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July 02, 2006

Sens. Graham & Reed, Michael Griffin, Roundtable

Fox News Sunday

CHRIS WALLACE, HOST: I'm Chris Wallace. A new military strike in Gaza as Israel tries to free a soldier who's been taken hostage, next on "Fox News Sunday".

The Supreme Court throws out the president's plan to prosecute terror detainees. How does the ruling affect the war on terror? We'll talk with two key senators, Republican Lindsey Graham and Democrat Jack Reed.

America returns to space. What does the Discovery mission mean for the future of manned flight? We'll ask Michael Griffin, the NASA administrator.

Plus, the House condemns news organizations for publishing classified information. Does the vote threaten press freedom? We'll ask our panel, Brit Hume, Nina Easton, Bill Kristol and Juan Williams.

And our Power Player of the Week leads the band the president calls his own, all right now on "Fox News Sunday".

And good morning again on this holiday weekend from Fox News in Washington. Let's get a quick check of the latest headlines. Early today an Israeli helicopter fired missiles into the office of the Palestinian prime minister. The office was empty at the time.

Israeli officials are debating whether to increase military action or give diplomacy more time to free a soldier held captive by militants.

In a second audio tape in as many days, Al Qaida leader Osama bin Laden endorsed the successor to Abu Musab al-Zarqawi. Meanwhile, the U.S. military says Zarqawi has been buried at a secret location in Baghdad in accordance with Muslim customs.

And NASA will try again this afternoon to launch the space shuttle Discovery. On Saturday bad weather at Cape Canaveral scrubbed the mission. We'll have more on what's at stake for NASA later in the program.

Well, joining us to discuss what happens now that the Supreme Court has ruled against the president's military tribunal plan are two key members of the Senate Armed Services Committee, Republican Lindsey Graham of South Carolina, who's also a judge on the Air Force Court of Appeals, and Democrat Jack Reed of Rhode Island. Both join us from their home states on this holiday weekend.

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

SEN. JACK REED (D), RHODE ISLAND: Thank you.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Nice to be with you.

WALLACE: In its ruling, the Supreme Court basically invited the president to go to Congress to work with your body to try to figure out a way to try these detainees.

Senator Graham, first of all, will the Senate pass legislation this month? And secondly, how do you balance, on the one hand, giving these detainees the rights the court says they should have while, on the other hand, recognizing that this is a different kind of war?

GRAHAM: Well, that's a very good question. I think what we will do this month, I hope, is to get some input from the great legal minds of our time, particularly military lawyers, retired and active duty military judge advocates. The legal community in this country is very talented.

And I would hope Congress would have hearings about what to do in light of this decision and that we will sit down together, Jack and myself and others, in August, write legislation and hopefully vote by September.

The ramifications of this decision are breathtaking in many ways. The idea of the president having to go back to consult with the Congress makes sense to me. The court said he overstepped his boundaries as a separation of powers problem. Military commissions come from a congressional statute.

If you want to have a military commission, Mr. President, you have to go to Congress and get their permission and work with them.

But the Common Article III Geneva Convention decision by the court to apply the Geneva Convention to Al Qaida terrorists, something we haven't done before, something Ronald Reagan was against back in the 1980s, is breathtaking and we need to absorb that decision.

WALLACE: Senator Reed, will Democrats cooperate in passing bipartisan legislation? And in your view, what kind of trial do these terrorists deserve?

REED: Well, I believe we will cooperate, and I think cooperation will be required by all parties, including the president. This has to be a process where we understand and recognize that we have to have a legitimate procedure, legitimate in the eyes of the court, legitimate in the eyes of the American people, that we can move quickly to try these individuals and do justice.

And I think that's something that will come together in a bipartisan basis, I hope, in a deliberate and quick fashion, and do that.

WALLACE: Gentlemen, after the ruling, House Democratic leader Nancy Pelosi issued a statement. I'd like you both to take a look at it. "Today's Supreme Court decision reaffirms the American ideal that all are entitled to the basic guarantees of our justice system. This is a triumph for the rule of law."

Senator Reed, question. Are Al Qaida terrorists entitled to the guarantees of our justice system?

REED: Well, they're entitled to a process that will establish their guilt, establish their culpability, their connection to Al Qaida, and that's something I think we have to do because, ultimately, we are engaged in a process of not only defending the nation but also preserving the Constitution. So I think there is an element there.

But also, I think there's a notion that's very important here, that there are rules of warfare that we have to respect because we have to also request -- insist -- that those that challenge us also follow them.

So I think we have a vested interest in maintaining a notion of a deliberate process that has rules, and I think that will be vindicated, I hope, in the forthcoming weeks as we do pass legislation.

