Special Report Roundtable - February 20

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MORTON SKLAR, HUMAN RIGHTS USA: That represents a huge threat to and great danger to the United States Constitution and it threatens not only the protections of the Constitution for these Guantanamo Bay detainee's, but for others as well.

MICHAEL CARVIN, FMR DPTY ATTY GENERAL: If this ruling had gone the other way, the judiciary would essentially have a blank check to dictate the conditions of confinement for enemy combatants.

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HUME: Well, what are they arguing about? They're arguing an -- Court of Appeals decision -- two to one decision -- reached today, or at least issued today -- found that enemy combatants detained at Guantanamo Bay, and perhaps elsewhere, no longer have the ability to sue, as Americans can -- as American citizens can -- in U.S. courts to challenging their detention. They ruled, did the court, that the Congress had responded to a ruling by the Supreme Court that the earlier system was unconstitutional and by passing a bill which set up military commissions, which give these detainees a right to appeal their detention before those commissions and therefore, with that system in place, access to U.S. courts was cut off and that's what the court ruled.

And you heard the guy from Human Rights Watch, and others are saying this too, that oh my god, American constitutional rights are threatened. Some thoughts on this from Fred Barnes, executive editor of the Weekly Standard; Bill Sammon, senior White House correspondent of the Washington Examiner; and Mara Liasson, national political correspondent of National Public Radio -- FOX NEWS contributors, each and every one. And what about this -- Fred.

FRED BARNES, WEEKLY STANDARD: Well, look, that was hysterical what that lawyer for the terrorists who are held at Guantanamo said. I mean, this isn't threatening anybody's liberties in the United States or constitutional rights, at all. It applies only to these people captured in wartime who are at Guantanamo, who have never lived in the United States, own property here and so they don't have a right.

HUME: They're not American citizens...

BARNES: And they've not American citizens and they're not on American property. You know, Guantanamo's in Cuba it's a -- the sovereignty there is owned by the Cuban government and so, this was a very, I think, a very simple ruling were habeas corpus didn't apply. I mean, they cannot -- habeas corpus, that just means you could say you were jailed illegally...

HUME: And go into U.S. courts.

BARNES: And to into the U.S. courts.

HUME: But, these people are not without this recourse, right?

BARNES: Right.

MARA LIASSON, NATIONAL PUBLIC RADIO: That's right. The court ruled that the military commission's act set up a process where they can appeal their confinement to a military commission and...

HUME: Do I understand it correctly that if you fail at the commission level, you could appeal to a higher military court and eventually, if you fail, you can appeal to the U.S. Supreme Court.

LIASSON: Right, which is where this case is going, too. This isn't the final word on this.

HUME: I'm sure it is.

LIASSON: This will be appealed to the Supreme Court, and right now, you'd have to see that this step is certainly a victory for the Bush administration, which turned around after it got the ruling from the Supreme Court and asked Congress to write this law, which it did. And you know, right now, these prisoners don't have the rights that U.S. citizens enjoy. They do have this alternative route, which the court said is equivalent or at least adequate -- adequate -- sufficient.

BILL SAMMON, WASHINGTON EXAMINER: Well, I mean, you know, this is, politically, this is a major victory for Bush and...

HUME: How so?

SAMMON: Well, because he's had a rough patch and he hasn't been able to catch a break lately and here we have a major issue where he had been rebuked by the Supreme Court...

HUME: Of course, it ain't over, right? It's going to go...

SAMMON: It's not over, but you have to expect that when it gets back to the Supreme Court for the second go around, which it certainly will, they are going to be more likely to go along with Bush's view of things because now, per their suggestion, Bush has had legislation passed and he's signed legislation that addresses the problems that made them reject his original rules for holding...

HUME: The reason that the previous arrangements, under which these prisoners were being held, were found acceptable was that the president lacked authority from Congress to set the system that he's set up, so he went to Congress, got the authority and that's the basis on which they're proceeding now.

SAMMON: Exactly, after 9/11 he had instituted sort of unilaterally some rules about holding detainees, and those rules were what was found to be unconstitutional and so Bush said, OK, we'll get legislation. Congress passed legislation, I'll sign it, and they did that and now it's being approved up the court chain, probably will be when it gets to the Supreme Court again.

BARNES: Naturally, the knee-jerk reaction, the people like, well, the new chairman of the Senate Judiciary Committee, Pat Leahy and Chris Dodd, is he a member of the -- the senator from Connecticut, I'm not sure if he's on that committee or not.

HUME: I don't remember. He's the chairman of the Banking Committee.

BARNES: But in any case, oh, we have to write a new law, this is unfair, the American's moral standing will decline. Well look, those seized in warfare have never had the opportunity to appeal and anything, in the past, appeal the U.S. courts. Japanese soldiers who are captured and held here were not, Germans were not, even when they were held on American soil. I mean, there were a lot of prisons here during World War II, they weren't allowed to appeal. So, it would be utterly unprecedented for these detainees to be able to use habeas corpus. I think they're getting a heck of a break just being able to appeal these military commissions.

