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We Won't Be Breaking the Next KSM

The Journal Editorial Report

Stuart Varney: This week on "The Journal Editorial Report," new restrictions on the interrogation of enemy combatants, and congressional debate on military tribunals may mean two major losses in the war on terror. Will be able to break the next KSM? Plus, this week's falling gas prices are a relief to motorists and may be a boon to Republicans. We'll debate the politics of the pump. Those topics, plus our weekly "Hits and Misses." But first, these headlines.

Varney: Welcome to "The Journal Editorial Report." I'm Stuart Varney, sitting in for Paul Gigot. The new Army Field Manual, released last week, greatly restricts the interrogation techniques allowed against unlawful combatants, including several techniques that have proved highly effective against top al Qaeda operatives.

At the same time, the Senate Armed Services Committee defied the president by passing a bill that does not set up a separate legal category for CIA interrogation techniques and requires classified evidence given to jurors to also be given to defendants. So in the fight to defeat terrorism around the word, have we become our own worst enemy?

Joining me now is Victoria Toensing, the former Justice Department official who established that department's terrorism unit. Victoria, first interrogations. In light of court rules and the Senate action, is America still capable of interrogating terrorist suspects effectively?

Toensing: Well, the interrogation might be able to take place. But the problem is that all the people who are interrogators might be prosecuted criminally if they violate this specific law. And that's the rub, Stuart. We have to clarify, as the president says, make legal clarification, so the people who work for us know when they're going to violate the law and when they're not.

Now, there's no issue about "you can't torture, you can't mutilate." But here is what the present law says basically: that there cannot be, quote, "outrages upon personal dignity or humiliating and degrading treatment." Now, to an Islamic fascist, being interrogated by a female is degrading. So how do our people deal with that kind of situation?

Varney: Victoria, could you see the day, some way down the road perhaps, when the ACLU sues a woman who has interrogated a Muslim terrorist suspect? I mean, is this wildly beyond the bounds of possibility or not?

Toensing: It is wild. And what's even wilder is the fact that one year ago, McCain agreed to the very language the White House wants today, for another piece of legislation. And why he and all the Democrats won't agree to it today is beyond me. It makes no sense whatsoever. But it puts our people at risk. And we shouldn't do that to the people who are out there working for us during this war.

Varney: Next issue, tribunals of some sort for Guantanamo Bay detainees. Do we now have a trial format that will be open, fair and effective?

Toensing: Well, we don't have the legislation yet, so we don't know whether we are going to have it. What the White House wants is a situation where, if you have to have classified information to convict a detainee, that the detainee does not get the specific classified information but would only get a summary. However, his JAG lawyer, his military lawyer, which everyone gets for free, and if he has another lawyer and that lawyer is cleared, those lawyers would get it. But the detainee and any uncleared lawyer would only get a summary.

You know what? That's the procedure that's used on our U.S. citizens who are brought to trial when there is classified information. Why do we want to make it better for detainees?

Varney: But is it such a sticking point just to hand that information over to the detainee, the accused, as well as the lawyers? It's not such a big deal, is it?

Toensing: Yes, of course it is. Let me give you a situation. What if we have a wiretap up in Iraq on "X," and we overhear "X" planning to bomb the Army barracks? Well, we have very reliable, adequate, accurate information to present at trial, but we don't want to give up the method or the fact of that wiretap, because we want to get more information from this place. What do we do then? You don't want to tell the detainee, Guess what, we were tapping you on such and such a phone on such and such a date. That's just one example of what the problem is.

Varney: Why is it, then, that Sen. Lindsey Graham opposes this? He opposes the president's proposal. I believe he is a retired former military judge himself. Why would he oppose it?

Toensing: You are going to have to go to Lindsey Graham for that, because it makes no sense to me whatsoever. What they say is, the public statement from the handful of Republicans and all the Democrats is, Well, we want our soldiers to be treated well if they are captured. I don't ever remember any of our soldiers being given the Bible and allowed to pray during the day. I see our soldiers, when caught, get murdered and drug through the streets of Somalia. I haven't seen this kind of reciprocity that we already give today.

Varney: What are the president's options now, then?

Toensing: The procedure in Congress. I mean the Supreme Court decision said, well, it's up to Congress to fix this problem. The executive can't. So here we are. The House already passed legislation that agrees with the president's position. Now we've got the handful of Republicans and the Democrats in the Senate. They're going to have to pass some kind of legislation and go to some kind of a meeting and try to work it out if they pass different pieces of legislation.

Varney: Is it possible to work something out with these two extremes?

Toensing: I am an optimist. We always have hope. If the American people put sufficient pressure on these people, we can work something out that protects the people who work for us, and does not give detainees better rights than with our citizens have when they go to trial.

Varney: Victoria Toensing, thanks for joining us.

