GOP vs. President Obama: Debate Over Gitmo Heats Up

This is a rush transcript from "On the Record," , May 6, 2009. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Now, do you want the detainees from Guantanamo Bay prison released into the United States? Attorney General Eric Holder says it is a responsibility, but Republican Senator Jeff Sessions questions whether our government has the legal authority to do that. Senator Sessions has written two letters to the attorney general about this subject. Has he had a response? Well, let's ask. Senator Jeff Sessions is with me live. Nice to see you, Senator.

SEN. JEFF SESSIONS, R- ALA.: Good to be with you, Greta.

VAN SUSTEREN: Have you gotten a response from the attorney general to...

SESSIONS: No response.

VAN SUSTEREN: None at all?

SESSIONS: No, we haven't.

VAN SUSTEREN: All right. Now, I have a copy here dated April 2nd. Is that the second of the two letters or the first?

SESSIONS: Yes. No, I believe that's the first.

VAN SUSTEREN: That's the first. And in the letter, you tell him that you're concerned about a number of things, including -- you quote him as saying the detainees being held at Guantanamo Bay, Cuba, may end up being released in the United States. Has he confirmed or denied that that's the intention?

SESSIONS: He has not, but they've made public statements indicating that they're dealing with that issue. And the secretary of Homeland Security, Secretary Napolitano, today at the hearing admitted that she was part of a committee that was talking about it.

VAN SUSTEREN: Where are they going to release them in the United States? What's their plan?

SESSIONS: Well, we don't know for sure and -- but it -- northern Virginia has been mentioned as one of the places.

VAN SUSTEREN: And no other place?

SESSIONS: That's the only place I've heard.

VAN SUSTEREN: Why is this kept -- why is there not more transparency to this issue? Because the president signed an order on January 22 saying it was going to close within one year. We're almost halfway into that and we're running out of time.

SESSIONS: They don't know what to do with these prisoners. It's a difficult question for them. They've gotten themselves into a box and they've got to figure their way out. But I'll tell you, under the law that we passed several years ago, a person that's been trained in a terrorist -- by a terrorist organization cannot emigrate to the United States.

And so now we're taking people out of Guantanamo, bringing them and releasing them in the United States. Admiral Blair said we've got to give them subsistence of some kind. And so this is a very direct violation of the law of the United States Congress. I do not see how they can get around this.

VAN SUSTEREN: All right. Do you agree we can't hold them forever?

SESSIONS: Well, as long as they represent a threat to the United States and we're in a state of war, I think they can be held. And they...

VAN SUSTEREN: Do we know every single one there, though? I mean, the -- when we collected them -- and there are over 200 there now -- and you know, we're -- you know, it had never had any sort of process. I mean, how can we be certain if -- you know, if 100 percent of them have bad intentions?

SESSIONS: Well, we don't know. We do know -- one article recently said that when a soccer game was played for them, one of the people saw a woman with short sleeves dress on and top and threw the TV on the ground. So these are people that are not totally accepting of Western culture, that's for sure.

VAN SUSTEREN: Well, but -- but (INAUDIBLE) let me stop (INAUDIBLE) I mean, here's the problem. We got over 250 sitting there, right? Some percentage of them that are horrible, bad people that we never want to have them come near the United States or any U.S. interests in the world, right?

SESSIONS: Right.

VAN SUSTEREN: OK. We don't know who they are.

SESSIONS: We don't...

VAN SUSTEREN: We don't know which ones of the 250 have...

SESSIONS: Well, we have pretty good proof on the ones that are left. We had over 700, I think, at one time, and it's now down to 250. These are some of the toughest, most dangerous ones, people that other countries won't take. And of course, I think China has indicated they're willing to take these people. They consider them to be threats to China. But we're apparently unwilling to give them up to China.

VAN SUSTEREN: All right. Now, you're talking about 17 who are Chinese, and we won't send them back to China because we think that the Chinese government will punish them or maybe even execute them. I don't know what. But that's -- so we won't -- we won't send that 17 back to China. We can't send them off to Western Europe because Western Europe doesn't want them. In fact, I remember one German person said, when we said they're safe, he said, If they're so safe, you keep them. So -- and - - and so now we can't let them come back to -- we can't put them in the United States because people don't want them in the United States. And not only that, the law prohibits them from coming to the United States, right?

SESSIONS: That's the way I see it.

VAN SUSTEREN: And the place has got to close down in about seven months.

SESSIONS: That's correct. Now, I've been to Guantanamo...

VAN SUSTEREN: And you don't get any answers to your letters!

SESSIONS: And I don't get answers.

VAN SUSTEREN: Wow!

SESSIONS: I think he should answer that question. It's an important issue. I can't believe they're having this much difficulty with it.

VAN SUSTEREN: Well, do you ever call them and say, How about just answering -- giving -- just (INAUDIBLE) answer. I'm a United States senator. I've sent you twice...

SESSIONS: I should do that. I like Eric Holder, and he's been in the Department of Justice before for quite a number of years. He knows the ropes. I should probably do that.

VAN SUSTEREN: All right. Well, give him a call and come on back. Let's see if he wants (INAUDIBLE)

SESSIONS: I'll tell him you want to know.

VAN SUSTEREN: I want to know, and they're in a bit of a fix! They've got themselves in a fix. Senator, thank you very much.

SESSIONS: Thank you.

VAN SUSTEREN: So what should we do with the Guantanamo Bay prisoners? Republican senators Lindsey Graham and John McCain just co-wrote an op-ed, "How to handle the Guantanamo detainees." Senator Graham joins us live.