WALLACE: Senator Graham, let's follow up on that, because after Pelosi's statement, the House Republican leader John Boehner issued one of his own. Take a look, if you will. "Capitol Hill Democrats advocate special privileges for terrorists."

Senator Graham, some of your Republican colleagues are saying this is another opportunity to show that Democrats are weak on the war on terror. Is Pelosi right? Are terrorists entitled to the full guarantees of our justice system?

GRAHAM: Every enemy prisoner in the hands of the United States military and in the hands of our country is entitled to be humanely treated. I didn't say that. The president said it, but I agree with him.

Every enemy prisoner, terrorist, is entitled to be tried in a military commission format, not civilian format. Military commissions have been used for over 200 years to try war criminals. Every war criminal will be given due process.

The court is telling the administration go back to the Congress, work with the Congress. I intend to sit down with the administration, which I think will be receptive to us working with them, to come up with a process that holds terrorists accountable, to give them a fair trial, but to make sure that if they did do the things that we're alleging, they're fairly punished.

The Geneva Convention aspects of this decision are breathtaking. The question for this country is should Al Qaida members who do not sign up to the Geneva Convention, who show disdain for it, who butcher our troops, be given the protections of a treaty they're not part of.

My opinion -- no. They should be humanely treated, but the Geneva Convention cannot be used in the war on terrorists to give the terrorists an opportunity to basically come at us hard without any restrictions on how we interrogate and prosecute. WALLACE: Well, Senator Graham, given the fact that that was exactly what Justice Stevens said in his ruling, talked about the Common Article III covering these detainees, what do you do about it?

GRAHAM: Well, Congress has the ability to restrict the application of Common Article III to terrorists. Ronald Reagan in 1980 would not agree to approve Protocol I to the Geneva Convention where terrorists were given Geneva Convention protection because they're not signatories to the convention.

They're not part of the convention. Should they get the benefit of a bargain they're not part of? We can treat them humanely. We can apply Geneva Convention concepts. But the Geneva Convention Common Article III is far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should.

WALLACE: Let me take a broader look at this, if we can. It seems to me that there were two pillars to the court's ruling, and let's talk about those, if we can.

First of all, terror detainees are protected, as we've been saying, by at least part of the Geneva Conventions. And secondly, the court ruled that the president had exaggerated the authority that the Congress gave him after 9/11.

Senator Reed, following that reasoning, aren't a number of the weapons that the president has used in the war on terror, whether it's the NSA warrantless wiretaps, whether it's secret CIA prisons, some of the interrogation methods that have been used -- aren't all of those now legally suspect?

REED: The court has opened up challenges to all of these provisions, and this is something that I think that we're going to have to consider as members of Congress and also the administration has to consider.

I think the most significant aspect of the case, though, was the notion that -- and the declaration by the court that the president has to seek congressional authority. And this has been essentially the argument that many have made with respect to these issues of interrogation, these issues of surveillance, of electronic transmissions.

The president declared that he essentially was operating in his own capacity as commander in chief, and I think the court reined him back, and I think it's appropriate. But that does not leave us without any tools in this struggle against Al Qaida.

What it insists is that the president come to the Congress and in a deliberate fashion and a democratic fashion we give him the authority that he needs.

WALLACE: Senator Graham, I want to get to this question of consulting Congress in a second, but I want to ask you the same question I asked Senator Reed. Given the reasoning of the court, are some of the weapons, like NSA warrantless wiretaps, now legally suspect? And also, given the reasoning that Guantanamo Bay does not have some special legal status, should it be closed?

GRAHAM: Well, one, it should not be closed. We need a place like Guantanamo Bay to hold people who are a threat to our nation and the world at large.

If you can repatriate some of theme people back to their host country with the assurance they won't go back to the fight, fine. But 12 of them have been released and been caught back on the battlefield or killed. So I am all for keeping Guantanamo Bay open, running it within the rule of law.

Jack is absolutely right. Congress can set the terms for military commissions in collaboration with the administration. We can produce a military commission trial format the nation can be proud of but does not allow the terrorists to get away with their heinous acts.

We can have interrogation rules that are humane but allow us to protect ourselves. Congress can fix some of the problems with this decision. I've been arguing for a year and a half, Chris, that the president would have been stronger to come to Congress to get our blessing on how you interrogate, detain and prosecute enemy combatants.

I look forward to working with the administration to come up with a rule of law to protect us against the terrorists, something we can be proud of as a nation. This conspiracy charge that was stricken down -- Congress has the right to restore a conspiracy charge against terrorists.

It would be an absurd result for Americans to be charged with a conspiracy and a terrorist not to be charged with a conspiracy. That's one thing Congress can fix, and that's something I hope we'll do.

