Transcript: 'The Journal Editorial Report,' June 14, 2008

This is a rush transcript from "The Journal Editorial Report," June 14, 2008.

PAUL GIGOT, HOST: Up next on "Journal Editorial Report," the Supreme Court deals a major blow to the war on terror. What this week's ruling means for the 270 terror suspects at Guantanamo Bay.

Plus, worried about $4 a gallon gasoline? Wondering what Congress is doing about it? A look at where we could be drilling and why we're not.

And scrapping the SAT. Why some schools are no longer requiring the standardized tests and what it means for college admissions.

But first, these headlines.


GIGOT: Welcome to "Journal Editorial Report." I'm Paul Gigot.

In a major setback for the Bush administration and Congress, the Supreme Court ruled this week that detainees held at Guantanamo Bay, Cuba, have a constitutional right to challenge their detentions in federal court. The ruling invalidates portions of the Military Commissions Act of 2006, which created military tribunals to hear the cases of terror suspects. It was a 5-4 decision with Justice Anthony Kennedy joining the four liberal justices on the court.

David Rivkin served in the Justice Department under President Reagan and the first President Bush and joins me from Washington.



GIGOT: Most of the media is portraying the ruling as a big setback for the Bush administration. Do you agree and how so?

RIVKIN: No. It's actually a setback for both political branches if you look at the court's rhetoric, the majority opinion's rhetoric, it manifests profound disdain for the Congress and President. It's one of the worst examples — frankly one of the two or three worst decisions in court's entire history. It manifests judicial aggrandizement as its worth. This is what this case is really about. And it's going to have very bad practical consequences.

GIGOT: But, David, two years ago in the Hamdan ruling, the court or four Justices invited Congress to work with the administration to work out details on these military tribunals. So that's what Congress and the White House did, they worked out the details. Now the court says the details aren't adequate. What grounds do they use to justify?

RIVKIN: An excellent question, Paul. The dissenting opinions call it the bait and switch tactic. In the Hamdan case, the court said both political branches should work it out. No intimation that they constitutional considerations here.

Here, what the five Justices have done, in an opinion written by Justice Kennedy, they basically have a cursory review of the procedures set in the Military Commissions Act. They find them to be adequate. Remarkably, they don't define which procedures are adequate.

Again, the clear sense you get from here is this is all not about detainees. This is all about judicial supremacy. They want to a seat at the table. The reason, Paul, they won't just have with the statute, they said it clearly, because if Congress gives them the power by statute to be involved. Let's be clear, there was judicial review and opportunities for the detainees to get into court. If it's statute. Congress can take it back the next day. If it's constitutionally, the court is always at the table.

GIGOT: Justice Kennedy writes and quotes the Constitution, which says, you know, the language directly in the Constitution says that the writ of habeas corpus can only be suspended in cases of rebellion or invasion when the safety of the United States is threatened. Now he writes there's no rebellion or invasion now so why should the writ be suspended?

RIVKIN: Two answers. First of all, the Constitution does not apply overseas to the government's conduct in protecting aliens. Remember, the Constitution is a compact between the Americans and their government. The Constitution applies to Americans over time. The Constitution applies to non-Americans, on American soil.

GIGOT: This decision would apply to Hamid Sheikh Mohammed and other conspirators on the 9/11 episode. These are all foreign nationals, right?

RIVKIN: They're foreign nationals. But, Paul, what's beyond Guantanamo, as your editorial today points out, it would apply to people in Iraq and people in Pakistan. It would apply to people in Afghanistan.

Justice Scalia warning, in the case of Rasul several years ago, what the majority is doing now is applying the Constitution to the four corners of the world. It's a precedent.

Let me mention one interesting point, I'm sure that Justice Kennedy did not consider. By its terms, Paul, invasion and rebellion, the suspension clause can only be met in the United States. So here we have an absurd situation where the clause can be — the habeas can be suspended in some circumstances in the United States. But it can never be suspended overseas, because the terms invasion and rebellion would not on their face apply to Afghanistan.

GIGOT: Now what is the practical pact on this, on our soldiers in Afghanistan and Iraq? Does this change what they have to do when they capture detainees? Do they have to get them a lawyer? Or is that only after perhaps they put them into some central detention facility, which is away from the battlefield?

RIVKIN: That's an excellent question. The short answer is question don't know. The court did not bother to lay out here what would be the adequate procedures. So you can have both political branches working on it in 2009, and they'll come up with something. and it will go back for the courts. Again, the Supreme Court is going to have its first and last say here.