So you may be able answer at least some of the questions, help out Senator Sessions and Attorney General Holder.

SEN. LINDSEY GRAHAM, R-S.C.: Sure.

VAN SUSTEREN: But you can't help him get his letters answered, right?

GRAHAM: Well, let me tell you, he's talking about the Uighurs. The Uighurs are Chinese Muslims that were picked up in Afghanistan terrorist training camps who came to Afghanistan to go back to take on the government of China. If we send them back to China, they're going to get killed.

Our country has ruled they're no longer an enemy combatant threat to us, but Jeff is right, they were caught in a terrorist training camp. They're part of a terrorist organization. Our laws prohibit the releasing of a terrorist in the United States, whether they're coming after us or not, and the president cannot waive it. Jeff is right to ask the question, and the Uighurs should not be released into the United States because they should be released to the Department of Homeland Security and found a home for them. Some of them went to Algeria. We need to find a place for them, not northern Virginia.

VAN SUSTEREN: All right. Not -- well...

GRAHAM: That's the Uighurs.

VAN SUSTEREN: All right. Well, that's the 17 and that's...

GRAHAM: OK. Now, what about the rest of them?

VAN SUSTEREN: What about the rest?

GRAHAM: All right. My belief is that we were attacked on 9/11. That was an act of war, that any person caught who's a member of al Qaeda or an associated group under the law the Congress passed is an enemy combatant. They're not a common criminal. And under military law, if you catch someone and they're an enemy combatant, you can hold them off the battlefield as long as they're a threat.

And you asked the question, how do we know? My belief is that we need to let the military and the CIA make the initial determination because they know best.

VAN SUSTEREN: A proceeding? A military proceeding?

GRAHAM: A combat status review tribunal. I've been a military...

VAN SUSTEREN: Why haven't we done that?

GRAHAM: Well, we're doing it for all of them. All of them (INAUDIBLE) had that. But the Supreme Court ruled they have a habeas corpus right to go to a federal judge. And what I've done with Senator McCain is said, Wait a minute. Instead of letting them pick the most liberal judges in this country, let's create a national security court, where you have trained judges who understand terrorism law. And every enemy combatant will go before that court, and if the judge agrees the military was right to say you're a part of the enemy force, you're part of al Qaeda, we can keep you off the battlefield forever.

Under criminal law, you know very well you can't hold somebody without trial. But under military law, you can hold an enemy prisoner as long as the war is going on.

VAN SUSTEREN: All right. All right. For the enemy prisoners, I'm totally on the same page with you because we do not...

GRAHAM: Good.

VAN SUSTEREN: I mean, those are -- all right...

GRAHAM: There's no law that says...

VAN SUSTEREN: But here's -- in what...

GRAHAM: ... release an enemy prisoner...

VAN SUSTEREN: Right. I got it.

GRAHAM: ... to go back to fight you.

VAN SUSTEREN: All right. In what you wrote in the op-ed, though, you said that there's sort of a broad net cast. And what I understood from what you wrote...

GRAHAM: Right.

VAN SUSTEREN: ... is that there are some people there that were simply scooped up that are not part of this.

GRAHAM: Well...

VAN SUSTEREN: Is that true or not?

GRAHAM: I think we've caught some people that were probably identified wrongly. But 1 in 10 that we released has gone back to the fight. So what I'm trying to do is find a process. I don't want the system to be seen as unfair, but I don't want to let people go to kill us.

VAN SUSTEREN: I'm with you on that. But the thing is, the system isn't...

GRAHAM: Once the judge...

VAN SUSTEREN: But the system is -- but the problem is, the system isn't moving. We -- you know, we've got...

GRAHAM: It is moving.

VAN SUSTEREN: ... to move -- well, we're still holding people who haven't done anything.

GRAHAM: No, that's not true.

VAN SUSTEREN: I thought you said...

GRAHAM: Everybody we've held has gone through a military board, and the military labeled them an enemy combatant.

VAN SUSTEREN: All 251 or whatever?

GRAHAM: Every one of them.

VAN SUSTEREN: OK.

GRAHAM: And all of them are going to federal court. And what I want to do is create a national security court that will make sure we don't release information, like we did in the blind sheikh trial, that winds up in a cave in Afghanistan.

I want them to have their day in court in front of a national security court. And if we determine they're enemy combatants, every year, we will look at their case, but we're not going to let these people go. There is no choice...

VAN SUSTEREN: All right...

GRAHAM: ... in military law of trying you or letting you go.

VAN SUSTEREN: All right, we have 20 seconds left.

GRAHAM: OK.

VAN SUSTEREN: Is the President Obama administration moving towards that?

GRAHAM: I hope so.

VAN SUSTEREN: OK. I mean...

GRAHAM: If they criminalize this war, if they treat these people as common criminals who robbed a liquor store, we're going to wind up letting them go. They need to be...

VAN SUSTEREN: Does anybody want them?

GRAHAM: ... treated as warriors...

VAN SUSTEREN: Does anyone want them?

GRAHAM: Well, I don't care. If we can't give them to somebody else - - my point is, Greta, if you're a part of the enemy force, we can hold you forever. That's military law for 200 years. Don't criminalize this war. These people are warriors. They're not robbing liquor stores, they're trying to kill us. I want them to have their day in court, but I want to keep them off the battlefield so our kids don't capture them one day and fight them the next.

VAN SUSTEREN: I'm with you with not sending terrorists back out to kill us, but...

GRAHAM: I hope the president is listening. This is a big decision he's going to make.

VAN SUSTEREN: Senator, got to go. Thank you.

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