Transcript: Rudy Giuliani and Sen. Jack Reed on 'FNS'

The following is a rush transcript of the November 15, 2009, edition of "FOX News Sunday With Chris Wallace." This copy may not be in its final form and may be updated.

CHRIS WALLACE, HOST: The decision by Attorney General Holder on Friday to try Khalid Sheikh Mohammed and four of his alleged 9/11 conspirators in a New York City civilian court triggered fierce criticism and strong praise.

We're going to hear both sides of the argument today, starting with former mayor Rudy Giuliani.

And, Mayor, welcome back to "Fox News Sunday."


WALLACE: I want to start with comments that Attorney General Holder made on Friday when he announced his decision. Here they are.


ATTORNEY GENERAL ERIC HOLDER: After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York — to New York — to answer for their alleged crimes in a courthouse just blocks away from where the twin towers once stood.


WALLACE: Mayor, as a matter of simple justice, isn't it right to bring these men back to the scene of the crime?

GIULIANI: Why? We generally don't do that. We generally don't bring people back to the scene of the crime for justice. The reality — we didn't do that in our other wars.

It would seem to me what the Obama administration is telling us loud and clear is that both in substance and reality, the war on terror, from their point of view, is over. We're no longer going to treat these people as if this was an act of war.

We're going to go back to the pre-9/11 approach that we had in 1993, trying it as a civilian matter, which turned out to be a terrible mistake. They are repeating the mistake of history.

WALLACE: But your successor, Mayor Bloomberg, disagrees with you on almost every point. He says it is, quote, "fitting" to try these men in downtown New York City. He says that your city has handled big terror trials before, and he says the New York City Police Department can handle the security issues. Is Mayor Bloomberg wrong?

GIULIANI: I don't agree with him. I mean, the reality is I agree with him the New York City Police Department can handle the security. No question about it. And of course, if the case had to be in New York, we should handle it. It doesn't have to be.

There are going to be military tribunals for other terrorists. Why wouldn't you have military tribunals for this terrorist? And of course it's going to create more security concerns. Just wait and see how much money New York City spends on this in order to protect him.

And finally, we're kind of granting his wish. His wish was to be brought to New York. It really makes no sense to me to be granting him his wish. He should be tried in a military tribunal. He is a war criminal. This was an act of war.

We made this mistake once before in 1993. We didn't read the intentions correctly. And then we ended up with three more attacks on American soldiers and the attack of September 11th.

It would seem to me that the Obama administration would read that history and not make this mistake. But of course, this is the administration that told us that there was no war on terror. The only problem is the terrorists seem to believe there is a war on us.

WALLACE: But, Mayor, I want to pick up on this argument that it's a mistake to treat terrorists as common criminals in a civilian court.

I want to take you back to what you said after the prosecution of the 1993 World Trade Center bombers. You said this, "I think it shows you put terrorism on one side, you put our legal system on the other, and our legal system comes out ahead."

And after the 2006 trial of the so-called 20th hijacker, Zacarias Moussaoui, you said, "It shows that we can give people a fair trial, that we are exactly what we say we are. We are a nation of war (sic)." Respectfully, Mayor, you supported civilian trials for terrorists then.

GIULIANI: And if there's no other alternative, I support civilian trials for terrorists. The reality is there is another alternative here. And this administration has created tribunals. At least five, possibly more, terrorists are going to be tried in those tribunals.

If there was no other choice, again, Chris, I support this. If there was no other choice and they had to be tried in New York, of course they should be tried in New York. But the reality is there is another choice. It is a better choice for the government. This choice of New York is a better choice for the terrorists. Why would you seek to give the terrorists a better choice than you're giving the — than you're giving the public?

WALLACE: But — but, Mayor...

GIULIANI: And finally...

WALLACE: ... Mayor...

GIULIANI: ... with regard to — but with regard to 1993, it turns out we were wrong in 1993. That was a mistake. Most experts have come to that conclusion.

WALLACE: Well, what about...

GIULIANI: ... that we missed...

WALLACE: ... 2006 with Zacarias Moussaoui?

GIULIANI: I would have preferred to see him tried in a — in a military court than a civilian court. If it's going to be a civilian court, well, then let's convict him. Let's do it as well as we can.

