Transcript: Sens. Graham, Reed on 'FOX News Sunday'

The following is a partial transcript of the July 2, 2006, edition of "FOX News Sunday With Chris Wallace":

"FOX NEWS SUNDAY" HOST CHRIS WALLACE: Well, joining us to discuss what happens now that the Supreme Court has ruled against the president's military tribunal plan are two key members of the Senate Armed Services Committee, Republican Lindsey Graham of South Carolina, who's also a judge on the Air Force Court of Appeals, and Democrat Jack Reed of Rhode Island. Both join us from their home states on this holiday weekend.

And, senators, welcome back to "FOX News Sunday".

SEN. JACK REED, D-R.I.: Thank you.

SEN. LINDSEY GRAHAM, R-S.C.: Nice to be with you.

WALLACE: In its ruling, the Supreme Court basically invited the president to go to Congress to work with your body to try to figure out a way to try these detainees.

Senator Graham, first of all, will the Senate pass legislation this month? And secondly, how do you balance, on the one hand, giving these detainees the rights the court says they should have while, on the other hand, recognizing that this is a different kind of war?

GRAHAM: Well, that's a very good question. I think what we will do this month, I hope, is to get some input from the great legal minds of our time, particularly military lawyers, retired and active duty military judge advocates. The legal community in this country is very talented.

And I would hope Congress would have hearings about what to do in light of this decision and that we will sit down together, Jack and myself and others, in August, write legislation and hopefully vote by September.

The ramifications of this decision are breathtaking in many ways. The idea of the president having to go back to consult with the Congress makes sense to me. The court said he overstepped his boundaries as a separation of powers problem. Military commissions come from a congressional statute.

If you want to have a military commission, Mr. President, you have to go to Congress and get their permission and work with them.

But the Common Article III Geneva Convention decision by the court to apply the Geneva Convention to Al Qaeda terrorists, something we haven't done before, something Ronald Reagan was against back in the 1980s, is breathtaking and we need to absorb that decision.

WALLACE: Senator Reed, will Democrats cooperate in passing bipartisan legislation? And in your view, what kind of trial do these terrorists deserve?

REED: Well, I believe we will cooperate, and I think cooperation will be required by all parties, including the president. This has to be a process where we understand and recognize that we have to have a legitimate procedure, legitimate in the eyes of the court, legitimate in the eyes of the American people, that we can move quickly to try these individuals and do justice.

And I think that's something that will come together in a bipartisan basis, I hope, in a deliberate and quick fashion, and do that.

WALLACE: Gentlemen, after the ruling, House Democratic leader Nancy Pelosi issued a statement. I'd like you both to take a look at it. "Today's Supreme Court decision reaffirms the American ideal that all are entitled to the basic guarantees of our justice system. This is a triumph for the rule of law."

Senator Reed, question. Are Al Qaeda terrorists entitled to the guarantees of our justice system?

REED: Well, they're entitled to a process that will establish their guilt, establish their culpability, their connection to Al Qaeda, and that's something I think we have to do because, ultimately, we are engaged in a process of not only defending the nation but also preserving the Constitution. So I think there is an element there.

But also, I think there's a notion that's very important here, that there are rules of warfare that we have to respect because we have to also request — insist — that those that challenge us also follow them.

So I think we have a vested interest in maintaining a notion of a deliberate process that has rules, and I think that will be vindicated, I hope, in the forthcoming weeks as we do pass legislation.

WALLACE: Senator Graham, let's follow up on that, because after Pelosi's statement, the House Republican leader John Boehner issued one of his own. Take a look, if you will. "Capitol Hill Democrats advocate special privileges for terrorists."

Senator Graham, some of your Republican colleagues are saying this is another opportunity to show that Democrats are weak on the war on terror. Is Pelosi right? Are terrorists entitled to the full guarantees of our justice system?

GRAHAM: Every enemy prisoner in the hands of the United States military and in the hands of our country is entitled to be humanely treated. I didn't say that. The president said it, but I agree with him.

Every enemy prisoner, terrorist, is entitled to be tried in a military commission format, not civilian format. Military commissions have been used for over 200 years to try war criminals. Every war criminal will be given due process.

The court is telling the administration go back to the Congress, work with the Congress. I intend to sit down with the administration, which I think will be receptive to us working with them, to come up with a process that holds terrorists accountable, to give them a fair trial, but to make sure that if they did do the things that we're alleging, they're fairly punished.

The Geneva Convention aspects of this decision are breathtaking. The question for this country is should Al Qaeda members who do not sign up to the Geneva Convention, who show disdain for it, who butcher our troops, be given the protections of a treaty they're not part of.

My opinion — no. They should be humanely treated, but the Geneva Convention cannot be used in the war on terrorists to give the terrorists an opportunity to basically come at us hard without any restrictions on how we interrogate and prosecute.

WALLACE: Well, Senator Graham, given the fact that that was exactly what Justice Stevens said in his ruling, talked about the Common Article III covering these detainees, what do you do about it?

GRAHAM: Well, Congress has the ability to restrict the application of Common Article III to terrorists. Ronald Reagan in 1980 would not agree to approve Protocol I to the Geneva Convention where terrorists were given Geneva Convention protection because they're not signatories to the convention.

They're not part of the convention. Should they get the benefit of a bargain they're not part of? We can treat them humanely. We can apply Geneva Convention concepts. But the Geneva Convention Common Article III is far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should.

WALLACE: Let me take a broader look at this, if we can. It seems to me that there were two pillars to the court's ruling, and let's talk about those, if we can.

