This is a rush transcript of "Special Report With Bret Baier" from April 22, 2009. This copy may not be in its final form and may be updated.


UNIDENTIFIED MALE: If you torture an individual detainee, you might go to jai l. But if you authorize an entire secret torture program, you get off scot-free?

America is better than this. Go to Moveon.org/investigate and ask Attorney General Holder to appoint an independent special prosecutor.


BAIER: W ell, that's just one of the ads run by Moveon.org seeking a special prosecutor to go after Bush administration officials.

We understand that billionaire George Soros, he spent $27 million, of course, in his effort to defeat George W. Bush in 2004, is getting into the act. They are sending out emails and trying to stoke the flames here as well.

And late this afternoon, the chairman of the Senate Judiciary Committee, Pat Leahy, said that he wants a 9/11-style commission to investigate this matter and does want to prosecute, wants the Attorney General to prosecute, saying "I'm not the one who feels we should turn the page if you haven't read the page."

What about all of this? Let's bring in our panel — Fred Barnes, executive editor of "The Weekly Standard," Nina Easton, Washington Bureau Chief of "Fortune" magazine, and Mort Kondracke, executive editor of "Roll Call."

Fred, your take?

FRED BARNES, EXECUTIVE EDITOR, "THE WEEKLY STANDARD": Go back to that Moveon.org ad. Was there some problem with that announcer? Couldn't he clear his throat? What was the matter with that guy? What a terrible ad.

Look, there are a number of things involved here. One is Pat Leahy, the senator from Vermont, is one of the most partisan people in the history of politics, and certainly in Congress today.

And what he wants is to criminalize policy differences over what's torture and what isn't, and have show trials to put the Bush administration and the way it fought the War on Terror on trial.

I think that's exactly the wrong thing to do. I think it's not what President Obama has said, that's not what he wants to do, that he wants to move forward, and so on.

But then you get to the second problem — what does President Obama want? One day his chief of staff, Rahm Emanuel, says well, hey, we're not going to prosecute anybody. We want to move on. A couple of days later the president says, well, it's OK if my attorney general wants to prosecute somebody, maybe so.

And the people they seem to focus on are the lawyers who wrote the legal findings saying that these things like waterboarding and so on were not torture and were permissible, the so called "harsh interrogation tactics," "enhanced interrogation tactics."

Look, they can't prosecute those guys. The only way you could prosecute them is to say they didn't really believe what they wrote in those opinions. You're not going to win there. It's very confusing there.

And the third thing, of course, in all this is what has happened to the CIA with the release of the memos.

Even people who think that it was a good idea, some of them anyway, because it will help America's image abroad, which I don't agree with, say that this has really hurt the effectiveness of the Central Intelligence Agency. The agents will be cautious, their morale will be down. It's harmed the CIA a great deal in a still dangerous world.

BAIER: Nina?

NINA EASTON, WASHINGTON BUREAU CHIEF, "FORTUNE" MAGAZINE: You know, they can prosecute these guys, and they could possibly disbar them. But the point here is that


EASTON: We'll see. Famous last words.

What surprises me about this whole thing is the naiveté of the president, the political naiveté. He says that by releasing these memos, we're going to put this behind us. This is a time for reflection, not retribution.

All he has done is touch off this chaotic fire storm that he now seems to be unable to manage. So, as Fred says, one minute you have the president and Rahm Emanuel saying we're not going to prosecute anybody. The next thing we know, they're going to prosecute lawyers over policy differences, which is absurd. But they will try it, mark my words.

Secondly, you have got the head of intelligence, Dennis Blair, saying, you know what, out of those interrogation techniques, we got high-value information that stopped Al Qaeda, which was trying to attack our country. He says that privately, but in public memos, that's taken out.

And then we've got the president saying, going over to the CIA, cheerleading the CIA, saying your best years are ahead, but releasing these memos, which as one CIA agent said, it's like setting up a bomb at Langley.

And they said they suddenly, they set this thing off. And I think this president is trying to manage this, and he's not doing a very good job of it.

BAIER: Mort, before I get to you, I want to play what General Michael Hayden said about the effectiveness of these techniques. Let's take a listen.


MICHAEL HAYDEN, FORMER CIA DIRECTOR: Most of the people who oppose these techniques want to be able to say "I don't want my nation doing this," which is a truly honorable position, "and they didn't work anyway."

That back half of the sentence isn't true. The facts of the case are that the use of these techniques against these terrorists made us safer. It really did work.


BAIER: That's the former head of the CIA.

MORT KONDRACKE, EXECUTIVE EDITOR, "ROLL CALL": Look, I think that the way to handle this is to create a 9/11 kind of commission or Baker-Hamilton kind of commission, with the same kind of sober people who understand the dangers of another 9/11.

And who could look into this, decide exactly what was done, who authorized it, did it work or didn't it work, could other methods have worked or not worked, come out with a report in about a year, get this thing out of the circus hanging-party category, which it's now plunging into, and try to come to some rational understanding of what the policy ought to be in the future.

EASTON: But, Mort, why wouldn't that feed the circus just like releasing these memos would seem to be feeding the circus?

