[Daryn Kagan:] If a military tribunal is good enough for wayward American troops, why isn't something similar good enough for suspected terrorists? And tracking detainees: how much does Congress need to know?
[Unidentified Male:] Need for Congressional oversight and vigilance is not, as some mistakenly describe it, to protect terrorists. It is to protect ourselves.
[Kagan:] Also, culture clash in Saudi Arabia. Should women in the U.S. military abide by local custom and cover up when off base? Find out why an Air Force pilot is suing to take it off. Welcome to TALKBACK LIVE. Another great audience behind me and all around me, and we're glad to have you at home with us as well. This is
[Talkback Live:] "America Speaks Out." I'm Daryn Kagan. The question today: Are your rights and mine as well being violated by the administration's war on terrorism? Congress is on the case. You might have seen this live, earlier on CNN, as Attorney General John Ashcroft was making his case, saying the world is a different place now, defending military tribunals for accused terrorists, and the rounding up of possible suspects in the aftermath of 911. Here to talk about that: Karen Pennington. She is a Dallas attorney who is representing several detainees that have been rounded up since September 11. Also, Paul Kamenar. He is senior executive council of the Washington Legal Foundation. Welcome, and thanks for joining us here on
[Talkback Live. Karen Pennington, Attorney:] Thank you, Daryn.
[Paul Kamenar, Washington Legal Foundation:] Thank you.
[Kagan:] Karen, I want to go ahead and start with you. I know you have a number of stories of what has happened to a number of your clients. But tell me the story of the client, in particular, who voluntarily went in for questioning because he thought he had information that might be helping investigators looking into the hijackings of 9-11.
[Pennington:] That client is a Jordanian Palestinian who has been married to a U.S. citizen since June of 2000. He believed that he had information which was valuable to the FBI, and he was convinced by his U.S. citizen wife to voluntarily go forward and call the FBI 1-800 tip line on September 14 of this year.
[Kagan:] Can you tell us what that information was?
[Pennington:] He was recruited for flight training in Dallas, and met in a restaurant with two men he identified as Saudi pilots. When he was shown pictures of the suspected bombers, he was identified one of the persons that he saw as the pilot of the second plane that crashed into the World Trade Center, Marwan al-Shehhi.
[Kagan:] So he believes he actually met with one of the men who was on one of those flights.
[Pennington:] He does.
[Kagan:] And he was trying to help. But what happened to him, and where is he now?
[Pennington:] He was questioned by the FBI for many hours, and then was given a polygraph. He never had an attorney, never...
[Kagan:] Is it a polygraph that he failed? How did he do on that?
[Pennington:] Well, he was told that he failed. In speaking with expert polygraphers, regarding the testing that was done of him, I believe that there were some questionable aspects of that. But since I wasn't present and because he was wasn't represented by an attorney through this, it's rather hard to say.
[Kagan:] Now, given all this, isn't it possible, Karen I know it's your job to defend your client, and you want to believe innocent until proven guilty. But some of the coincidences here he was meeting with somebody who was connected to these people. Officials believe he failed the polygraph. Is it actually possible that he is the kind of person that officials should be detaining right now?
[Pennington:] They have never made any charge like that. They've never tried to talk to him at any point past September the 15th. And he has been jailed in Denton, Texas, and is in INS custody since September the 14th, even though he is married to a U.S. citizen.
[Kagan:] And what are you told, that he could be there for how long?
[Pennington:] Indefinitely, until they either deport him or until or until the petition that his wife filed for him is approved, or until his family can come up with the $15,000 bond that has been set for him.
[Kagan:] Which is out of their limits of resources right now?
[Pennington:] Yes. This is a Texas country family, and it is outside their reach.
[Kagan:] Paul, let's bring you in here. You're a lawyer. You went to law school believing in the system. You hear a story like this does this make your lawyer skin cringe?
[Kamenar:] Not at all. I don't know the facts of this particular case, but it sounds like this particular person is one of 550 individuals that are currently in INS custody because of INS violations. Since September 11 or, actually, as of now, there are 600 in custody. Fifty have been charged with actual criminal charges, totally legal.
[Kagan:] But do the math there. That's a lot of people. Only 50 of 500 or 600 that haven't been charged?
[Kamenar:] No. But the other 550 are being held on INS immigration charges, which sounds like this is what this particular case is, such as: you overstayed you student visa. Any number of violations, the INS has the authority to detain you or put you out on parole. And in this case, they're offering a $15,000 bond, which is not unusual. They could actually hold him indefinitely, if they wanted.
[Kagan:] And you don't have a problem with that.
[Kamenar:] Actually not.
[Kagan:] He's married to a U.S. citizen.
