Transcript: Sens. Kyl and Nelson on 'FNS'

The following is a rush transcript of the May 24, 2009, edition of "FOX News Sunday With Chris Wallace." This copy may not be in its final form and may be updated.

CHRIS WALLACE, HOST: Well, on this Memorial Day weekend, we want to continue the debate over our security and our values. Joining us, two senators who are leading voices in this area — from Phoenix, the number two Republican in the Senate, Jon Kyl, and from Omaha, Democrat Ben Nelson, a member of the Senate Armed Services Committee.

Senators, let's start with the issue that you had to — you're going to have to vote on later this year, and that is whether to approve funding for the closing of Guantanamo.

Now, this past week, the Senate voted against funding by a vote of 90- 6, demanding that the Obama administration first come up with a plan. Senator Kyl, let me start with you. What do you need to see from the Obama administration that would convince you to allow some of these detainees into the U.S.?

SEN. JON KYL, R-ARIZ.: I don't think he can convince me of that. First of all, it would be against United States law for people to be released into the United States who are terrorists. That's already illegal. He can't do that.

And I don't know why it is better to have somebody in a so-called Supermax facility in, say, Colorado than it is to keep them in Guantanamo, a state-of-the-art facility that we built not too long ago for the explicit purpose of holding these people.

There's nothing wrong with the prison in Gitmo, and there are a lot of problems, as FBI Director Mueller pointed out in testimony just this week, with bringing those people to the United States.

WALLACE: Senator Nelson, congressional Democrats, I think it's fair to say, jumped ship on the administration this week on the idea of closing Guantanamo. What do you need to see from the administration in the way of a plan before you can get behind this?

SEN. BEN NELSON, D-NEB.: Well, the president needs to come forward with a complete plan, a comprehensive plan. I think there are differences between those terrorists that have committed crimes in America against American law, such as Moussaoui — they're already in prisons here, Supermax prisons — 30- some out in Colorado.

So consequently, I think what has to be done is a distinction made between those criminals and those who are — who have yet to be tried by tribunals. I think the tribunals can occur anywhere, and I'd prefer not to see them occur in America, on — in the — within the continental United States.

Once they're convicted, and assuming they will be, then I think we need to work out with their countries an arrangement where they're incarcerated there. Those countries have a responsibility, too. They are, after all, their citizens, their residents, and they need to — they need to step to the forefront on it as well.

WALLACE: I'm a little confused by your answer, though, Senator Nelson. Are you saying if someone is convicted — now, I understand the administration is trying to get other countries to take some of these detainees. But — and so far, the Obama administration has had the good fortune of getting only two picked up, one by Britain and one by France.

Are you saying that you would be willing to accept convicted terrorists in the United States, even perhaps in Nebraska?

NELSON: Well, no. Look, and federal prisons — we don't have any in Nebraska, so it's not about "not in my backyard." This is a situation where we have Moussaoui here. We have the blind cleric from the first bombing of the twin trade towers. We have them here. I'm just saying if they committed violations of American law, that's one thing. They can be tried here, and it might be even hard to argue that they shouldn't be kept here.

But on those that are detainees that have violated the laws of war, we don't have to worry about bringing them here. I think they need to be kept elsewhere, wherever that is. I don't think — I don't want to see them come on American soil.

WALLACE: Let me ask you both a simple question to try to wrap this up.

And I'll start with you, Senator Kyl. A year from when the president made his original announcement, next January, will Guantanamo be open or closed?

KYL: Well, Chris, I don't know. I mean, the president can make a very foolish decision and close it without having figured out what to do with the people. I can't imagine that he would do that, however.

The reality is that the American people don't want these people in the United States. By a Fox survey, 55-37, they don't want to close Guantanamo.

You've got a Democratic House member, by the way, a member of the House Intelligence Committee, Judge Hastings, who's going to be introducing legislation, he says, to keep Gitmo open as long as it's open to international observers and anyone else who would like to come down and see how well it's run.

The reality is that there's no point in having some kind of facility in the United States where these people are kept if it can be done in Guantanamo, and it can be done there perfectly safely.

WALLACE: And, Senator Nelson, very briefly, your best guess — Guantanamo open or closed by next January?