All right, when we come back, will new restrictions on how we interrogate terrorists mean we will not be able to break the next KSM? Plus, lower gas prices at the pump may be rising chances for Republicans in November. Our panel weighs in on these topics, and our "Hits and Misses" of the week, when "The Journal Editorial Report" continues.

Varney: Welcome back. I'm Stuart Varney, sitting in for Paul Gigot. Last week, President Bush described how terrorists, like 9/11 mastermind Khalid Sheikh Mohammed, were made to talk using interrogation techniques in secret CIA prisons overseas. But do the proposed restrictions on how unlawful combatants may be questioned mean the next high-level al Qaeda operative captured won't give over his secrets? Joining me this week on the panel, editor James Taranto, as well as Wall Street editorial board members Kim Strassel and Rob Pollock.

Rob, to you first. Can we break the next KSM?

Pollock: I'm afraid not, Stuart. I think most Americans would be shocked to learn tha, according to the new Army Field Manual, detainees in Pentagon custody get better treatment than common criminals would get in an American police station. They can't even have a good-cop/bad-cop routine done on them.

Now, as for what the CIA is allowed to do to the so-called high level al Qaeda detainees, the rules are unclear. But frankly, you know, the climate of fear that's being created by these debates in Congress, particularly proposed language from McCain, which wouldn't really say what they can and can't do, I think what that means is there's not going to be more aggressive interrogation techniques.

Varney: Is waterboarding out for both Army personnel and for the CIA?

Pollock: I think for now, especially if the McCain language passes, waterboarding is out. Yeah.

Strassel: What we have too, we've just found out there are CIA officials who are buying insurance from the government, CIA interrogators, because they are so uncertain about the techniques they are using, whether they are legal or not that they've bought this insurance in case they are ever sued for what they have done to the detainees.

Varney: There is therefore a chilling effect on all forms of interrogation, just about, that are likely to be effective.

Strassel: Yes.

Pollock: Yeah, just as Victoria said, we need legal clarity as to what the interrogators can do. We owe that to the men and women who are defending America in this very important way.

Varney: Isn't that what the president wants, legal clarity?

Pollock: Yeah, he wants legal clarity. And McCain basically wants to leave the language vague and just say, Well, you know, we don't like torture. Well, what does that mean in practice? Vague language means there is not going to be aggressive interrogation.

Taranto: And the idea the Geneva Conventions protect terrorists is really an outrage and abdication of responsibility on the part of our leaders. The whole point of the Geneva Conventions is that they are reciprocal. Nations agree, when they fight wars, to fight according to certain rules of civilized behavior. These terrorists don't agree to abide by any rules. Then wantonly murder civilians, including women and children. This is like saying, your wife is being attacked by a mugger and you say, Well, honey, I'll defend you, but I'm only going to do so consistent with the rules of professional boxing. It's just crazy.

Pollock: Beyond that, it seems to me there is a sort of total moral confusion at the root of this debate. I mean, how can it be moral to blow an enemy to bits with a Hellfire missile but not be moral to capture that enemy and sort of question them in an aggressive way to get information that could save thousands of lives?

Varney: Doesn't the Geneva Convention say, if you sign it, your opponent does not sign it and does not act within its terms, that does not absolve you from acting within the terms of the convention itself?

Pollock: The Geneva Conventions explicitly say that certain rights and privileges are not owed to combatants who don't fight according to the rules of war. Unlawful combatants are not owed these duties--

Strassel: And when you blur the lines between them, what message are you sending? You are basically saying to these guys, Go out do your worst. Blow up as many people as you can. Think of the most heinous atrocities you can visit on people. And its OK, because we won't touch you when we get a hold of you.

Varney: What did the Supreme Court say on this issue?

Taranto: Well, the Supreme Courts said that something called Common Article 3 protects these terrorists. This was just a legal error. Common Article 3 is supposed to apply to civil wars, not to international wars.

Pollock: And it was suppose to apply to people who aren't taking part in combat. It was a very bizarre legal judgment.

Varney: Let's move on to Guantanamo Bay. James, you visited recently.

Taranto: I did, and the thing that struck me the most was, what we hear about it is distorted and false. For example, we keep hearing there is no due process. Well, let me give you one example of how much due process there is. In 2004, the Supreme Court decided a case called Hamdi v. Rumsfeld, and it said that if a detainee is a U.S. citizen, he's entitled to what's called an Article 5 hearing to review his enemy-combatant status. Well, Hamdi, the plaintiff in that case, ended up being released and renouncing his citizenship. But the military decided to give everybody at Guantanamo an Article 5 hearing. They've all had one now, except these 14 new arrivals. They didn't have to do that. They did that.