WALLACE: Senator Graham, I want to follow up on this, because after 9/11, in the months and years after, you and a number of other congressional members went to the White House to suggest legislation that would authorize military tribunals, and you were basically told no thanks. Did...

GRAHAM: Well...

WALLACE: Let me ask you, though, did the White House go too far? Did this president go too far in asserting executive powers? And do you see this now as all part of a process in which the pendulum is swinging back to Congress and the courts?

GRAHAM: I went about a year and a half ago with other members, Democrats and Republicans, believing that we'd be stronger in court if Congress was on board with the executive when it came to treating detainees, trying them, interrogating them. The court is saying to the president you can have a military commission, but since it comes from the Uniform Code of Military Justice, a congressional statute, you've got to go back to Congress.

Congress holds the keys to the courtroom for military commissions. Congress can approve interrogation techniques that would not allow Geneva Convention Article III to compromise our security. But it would be up to Congress to do that.

To make sure that the Geneva Convention is reined in domestically, it would require collaboration between the Congress and the president. I am willing to do that. I believe Jack is willing to do that.

This is not a Republican issue. It's not a Democratic issue. It is an American issue. We need to try these people fairly, but we need also to protect our country, and we can do it together, and we must, according to the court. And I think the court is right in that regard.

WALLACE: Finally, gentlemen, let's turn to another story, a related story, and that was the decision by the New York Times and other papers to report this secret U.S. program to track terrorist finances.

After a week of attacks by politicians and now two editors of the L.A. Times and New York Times defending themselves, Senator Reed, what do you think of the paper's action and should the government take any action?

REED: Well, this is the perennial struggle between a free press and a very secretive administration, and this administration is one of the most secretive on record.

I think, first, the story has to be right and accurate, but the responsibility is on the newspaper to ensure that they're not going to compromise any type of operational details.

It seems to me after five years of this program, of the notoriety that the administration itself has given to their attempts to interdict financial transactions, that's not a strong likelihood. So I think, in balance, the desire of the press to get the story to the American people, probably, in balance, is compelling.

But it's a delicate balance. It has to be struck constantly. And I think in the days ahead, rather than focusing on recriminations, we should focus on the fact -- or establish the fact whether or not there's been any harm done to our military operations.

WALLACE: Senator Graham, you have about 30 seconds left.

GRAHAM: I applaud the administration for going after the terrorists hard. I want to work with them to get it right when it comes to detainees. This is a struggle between a free and responsible press, and this program that was disclosed made us safe. Now it's disclosed, and we're going to lose a valuable tool in the war on terror. The press is free, and I'm glad they are, but they need to be more responsible. I'm going to work with the president to get this right.

And you need to be secret in the war on terror at times, because we don't want to let the enemy know what we're up to, because they're out to get us.

WALLACE: Senator Graham, Senator Reed, we want to thank you both for sharing your holiday weekend with us.

REED: Thank you.

GRAHAM: Thank you.

WALLACE: Have a good 4th of July.

GRAHAM: Thank you.

WALLACE: Coming up, is America in too big a rush to return to space? We'll talk with a NASA administrator after this break.

(COMMERCIAL BREAK)

WALLACE: Joining us now from Cape Canaveral in Florida to discuss the mission of the shuttle Discovery is NASA administrator Michael Griffin.

Mr. Griffin, thanks for joining us on what's got to be a very busy day.

MICHAEL GRIFFIN, NASA ADMINISTRATOR: Well, you're very welcome. It is, but I'm happy to be here.

WALLACE: I can't hear Mr. Griffin.

Go ahead, sir.

GRIFFIN: I'm speaking.

WALLACE: Go ahead, sir.

GRIFFIN: I'm speaking.

WALLACE: Yes, I can hear you now. Go ahead.

GRIFFIN: Fine. I'm very happy to be here. Thanks for having me.

WALLACE: Great. How is the launch looking today? How's the weather and what's the condition of the shuttle?

GRIFFIN: Well, the vehicle is just as clean as a whistle. We're literally not working any issues on it. So we're counting down, hoping for weather. Weather probability -- the weather guys are saying about 30 percent chance we can go today.

WALLACE: Given the controversy over the decision to launch, are you and the rest of the launch team feeling any added pressure?

GRIFFIN: Certainly not. What you're seeing is not any additional controversy. What you're seeing is that it's kind of out in the open, being conducted in a very open way, just as you would expect a healthy technical organization to do. I'm really very proud of it.

WALLACE: Well, let's talk about that, sir, your decision to launch. At the final flight readiness review on June 17th, which is just two weeks ago, NASA's top safety officer and chief engineer both voted no go on a launch. Isn't that a big deal?

