'Special Report' Panel on Administration's Decision on 9/11 Terror Cases

This is a rush transcript of "Special Report With Bret Baier" from November 13, 2009. This copy may not be in its final form and may be updated.


ERIC HOLDER, ATTORNEY GENERAL: I would not have authorized the bringing of these prosecutions unless I thought that the outcome — in the outcome we would ultimately be successful.

UNIDENTIFIED REPORTER: What happens if they're not convicted; would there be indefinite detention for those that are not convicted?

HOLDER: We will be successful in our attempts to convict those men.


UNIDENTIFIED REPORTER: ...entitled to know the full story of how they were treated?

HOLDER: We will see what motions they file and we'll see what responses e make, and a judge will ultimately make that determination.

MICHAEL MUKASEY, FORMER ATTORNEY GENERAL: I can't see anything good coming out of this, betting the farm on the outcome of that process always involves risk.


BRET BAIER, HOST: The current attorney general and the former attorney general talking about the decision to bring the five accused 9/11 conspirators that were held at Guantanamo Bay — including the self-

proclaimed architect of the 9/11 attacks, Khalid Sheikh Mohammed — to trial in New York in federal court.

What about this decision? Many call it monumental. Let's bring in our panel: Steve Hayes, senior writer for The Weekly Standard; Nina Easton, Washington bureau chief of Fortune magazine, and syndicated columnist Charles Krauthammer.


STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: I think it's a terrible decision. I think what we're likely to see is a circus and an undignified circus in the context of the greatest mass casualty attack in the history of the United States.

We're likely to see the detainees try to put the previous administration on trial, try to include things like how they were questioned, the techniques that were used, how they were captured — all of these kinds of things that will require the court, I think, to spend at least some time, if not a good amount of time, on looking at the process and taking a look back at the Bush administration. I'm not sure that was unintentional, frankly.

The other major concern is that it is the case that in previous prosecutions of terrorists, we have seen the disclosure of sensitive or highly classified information, including information that can aid terrorists who are looking to attack us right now.

So I don't see — I agree with Michael Mukasey — I don't see anything good coming out of this.

BAIER: Nina, the Attorney General Eric Holder said today he wouldn't have come forward with this decision if he didn't think they would have a successful prosecution for each one of these cases.

Then he was pressed on that and said, well, I have seen additional evidence that you haven't seen, and we will get a successful conviction.

Isn't he tainting a potential jury pool here in New York?

NINA EASTON, WASHINGTON BUREAU CHIEF, FORTUNE MAGAZINE: How do you guarantee — you know — you can say that's what you want, but how do you guarantee a successful conviction? How do you just say that's going to happen?

It's interesting: The defenders of this decision are saying that everybody who is criticizing it is hysterical, this is a bunch of right-wing hysteria. But, in fact, you hope that's the case. You hope we're all being hysterical. But you look at the risks that we're taking by treating all of this, treating 9/11 as a crime instead of as an act of war, an act of terrorism.

You have got the risks that Steve referred to of possible evidence, intelligence-gathering information getting out. These guys have a right to evidence. They have a right — they can bring their videotapes of being waterboarded out and they can stir up further terrorism by doing that. They can make New York City a target of attack.

I mean, this is a high-risk, high-gamble stake. And we talked about this before: You weren't surprised. I was actually surprised to see this administration do this.

BAIER: Senator Carl Levin, the chairman of the Senate Armed Services Committee, had this statement, "The argument by some that Khalid Sheikh Muhammad should be treated as a warrior and not as a common criminal misses the point. He wants us to treat him as a warrior. But he should and will be treated as the common terrorist criminal that he is." Charles?

KRAUTHAMMER: That's a contradiction in itself. Ether he is a terrorist or criminal. A criminal ends in U.S. court, if you're a burglar or murder. If you are a terrorist, you are engaged in war against the United States and you ought to be treated as a combatant, or in his case, an illegal combatant.

This makes no sense at all. Holder is telling us he wants to uphold the high standards of justice, but he's guaranteeing a conviction in advance. Well, that's a hell of a way to do it.

And secondly, he knows it is going to be a show trial. Do you think that if by some reason, and it is quite possible, that Khalid Sheikh Mohammed either is acquitted or you have a hung jury, we're going to let him walk out on the streets of Manhattan? Of course not. We're going to re-arrest him in a minute.

He will spend the rest of his natural life, as the judge likes to say, in an American detention facility somewhere, guaranteed.

This is all show, and it's going to be a show trial which the terrorists will conduct against us, a, against the Bush administration, and the methods, and secondly, it's going to be the second half of the terror attack. The first half is you attack and you kill. You become notorious and you cause pain and sensation.

And then a decade later, you appear at the scene of the crime, and you have the biggest forum in the world to explain and proclaim the ideology behind it. This is a travesty.

BAIER: Steve, Senator Levin is trying to say that you make him the common criminal in court, but as Charles is saying, it does put a spotlight on these trials.

Technically what does happen if there is a technicality or a hung jury? Does the Department of Justice then keep bringing charges one after another and continue these trials?

HAYES: Well, as a practical matter, of course they do. I mean, Eric Holder couldn't answer that question, because in a sense it is unanswerable, but there is no way they're going to let these guys walk free.