KONDRACKE: Well, I think that if James Baker and Lee Hamilton, again, looked into this kind of thing, they would say, they would validate that this thing really did work.

BARNES: On Iraq, they were wrong, Mort, remember? They were wrong.

KONDRACKE: They were wrong about Iran policy —


KONDRACKE: Iraq policy, I'm sorry, Iraq police. But the 9/11 commission did a lot — made a great contribution to both intelligence and —

BARNES: That's a different commission.

BAIER: If you could look back to other commissions that dealt with the CIA, for example, the Church —

KONDRACKE: I don't want a Church Commission. What I don't want is show trials. I don't want public hearings. I want to get this thing where Obama originally wanted it, off the front page and in the hands of responsible people.

BARNES: There is one person who can achieve that, Mort, and there's one person who can achieve it, and it's not Jim Baker. His name is Barack Obama. He can tell the Democrats on the Hill and his own administration "Stop."


BAIER: Next up, it's Earth Day, and President Obama spent part of it talking about trying to save the earth and the people on it.


BARACK OBAMA, (D) PRESIDENT OF THE UNITED STATES OF AMERICA: The choice we face is not between saving our environment and saving our economy. The choice we face is between prosperity and decline.


BAIER: The gang will gaggle on going green, straight ahead.



OBAMA: I don't accept the conventional wisdom that suggests that the American people are unable or unwilling to participate in a national effort to transform the way we use energy.

I don't believe that the only thing folks are capable of doing is just paying their taxes. I disagree. I think the American people are ready to be part of a mission.

FRED UPTON, (R-MI) HOUSE ENERGY AND COMMERCE COMMITTEE: Cap and tax, cap and trade will essentially kick working families when they're down. And we thought the American public was angry at $4.25 gas prices last summer. Just wait until they get their hands on their utility bills under cap and tax.


BAIER: Two scenes there — the president touring a former Maytag appliance plant in Iowa that now makes wind turbines, and here on Capitol Hill, the House started debate on a 600-page piece of legislation put forward by committee chairman Henry Waxman on energy, sweeping energy legislation.

We're back with the panel. Mort, what about this legislation, first of all?

KONDRACKE: Well, the basis on which these people are all operating now is the EPA's decision that it is going to regulate CO2 as a pollutant, as a danger to health.

So the question is, are we are going to have Congress, elected by the people, deciding how we're going to deal with energy and the environment, or are we going to have the EPA deciding on some draconian regulations to clamp down on CO2 emissions?

I would think that we'd want the political system to handle this.

Now, as opposed to what Fred Upton said, this is not going to take effect tomorrow. It is going to take effect, if it passes at all, in 2012. It has to go through an enormous legislative bargaining process.

Even the sponsors of it say all the money that is charged to consumers in utility bills is going to be rebated to them so that it's not going to cost them any money.

BAIER: They took that out.

KONDRACKE: No, it's in there. I talked to Ed Markey just last week, and there is going to be a rebate back, and they will give allowances to aluminum companies and utilities an all that kind of stuff.

This thing will be compromised down a lot, maybe even delayed in the beginning. So I don't whether it will pass or not. It's going to face a difficult procedure. But if it is, it will be watered down.

EASTON: I think it will pass in the House. I think anything like this can pass in the House, because Nancy Pelosi has the votes, and Nancy Pelosi is behind Waxman, and it will go through the House.

I think the real action is going to be in the Senate. There is concern among rust belt Democrats in the House. They just don't have the votes to stop it.

But I think in the Senate, you will either see some effort to either slow the legislation down, or, as Mort said, sort of ease the cost of it, which means more taxpayer subsidies to people and to factories, and so on, to be able to comply with it. But it's interesting. I also think that this is — can be a resonant issue for Republicans if they figure out a way, which they're starting to do, about the cost of it on individuals. But if they go farther than that, and say this could also mean the government monitoring how hot — how warm you keep your house, you know, and how many miles your car has, and if it doesn't fit, then you're going to be taxed. If they're able to make that case, it could resonate a little more with the public.

BAIER: Because when the president was candidate Obama, he did talk about utility prices going skyrocketing. And when I'm saying they took it out, they took it out of the budget, the middle class tax cuts to balance the —

EASTON: So just to finish. It requires 60 votes in the Senate as opposed to 50 votes, 50 percent in the House.

BARNES: Let me unravel the flaws in a couple of things I have heard already, particularly by Mort. This is not EPA's decision, Mort. It's President Obama's decision. Do you think EPA just dreamed up we're going to have this draconian regulation on greenhouse gases? Just out of the blue, they have decided to do that?

KONDRACKE: The Supreme Court said they had to decide.

BARNES: It said they could do it. It didn't say they had to.

Why are they doing it? As a threat, Mort. Obviously, the EPA is saying, "Boy, if you don't pass it in Congress, we will do it even worse here administratively."

But the Obama administration doesn't want to do that. They want Congress to share in what I think will be the blame. They don't want to take the whole blame.

It's not going to pass.

BAIER: That's it for the panel, but stay tuned to see extra efforts by terrorist suspects being interrogated.

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