GRIFFIN: Well, it is a big deal. However, responsible program officials and many others voted to go. And in fact, I think the vote was 13-2, so it didn't matter what I did. I was going to have to overrule somebody who is a very high-level NASA official. I mean, you kind of are damned if you do and damned if you don't.

In this particular case, I had spent an awful lot of time of my own studying the issue very carefully, because I knew it was going to be controversial, and my analysis of it convinces me that the chances of damaging the orbiter are quite small, and this is a risk worth taking at this time to get us back on track in space.

I would note also that even the safety officer and the chief engineer agreed that we are not, with this decision, risking crew. The risk is to the vehicle, not the crew, and I felt that it was acceptable to take.

WALLACE: Well, but let's follow up on that. On the certificate of flight readiness which both the safety officer and the chief engineer had to sign, both crossed out the written statement that they approve proceeding with the launch and, in fact, the chief engineer added this -- and let's put it up on the screen -- "I remain no go based upon potential loss of vehicle."

Again, sir, isn't that troubling?

GRIFFIN: No. I've, again, studied the issue very carefully. Unless I want to promote the chief engineer to being administrator, I make the tie- breaking decisions. We looked at this as carefully as we know how, and I think it's safe to go, and we're going to fly.

WALLACE: Let me ask you about that, because you say this shows a healthy disagreement, a healthy process in making the decision. It's been reported that this is the first time in shuttle history that a launch has proceeded without the unanimous agreement of top officers. Is that true?

GRIFFIN: I don't know about that. I've been back at the agency in this capacity for 14 months. I've been part of a lot of flight readiness reviews in the past for one vehicle or another.

And it is a typical pattern of behavior that people who have concerns, if there are one or two of them, are often reluctant to raise those concerns because they feel that they might derail the process for something, and that's a level to which they don't want to go.

The Columbia Accident Investigation Board led by Admiral Gehman noted a tendency at NASA prior to the loss of Columbia to a certain conformity of opinion -- group think, if you will.

I've striven mightily since arriving back at NASA to promote an open and vigorous dialogue on technical issues, and that's exactly what we did. And when people know that they can speak up, when they know there's not only no retribution but there is encouragement to speak up, they're more likely to do so.

We want to have all the issues on the table before we make a decision, but we must make a decision. One way to make that decision would be to say that if anyone has an objection, we don't go. That's not the management approach I'm using.

WALLACE: You talk about the decision and how it was made after the Columbia disaster. The Accident Investigation Board issued the following statement, and let's put it up on the screen. "More troubling, the pressure of maintaining the flight schedule created a management atmosphere that increasingly accepted less than specification performance of various components and systems."

Mr. Griffin, are you making the same kind of judgment that led to previous disasters?

GRIFFIN: Not at all. There is a schedule component to all of our decisions, and there must be. We are not given unlimited time by the Congress to carry out the finishing of the completion of the space station program. Schedule is a factor. We're taking it into account.

We are not doing silly things in order to fly. We need to replace the ice-frost ramps. We know that. On the other hand, we regard the risk of flying with the current ice-frost ramps for the next few flights as very small and well worth taking.

WALLACE: You know, what we should talk about -- and let's, in fact, put the graphic up on the screen, if we can, that shows you have made some changes.

You have taken away the so-called PAL ramps. The protuberance air load ramps have been removed, and that's where some of the shedding of the foam from the external fuel tank came. But as you mentioned, there are still these 34 brackets in the ice foam ramps, and those are still there and still a possible danger in terms of shedding.

Based on your analysis, what is the chance that foam will shed off the fuel tank and hit the shuttle?

GRIFFIN: Well, I will say this. Foam will be shed from the fuel tank and will hit the shuttle. Our objective is to make sure that those pieces which do are small or that they're released at a time when it's not a concern, either when the shuttle is moving very slowly or when it's essentially out of the sensible atmosphere.

It is precisely that type of data that we need to fly to collect to determine whether our improvements to the external tank have been successful or not. We can't answer that question in wind tunnels alone, and we certainly can't answer it by analysis.

We're operating here at the limit of the technical state of the art, and we need to fly.

WALLACE: Mr. Griffin, let's talk about the program in general. Last year you were asked whether the shuttle program was a mistake, and you said the following. Here it is. "It's now commonly accepted that was not the right path," meaning the shuttle program.

Sir, given all of the problems, given obviously these two disasters that we've had with the shuttle, is it worth spending more money, risking the lives of the astronauts, for 17 more missions to complete a space station, an international space station, whose scientific value is somewhat suspect?