[Kamenar:] That doesn't make him automatically a U.S. citizen. You have to look at each case. There may be a problem in this particular one. But I'm going to tell you that if it is, this is certainly the exception and not the rule.
[Kagan:] But in general, you agree with the attorney general. These are different times, the world has changed and the rules need to be cracked down on.
[Kamenar:] Absolutely. You need to be aggressive and at the same time, respect civil liberties. And I think the attorney general and I think most American people the polls show this is doing a good job of walking that fine line.
[Kagan:] Before we even started this show, our audience had questions and comments on this. We're going to go right to the audience and Jacob, from Texas.
[Jacob:] Yes, I'm just kind of wondering. I mean, all along, our government, this INS deal about holding a on visa violations, all the government is finally doing is doing the job that they should have been doing in the first place, using our tax dollars for what they're supposed to be doing.
[Kamenar:] Exactly.
[Kagan:] Karen, do you want to jump in on that? Our audience seems to be very supportive of that, that this is just what the government is supposed to do, not just to protect U.S. citizens, but to keep the people here who are supposed to be here, and the people who aren't supposed to be here, well, send them home.
[Pennington:] The U.S. Constitution protects everybody who is present in the United States, not just U.S. citizens. And the question that...
[Kagan:] Hasn't the attorney general been very clear that all everyone is not equal right now? U.S. citizens right now have different rights than those who are not U.S. citizens?
[Pennington:] And I call into question whether that is going to lead to the erosion of rights under the U.S. Constitution, for all of us that by eliminating or reducing the rights of certain groups in the United States, then it becomes easier to divide everybody into this group should be entitled to rights, and because of this issue, these people should not. And instead, under the U.S. law, it is clear that everybody in the United States is protected by our Constitution.
[Kagan:] Back to the audience.
[Unidentified Male:] This is Bill from Kansas Bill.
[Bill:] Well, is the particular case you talked about, are there some INS problems with your client? Or have those been brought up at all?
[Kagan:] Karen, what is his INS status?
[Pennington:] He is a visa overstay, because he did enter on a tourist visa. And then, just like many, many of the clients I have in the immigration court, he is married to a U.S. citizen. And under the law in general, he is now required to return to his home country and wait for her to petition for him...
[Kagan:] What does that mean, "under the law in general"? Isn't the law kind of specific about what you're supposed to do? You're either supposed to be here, or you aren't supposed to be here?
[Pennington:] Well, but it listen, in many circumstances, people enter as tourists. They meet U.S. citizens, they fall in love and they marry.
[Kagan:] Don't many of those people follow the rules? Without being disrespectful, it kind of sounds like, I'd go, "Mom, the other kids are doing it." And she would say, "I don't care about the other kids. I only care about this specific situation."
[Pennington:] And so what you're saying is that nobody in the United States should have the right to marry anybody who is not a U.S. citizen?
[Kagan:] No, but isn't it possible to do it in a legal, proper way, that you come under a visa and you get married, and you go through the proper channels? You're much more familiar with the whole immigration process than I am, obviously, so you would know.
[Pennington:] This is not an uncommon circumstance at all. And in fact, one of our immigration judges in Dallas married a woman from Columbia, who was a visa overstay.
[Kagan:] Even the judges are doing. OK, let's go back to the audience Megan.
[Megan:] Hi. I was just wondering, what was he doing in the United States prior to his visa overstay? And is this just a way so can he stay here longer? I mean, what is his purpose?
[Pennington:] I wish that I could have his wife on right now. She says that he has treated her better than any American man she ever dated. Every time I talk to her, all she does is cry and say that she misses him so much, and she loves him so much, and that she regrets ever having advised him to go to the
[Fbi. Kagan:] That's right, is was her idea in the first place. Karen, before we let you go, I want to ask you quickly about this other situation, where the attorney general is saying that it's OK in certain situations for the government to listen in when attorneys talk to their clients. Have you faced that? And are you told if that's going to happen?
[Pennington:] Whenever that client, or others of my detained clients call me from the jail, in those circumstances, as soon as they come on the line, a recording comes on and says, "this call is being monitored." Those, it's clear that they're being monitored. There are also indications that my communications in general on my other phones are being monitored as well. And on those, there's no indication. It's just problems that we have with the phones, and sounds that we hear.