NELSON: Well, the president said it should be closed. John McCain said it should be closed. President Bush before he left said it should be closed. Secretary Gates said it should be closed. And former secretary Colin Powell, I believe, has also said it should be closed.

And whether it's closed or not, we have to have a plan in place that outlines how we deal with the — the people who are incarcerated there, the combatants. We have to find a way to do that. That's why I think we're — people are jumping on the president right now.

I think what they ought to do is wait until a plan comes out. Then there's plenty of time. I'm sure they'll find another reason to jump on him at that point.

WALLACE: Gentlemen, let me pivot a little bit. President Obama and Vice President Cheney had quite a debate over national security this week, and I want to play for both of you what they had to say on the issue of enhanced interrogation.

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: They alienate us from the world, they serve as a recruitment tool for terrorists and increase the will of our enemies to fight us, while decreasing the will of others to work with America.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

FORMER VICE PRESIDENT DICK CHENEY: This recruitment tool theory has become something of a mantra lately, including from the president himself. It's another version of that same old refrain from the left, "we brought it on ourselves."

(END VIDEO CLIP)

WALLACE: Senator Nelson, who's right about the balance between, on the one hand, keeping the country safe and, on the other hand, living up to our values?

NELSON: Well, they probably both are in some — to one degree or another. I don't think anybody wants to see this country attacked again. And I think it's also a question about whether or not it is held against us because these tactics have been used.

But look, the president, when he was running, said that we're going to stop waterboarding. John McCain has said it's torture. I think what we have to do is understand that this decision apparently was decided last — last November.

But what we need to do is make sure that the intelligence information that's gathered is accurate, that we do everything within our power to get good intelligence, and it may or may not consist of coming from enhanced techniques.

But you know, right now you've got questions about whether or not you're getting accurate information from the CIA. Former Speaker Gingrich said back in '07 that the National Intelligence — the NIE was (inaudible), not — not workable, was not good, it was full of misinformation. And then you had Peter Hoekstra, Representative Hoekstra, saying he got lied to.

I think we need to get our intelligence at the best level that we can and stop the focus quite so much on enhanced techniques.

WALLACE: Let me, though, go back to that for a minute, Senator Kyl, because despite Dick Cheney's defenses this week, even the Bush administration stopped using almost all of these techniques years ago.

KYL: Well, the point is President Obama has reserved unto himself the right to use enhanced interrogation techniques under the right circumstances, except for waterboarding.

And Dick Cheney is absolutely correct — those techniques used on a few people, not at Gitmo, produced the important intelligence that, as former CIA Director George Tenet said, saved lives.

The current director of national intelligence, Admiral Blair, agreed that these were high-value, important people who gave us important information about Al Qaeda.

And so these techniques, first of all, were not criminal. They are constitutional. They didn't violate a treaty. They provided important information that saved lives, and they had nothing to do with Gitmo.

When the president said in his speech that it — that the existence of Gitmo probably created more terrorists than have ever been held there, he meant to say that 770 people or more became terrorists because we have a prison at Guantanamo.

We called his press secretary, Robert Gibbs, and asked for information about the charges that he'd made in his speech. We haven't heard back yet. This is a false charge. In fact, it's culpably false.

9/11 hijackers didn't do their deeds because of Gitmo. The people that blew up the Cole or Khobar Towers or the first World Trade Center — they didn't sit around and say, "Gee, there's Gitmo down there," because it didn't exist.

And even after that, I don't think you saw guys sitting around some coffee shop in Saudi Arabia saying, "You know, those Americans have this prison called Gitmo. I think I'll become a terrorist."

I mean, it's palpably false to suggest that the existence of Gitmo created terrorism, and yet the president gets away with that. We haven't done anything wrong there. We haven't lost our values. And Dick Cheney is exactly right at what he said in his speech.

WALLACE: Gentlemen, I want to move on to another topic. We expect the president in the next week or 10 days to announce his Supreme Court nominee.

Senator Kyl, back in January, in a speech before a lawyers' group, the Federalist Society in Phoenix, you said that if the president's choice is too liberal, you reserve the right to filibuster that choice. Do you stand by that, sir?

KYL: I went on to say a lot of things about what I meant by that, and I was distinguishing between a person who is just liberal — and undoubtedly this nominee will be liberal — and one who decides cases not based upon the law or the merits but, rather, upon his or her emotions, or feelings or preconceived ideas. That would be a circumstance in which I could not support the nominee.