GRIFFIN: Well, the value of the space station, in my view, is partly in the science but has never been all about the science. It's really about learning to live and work in space for extended periods of time.

It's about creating a toehold off the surface of the Earth and using it as a stepping stone to Mars, which is a long-term goal for not only NASA and the United States, but for all mankind.

The quote that you supplied, while correct, is a bit out of context. When I said it's commonly acknowledged that this was not the right path, I meant the retreat from the moon to restricting ourselves, the United States, to operations in low Earth orbit.

I have said many times over the years that I believe that those decisions were wrong decisions. They were made 30 years and 35 years ago.

This president, this Congress, have given us an opportunity to reverse those decisions and set about the business of space exploration beyond low Earth orbit again, and it's time to seize on that opportunity.

WALLACE: Well, Mr. Griffin, we want to thank you so much for talking with us, answering all of our questions. And I know I speak for all Americans when I wish you and the entire NASA team the very best of luck on this mission.

GRIFFIN: Thank you. We always like that.

WALLACE: Coming up, our Sunday panel on the Supreme Court's ruling this week. Who's in charge now in the war on terror? Stay tuned.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JOHN WARNER (R), VIRGINIA: I'm sure we will look at other means to provide them justice under our laws.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

SEN. HARRY REID (D-NV), MINORITY LEADER: The aura of power that the president thinks he has does not exist. We want to do things the right way, the constitutional way, the American way.

(END VIDEO CLIP)

WALLACE: That was part of the congressional reaction to the Supreme Court's ruling striking down the president's plan for military tribunals.

And it's time now for our Sunday gang, Brit Hume, Washington managing editor of Fox News, and Fox News contributors Nina Easton of Fortune Magazine, Bill Kristol of The Weekly Standard, and Juan Williams from National Public Radio.

Well, question. How significant is the Supreme Court's ruling this week? What does it mean for the question of trying terror detainees? And does it raise questions about the legal underpinnings for some of the president's other programs in fighting the war on terror?

Brit?

BRIT HUME, FOX NEWS WASHINGTON MANAGING EDITOR: Well, I think the practical effect of this decision is modest -- minor, in fact -- because all it said was that if you're going to try these captives, and it didn't say you had to, you can't do it by the military commission arrangement that has been set up, you have to go to Congress for authority to do that.

And you've got members of Congress, including Harry Reid, saying that they're prepared to work with the president to do that. So that looks like a problem that can be solved and possibly fairly quickly.

I think it's a bigger story and a bigger concern with regard to what the court found and what Lindsey Graham was pointing to repeatedly this morning, its opinion that the Geneva Conventions apply to captured terrorists, people who fight under the flag of no country, who wear no uniform, and bear the mark of Al Qaida.

Geneva Convention applying to Al Qaida is a rather novel concept. Now, the court found some provision of the accords they said would apply. I'm dubious about that. I'm dubious about the court's reasoning. But I think any thoughtful person would be worried about what the court might find next in this area by some similar narrow ruling. It was 5-3.

It would have been 5-4 in this case, but Roberts, who ruled from the court of appeals he was on -- it was his opinion that was being struck down -- had to abstain.

WALLACE: Juan, how significant is the court's ruling?

JUAN WILLIAMS, NPR: I think it's a significant ruling. I think Brit and I are watching a different ball game. From my perspective, what I see here is a court reasserting itself and saying -- I mean, if I listen to you, Brit, you seem to be saying oh, gosh, this sounds like an activist court that...

(CROSSTALK)

WILLIAMS: ... with the president, and the president's exercise of authority during a time of war.

To the contrary, I think we've had five years of letting the president have his way, and for the first time you have a check and balance here imposed on that, you know, excessive use of power, possibly abuse of power, and not even to any great length.

I mean, as you say, they didn't say shut down Guantanamo Bay. But they did say you've got to have the court involved, you have to have the Congress involved. And you can't have a Congress that simply says we cede all authority to the president, which is what the Congress did last December.

You've got to say we are going to think this through, because while they may not fit under, you know...

HUME: What about the...

WILLIAMS: ... Geneva Convention...

HUME: Yes, but what...

WILLIAMS: ... they do fit under the Uniform Code of Justice, which the United States has signed off on.

HUME: What about defining, Juan, that Al Qaida is entitled to the protections of the Geneva Convention? What about that? Do you agree with that?

WILLIAMS: No, I personally don't agree with it. But I think you've got to have that sussed out as a matter of -- in a democracy, as a matter of law between the three branches of government. You can't just have the president make that decision.

HUME: Well, if it doesn't apply, it doesn't apply to the president or anybody else.

