Terrorists Rights?

This is a partial transcript from "The O'Reilly Factor," May 24, 2005, that has been edited for clarity.

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BILL O'REILLY, HOST: Now for the top story tonight. Joining us from Charlottesville, Virginia, Rosa Brooks teaches law at the University of Virginia.

Now professor, you say wherever you want on this, but I was very specific in pointing out the L.A. Times (search) and all the other left-leaning, because they all follow the same thing. Give them lawyers, give them Geneva Convention (search) protections. And where am I going wrong?

ROSA BROOKS, UNIVERSITY OF VIRGINIA LAW PROFESSOR: Bill, I'm actually kind of disappointed in you and in the L.A. Times. You're going soft here a little bit. This cutting the head off stuff, I kind of had you figured as a boiling in oil guy.

O'REILLY: No, I'm just -- and I would never do that to Mr. Kinsley. I respect his...

BROOKS: That is really reassuring.

O'REILLY: But look, I don't think...

BROOKS: You don't want to make your guests nervous, too, here.

O'REILLY: No, I think those people live in a theoretical world, that the beheadings of Nick Berg (search) and the other people...

BROOKS: I -- also...

O'REILLY: ...aren't real to them.

BROOKS: I'm disappointed with the L.A. Times, too, because I read their headline "Perhaps Bill O'Reilly Got It Wrong." And I thought, you know, perhaps the pope is Catholic.

Bill, you did get it wrong. And you're wrong on three issues. You're wrong about why lawyers for Guantanamo detainees matter. You're wrong about why our image in the Muslim world matters. And you're also wrong about the press.

You want me to go through those one by one?

O'REILLY: Well, let's take the lawyers first.

BROOKS: OK. Lawyers first. If you're ever accused of a crime falsely and arrested, you're going to really want a lawyer. The lawyers...

O'REILLY: Yes, I'm an American citizen. I live in America.

BROOKS: The lawyers are not there to protect the guilty.

O'REILLY: OK, so wait -- let me stop you there. Let me stop you.


O'REILLY: You're a law professor.


O'REILLY: And when you make a statement, I'm going to challenge the statement.


O'REILLY: All right? You believe everybody in the world is entitled to constitutional protections by the United States? Is that what you believe, professor?

BROOKS: As a legal matter, no, that's not correct.

O'REILLY: OK, fine. So the jihadists captured on the battlefield of Afghanistan and captured...

BROOKS: But how do you know...

O'REILLY: ...on the battlefield of Iraq...

BROOKS: Here's...

O'REILLY: ...are not entitled to lawyers, correct?

BROOKS: Here's my question for you. Bill, here's something that we know, this is a fact, this is not coming from me or the L.A. Times or the New York Times.(search It's coming from the U.S. military.

We already know that about 10 percent of the people at Guantanamo (search) ended up being released because they were held wrongly for years. They weren't combatants at all. They weren't just not terrorists or illegal combatants. They were just in the wrong place at the wrong time. It was a mistake. They shouldn't have been there in the first place.

O'REILLY: Yes, I have not heard that admission...

BROOKS: If we had been able to, that is absolutely...

O'REILLY: Professor?

BROOKS: ...you can check that.

O'REILLY: Let me stop you. I have not heard that admission. If you can tell me where that admission is, I'd be happy to look at it.

BROOKS: Sure. You bet. The U.S. military finally under enormous pressure from...

O'REILLY: OK, where is that?

BROOKS: ...(INAUDIBLE) have started holding hearings. You can find this all over the place. You can call...

O'REILLY: All over the place, all right.

BROOKS: ...the Pentagon. (search) They'll tell you the same thing.

O'REILLY: Well, we'll look all over the place.

BROOKS: You can call the Pentagon. They'll tell you the same thing.

O'REILLY: OK, because it's good if you know where it is and who made the admission. That's good...

BROOKS: I'm just going to refer you to the Pentagon.

O'REILLY: ...in a court of law, see, all over the place is all over the place. All right, now look...

BROOKS: Well, call the Pentagon.