But one thing we know for sure — fundamental uncertainty as to what procedures are going to be. But we know one thing, the procedures are going to be more than the two political branches than the behalf of the American people said in the Military Commissions Act. What does it mean? Why should we begrudge people more procedures? It means that more bad guys, not innocent shepherd, but bad guys against whom we just don't have because of battlefield conditions, the compelling evidence that would survive the framework of what appears to — the majority wants criminal justice system. They would be let go. And as Justice Scalia points in out his dissent, they'll go out and kill again.

GIGOT: All right, David. Thank you very much. Good to have you here.

RIPKIN: Pleasure.

GIGOT: Still ahead, prices skyrocket as the U.S. sits on untold oil reserves. Where we could be drilling and why we're not, when we come back.


GIGOT: Worried about rising prices at the pump? Wondering what Congress is doing to ease your pain? Well, recent ideas include suing OPEC, a windfall profits tax on oil companies and new punishment for so- called price-gouging, everything except expanding energy supplies at home.

Here to tell where we could be drilling and why we're not, "Wall Street Journal" columnist Kim Strassel, senior economics writer Steve Moore and editorial page writer Joe Rago.

Joe, let's start by putting facts on the table. There are all kinds of areas in the United States we're not allowed to drill.


GIGOT: For oil and natural gas. Alaska, how much do we have?

RAGO: We have about 10.4 billion barrels of oil in Alaska.

GIGOT: OK. Outer continental shelf, off the shore of Pacific and the Atlantic coast and the Gulf of Mexico.

RAGO: Right. That's about 86 billion barrels of oil, as well as 420 trillion cubic feet of natural gas. You've also got oil shale in the American West, which might be up to 1.8 trillion barrels.

GIGOT: Trillion.

RAGO: Trillion barrels of oil.

GIGOT: Is the technology developed enough to get in the oil shale, or is that a ways off?

RAGO: It's a ways off, but it's proven successful on a commercial scale.

GIGOT: Kim, why can't we drill for oil in any of these places?

KIM STRASSEL, COLUMNIST: You know, the Bush administration came in seven and a half years ago and had this as one of their top priorities but you have had the Democratic, the Democrats in Congress, aided by some Republicans, fighting to keep restrictions in place so...

GIGOT: Wait a minute. President Bush also has an executive order that he inherited from previous presidents, including his father, that bars some of that drilling. And didn't Jeb Bush, the former governor of Florida, asked ask him also to bar drilling in the western Gulf of Mexico?

STRASSEL: That is absolutely true. You've got moratoriums bans on off-shore drilling, both congressional ones and a presidential one. And you have had states, in particular, ones with big environmental lobbies, step up and demand that the President and Congress not release those moratoriums. That's one of the problems. We also have restrictions on allowing ANWR, the Arctic National Wildlife Refuge, to be open for drilling as well. Until Congress or the President acts, we simply cannot access any of the places.

GIGOT: Steve, I should have made that the eastern Gulf of Mexico, the western gulf is open. But is there any chance that you think President Bush is going to remove that moratorium and put pressure on Congress to act?

STEVE MOORE, SENIOR ECONOMICS WRITER: I think he sure ought to, especially when you're talking about $130 barrels of oil and $4 gasoline prices.

Paul, this is showing up as the number one issue in all of the polls that are being done in terms of Americans' concerns. The key figure here, Paul, I actually, think is Senator John McCain. John McCain has consistently been against drilling. He's been against drilling in Alaska. I think his campaign — he ought to change his tactic and say look, it was one thing to be against drilling in places like Alaska and offshore when oil was $30 or $40 a barrel. But now it's $130 a barrel. Paul, it's not just a matter of the economy. It's a matter of our national security. All of those dollars flowing to the Middle East.

GIGOT: Yes, Joe?

RAGO: I was going to say, you know, whatever environmental delicacies we might have had in the past, you know, they just don't apply today with modern technology. Hurricane Katrina and Rita smashed facilities up and down the Gulf of Mexico, not a single oil spill. You're seeing the public come around. Gallop just released a poll at the end of the may that showed 57 percent of the American people were in favor of drilling in some of these off-limits areas.

GIGOT: But there's no — Steve or Kim, there's no question. I mean this is — immediate drilling would not change the price of oil right away, would it? These things take about ten years to come on stream.

MOORE: But you know, Paul, let me disagree with you for a minute on that.