But the reality is this gives all the benefits to the terrorist and much less benefits to the public. And finally, we are — we are doing what he wants us to do.

WALLACE: Mayor...

GIULIANI: He is asking — he is asking for a trial in New York, and we're giving it to him. Since when are we in the business of granting the wishes of — wishes of terrorists?

WALLACE: Mayor, some of these detainees have been held for eight years. KSM — Khalid Sheikh Mohammed — has been held for six and a half years.

What about the argument that the Bush administration had these guys for all these years, couldn't set up military commissions that passed constitutional muster, and at least this president is ending the delay and bringing them to justice?

GIULIANI: Yes, he should end the delay and bring them — he should bring them to justice in a military court. We spent six or seven years developing a constitutionally permissible military tribunal. He's satisfied with it. He's going to use it.

What the heck is he bringing this guy to New York for when he doesn't have to, other than to give this guy more benefits than he's entitled to? This seems to be an over concern with the rights of terrorists and a lack of concern for the rights of the public.

WALLACE: Mayor, you know, you keep asking — and it's certainly a legitimate question — why is the president doing this. I'm going to throw it back at you. You talked earlier, I think on Friday, about that this is a choice of process over safety.

Why do you think President Obama and Attorney General Holder have made this decision?

GIULIANI: Well, I think they think that somehow this is going to increase our reputation overseas. I think it's part of a whole package of the president not seeing the war on terror. After all, he tells us that we can't use the description war on terror. Problem is the terrorists aren't listening to him. They're continuing to make war on us.

He has delayed inordinately in making this decision about the war strategy in Afghanistan when, in fact, he criticized President Bush for not paying enough attention to Afghanistan. The delay there, Chris, is political strategy, not war strategy.

And finally, this whole thing with Major Hasan is another indication that he doesn't get it. He doesn't get the fact that there is an Islamic war against us. Major Hasan made it easy. He yelled out when he was doing the shooting, "Allah akbar," and now it turns out that he has business cards with "son of Allah" printed on the business card.

Not so hard to figure out that this was yet another Islamic terrorist attack on American soil, now the second one that we've had in the — in this decade, and we had one in 1993.

WALLACE: Mayor Giuliani, we want to thank you. Thanks so much for coming in today. It's always good...

GIULIANI: Thank you very much, Chris.

WALLACE: ... always a pleasure to talk with you, sir.

GIULIANI: Always a pleasure to talk to you, too.

WALLACE: Now for the other side of the argument, we're joined by Democratic senator Jack Reed, a member of the Senate Armed Services Committee and a former Army ranger.

And, Senator, welcome back.

SEN. JACK REED, D-R.I.: Thanks, Chris.

WALLACE: I want to start where we ended with Mayor Giuliani. Military commissions have been reformed by Congress. Attorney General Holder announced Friday he is going to use them...

REED: Right.

WALLACE: ... as a legitimate legal forum to try five of the other Guantanamo detainees. Why not use them for the alleged 9/11 conspirators?

REED: Well, first of all, these 9/11 conspirators are heinous criminals, terrorists. The damage they've done to New York and the nation are significant. And they have to be treated, I think, fairly but with all due process, but with great, I think, sensitivity to the crimes they've committed against America.

The attorney general pointed out very clearly that there are several factors — the location of the incident, the type of victims, the investigative services that are engaged in this process — and that led him to conclude that the best forum — and also, I think as a prosecutor — the best forum to guarantee the success of the prosecution was a federal court, and in this case in New York City.

WALLACE: Let me ask you about a point that Mayor Giuliani made, that the Obama administration is holding these — his allegation is — holding these trials in New York in civilian court to make a political statement — this president is different than the last president, and to say to the world, "We're different."

REED: Well, as you pointed out, in 2006, Moussaoui, the 20th hijacker, under the Bush administration was tried in a federal court in Alexandria, Virginia. Mayor Giuliani was one who testified in the penalty phase and he, as you indicated, claimed this was a symbol of American justice, as he said in 1993.

But this was not 1993. This was 2006. The alternative existed for a military tribunal then. The Bush administration decided to make the case in federal court. They succeeded. A hundred and ninety or so terrorists have been convicted in federal courts, only a handful — less than 10 — in tribunals.

There are 200 individuals serving time in federal facilities now for their terrorist crimes. So what was a statesmanlike decision by the Bush administration can't be a political decision by this administration.