WALLACE: Well, let me bring Nina in here. And what we're hearing here is it's sort of a disagreement. Is it the president who has overstepped his bounds or is it now the court that is overstepping its bounds?

NINA EASTON, BOSTON GLOBE: By one vote, which is interesting -- I mean, this is -- I thought this decision really brought into really sharp relief what this court will look like if the president gets another seat on the court.

You had Justice John Paul Stevens, 86 years old, the seat that everybody looks to as the potential next seat for this president, if it happens, leading a non-Bush bloc to vote against the president.

This administration has been extremely clear about its desire to roll back what they would call these erosions of presidential power since Watergate. You had Dick Cheney just a couple months ago saying this is not right for these times, these times demand strong presidential powers.

And you've got a court now that is not Bush-controlled, and that became very clear this week, because if Chief Justice Roberts had been able to rule, of course, he would have ruled in favor of the White House, but it still would have been a 5-4 split.

And now you've got this court saying you've got to go back to the drawing board and you've got to do so with Congress. And it was interesting hearing from Senator Graham, who said you know, the president would have been better off and stronger on all these issues, whether it was the designation of enemy combatants, illegal enemy combatants, or the Geneva Conventions, if he had worked with Congress.

WALLACE: Let me follow up on that, Bill. I mean, take sort of the big picture here. Almost five years into the war on terror, almost five years after 9/11, is the pendulum now beginning to swing back from the president's broad initial exercise of authority in the war on terror to the courts and Congress asserting themselves and taking a bigger role? And if so, is that a good thing or a bad thing?

BILL KRISTOL, WEEKLY STANDARD: Well, I think Lindsey Graham said Justice Stevens' opinion on the Geneva Conventions aspect and on Common Article III was breathtaking. I think that is absolutely correct. It's an amazing interpretation of this article that was an attempt to apply Geneva Convention protections to people fighting in a real civil war, not to terrorists.

Congress is going to have to act, I think, to overrule the court on this in the next month. They'll also act to give the president the authority basically that he had and they will simply approve. They'll set up what the president wanted to do, I think, in terms of military tribunals.

But every justice wants to go out with a breathtaking opinion, a big bang, and I would like to say here, in case Justice Stevens is watching, this would be a very good time to step down. The liberal media will love him. He'll get accolades for his three decades on the court.

WALLACE: I don't know where I heard this...

KRISTOL: And then we can get a fine woman appointed to replace him, which would be more appropriate to have two women on the court, I think, personally, and I think Justice Stevens should do that.

WALLACE: I don't know where I heard this, but somewhere I read that Justice Stevens is interviewing law clerks not for this next term, but for the following law term. I think you could go broke betting that Justice Stevens is about to retire.

HUME: You know, think about this for a second, Chris. What this goes back to is the success that Senate Democrats had in defeating the nomination of Robert Bork. I think it is probably certain that had Bork been on this court, he would have voted the other way.

Instead, we had Anthony Kennedy, who is a fine man and he knows a lot more law than I do, but he blows in the wind. You never know where he's going to come out. His questions to the lawyers in the argument on this case kind of gave away where he was going, and that's where he went.

And that decision, that Senate action, has made a huge and continuing difference in...

WILLIAMS: Don't you think it's sad that you want to politicize the court in this way? Why can't you say hey, you know what, we have wise, well-trained, educated people there who should make impartial decisions instead of saying oh, because they're Bush appointees or Clinton appointees, they should decide one way or another?

One other quick point. The idea that everybody is either, you know, standing with the terrorists or standing with the administration -- I find that offensive, Brit. Why do you have to -- if you disagree with the administration policy, why are you a supporter of terrorists?

HUME: Juan, if I'd said that, I'd apologize. I didn't and I won't.

Go ahead, Bill.

KRISTOL: No, but what the court did find -- let's just be literal about this -- is that Common Article III of the Geneva Conventions applies to Al Qaida. That is a breathtaking finding.

It is contrary to every understanding of what that article has meant for the last 50 years. It is a pure act of judicial imperialism and an act of reinterpreting an international treaty which will now put on Congress the burden of either withdrawing from that part of the treaty or asserting a congressional prerogative, which I think they can do, to override a Supreme Court interpretation of the treaty.

It is a pure act of judicial overreach. And I think the Congress is going to have to repudiate the court.

WALLACE: Nina?

EASTON: But as Senator Graham also pointed out, it's an issue that Congress will address, right? And again, this decision said back to Congress. And the president conceivably will have a stronger hand if Congress is involved, and Democrats will be forced to address these difficult issues.

So you know, it's -- going back to Congress, which is -- it implies that this is what the president should have done in the first place.