O'REILLY: ...you have basically a theory put forth by you and the L.A. Times...

BROOKS: This is not a theory. This is not a theory. This is a fact. Some of these people were wrongly detained...

O'REILLY: Yes, it is. That these people, all of the captured jihadists...

BROOKS: We might have been able to release them earlier if we had helped them out a little bit...

O'REILLY: If we had helped them out. OK, so...

BROOKS: Nobody wants to be detaining innocent people. We want to be detaining the bad guys. We don't want to be detaining the people who are at the wrong place at the wrong time. We sure don't want to end up accidentally killing people...

O'REILLY: All right, so you want to assign a civilian American lawyer to each captured jihadist? That's what you want to do?

BROOKS: No, actually, that's not what I want to do. That would be one way to approach it. There are a lot of...

O'REILLY: OK, one way to approach it...

BROOKS: ...different ways to ensure fairness in the process.

O'REILLY: So would you give a lawyer...

BROOKS: A lot of different ways.

O'REILLY: ...let me ask you a very -- I'm a simple man. Would you give a lawyer to every captured jihadist, yes or no?

BROOKS: How do you know they're captured jihadists?


BROOKS: That's my point. You don't know...

O'REILLY: I got it. OK.

BROOKS: ...until...

O'REILLY: Can't get a straight answer.

OK, let's go on to your second point.


O'REILLY: Image in the Muslim world.

BROOKS: Why does it matter?

O'REILLY: My theory, no matter what we do, we're not getting a fair shake in the Muslim world.


O'REILLY: You say what?

BROOKS: Well, I say I've been to the Muslim world. I don't know if you have.

O'REILLY: Yes, I have.

BROOKS: I've been to the Muslim world. People don't just watch Al Jazeera. (search) A lot of them get on the Internet. Some of them, believe it or not, even watch your show. They get information from a lot of different sources.

You're absolutely right, that cannot reason with unreasonable people, which does raise the question what I'm doing here, but we'll leave that aside. You're absolutely right about that, but we're not trying to change the minds of Usama bin Laden. (search) We can't do that. You're right. We are trying to change the minds of ordinary people in the Muslim world.

O'REILLY: And you -- and how do you change those minds?

BROOKS: 99.9 percent of whom are not extremist terrorists.

O'REILLY: How do you change those minds?

BROOKS: They're getting their news from a lot of different sources. We show that when we talk about justice and democracy and human rights, that are not just hypocrites. We show that we mean it. We show that we're willing to get tough when we have to, but we also show that we care deeply about the rights that we say we care about.

O'REILLY: And what does that mean? We give...

BROOKS: And that's going to make it a lot more likely that when we go out looking for intelligence, that we go out looking for a little bit of help...

O'REILLY: All right.

BROOKS: ...that we're going to get it.

O'REILLY: Now you've entered the land of Oz again, because I mean, I believe the U.S. military has conducted themselves magnificently in this war on terror. Am I wrong?

BROOKS: I think for the most part they have, but we've made terrible, terrible mistakes.

O'REILLY: We, who's we?

BROOKS: We've handled them very, very badly.

O'REILLY: Who's "we" made the mistakes? Who's we?

BROOKS: We, the Bush administration and some members of the U.S. military.

O'REILLY: The Bush military. OK, and...

BROOKS: The vast majority...

O'REILLY: ...the mistake -- and give me...

BROOKS: ...of them are doing a decent job.

O'REILLY: Give me one mistake they've given.

BROOKS: Badly undermined by the abuses.

O'REILLY: Give me one mistake that "we've" made, one.

BROOKS: I think one of the many mistakes is having no due process for detainees at Guantanamo.

O'REILLY: OK, so we're back to the lawyers.

BROOKS: If we had been able to...

O'REILLY: You want tell me whether you would give them or not.

BROOKS: ...sort out the innocent or the guilty early on.

O'REILLY: We're back to them. OK.

BROOKS: It would make a big difference.

O'REILLY: OK. How about Geneva Convention protections? I have the...

BROOKS: There, again, that's...