SAMMON: I think the key finding is what you mentioned earlier. One of the -- I think two of the judges, obviously two of the judges, said today if you don't own property in the U.S. and you don't live here, you are not going to get the constitutional rights that American citizens get or people who own property in America, at least, and as Fred said, they're not even being held in the United States, so this business about oh, this is going to strike down habeas corpus for American citizens, well no it isn't. I mean, American citizens have that protection, have that ability to go to a judge, if they feel they've been wrongly imprisoned and demand a reason for that imprisonment in a way that these detainees can't.

HUME: Next up with our panel, we'll talk about congressman, John Murtha's pronouncements on Iraq and its position among Democrats. Stay tuned.

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JACK MURTHA (D), PENNSYLVANIA REPRESENTATIVE: People tend to say, well, if we leave there's going to be chaos. I don't believe that. Seventy-eight percent of the Iraqis say that's not going to happen, 78 percent of the Iraqis say it'll be -- we're the ones that are causing this and al Qaeda's going to be -- al Qaeda's going to disappear.

The United States should not be lowering its standards to the standards of terrorists and I think that's a very important point. This is in the hearts of minds of people. That's why I say it's important to get them out of the Green Zone, get them out of Saddam's palace. They're in Saddam's palace. What does that signify?

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HUME: Well, it will come as news to the American forces that they're living in Saddam's palace, the Green Zone is occupied by a number of things including the Iraqi government, at the time, but that's Jack Murtha and he has become, perhaps, the leading Democrat in the House of Representatives on the issue of Iraq and troop withdrawal. He is Nancy Pelosi's close confidante on the issue and she boomed him, you may recall, for majority leader. That failed, he lost to Steny Hoyer, but he remains a very important public spokesman, widely admired. He is, of course, himself, a veteran, with a long history of involvement in military affairs.

Back with our panel on this. Now, you also heard him say that 78 percent of the Iraqis think that we're the ones who are causing the violence. Do you know what that number comes from? I don't remember seeing that anywhere.

BARNES: I don't know that one. There was an earlier poll he used to site where it said that something like that number -- that percentage of Iraqi wanted Americans out of Iraq, but it didn't say when and then the ABC did a more extensive poll...

HUME: You could say 100 percent of Americans want Americans out of Iraq, too.

BARNES: Yeah. No, ABC did a more extensive poll with a bigger sample and found out only 29 percent or Iraqis wanted Americans out now. So, I think there's a big distinction there. But look, this is a guy that says a lot of wacky things, it's a...

HUME: Al Qaeda is for to disappear, he says.

BARNES: I know. The -- there were stories just in the New York Times and Washington Post and other papers saying that, just this week, that citing intelligence sources saying that al Qaeda is -- has regrouped effectively, and that Osama bin Laden may even be back in firm control of al Qaeda. So, I don't know how he says that.

He said these things, you know, we can redeploy American troops nearby in Okinawa, which is 5,000 miles away. You know, he said we should bull those of Abu Ghraib prison, which the U.S., I don't think, has any prisoners anymore. The whole thing was turned over to the Iraqis a year and a half ago. He said, you know, the Haditha killings, where these Marines, one of them was killed and then they killed a bunch of Iraqis, he said that it was in cold-blooded murder and he knew that because the Marine commandant had told him. Well, it turned out, he didn't talk to the Marine commandant until a week later, after he'd made the statement, and on and on and on. And he's a strange guy. You can see already some Democrats that are having qualms about following this guy on Iraq. I think one of those is Steny Hoyer, who said, well, he'll have to look at the legislation first before he makes a statement.

HUME: Or he's gone over his latest plan -- his latest plan...

LIASSON: His latest plan is to basically, instead of just simply defunding the war, which he could do, which Democrats could do if they wanted to, they could try -- he's going to set up a set of standards and conditions on deployment. So in other words, troops couldn't go unless they met a certain level of readiness, a certain level of training, certain equipment requirements, which in effect, would make it almost impossible to send troops over there. So, it's a kind of a slow-walking of the surge.

Now, it's been described as a slow-bleed strategy, not necessarily by Murtha, himself, but that's something that, I think, helped motivate Republicans to vote against the nonbinding resolution when they read about that.

But look, I think that Jack Murtha served the Democrats very well at certain point in this debate. Because of his military credentials, they kind of used him as a cover or front man to make the argument that the war was wrong and, in so doing, they got in sync with a majority of American opinion and they rode to victory in the House. Now, I think what he's doing is not necessarily representing the majority of American opinion or even majority of Democratic opinion.

SAMMON: He's saying that al Qaeda is going to disappear, no one believes that.

LIASSON: No, I'm talking about his plan for...

SAMMON: Well, but when you make statements like that, you don't have a lot of creditability. The other thing is his plan to put these restrictions on troop deployments and so forth is essentially micromanaging the war and is a constitutional power grab. That is up to the commander in chief, the Congress has the power of the purse, they can cut off funding or they can fund it, or they can partially fund it, but they cannot micromanage the war. The actual execution and prosecution of the war is up to the commander in chief.

We hear all this talk about Bush, you know, grabbing power from the legislative branch, well, this is the legislative branch trying to grab the legitimate constitutional power from the executive branch.

BARNES: You know, it's one of these things, that's just too cute -- his proposal to, I'm going to have these limitations on the troops, it's putting conditions on funding the troops, but it's designed to stop additional troops going in and then forcing them to be drawn down while ostensibly, you know, doing the -- putting these training requirements on troops. I think it's not going to pass.

HUME: OK Fred, thank you very much.