First of all, terror detainees are protected, as we've been saying, by at least part of the Geneva Conventions. And secondly, the court ruled that the president had exaggerated the authority that the Congress gave him after 9/11.

Senator Reed, following that reasoning, aren't a number of the weapons that the president has used in the war on terror, whether it's the NSA warrantless wiretaps, whether it's secret CIA prisons, some of the interrogation methods that have been used — aren't all of those now legally suspect?

REED: The court has opened up challenges to all of these provisions, and this is something that I think that we're going to have to consider as members of Congress and also the administration has to consider.

I think the most significant aspect of the case, though, was the notion that — and the declaration by the court that the president has to seek congressional authority. And this has been essentially the argument that many have made with respect to these issues of interrogation, these issues of surveillance, of electronic transmissions.

The president declared that he essentially was operating in his own capacity as commander in chief, and I think the court reined him back, and I think it's appropriate. But that does not leave us without any tools in this struggle against Al Qaeda.

What it insists is that the president come to the Congress and in a deliberate fashion and a democratic fashion we give him the authority that he needs.

WALLACE: Senator Graham, I want to get to this question of consulting Congress in a second, but I want to ask you the same question I asked Senator Reed.

Given the reasoning of the court, are some of the weapons, like NSA warrantless wiretaps, now legally suspect? And also, given the reasoning that Guantanamo Bay does not have some special legal status, should it be closed?

GRAHAM: Well, one, it should not be closed. We need a place like Guantanamo Bay to hold people who are a threat to our nation and the world at large.

If you can repatriate some of theme people back to their host country with the assurance they won't go back to the fight, fine. But 12 of them have been released and been caught back on the battlefield or killed. So I am all for keeping Guantanamo Bay open, running it within the rule of law.

Jack is absolutely right. Congress can set the terms for military commissions in collaboration with the administration. We can produce a military commission trial format the nation can be proud of but does not allow the terrorists to get away with their heinous acts.

We can have interrogation rules that are humane but allow us to protect ourselves. Congress can fix some of the problems with this decision. I've been arguing for a year and a half, Chris, that the president would have been stronger to come to Congress to get our blessing on how you interrogate, detain and prosecute enemy combatants.

I look forward to working with the administration to come up with a rule of law to protect us against the terrorists, something we can be proud of as a nation. This conspiracy charge that was stricken down — Congress has the right to restore a conspiracy charge against terrorists.

It would be an absurd result for Americans to be charged with a conspiracy and a terrorist not to be charged with a conspiracy. That's one thing Congress can fix, and that's something I hope we'll do.

WALLACE: Senator Graham, I want to follow up on this, because after 9/11, in the months and years after, you and a number of other congressional members went to the White House to suggest legislation that would authorize military tribunals, and you were basically told no thanks. Did...

GRAHAM: Well...

WALLACE: Let me ask you, though, did the White House go too far? Did this president go too far in asserting executive powers? And do you see this now as all part of a process in which the pendulum is swinging back to Congress and the courts?

GRAHAM: I went about a year and a half ago with other members, Democrats and Republicans, believing that we'd be stronger in court if Congress was on board with the executive when it came to treating detainees, trying them, interrogating them.

The court is saying to the president you can have a military commission, but since it comes from the Uniform Code of Military Justice, a congressional statute, you've got to go back to Congress.

Congress holds the keys to the courtroom for military commissions. Congress can approve interrogation techniques that would not allow Geneva Convention Article III to compromise our security. But it would be up to Congress to do that.

To make sure that the Geneva Convention is reined in domestically, it would require collaboration between the Congress and the president. I am willing to do that. I believe Jack is willing to do that.

This is not a Republican issue. It's not a Democratic issue. It is an American issue. We need to try these people fairly, but we need also to protect our country, and we can do it together, and we must, according to the court. And I think the court is right in that regard.

WALLACE: Finally, gentlemen, let's turn to another story, a related story, and that was the decision by the New York Times and other papers to report this secret U.S. program to track terrorist finances.

After a week of attacks by politicians and now two editors of the L.A. Times and New York Times defending themselves, Senator Reed, what do you think of the paper's action and should the government take any action?

REED: Well, this is the perennial struggle between a free press and a very secretive administration, and this administration is one of the most secretive on record.

I think, first, the story has to be right and accurate, but the responsibility is on the newspaper to ensure that they're not going to compromise any type of operational details.

It seems to me after five years of this program, of the notoriety that the administration itself has given to their attempts to interdict financial transactions, that's not a strong likelihood. So I think, in balance, the desire of the press to get the story to the American people, probably, in balance, is compelling.

But it's a delicate balance. It has to be struck constantly. And I think in the days ahead, rather than focusing on recriminations, we should focus on the fact — or establish the fact whether or not there's been any harm done to our military operations.

WALLACE: Senator Graham, you have about 30 seconds left.

GRAHAM: I applaud the administration for going after the terrorists hard. I want to work with them to get it right when it comes to detainees. This is a struggle between a free and responsible press, and this program that was disclosed made us safe.

Now it's disclosed, and we're going to lose a valuable tool in the war on terror. The press is free, and I'm glad they are, but they need to be more responsible. I'm going to work with the president to get this right.

And you need to be secret in the war on terror at times, because we don't want to let the enemy know what we're up to, because they're out to get us.

WALLACE: Senator Graham, Senator Reed, we want to thank you both for sharing your holiday weekend with us.

REED: Thank you.

GRAHAM: Thank you.

WALLACE: Have a good 4th of July.

GRAHAM: Thank you.