This is a rush transcript of "Special Report With Bret Baier" from June 3, 2009. This copy may not be in its final form and may be updated.


UNIDENTIFIED MALE: Is Obama a communist or a Democrat? We have been announced innocent by verdict of the court. We are we sitting here? Why don't you release us?

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY: We continue that progress and continue to try to make progress on that issue, but I don't have anything specific on that.


BRET BAIER "SPECIAL REPORT" HOST: The first video there is from Guantanamo Bay, FOX News exclusive, the 17 Uighurs, those are ethnic Turks who live in China. They were picked up in Al Qaeda training camps in Afghanistan, being held in Guantanamo Bay.

There you saw Robert Gibbs saying they're trying to work through this process.

What happens to them? Well, there is a real dilemma here, because the solicitor general, Elena Kagan, has filed a brief with the Supreme Court strongly disagreeing that the Uighurs can be released in the U.S., saying they have no right to come to the U.S. "outside the framework of immigration laws."

That's despite what the attorney general and national intelligence director have said.

Also, there is an act, the Real I.D. Act of 2005 that Senator Obama voted for, and that says — the act specifically excludes from our nation any foreigner who has engaged in a terrorist activity, is a member of a terrorist organization, endorses or espouses terrorist activity, or has received military-type training from a terrorist organization.

So, where does this leave us? Let's bring in our panel, Steve Hayes, senior writer for "The Weekly Standard," Mara Liasson, national political correspondent of National Public Radio, and Byron York, chief political correspondent of the "Washington Examiner." Steve?

STEVE HAYES, SENIOR WRITER, "THE WEEKLY STANDARD": Well, I think this is a significant dilemma for the president. He has said that he is going to close Gitmo down by January 22 of next year.

You showed the Gallup poll earlier today that showed by two to one that Americans believe that's a bad idea, and by a ratio of three to one, they don't want them in the United States.

BAIER: There are 65 percent who think it should not close.

HAYES: I think the fundamental problem he faces is that these numbers that were taken in this Gallup poll really before people fully understood who we have down there.

We now have roughly 240 people — very, very bad. Some people call them the "worst of the worst," if you talk to people, intelligence folks familiar with their cases.

So he's stumbling right now over the cases of the Uighurs, who were thought to have been previously ordered to be released, and thought to be the easy ones. These are the ones that we could release here or get allies to take, or something like that. And he is struggling to get any movement on what to do with the Uighurs.

I think this portends very bad things for him on this policy in the future.

BAIER: Mara?

MARA LIASSON, NATIONAL POLITICAL CORRESPONDENT, NATIONAL PUBLIC RADIO: It is a lot harder to enact this campaign promise than they ever thought.

They are in court right now arguing the Bush administration's position, which is don't release the Uighurs in the United States. And so far, the appeals court has agreed with them.

I think the upshot of this probably will be that the Uighurs will not be released in the United States. They can't be sent back to China, where we assume they will be treated very, very badly.

So they will be at Guantanamo, along with a bunch of other people that the administration doesn't want to try, can't try, and can't release.

BAIER: But Mara, just last week, the president said it's coming to an end.

LIASSON: He made a big speech. He laid out his principles. He didn't actually say how he was going to solve this problem.

The Obama administration is going to have to come up with some kind of legal underpinning for indefinite detention, because some of these people can't be released, can't be tried. And the rest of them, I think he's going to end up moving to super max prisons in the United States.

Now, the public doesn't want that.

BAIER: Not only the public, but the law, the Real I.D. Act of 2005 says no one can come into this country tied to a terrorist at attack. So you have to get Congress sign a new law.

LIASSON: You're going to have to get — if you want to move some of these people into super max prisons in the United States, the Congress is going to have to amend that.

I think that is just one of many, many problems with closing Guantanamo. I think that if Guantanamo stays open longer, and the president can't fulfill his promise politically, that will be probably the best thing for him.

YORK: And these poll numbers are worse than they appear. If you look at the internal numbers in the poll, there's — obviously most Republicans oppose closing Guantanamo, 68 percent of independents oppose closing Guantanamo, and 42 percent of Democrats oppose it.

And then, they also ask, Gallup also asked, has Guantanamo made the United States — has it weakened national security, has it strengthened national security, or no change?

Now, it is the entire underpinning of Obama's argument is that the existence of Guantanamo has weakened national security. Eighteen percent of the people who were polled buy into that. So that does not bode well for his case.

And the last thing about the detention stuff, he is getting hit from the left on this, because if you propose to bring a population of people into the United States and hold them without being indicted or tried or convicted, and you're just going to hold these people indefinitely, that is litigation forever.

BAIER: Steve, I want to hit this one more time, because here you have the solicitor general of this administration arguing that no one can come into the United States outside the framework of immigration laws.

And the laws we have on the books currently include this real ID law that prevents anyone tied to a terrorist organization or who had been trained by terrorist organizations.

HAYES: Right.

BAIER: It's a mess. So what happens? Where do we go?

HAYES: Well, I don't know.

BAIER: Does Gitmo stay open?

HAYES: It is such a mess.

I think Gitmo stays open indefinitely. It is very hard for me to see how they close it no matter what they do. It is very hard for me to see that. But the briefing that you are talking about is hilarious. When you read it, it reads like it was written by Dick Cheney. It reserves all of these rights to the executives. It fights off the court, saying no, no, the courts can't tell us what to do. We're executive. We're sovereign. We make these decisions.

I think this is not only a legal problem for them. I mean we have talked about the fact that it is a political problem. This is a profound legal problem for them as well, and nobody knows what to do.