Now, be clear. Republicans don't have the votes to filibuster a nominee, and that's probably not going to happen in this case either. But we will distinguish between a liberal judge on one side and one who doesn't decide cases on the merits but, rather, on the basis of his or her preconceived ideas.

WALLACE: But I just want to make sure I have this straight, because in fact, in the numbers now, you perhaps do have — and if you could get some Democratic defections — the opportunity to filibuster. You are reserving that right if you feel that the president's choice is so far out of the mainstream.

KYL: Yes, the — the Gang of 14 back three or four years ago had a standard that I think is probably appropriate. They said that there shouldn't be a filibuster of judges except in extraordinary circumstances. And I think that's — that has it about right.

And hopefully the president won't nominate someone here who is so far out of the mainstream in terms of the way that he or she approaches deciding cases that we won't have to do that.

WALLACE: Well, let me just ask you — and I do take all of your caveats here, Senator Kyl. Back in 2005, when Democrats were — excuse me — filibustering some Bush nominees and you were considering the nuclear option to stop that, here's what you said. "It's never been the case until the last two years that a minority could dictate to a majority what they could do." So are you backtracking on that?

KYL: What I'm saying, Chris, is that in extraordinary circumstances, which is essentially the way that the Senate resolved that dispute about the nuclear option, as you say, I think both Democrats and Republicans reserve the right to not only oppose a nomination but also prevent vote on the nomination. That should be a rare case.

And I would hope that the president's nominee would not fall into that category. But I think you never say never here. And given the fact that the president has already signaled that he wants to appoint someone who has empathy and will decide cases based on that, I think you have to reserve it.

When Justice Roberts was asked the case (sic) in his confirmation hearing, "Would you vote for the little guy or the big guy," he said, "It depends on whose side the law was. If the law is on the side of the little guy, he wins. If it's on the side of the big guy, he wins."

I don't want the test to be, "Are you for the little guy or the big guy?" I want the test to be blind justice. Where is the law?

WALLACE: Let me just ask you briefly — and I promise I'm going to bring you in in a moment, Senator Nelson.

Is there anybody on the list of names that we have heard in the last couple of weeks, and it's about a dozen names — is there anyone that on first glance you say, "That is an extraordinary circumstance?"

KYL: Chris, I want to wait and get the facts. The purpose of hearings and the purpose of the ABA investigation, the FBI investigation, the review of all the opinions and writings and so on of the nominee is to find out what they have said and done in the past. And I'm certainly not going to prejudge any of these nominees one way or the other until I get those facts.

WALLACE: Senator Nelson, as senator Kyl pointed out, you were one of the leaders of the so-called Gang of 14 that back in 2005 prevented a blow- up over the issue of filibusters.

Do you see any justification in this case, from what you've heard about the possible nominees, for the Republicans filibustering President Obama's choice?

NELSON: Well, I haven't studied their backgrounds to any great extent. I'm waiting until it's narrowed down, till you see who's really out there.

But as sort of an author of the words "extraordinary circumstances," I do understand that there can be certain circumstances where you would — you might vote against somebody on the filibuster.

But let me just say it this way. I don't care whether they're liberal or conservative. I just want to make sure they're not activist. I don't want an activist on the — on the bench.

When I was governor, I appointed almost 81 — over 81 judges — the entire Nebraska supreme court, two chief justices, the entire court of appeals, and that was my — I had no litmus test, but I did have a test, and that was did I believe that they were going to apply the law or were they going to be an activist and try to engineer the law.

Quite honestly, I think we want to read the law. We don't want to have to read judges' minds. So I think that's the test — will they be an activist or not — and I — I would hope that there wouldn't be any circumstances that would be so extreme with any of the president's nominees that the other side would feel the need to filibuster or that I might feel the need to filibuster in a case of extraordinary circumstances.

That's what the Gang of 14 was all about.

WALLACE: Well, listen, as a — I'm always happy to have a gang leader here on the show.

Senator Nelson, Senator Kyl, we want to thank you both so much for joining us on this holiday weekend.

KYL: Thank you, Chris.

NELSON: Thank you, Chris.

KYL: Happy Memorial Day.

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