disagree. They went through all of this. People love having 20/20 hindsight on this.

BECK: Yes.

KELLY: These are lawyers who are working in the Office of Legal Counsel right after 9/11. We are at war. We are bombing Afghanistan. Our soldiers have boots on the ground over there. And they are asked, "Tell us what the legal obligations are. Tell us what we can and cannot do. We are getting some of these bad guys and we want to know what we're supposed to do."

That's what you're supposed to do: Go to the lawyers and ask them, "What are we bound by?" The treaties...

BECK: Wait, wait, wait. You bring up a good point. And this is what will split me on this. This is where I will stand with Barack Obama. If they went in — look, if I'm running a company, I don't go to my attorneys and say, "You know what? I don't care how you have to torture. I don't care how you have to make this happen. Just make this happen for me." You go to your attorneys and say...

KELLY: You ask for an independent legal opinion.

BECK: ... what does the law say?

KELLY: Yes. And that's what happened here. And President Bush received a memo from the Department of — from the Office of Legal Counsel saying, number one, the Geneva Conventions do not apply to Al Qaeda.

BECK: Right.

KELLY: They are not an organized fighting force. They are not a government. They don't wear an insignia on their arm. They don't abide by the Geneva Convention, as we know. Listen, I'm thinking Nicholas Berg. I am thinking, you know, about the beheadings I watched on television.

BECK: Right.

KELLY: These savages don't abide by the Geneva Convention. And we don't abide by the Geneva Convention when it comes to them. We do when it comes to other recognized nation states. Not Al Qaeda. So the Geneva Conventions — it's nice a theory — it doesn't apply.

BECK: Tell me about the Constitution. Tell me what we violated besides the Geneva Conventions. Where did we violate things?

NAPOLITANO: By redefining the word "torture" so that anything would go. Because the universal acceptance of the word "torture" — when I say "universal," I'm not talking about Sweden. I'm talking about throughout the United States whether it is inhumane or degrading treatment in order to extract information from a person, in order to administer punishment that has not been authorized by a court or in order to gratify the person doing the extraction. The latter is not at issue here. What is at issue here...

BECK: Wait, where is torture defined as anything degrading?

NAPOLITANO: In the Convention Against Torture which was a treaty negotiated by George H.W. Bush and signed into law.

BECK: Yes, but that's an international treaty.

NAPOLITANO: Which is of the same standing as a federal statute when approved by the Senate — which this was — and approved by the president, which this was.

KELLY: Could I just make a point? In that same treaty against torture, they went through and they specifically defined what is torture. The U.S. Congress did. And guess what? That definition that everyone is so upset about now that was in this memo, these guys are going to be prosecuted for, they took it from the U.S. Congress. The Congress came up with that definition.

BECK: OK. Hang on. Will you remind me because I'm so riddled with ADD? Will you remind me to start there with Congress when we come back? But here is the piece — I just lost it. I'm just thinking about —

NAPOLITANO: We'll remind you.

BECK: OK. Robert Bork is coming up next. Hang on.


BECK: All right. Welcome back. We're having a — we're trying to figure out — Obama came out today and he said, Hey, you know, this whole torture thing, I might have to go after the Bush administration officials, not the people that actually did it, just the Bush administration officials, the people who advised the president and the people who executed the law.

Well, I want to start here, Megyn, with you again, and go on to Congress. Why aren't we going after anybody in Congress?

KELLY: Well, that could come next. We're going to have to go find out all the lawmakers who were in Congress in 1994 who approved this original definition of torture that these lawyers relied on when they drafted this memo to President Bush.

BECK: Why not?

NAPOLITANO: Because the Constitution prevents members of Congress from being prosecuted for what they say or do in their official capacity. It does not prevent the CIA. It does not prevent the president's lawyers. But it prevents members of Congress.

BECK: Wait, wait, wait a minute. If I go in and I'm working for the president, I can get nailed, but the Congress can't for the same thing?

NAPOLITANO: Because your friend, Thomas Paine, and the folks who wrote the Constitution were terrified that what the king used to do to members of parliament when they enacted laws he didn't like.

KELLY: Listen. This is going to come down to what is torture. Was waterboarding torture?

BECK: Well, I — you know what?

KELLY: Let me just finish. Was it torture, or wasn't it torture.

BECK: We do it to our own troops in training.

KELLY: But listen — exactly, but it's going to come down to whether these lawyers had a legal justification for their conclusion to President Bush that this is not torture. And they have a very good leg to stand on because they can point to the definition from the U.S. Congress saying what is and what is not.

BECK: OK. OK. All right. I want to go to Judge Robert Bork who is with us, former Supreme Court nominee, former acting attorney general. Judge Bork, how are you, sir?

JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE (through telephone): Very well, thank you.

BECK: You know what? I have to tell you it is an honor to speak to you. I have never spoken to you before, I don't believe. And it is a true honor to be able to speak to you.