MOORE: I actually think if Congress were to make a declaration, we're going to start drilling in the places, the price of oil today would fall. The speculators who are out there driving up the price, you would see the futures price of oil I think fall dramatically. I think it has an impact on today's price that we're not drilling.

STRASSEL: I think, too, when you got to point where you had some of it coming online, and if you opened the places up, some places you could get out there quickly. Right now with the oil markets as tight as they are, even a small marginal additional amount would have a significant impact on prices.

GIGOT: What about the pressure that this change that Joe mentioned, of the politics, where the public is beginning to say, look, we want more drilling, how much is this going to pressure the Democratic leadership from its rank and file saying look, we don't want to oppose this? Is there any chance it will move in this Congress?

MOORE: No, because this Democratic Congress is totally in the laps of the radical environmentalists who say no to drilling and, by the way, no to coal, no to nuclear. Almost every energy source we have, Paul, they don't want to exploit.

GIGOT: Barack Obama has said this week, in what some people felt was a flub, he wished energy prices, gasoline prices had risen more gradually. But why isn't John McCain taking advantage of this? Politically?

STRASSEL: Huge question, why John McCain — the Republicans in Congress are trying to.

Look, the problem with the Republicans here Americans tend to blame high gas prices on whoever is in the White House. So they're going to have to try to shake that stigma. They've got an opportunity here and say, look, the reason we're in this mess is the Democrats have not allowed any of proposals to drill for years and years now. They have to talk about what Joe said, the fact you can do it with technologically advanced equipment. They've got to take the reform approach. They could do it, John McCain could. Huge election help for them this year.

GIGOT: Kim, thank you.

High school students across the country are rejoicing, as an increasing number of American colleges choose to scrap the SAT. But is it a good idea? Our panel weighs in when we come back.


GIGOT: High school students looking to apply to Smith College in Massachusetts or Wake Forest University in North Carolina may be breathing a sigh of relief. Those schools recently announced that they've decided to drop the SAT as a requirement for admission. They join a growing number of colleges and universities making the SAT or other standardized tests optional for applicants.

We're back with Joe Rago. Also joining the panel, deputy taste page editor Naomi Schaefer Riley and assistant editorial page editor James Freeman.

Naomi, why are schools like Wake dropping the SAT?

NAOMI SCHAEFER RILEY, DEPUTY TASTE PAGE EDITOR: Political correctness is at the bottom of it. Essentially, a lot of schools want diversity. Wake Forest competitors, if you look at their minority enrollment, have more of it. A lot of schools believe one of the ways to get more minority enrollment is drop requirements like the SAT.

GIGOT: Is that because they think the SAT is biased against the minorities in some fundamental way?

RILEY: They think so.

GIGOT: Is there any evidence that that is, in fact, the case?

RILEY: In fact, it's not the case. The SAT turns out to over-predict the performance of black students at colleges.

GIGOT: What do you mean when you say over-predict?

RILEY: It means that if you have a black student going to one of — especially at the elite levels. If you have a black student going to one of these schools, they're performing at the level of a white student a couple of hundred points lower on the SAT than them. It means that the SATs, if you went by them alone, we'd admit more minority students that deserve to be go to them.

GIGOT: What do they rely on then? If you're not going to use these standardized tests, why are they rely on? Just grades, recommendations?

RILEY: Grades. Right. And a lot of mushy measures, like essays, which, of course, can be rewritten by any number of adults around the person or highly paid consultants.

GIGOT: You mean to tell me that some applicants might actually have mom and dad —


GIGOT: Is that kosher?

RILEY: Or if mom and dad want they can pay $20,000 to some outsider to help their kid do even better. Of course, grades as well, turn out to be the best predictor of how a student will perform in college. As you know, we've had a lot of grade inflation at the high school level as well. You could fill the top hundred colleges in America who got all "A"s in high school.

GIGOT: James, is it good or bad for the actual students involved?

JAMES FREEMAN, ASSISTANT EDITORIAL PAGE EDITOR: Well, it's bad that you want a benchmark, national standard, allowing someone from an unknown school to show they're smart. Unfortunately, we had great inflation with the SAT as well. The test is not what it used to be. They started inflating in the mid-'90s, now they kick out questions every year that certain demographic groups struggle with it.

GIGOT: Wait a minute. Do you mean to say that when I took the SAT and didn't do very well, that I had a harder test than young Rago here when he took it and got his 1600 or whatever?