O'REILLY: I have the treaty right here. I...

BROOKS: You've got it wrong on the law. The whole -- you're absolutely right, that you're not -- you can at least make an argument that you're not entitled to Geneva Conventions if you are a terrorist. But that's the question. How do we know if these guys are terrorists?

O'REILLY: OK. Have you read the Geneva Convention?

BROOKS: You bet I have, Bill.

O'REILLY: All right, and what is the defining thing that you have to have, if you're captured?

BROOKS: You have to have a fixed symbol, recognizable at a distance.

O'REILLY: Right, you have to have a uniform.

BROOKS: Yes. Well, it doesn't say uniform, actually.

O'REILLY: Yes, it does. It says...

BROOKS: You got it in front of you? It doesn't say uniform. Uniform or a fixed symbol recognizable...

O'REILLY: Now you just made a mistake. OK, the members must wear a uniform or other fixed distinctive emblem.

BROOKS: That's absolutely right.

O'REILLY: They have not.

BROOKS: Not necessarily. But that's -- if they're not members of...

O'REILLY: But what? Here is the treaty.

BROOKS: The civilians...

O'REILLY: They didn't do it.


O'REILLY: There's no "but." Here's the treaty. They didn't do it, you want them to give them the treaty.

BROOKS: Bill, are you wearing a uniform?

O'REILLY: I'm not a terrorist.

BROOKS: You all complain -- well, that's what a lot of these folks claim. And some of them are telling the truth.

O'REILLY: All right.

BROOKS: We want to keep the terrorists. We want to punish the terrorists. We don't want to let them back out...

O'REILLY: In your...

BROOKS: ...but we want to be holding the innocent.

O'REILLY: In Rosa Brooks' world, every captured jihadist immediately gets a lawyer, immediately gets access to the courts...

BROOKS: No, that's not what -- you're putting words in my mouth.

O'REILLY: Well, you wouldn't answer the question. I asked you four times. I asked you four times. Will you give jihadists a lawyer? Yes or no?

BROOKS: Bill, I would not -- Bill, the issue is whether they are jihadists in the first place. And the only way to find that...

O'REILLY: That's right. And we don't know that.

BROOKS: ...out is give them a fair chance to make their point.

O'REILLY: We don't know that unless...

BROOKS: Giving them a lawyer is one important way to help do that...

O'REILLY: All right, professor.

BROOKS: ...to make sure that the innocent don't get detained.

O'REILLY: You have to give them a lawyer to establish that. Sometimes...

BROOKS: No, you're putting words in my -- Bill..

O'REILLY: Sometimes when you -- you know, in war...

BROOKS: You're sort of like -- you're like the Catholic church.

O'REILLY: Sometimes in -- professor, let me break this to you.

BROOKS: Sort of like the Catholic church reaction to abuse claims.

O'REILLY: Let me break this to you. Sometimes in war, mistakes are made. This is a war.

BROOKS: But...

O'REILLY: You're not getting that. Kinsley isn't getting that.

BROOKS: ...we try to minimize them.

O'REILLY: All right.

BROOKS: We try to minimize them.

O'REILLY: Professor, thanks very much.

BROOKS: That's part of what it means to fight a war the fair way, Bill, as you try to minimize your...

O'REILLY: Fight a war the fair way, OK. We're fighting a war the fair way against people who crash planes in the World Trade Center.

BROOKS: You fight it the fair way because you recognize that most people in the Muslim world are civilians just like you, just like me, just like your viewers.

O'REILLY: OK. They're aren't involved in this. We're not rounding up most people in the Muslim world.

BROOKS: Well, we are, unfortunately.

O'REILLY: No, we're not, professor.

BROOKS: We are.

O'REILLY: We are not.

BROOKS: And the whole point of due process is to try to make...

O'REILLY: You just lost the argument.

BROOKS: ...so we got the bad guys and not the good guys.

O'REILLY: All right, professor, thanks very much.

BROOKS: That's how...

O'REILLY: You know, just to be clear, we're not rounding up people in the Middle East.

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