WILLIAMS: And don't you think it's possible that you could have a situation that when the Congress starts to look at it, they say here are reasonable rules, we're going to have no bail for these guys, we want somebody to report, you know, to a 9/11-type commission exactly what did these people do, what is the danger they pose.

And then you say we're going to set a date for trial. I mean, that moves the thing along. Everybody feels good about it. America is protected.

Why do you snicker? Why?

HUME: I'm not snickering -- everybody feels good about it. Juan, when you're fighting against terrorists who observe no rules of war, who are oblivious to the Geneva Conventions, who go among innocent people for the purpose of murdering as many of them as they can, and the Supreme Court of the United States decides that they're entitled to the same protections as a uniformed army fighting under the banner of a real country, you've got a problem. And ain't everybody going to be happy.

KRISTOL: Juan asked me why I was smiling. I'm smiling because this is going to be a great debate for Republicans in Congress for the next few months.

WILLIAMS: For Republicans.

KRISTOL: Absolutely. I hope, because the Democrats are either going to have to basically acknowledge that the president has been right all along by authorizing what he wanted, and they're going to have to rebuke the Supreme Court's interpretation of the Geneva Conventions, or the Democrats are going to be in the position of saying that Al Qaida deserves protections like normal prisoners of war or like normal people in the American justice system.

WILLIAMS: I think they'll say we're proud to be Americans because we stand for human rights, human values, even when we are fighting monsters.

WALLACE: All right. We need to take a break here. But coming up, should the New York Times and other papers be prosecuted or praised for publishing classified information? Congress weighed in this week, and our panel will, too, right after this break.

(COMMERCIAL BREAK)

WALLACE: On this day in 1964, Lyndon B. Johnson signed the Civil Rights Act enforcing the right for blacks to vote without restriction. Also, public facilities were desegregated and job discrimination outlawed.

Stay tuned for more panel and our Power Player of the Week.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SLAUGHTER: The president of the United States, time after time after time, has bragged on this program and yet pillories the New York Times and other papers for writing about it.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

OXLEY: The president wasn't dumb enough to go out there and talk about methods and the ways that this program worked.

(END VIDEO CLIP)

WALLACE: This was a taste of the intense debate on the House floor this week over the New York Times' decision to publish a story about how the government tracks terror finances.

And we're back now with Brit, Nina, Bill and Juan. Well, two interesting developments this week. First, the debate over the decision by the New York Times and the L.A. Times to publish that story raged on.

And something that didn't get as much attention -- USA Today, which reported that three major phone companies provided the government with phone records, is now backing away from much of that story.

Brit, do you see a trend here?

HUME: I think there's a parallel between these two developments, and I think it comes down to this. I have read through all the explanations given by Bill Keller and the editors of the other papers that published this story who have spoken out about it.

This is a story on the bank financing. And their arguments for why they have a right to do it are very compelling. Their general argument that it's better to disclose, we're in the disclosure business, is "duh".

But their argument for the publication of this particular story, I think, is almost totally empty. They keep saying, Chris, that well, you know, the terrorists had to know about this anyway, and a lot of people knew about this.

Oh, if that's true, then why is it front-page, lead-story news? I mean, they come perilously close to arguing there wasn't any news in their own story in order to defend its publication.

And I don't think anybody at the New York Times with any brains thought this through very carefully as to why they wanted to do this. I think they're operating on a universally felt impulse in those hallways that is similar to the impulse that drove the people at USA Today to do the story they did about the phone data bank.

And that is a generalized feeling that anything you can report that's going on in secret by this administration for the purpose of terrorist tracking is probably illegitimate in some way and you ought to go with it.

I think it's poorly thought through, poorly thought out. I think it's pursuit of prizes. And the stories have come a cropper, both of them, in different ways, and they deserve to.

WALLACE: Juan, do you think there's a kind of innate anti-Bush bias in USA Today, L.A. Times, New York Times?

WILLIAMS: I don't work at those institutions. I don't know. But I would say that sometimes I think they overextend. They seem to be breathing pretty heavily in the reporting at times. And when you look at the Pulitzer prizes, how the Pulitzers are awarded, they seem to go to just those kinds of stories, so I would understand what Brit's saying.

But to suggest that it's all political -- I think that may be a bit too much. I mean, you know, this is July 4th weekend. I think the whole idea the founding fathers had was that the press is supposed to be a watchdog not, I mean, and not supposed to be a lapdog for the administration. They're not supposed to just go along.

And if the press knows about secret programs that are being done without the citizens of our nation having any knowledge of it, and this is going on for a time -- remember, they gave the New York Times on the -- the New York Times gave the administration on the previous story a one-year period in which to hold off a story.