In addition, they have the equivalent of a parole hearing to determine if they can be released consistent with U.S. security. The Supreme Court said they with file for of habeas corpus, and almost all of them have lawyers. And the only reason that these war-crimes trials haven't gone forward is because Osama bin Laden's bodyguard was able to use our appellate courts to challenge the legality of the proceedings.

Varney: I don't know why I'm smiling.


Let me throw this on the table. Is Sen. McCain, in opposing the president's proposals, setting the groundwork for a bipartisan approach to the presidency in 2008. Rob Pollock?

Pollock: Well again, I think most Americans would be outraged if they understood what the consequences of what McCain is proposing.

Varney: But he's got the moral high ground because he was tortured.

Pollock: But he's proposing a system where we won't be able to do aggressive interrogations to protect Americans. And he's proposing, as far as the military tribunals go, that we have a system where you can't use classified evidence, which will be necessary when we're dealing with detainees--

Strassel: It's also unfortunate here that--I mean, John McCain, look, everybody has respect for what John McCain went through. But he of all people should be making the distinction between people like himself, who fought by the rules of war and should have been granted all the rights and privileges, and people who do not fight by the rules of war.

Taranto: And McCain was tortured by the North Vietnamese, who were signatories to the Geneva Convention and decided they weren't going to abide by it.

Varney: What do you think the Republican Party in the primaries for 2008 will make of Mr. McCain's position on this issue?

Taranto: Well, I hope they hold him accountable for it.

Varney: Any other comments?

Pollock: I think we're already seeing that Giuliani is ahead of McCain in the early polls, and I think that's because a lot of the Republican base understands he's weak on precisely these kinds of issues.

Varney: All right. When we come back, low prices at the pump may mean better chances for Republicans in November, and better chances for offshore drilling in the U.S. How about that? That, and our "Hits and Misses" of the week, when "The Journal Editorial Report" continues.

Varney: Welcome back. Gas prices fell to a nationwide average of $2.60 a gallon this week, almost 11 cents lower than a week earlier, and that is 40-cent drop from last month's. Pain at the pump had been a hot-button campaign issue for Democrats. So falling prices may fuel a resurgence for Republicans. How about that? But do lower prices mean an end to efforts to expand offshore drilling?

Kim, let's start with the politics of the pump, if we may. I don't want to be overly simplistic but: Cheap gas, bad for Democrats, good for Republicans. What do you say?

Strassel: Yeah. I mean, sometimes the simple answers are the best. I think that's absolutely right. This is--because this actually gets to the whole overall feeling in the country. Gas prices aren't just gas prices. Gas prices are how wealthy people feel overall. These high prices had really kind of made American households feel as though they just didn't have a lot left over at the end of the month to do things with. Prices going down, people are feeling much more happy about their general economic situation. And this is really lucky for Republicans, because they had handled this issue atrociously.

Varney: Rob.

Pollock: I think they have handled it atrociously. One hopes they're going to learn from the experience. Look--

Varney: Well, wait. What have they handled atrociously?

Pollock: Well, they've handled the whole issue of energy atrociously. Look, there is plenty of oil in the ground out there. The Saudis just said this week they think we have tapped maybe 18% of the world's exploitable reserves. There's plenty of oil. The question is, how committed are we to getting it out of the ground, and how committed are we to policies to get it refined and to the pump efficiently?

We've just been terrible on both of those in the United States. We don't drill in ANWR. We have restrictions about drilling off the coast. And in term of building refineries, there are all these crazy environmental rules that make it way more difficult that it should be.

Strassel: But the real political mistake here, though, for Republicans was not connecting these high gas prices to the fact that Democrats would not allow them to open up more areas for drilling. Instead, they just didn't want it to talk about it. And fair enough, because high gas prices aren't something you want to bring up. But they were there, and to the extent they were, they should have been out there saying, We've tried to pass ANWR five times in the House, and John Kerry won't let us get it through the Senate.

Taranto: And of course if $75-a-barrel oil wasn't enough to open up this drilling, $60-a-barrel oil obviously won't be. So I think this is going to be on hold for a while. Another point about the politics of gas prices is, gas prices are also a reflection of other things that are going on. They went up last summer after Katrina. They went up this summer because of the turmoil in the Middle East. So it's a double whammy for the other party in power because you have other bad things which then bring about high gas prices and hits us in the wallet.

Varney: But do you agree that on the other side of the coin, lower gas prices may be good for the party in power--i.e., Republicans?

Taranto: Oh, of course. What could be more obvious?

Strassel: From a political standpoint. But what they should be doing, what they should be pointing out--I mean, James is right. Prices have fallen. But they should still be pointing out, prices are still three times what they were in 2002. We are hardly back to kind of easy oil days. So what they need to be doing--right now the House and the Senate are having discussions about offshore drilling. The House passed a very good bill that would allow it off the coast of most of the country, although give the states the right to say how much drilling actually goes on. The Senate's passed a much less ambitious bill. They are going into conference soon, and with any luck, Republicans will push this and keep saying, Look, we're going to make this better.