WALLACE: Before we get into some of the specific risks, let me ask you a more fundamental question a lot of people are asking. Why do these men, allegedly enemy combatants who have declared war on the U.S. — why do they deserve the same constitutional protections as an American citizen?

REED: Well, the court has determined that they deserve some constitutional protection. That was the whole issue in the Hamdan case and other cases by the Supreme Court.

WALLACE: But they could have fewer constitutional protections in a military commission.

REED: They could have if they were tried under military law under the provisions we set up. But they're also criminals. And I think this debate about are we playing into the hands of terrorists — all of these, particularly the sheikh, Mohammed, wants to be considered a holy warrior, a jihadist.

And if we try him before military officers, that image of a soldier will be portrayed by the Islamic community. That's not the image we want. These are heinous murderers. WALLACE: But — but — but wait a minute. I mean, Mayor Giuliani said, and he's quite right, when in March of 2003 Khalid Sheikh Mohammed was picked up, the first two things he said are, one, "I want a lawyer," and two, "I want to be taken to New York."

Aren't you more granting him his wish by trying him in New York City?

REED: No, I don't think so, because I think the attack here on September 11th was designed not just to kill innocent Americans, it was to break our spirit. It was to render our system of government fragile and broken.

When the foreman of that jury stands up and delivers the verdict, not empowered by religious fanaticism, by — but the Constitution, he will know he's lost.

And I can't think of a better group of people to judge the guilt or innocence and the punishment for these individuals than people in New York who saw the towers fall.

WALLACE: But here, I think, is the question. There are some obvious downsides to having this trial in a civilian court in New York City. There's the risk that intelligence information will come out. There's less protection of that.

In fact, in the 1995 prosecution of the so-called blind sheik, apparently information came out that Osama bin Laden was a co-conspirator and he then left Sudan for Afghanistan.

There's obviously the danger of a terrorist attack. It's going to make New York City once again Ground Zero for Al Qaeda. There's the danger of more of a political circus, that they're going to use this as a platform. There are obvious downsides.

REED: Right.

WALLACE: What's the upside?

REED: The upside, I think, is you are vindicating this country's basic values. And it's not to condone terrorism. But it is to stand as a symbol in the world of something different than what the terrorists represents, blind violence directed at those they dislike.

This is an opportunity to show that we're better than they are, we're much better than they are.

WALLACE: So it's basically a political decision. I don't mean political in the sense of partisan, but it's more of a political statement by this country than it is a matter of justice, or security, or safety for the...

REED: Well, I...

WALLACE: ... people of New York.

REED: ... I think all those factors have been considered. In fact, the Moussaoui case, which took place about two or three miles from here in Alexandria, presented the same problems — classified information, security. We were able to accomplish that. I think New York can do that also.

The case you referred to in the '90s about the blind sheik — those individuals involved did not seek protective orders or use the system of classification properly. That's been established.

We're going to be very conscious, I'm sure — the attorney general — about protecting this information. So those factors have been considered. I don't think the president would have — or the attorney general — made a decision which would release classified information or endanger unnecessarily the public.

We — again, the facts are pretty clear. We've done this before. We've done this consistently.

WALLACE: We've got about 30 seconds left. What if one of these guys gets off?

REED: Well, if — that is highly unlikely. The evidence is compelling.

WALLACE: But there are no guarantees in a trial.

REED: There are no guarantees, but under basic principles of international law, as long as these individuals pose a threat, they can be detained, and they will.

WALLACE: But — and very briefly — if someone is acquitted and then he's picked up again...

REED: I...

WALLACE: ... what's the message that that would send to the rest of the world?

REED: I do not believe they will be released, because under the principle of preventive detention, which is recognized during hostilities, we held...

WALLACE: No, no, no. What I'm saying is if he's acquitted and then picked up again and held...

REED: Well, but you...

WALLACE: ... what's the message that sends?

REED: ... you presume that he'll be acquitted and released.

WALLACE: I'm just...

REED: I don't presume...

WALLACE: ... raising the issue.

REED: ... he'll be released.

WALLACE: Senator Reed...

REED: Thank you, sir.

WALLACE: ... thank you. always a pleasure. Thanks for coming in.

REED: Thank you.

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