FREEMAN: Exactly. I think that's the significance, it that it explains why Joe's scores are so much better than ours.


RILEY: They've been, quote, unquote, "re-censored," a nice Orwellian way to put it.

GIGOT: What does re-censored mean? Literally, is it an easier test? Is that what you're saying?

RAGO: It is in the sense that the kids request use calculators, analogies. And about antonyms are gone because people struggled with them. It's a watering down. Some people say that a few of the math questions are tougher in some cases, but, all in all, you would have to say that they've been dumbing it down.

GIGOT: The question is interesting to me because you have kids from the elite schools, like Exeter in Aurora or in Chicago. They're really great public schools that turn out the kids, you know, for the Ivies or Stanford every year. But what if you get a really, really smart kid who goes to a school, which isn't particularly known for producing all of the superstars, but he's very smart and very dedicated and does very well? Doesn't this lack of the standardized testing hurt that kid?

RILEY: Yes, it helps the brands essentially. What you see — if you look at the colleges that have dropped the SAT requirements over the years, a lot of them are top colleges that have the resources, you know, to look into each and every school. Essentially, you get a lot of new schools. Really, what are the admissions officers going to go to each school every year and check out what their grading is like? It's ridiculous standard.

GIGOT: Joe, as the most recent graduate here, are you going to miss the SAT?

RAGO: I don't think so. I think the SAT basically measures your ability to take standardized tests, just like getting good grades measures your ability to get good grades. At the end of the day it doesn't matter all that much.

GIGOT: OK. All right, Joe.

Good, we have to take one more break. When we come back, our "Hits and Misses" of the week.


GIGOT: Winners and losers, picks and pans, "Hits and Misses," it's our way of calling attention to the best and the worst of the week.

Item one, remembering Harriet Johnson — Naomi?

RILEY: Earlier this month, Harriet Johnson, a disabled activist, died at the age of 50. She was born with a severe neuromuscular disability. And during her lifetime, she became involved with a group called Not Dead Yet. And she took on pretty nasty philosophy people like Peter Singer, professor at Princeton, who believed that we should engage in infanticide of babies born with severe disabilities. She debated him in public forums and took him on in articles. And a lot of disabled activists have had great influence over the debates over selective abortion, infanticide, assisted suicide.

Here is what sums up Harriet Johnson's philosophy. She says, "The presence or absence of a disability doesn't predict quality of life." I think a hit goes out to her for pointing that out to some of our philosophers.

GIGOT: Naomi, thanks.

Next, a lesson in going out with grace — James?

FREEMAN: Going out with grace and going out on top, Paul, as Michael Strahan, defensive end for the Giants. Great career and then led his team to a Super Bowl championship, great pass rusher, underrated against the run, but great there as well. I think Strahan is an example for politicians of — here is someone who knows when to leave the party, when to get offstage. Not mentioning any politicians in particular, but Strahan's a good example for them.

GIGOT: James, speaking as a Green Bay Packer fan, I have to say he will not be missed.

All right. Finally, Barack Obama's latest ex-friend — Kim?

STRASSEL: You know, Barack Obama has said his most important job will be picking a vice president. To help him with that he retained former Fannie Mae CEO Jim Johnson. We since found out that Mr. Johnson received a series of sweetheart financial mortgages for his personal use from Countrywide at the same time that Countrywide was doing business with Fannie Mae. This is a huge conflict of interest and Mr. Johnson has stepped down from the Obama team.

Now Mr. Obama's response to this has been, what am I supposed to do, vet the vetters? The answer is yes! This is a politician who has said he's going to stop business as usual in Washington. Fannie Mae is exhibit "A" of business as usual in Washington. There should have been red flags all over the place for Mr. Obama.

At a certain point, voters are going to begin to wonder is he is really serious about shaking things up in D.C.?

GIGOT: Kim, we've, in a sense, discovered some other politicians, including the head of the Senate Banking Committee, Chris Dodd, also received a friend-of-Angelo Mozilo-loan, the former CEO of Countrywide. Is Congress going to investigate this, in a sense, investigating itself?

STRASSEL: I think they're — they should. They ought to. We'll see.

RAGO: They're not the senators we thought we knew.

GIGOT: Thank you, Kim and James.

If you have your own "Hit or Miss" of the week, please send it to . We'll choose one to read at the end of the show next week.

That's it for us. Thanks to my panel and to all of you for watching.

I'm Paul Gigot. Hope to see you right here next week.

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