Varney: Let me throw this out. Sen. Schumer should investigate the oil companies on the grounds that they are conspiring to lower the price of gas and therefore help the Republican Party.


Everyone agreed? Am I on solid ground or what?

Strassel: Don't offer any suggestions, Stuart.

Taranto: As Schumer would say, it is a dagger in the heart.

Varney: At the end of the day, are we ever going to be allowed to drill in ANWR and off the East Coast and the West Coast of the United States of America, where we have our own oil and gas?

Strassel: You know, one thing I think is happening--Americans are beginning to understand that drilling doesn't just lower gas prices, but it also means jobs. There has been a big support down in Louisiana, in particular, to expand offshore drilling there, because they've understood that, after Katrina, this is one of the best ways to restore their economy.

Varney: So you think we will get some drilling off the coast?

Strassel: I think we will if the Republicans start making the better case that you've got to link all these things together.

Varney: Rob, drilling or no?

Pollock: I think we might, because look, the potential instability in the Middle East that was driving prices up this summer--it's still out there. It's probably going to come back. I think hopefully Congress will come around to a more rational national energy policy.

Varney: Two optimists. And what says James Taranto?

Taranto: Well, optimistic in the long run, but I think it's going to take a while. The Republicans are going to have to make some further political gains. I think the Democrats, for ideological reasons, are determined to stop it.

Varney: Well said.

We have to take one more break. Now, when we come back, our "Hits and Misses" of the week.

Varney: Winners and losers, picks and pans, "Hits and Misses." It is our way of calling attention to the best and the worst of the week. Item one, former Iranian president Mohammed Khatami, had some interesting comments at Harvard. James?

Taranto: Yes, Khatami, the so-called moderate spoke there last week. And he said that he condemns terrorism--but he praised Hezbollah for "resisting Israeli colonialism." Now, Hezbollah is in Lebanon. Israel hasn't been in Lebanon for six years. So apparently, what Khatami is saying is that Hezbollah has a right to attack Israel because of Israel's conflict with the Palestinians. Well, by that logic, American has the right to attack Iran because of Iran's threats against Israel. So I think he may not quite have realized what he was saying.

Varney: So it's a miss for Khatami?


Taranto: I would think so. Maybe a hit for us.

Varney: Clearly. Kim, a hit for Chicago's mayor. What do you say?

Strassel: Yeah, this is a hit for Chicago mayor Richard Daley, and also the handful of alderman who this week helped him to sustain his veto against this big hyperminimum-wage bill that they were trying to levee against Wal-Mart. This was a tough call for Mayor Daley. He is a Democrat. He usually does what unions tell him to do. The unions very much wanted this bill as punishment for Wal-Mart because it wasn't a union shop. But he knew that if Wal-Mart got hit with this, they'd move out of the city, wouldn't build there. That would be fewer jobs for low-income Chicagoans and less sales tax. So, tough vote, but he did it.

Varney: I've got to say, I don't think it's necessarily a plus for Democrats to oppose Wal-Mart at every turn, frankly.

Strassel: No, and the left is beginning to understand that, as Daley just did.

Varney: And finally, has the Valerie Plame affair been put to rest once and for all. Rob Pollock?

Pollock: Well, it hasn't been put to rest for poor Scooter Libby, who's still got Patrick Fitzgerald after him. But we do know who the leaker was. It was Deputy Secretary of State Richard Armitage. He's 'fessed up. Columnist Robert Novak wrote a column this week explaining the circumstances of the column. Look, I think a lot of apologies are owed here. It's owed by the press and the Democrats, everyone who said this was a partisan smear job run out the White House by Karl Rove.

But frankly, I think the worst behavior here was from Mr. Armitage and his boss, Colin Powell, who knew of the truth and could have cleared everything up pretty quickly. Instead, we got a special-prosecutor investigation that consumed the energies of the White House during wartime, needlessly. That's about as dishonorable and dishonest as it gets.

Varney: You don't seriously expect an apology from the establishment media of the United States of America, now do you?

Pollock: I don't. But, look, they spent time hand-wringing about their coverage of Iraqi WMD. Well, they went further on less evidence in this case.

Varney: Now, what about that special prosecutor? What should he do now?

Pollock: He should fold up his case.

Varney: Should the president pardon Scooter Libby?

Pollock: The special prosecutor should fold up his case. There's no underlying crime. There's no reason for a prosecution.

Varney: All right. That's it. That is it for this week's edition of "The Journal Editorial Report." Thanks to James Taranto, Kim Strassel and Rob Pollock. I'm Stuart Varney. We thank you for watching. Paul will be back with you all next week.

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