BAIER: Why file this brief? Is it a delaying tactic to get into the Supreme Court?

LIASSON: No, I think they would like the appeals court decision to be upheld, which I think the Supreme Court probably will do.

The other thing that is going on here is this is not an act or a promise he has to complete because of the United States politics. It is for international politics. He feels that it's an important part of his international effort to restore America's standing in the world, to get cooperation with our allies that we have to close Guantanamo.

And he's not going to be able to do it.

BAIER: And ahead of this trip, he is probably going to say that Guantanamo will be closed again.

BYRON YORK, CHIEF POLITICAL CORRESPONDENT, "WASHINGTON EXAMINER": He is going to go say it again. He has said it recently in interviews. But the fact is about the Real I.D. Act, not only did he vote for it, 98 other senators voted for it. And now we just had 80 senators, make that 90, including 50 Democrats, vote against giving him any money to close Guantanamo at least until September 30.

BAIER: We will stay on it.

The president's pick to play on a very important nine-person team gets her swings in with some high-powered people.


UNIDENTIFIED MALE: On every question we asked, including the question about Latino women, she just knocked it out of the park.


BAIER: Judge Sotomayor steps up to the plate. The panel will give us a postgame report, next.



PATRICK LEAHY, (D-VT) SENATE JUDICIARY COMMITTEE CHAIRMAN: There's not one law for one race or another. There's not one law for one color or another. There's not one law for rich and a different one for poor. There is only one law.

And she said ultimately and completely a judge has to follow the law, no matter what they are bringing in.

JEFF SESSIONS, (R-AL) SENATE JUDICIARY COMMITTEE: We don't have a vacancy right now. And I do think that gives us the ability to take our time and do it right. I'm not prepared to say that we can get it done before August.


BAIER: Judge Sonia Sotomayor up on Capitol Hill today. Two issues there. One is the timing of these confirmation hearings, and the other a comment that she has made before about how she sees race factoring in to her efforts on the bench going forward, and how much a focus that's going to be in the confirmation hearings — Mara?

LIASSON: I think you just heard her answer to that, that it will be a focus in the hearings. Republicans will bring it up. And you will hear "ultimately and completely" quite a number of times.

The president started this process of saying she would have restated her words if she could. Robert Gibbs repeated it, and I think they're trying to walk that back, and she will continue to do that.

BAIER: Byron?

YORK: I think the interesting thing here is that we have seen how Republicans, who have no power to really do anything have kind of begun to rhetorically shape this debate.

I got a message from a key Republican aide on Capitol Hill in the Senate who said, you know, "I think the words "empathy" and "Latina woman" are no longer operatives, and the new phrase is follow the law." I mean, they have changed the rhetorical rationale for her nomination.

BAIER: Steve.

HAYES: Right. In some ways the question was, is she going to actually defend the things she said in this Berkeley speech and elsewhere about race and how she looks at the law and how she makes decisions, or is she going to try to quickly explain them and move beyond them?

And as Mara said, I think we have her answer today, and Pat Leahy gave it.

I think he is wrong — descriptively wrong that there is not one law for one color and one law for another, and, in fact, I think that will be the focus of the debate that we are likely to see about the Ricci case.

BAIER: Mara, what about the timing? And you heard Jeff Sessions, there, Senator Sessions saying he's not comfortable pushing it forward.

LIASSON: Clearly, Republicans want to take longer, and Democrats want to go as quickly as possible. And, of course, every day the White House reminds everyone that they have planned the 72 or 73 days, the same as Judge Roberts got.

But I think that the White House would really like this to be done before the August recess. They have got healthcare coming. They want it to be done in the House before August, taken up right after the recess by the Senate.

And that's going to be one of the biggest issues in the next couple of weeks, to figure out when exactly are these hearings.

BAIER: Is that realistic, though?

LIASSON: To have her done before August? I think it's realistic. I think the Republicans might be able to hold it up, but, yes, I think it is realistic.

YORK: The thing is, there are thousands of opinions that she has written, and many are unpublished. They are not available online or anything like that.

So the staff go through all of these things, they read all of these things. And they are estimating — the Republicans are estimating it would take at least a month to get this stuff.

Everybody views the real deadline is the beginning of October when the court starts its next term.

And John Roberts actually had his hearings in September —

LIASSON: Yes, but he was nominated later.

YORK: He was nominated later, but he was on the court by the beginning of the term.

LIASSON: Yes. So there is no danger she won't be able seated to get seated by October. It's just a matter of when she is confirmed.

BAIER: One quote. "The New York Times" actually brought up — and it's from an article, a "New York Times" article in 1983 — Sonia Sotomayor says: "No matter how liberal I am, I'm still outraged by crimes of violence," talking about crime against minorities in that context.

You go back to Sam Alito's confirmation hearing, and he said, and there was a lot of focus on this quote from the "Washington Times," 2005, "I am and always have been a conservative. I am a lifelong registered Republican."

Steve, that got a lot of, you know, focus in the hearings. Do you think this quote will get a lot of focus in these hearings?

HAYES: Probably not, probably not nearly as much.

To a certain extent, it's been interesting to watch the evolution of these kinds of debates as they become debate over philosophy and ideology. And one of the things I think Democrats try to do is capitalize on that fact and the fact that Sam Alito was a proud conservative and said so.

BAIER: All right. Go ahead.

LIASSON: Democrats said quite openly during those hearings for Alito and for Robert that ideology was a legitimate criteria to look at. And that is how Barack Obama, as a senator, justified his no vote. He said I think they're qualified, really good intellect, temperament, blah blah blah. But I just think they're too conservative.

YORK: With 59 Democratic votes, the argument is only about timing.

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