In this case, they go to the administration. The administration grants them 20 interviews to discuss the program. I don't think that sounds like an irresponsible press.

HUME: Well, at the end of the day, I think they need to be judged by the decision they ultimately make. I think that's the only right and fair way to do it.

Look, Juan, I believe that these newspapers had a right to publish these stories, a legal right to publish these stories, and I don't think that the New York Times should be prosecuted in this case.

I think the leakers should be prosecuted, you know, if they can be found. I also think, however, that these newspapers need to be held to account, as indeed I think USA Today now has been, for the damage that can be done when you make a disclosure of the details of a secret program.

It is one thing -- the editors at the Times make much of the fact that Congress had only the most minimal oversight, in their view, of how this program was being run. Well, if that were the case, you could do a very broad story about limited congressional oversight of secret antiterrorist programs without disclosing the details.

What the Times seemed to feel compelled to do and what USA Today was dying to do, even though they got it wrong, was to disclose the details of secret programs. It seems to me that that's a case where they very badly need to be held to account.

WALLACE: Nina, let's talk about that, because the editors of the New York Times and the L.A. Times, Dean Baquet and Bill Keller, wrote a very unusual joint op-ed piece that ran in both papers yesterday, and in that they defended their thinking, their reasoning.

Let's put it up on the screen. "Our job," they wrote, "especially in times like these, is to bring our readers information that will enable them to judge how well their elected leaders are fighting on their behalf and at what price." Do you find that convincing?

EASTON: Well, what they tried to do with this letter is -- they were basically saying what their critics are saying, which is not everything is fit to print.

And being under assault as they have been this week and months leading up to this, they attempted to put a window on the process of how they make these decisions and that, in fact, you know, they don't report troop movements and so on, and there are times when they don't report things.

What was left out of this letter was the insight into the process that we now know, that Treasury Secretary John Snow asked them not to -- or asked the New York Times not to print this. The leaders of the 9/11 Commission -- Tom Kean, who's a Republican, and...

WALLACE: Lee Hamilton.

EASTON: ... and Lee Hamilton...

WALLACE: And John Murtha.

EASTON: ... and John Murtha asked them, so it was a fairly widespread, you know, hope on the part of a lot of people in this process that they wouldn't print this.

I'll also add on this question about the ideology, I think there is -- the main ideology is a drive for prizes and a drive to, you know, get this kind of news out, but there is this -- the New York Times, I think, has opened itself up to attack when its publisher declared this war as a misbegotten war and in a recent speech attacked the administration...

WALLACE: In a graduation speech he apologized...

EASTON: ... at a graduation...

WALLACE: ... to the generation that we had left them with the mess that we're in now.

EASTON: Yes. And I think that was a very unfortunate moment for the New York Times.

WALLACE: Bill?

KRISTOL: It was a very revealing moment for the New York Times. It was nice of the publisher to come clean. No, this is the war against the war, which the New York Times is leading.

I think it is an open question whether the Times itself should be prosecuted for this totally gratuitous revealing of an ongoing secret classified program that is part of the war on terror.

They weren't exposing any abuses. This wasn't something the administration was embarrassed about. In fact, it's a success for the administration. There's no bad motive.

Think about this if you're an editor. One reason you might print something is you think well, the administration has bad motives for keeping it secret, it's political, there are abuses they're covering up, they're embarrassed about it.

This was a positive for the administration. They wanted to keep it secret because they thought it was important that it be secret, period. In that case, you've got to defer to the administration, to the U.S. government, if they say this is an important ongoing secret program.

In any case, they're certainly going to go after the leakers. They're certainly going to call the Times reporters and editors as sources, as witnesses to who committed the crime of leaking. They're going to be put under oath at the grand jury. And if they choose not to answer, they'll suffer the same fate as Judith Miller.

WILLIAMS: Are you breaking a story here? They're definitely going to do this?

KRISTOL: Absolutely. They've got to go after the leaker.

WILLIAMS: I don't see any evidence -- I don't see any evidence...

KRISTOL: You've got go to after the leaker. And the way to go after the leaker is find the witnesses who know who the leakers are. The witnesses who know who the leakers are, are the reporters. And Justice Stevens, when he steps down from the court, will be a very good counsel for the New York Times.

WILLIAMS: Oh, stop.

KRISTOL: He can help advise them.

WILLIAMS: But we don't see any evidence that they are going after the leakers. Instead, we see evidence of the president standing up this week in St. Louis at this event for Jim Talent, and he's just kind of trying to stir the base by beating up on the New York Times.

And it becomes at that point more political and a distraction from Iraq and gas prices than anything else.

WALLACE: All right. We're going to have to leave it there. Thank you, panel. That's it for today. See you next week.

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