This is a partial transcript of The Big Story With John Gibson, Jan. 6, 2004, that has been edited for clarity.


JOHN ASHCROFT (search), U.S. ATTORNEY GENERAL: We have acted with legal authority, both under the laws of war and clear Supreme Court precedent.


JOHN GIBSON, HOST: Well, the Supreme Court (search ) may take another look at the White House policy on terror suspects. One particular case involving a Florida waiter is being treated with a lot of secrecy, and it could have big ramifications.

Here to explain, Fox News senior judicial analyst, Judge Andrew Napolitano (search).

Now what happened with this Florida waiter?


He was arrested shortly after 9/11 and kept in solitary confinement for seven months, and whatever he was prosecuted for was sealed. And the outcome of it was sealed, and the appeal was sealed.

And then one day, they said to him, "You can go, but you can't talk to anybody about the case, and your lawyers can't talk to anybody about the case."

Now it's before the Supreme Court of the United States. What's before the Supreme Court of the United States? Applications by the media to find out what was he charged with, what was he accused of, and why was it sealed?

GIBSON: Doesn't he have free speech?

NAPOLITANO: Yes, he does, but a judge in this case, John, for the first time in my knowledge of American history, has ordered the defendant not to speak about his case. We order lawyers not to speak and witnesses not to speak. It's unheard of to order a defendant not to speak about his own case.

GIBSON: An innocent defendant?

NAPOLITANO: He has not been convicted of any crime. We don't know, because he was set free. The reason we don't know why he was set free or what he was charged with is because all the records are sealed.

We know this. He was a veterinarian in Algeria. He came to the United States, couldn't get licensed as a veterinarian, worked as a waiter.

Who did he serve in the restaurant where he worked as a waiter? Mohamed Atta. How many times did he serve him? Probably two or three times in the months preceding 9/11.

That's the only information that leaked its way into the public domain on a Web site on a — in a federal court in Atlanta. Quickly pulled back.

GIBSON: All right. So we may or may not find out what happened to this guy. What about Jose Padilla, the dirty bomb suspect?

NAPOLITANO: Well, Jose Padilla (search ) ...

GIBSON: The clock is ticking, isn't it?

NAPOLITANO: Yes, it is.

Jose Padilla's case is very interesting.

On December 18, the United States Court of Appeals for the Second Circuit — that's the second highest court in the land, sitting here in New York City — ordered the government, the Defense Department, to release him within 30 days.

GIBSON: Release him.

NAPOLITANO: Release him.

GIBSON: Put him out on the street?

NAPOLITANO: Now, he can be released to the attorney general, and he can be charged with a crime, like an ordinary criminal. But he has to be taken out of a military brig and either released to the general public and go about his way or charged with a crime and put in a jail and get a lawyer.

That must occur by next Saturday, January 17. If the Supreme Court doesn't get involved, it presumably will occur. The Bush administration has yet to appeal this to the Supreme Court, so something big with Padilla is going to happen in the next 10 days.

GIBSON: OK, but, they're not going to let him loose to run around the streets?

NAPOLITANO: I don't think they would, and I don't think they should. If they have enough evidence to have locked him up in solitary confinement for 18 months, present that evidence to a grand jury, indict him, charge him, prosecute him for conspiracy to murder Americans. That's what I think they'll do.

GIBSON: Is there a war on terror still going on?

NAPOLITANO: I'm sure there is.

GIBSON: In the considered judgment of the courts, is there a war on terror going on in which the American government can act in certain unusual ways with people they suspect of being soldiers in the war on terror against us?

NAPOLITANO: That's why this will get to the Supreme Court, because the question you just gave me was answered “yes” by one circuit court of appeals and no by another. And when you have two circuit courts of appeals disagreeing, the Supreme Court decides.

GIBSON: Now, Judge, I can't let you escape. You're the judge. You answer. Is there or isn't there?

NAPOLITANO: There is a war going on, but the Constitution has not been suspended.

GIBSON: Judge Andrew Napolitano.

Copy: Content and Programming Copyright 2004 Fox News Network, Inc. ALL RIGHTS RESERVED. Transcription Copyright 2004 eMediaMillWorks, Inc. (f/k/a Federal Document Clearing House, Inc.), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon Fox News Network, Inc.'s and eMediaMillWorks, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.