I will say, of all the things that I'm concerned about and all the things that really bother me or disappoint me about this decision, the process of these guys being a hung jury or them being acquitted is very low on that. I think that is highly unlikely to happen.

What really bothers me is the fact that this is going to be a show trial, and it is going to be a forum for these terrorists to be talking about how they waged jihad, to be encouraging others to wage jihad, and to be making the United States and the Bush administration looking like the bad guy in this.

KRAUTHAMMER: What other country sustains an attack of this magnitude and cruelty and then instead of pursuing and either killing the people who do it, putting them away as a war criminal which they are?

And remember, Khalid Sheikh Mohammed was going to military court, and he said. He was ready to plead guilty and be hanged. He was ready for all, which should have happened.

Instead, we're going to bring the guy who did this into the heart of the United States, put him on a stage on which he can proclaim his reasoning.

BAIER: But Charles, you know that supporters of this decision say we have the best justice system in the world. We are the country that can handle this and try it in our country. That's what they say. We are better than taking it out a different way. That's the response.

KRAUTHAMMER: I'm not sure that FDR or Lincoln or any of our war presidents or Johnson or Kennedy would take a combatant and give them the constitutional rights of an American citizen and give them a trial in civilian court. That doesn't happen.

This is not comparing us with the rest of the world. It is comparing us with our own traditions. Even Washington has military courts. That's how it should have been. The idea of giving them the rights of an American citizen is absolutely unconscionable.

HAYES: And they didn't rule out military commissions. It is not that they have said they were illegitimate, they have just chosen these instances to not use them.

BAIER: OK, the Friday lightning round is going to be real short, next. Your topic online, your choice first, after the break.


BAIER: All this week on FOXnews.com, the "Special Report" page, viewers voted on what topic we should discuss first during this Friday lightning round. You can find the poll on our website halfway down on the right side on the "Special Report" page. There is the poll.

As of 4:30 eastern this afternoon, about 1,400 of you weighed in, and 33 percent voted for how long before Israel attacks Iran over its nuclear program. That is what we start with here. We're back with our panel. Charles?

KRAUTHAMMER: It will happen on April the 6th at 2:00 in the afternoon, Middle Eastern time.

Look, it's going to happen when Obama administration admits that it has — it's been played with by the Iranians, but with Obama administration sustaining humiliation after humiliation, having his uranium enrichment scheme rejected, the arrest of the three hikers and putting them on trial, and the capture of Iranian weapons on the way, captured by Israel on the way to Hezbollah, all of this — it appears as if Obama has infinite patience, so it looks as if he will never admit he has been humiliated.

BAIER: Nina?

EASTON: Well, it would help if Obama stated that the military option, the U.S. military option is still on the table. I think it would strengthen Israel's hand.

You have got a radicalized Iranian regime after this fraudulent election that is moving quickly towards a nuclear weapon, possibly by next year. It is not surprising that Israel is moving in this direction.

HAYES: I think you have Obama administration officials talking in the background about the need to protect the other countries in the region against a nuclear Iran. I think by their actions they have shown that they're not serious about stopping Iran from obtaining a nuke, which I think speeds up the clock for Israel.

They have to do it and they probably will do it sooner rather than later.

BAIER: Before the end of the year?

HAYES: Six months.

BAIER: Six months.

All right, next, White House counsel Greg Craig stepping down officially today, Bob Bauer moving in. He's the husband of Anita Dunn, the outgoing White House Communications Director. There you see Greg Craig, who is the believed to be steering the closure of Gitmo within one year. Steve?

HAYES: The closure of Gitmo from the beginning has been botched, from the moment they announced that they would close it within a year has been botched.

Every single step they have taken, I think, has shown that this is a much more complicated process than they ever envisioned, and their idea of repatriating detainees to places like Yemen, jihad-friendly places like Yemen, was never going to work. That's why this is complicated. I think that's why he is leaving.

EASTON: It is the first administration big shakeup and it happened over Gitmo, and they were denying it as recently as one to two weeks ago that it wasn't going to happen.

KRAUTHAMMER: He was the fall guy on a policy on Gitmo announced that was absurd at the beginning and it was impossible to actually implement.

He was not also a member of the inner Chicago circle, so he was the guy who could be let go, pushed out of a window, as it were.

BAIER: By the way, we were the first to report this. Three weeks ago Major Garrett had this scoop. No one else even touched it.

Sarah Palin's book "Going Rogue" comes out. She is doing a lot of interviews. Thoughts on this?

KRAUTHAMMER: Look, it was a book written obviously in haste and largely by somebody else. So I'm not sure it will change anybody's opinion of her. If you love her before, you will love her after. If you were skeptical of her before, as some of us have been, you will be skeptical of her afterwards.

EASTON: According to the excerpts, she blames former McCain aide Nicole Wallace for the CBS Katie Couric interview. And I would just say once again about Sarah Palin that she needs to stop blaming people. If she's going to be the nominee for the Republican nomination, she needs to own up to her own mistakes.

HAYES: And there's another book written by my colleague Matt Continetti that was just out yesterday called "The Persecution of Sarah Palin" in which he goes into great detail on how the mainstream media treated Sarah Palin, which I think also would make a good read.

BAIER: It's also, "Going Rogue," number one on Amazon and pretty much everything else out there. So it will be interesting to see these interviews coming up.

That's it for the panel. We got it all in.

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