You want to talk about a miscarriage of justice? What happened to you, sir, was a miscarriage of justice. And I appreciate all the work you have done in your life.

Can you help sort through this at all? What should we be looking at? What am I missing here?

BORK: Well, the thing is horribly confused, because the precedent on the book supports the president and his operatives. But the Supreme Court has now overruled every one of those precedents from World War II.

BECK: OK. Wait a minute. Wait, wait, wait. But wouldn't that make it — so then after the Supreme Court, then anything that happened after the Supreme Court turned that around. And that could — you could go after that?

BORK: Well, yes, I suppose you could, except for other considerations. But the fact is a lot of this occurred before the Supreme Court began to get into foreign policy.

BECK: How will we — life is so confusing for those of us who aren't Robert Bork. Life is very confusing. We don't know — I'm not an attorney. I mean, I'm sitting here with two really good attorneys. And you can listen to this and say, "Well, I don't know. Well, he makes a good point. Well, yes, she makes a good point."

So what it boils is politics — who do you trust? Well, half the country trusts Obama, half the country trust George Bush on this issue.

BORK: Now, wait a minute.

BECK: So how do you decide this?

BORK: Well, in the first place, the question is who decides these things? Now, there was a democratic control over what was done — that is, members of Congress were briefed, agreed and encouraged what the administration is doing.

Now, of course, they can't be found anywhere. They don't want to defend what they formerly OK'd. But there is plenty of precedent before the Supreme Court got hot to support what the president did.

BECK: Are you there, sir?

BORK: Yes.

BECK: OK. Can you tell me what happens to our system if — because as long as you're on the field, if you're just making stuff up, but if you're on the legal field and you happen to be pushed to the edge. Not coming outside the line, but all the way to the edge. That's fine as long as it's in the field and you feel that's an important thing to do. You should let politics decide, you know, on whether you're voted into another term of office or not, as long as you're within that field.

What happens, though, sir, to our country if our president asks people to make tough decisions, asks people for tough advice, and everyone is afraid of going to jail or serving jail time because of the advice that they gave or for those tough decisions that are on the legal line?

BORK: That is right. Nowadays, if an agent or policymaker makes a decision, he has to face the fact that, you know, 10 years from now George Soros and the ACLU may be deciding whether he can go to prison or not. There is just no firm guideline once you begin to play this game of politics.


BORK: You know, the United States has never criminalized political differences. This is an occasion where we're behaving like a banana republic in prosecuting people who lost in an election.

BECK: You know what? I want to pick it up there when we come back. And I have some final thoughts there. Judge Bork, I appreciate your time, sir. Best of health to you and we'll talk again.

Stay on touch with the program by signing up for my free E-mail newsletter at "" and don't forget to set your Tivos and DVRs. Watch the show all week. You don't want to miss tomorrow. More with our legal experts, legal eagles, next.


BECK: We're back with FOX News senior judicial analyst Judge Andrew Napolitano, and "America's Newsroom" host Megyn Kelly.

We were trying to figure this out. Look, help me out, guys: I don't care if it was a Republican or Democrat. I don't care if it was George Bush or Barack Obama. I don't have a horse in the stake. My horse is the truth.

What I'm trying to do is figure out was there — is there any reason to go after these Bush administration officials for something that they thought was right? Did they make a call, and is it within the bounds of reason that these attorneys got together and said, "Oh, this is reasonable"? Or did they all look at each other and go, "I don't want to get caught with that. But let's send him that memo."

NAPOLITANO: They told him what he wanted to hear. It's an intellectually dishonest memorandum, the 175 pages. How do you know that? Because in the memorandum, they list medieval means of torture. These guys wouldn't even find that torturous.

We all know what a thumb screw is. They drive a screw through your thumb. We all know what the rack is. They pull you apart like an overgrown piece of chicken.

BECK: OK. You disagree —

NAPOLITANO: These guys wouldn't say that was torture.

KELLY: I think that's really unfair, judge. I think that is 20/20 hindsight speaking here.

NAPOLITANO: It's in the memo.

KELLY: Listen, I think these were honest lawyers who were trying to wrestle with a very difficult subject at a very difficult time in this country's history. Their task was to take an ambiguous word, "torture," and try to give it a legal definition so that our troops in the field could know what to abide by, could avoid a prosecution by some further administration. That's what they tried to do.

It is easy in retrospect to turn around and say they're all criminals. You have to think about what the lawyers were going through and the men and women in the field were going through at the time when these things were drafted and done.

BECK: Two things: This is why you can't prosecute somebody, because I have a feeling this case is made exactly the same in the room. The other thing is this is why we must elect honest, decent, God-fearing men with a soul and a conscience, somebody that you can make and wrestle with these things and you at least believe they're a good guy. They really, really truly believe they were doing the right thing.

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