[Kagan:] It is... Yes, we're going to get to you in a second, because you're staying. But Karen needs to leave, and I know this is a difficult time, and I know you've taken on some difficult cases. And, Karen Pennington, I do want to thank you for taking the time to join us today and explaining your case, and how you see the issue. Coming up next this is going to make for some interesting conversation, here. We have the president of the ACLU and Georgia Congressman Bob Barr. Is it possible they could agree on an issue? We will talk about that. We also encourage you to get into our chatroom here and send in those e-mails. We'll be putting them on the air. Stay with us. Welcome back to TALKBACK LIVE. We continue our conversation, and now move on to military tribunals. Joining us now, Georgia Republican Congressman Bob Barr and Nadine Strossen, president of the American Civil Liberties Union. OK, welcome to both of you. Congressman, I'm going to start with you. Military tribunals...
[Nadine Strossen, President, Aclu:] I lost my sound.
[Kagan:] Can someone help out Ms. Strossen, so we can help here with some sound, there? While we wait for her, let's go ahead and talk to Congressman Barr. Congressman, first of all, good afternoon. It's good to see you.
[Rep. Bob Barr , Georgia:] Listen, it's great to be with you, and I really enjoyed the debate in the prior segment.
[Kagan:] Anything you want to add to that, before we move on to military tribunals?
[Barr:] No. other than the fact that I have very little sympathy for those who are in this country illegally, for whatever reason. While it may be the policy not to... ... always remove them immediately, I really don't have any sympathy for people who are here illegally and say, as you said, "well, everybody else is doing it." So I don't think that's a real appropriate case for us to worry a great deal about.
[Kagan:] All right, let's move on to military tribunals. Your name pops up, interestingly enough, as somebody who, in certain cases, is not comfortable with that idea. And as one of the more conservative members of Congress, I think some people were surprised to see that criticism come from you.
[Barr:] The very name of what we're talking about here, military tribunals, answers the question, to me, of when we can use these sorts of mechanisms. And in the three circumstances that we might be faced with, we can use them in only two. The third one, we can't. The first one, in which military tribunals, or whatever mechanism the president, as commander-in-chief, wants to use, is combatants overseas. Anybody that we come in contact with, and comes under our control as a combatant of a foreign nation or force, that's hostile to us, we should be able to take whatever action the president wants against them: shoot them on sight, hang them, shoot them while trying to escape whatever the military situation calls for. The second situation is in which we find ourselves, if we were in a state of war. If we are in a declared state of war...
[Kagan:] Which we're not right now.
[Barr:] Which we are not right now that's very, very important. Then the president would also be able to convene military tribunals, because he would be operating as the commander-in-chief. And if we were to find foreign combatants, that is, terrorists, in this country, he would be, I think, entirely within bounds of constitutional authority and precedent to treat them as harshly as he sees fit.
[Kagan:] So, just to cut to your main criticism, is your basic discomfort with this that we are not in a declared state of war, and if we were, you'd be more comfortable with what the president has planned for military tribunals?
[Barr:] Absolutely. If we are now in a declared state of war, then the Constitution Bill of Rights does prevail, because it applies not only to citizens, but all persons. And we have to be respectful of it.
[Kagan:] But do you understand what the president and what the Justice Department is dealing with here? They say they don't want to capture some terrorist and have to bring him back and put him on a regular trial. The security issues are a nightmare. Even evidence could be a nightmare, because you're going to have to present things that you don't want the public to know about.
[Barr:] Well, of course what I'm saying is, we don't have to bring anybody back here. If we get somebody overseas, keep them overseas and deal with them there. We don't have to deal with them here in the States. In every circumstance in recent history though, in which we have captured terrorists in this country and have dealt with them, some very heinous people, like Timothy McVeigh, our justice system has worked. And while we may find it cumbersome at times, while we may find it slow at times and heaven knows, as a former prosecutor, I've found that it does work. And I don't think that we can just ignore it, simple because we don't want to declare war. I think we ought to declare war these terrorists, and I think we should have done it on September 12th.
[Kagan:] And what's the problem? Why hasn't that happened, Congressman?
[Barr:] That's a very good question, because I introduced a resolution just a few days after the attacks on September 11 that would have declared war. I think it's the appropriate force of action...
[Kagan:] I'm sorry, I have to interrupt you for a second. If you could just stand by, I think we have some breaking news. Want to toss it up to Joie Chen. We'll get back to our discussion in just a moment. We will go back to the news desk as soon as there is more information. We'll be able to do both, monitor the situation in Indiana and also, continue our conversation right now on military tribunals. Congressman, if you're still with us. Are you?
[Barr:] Yes, ma'am.
[Kagan:] OK, hang on. We have a question for you from John. John, where are you from?
[John:] Wisconsin. Congressman, if not a military tribunal, then what? You said to leave them there and deal with them there. What are you suggesting?
[Barr:] For those overseas, that ought to be up to the commanders in the field who are in charged of our military operations, taking their directives on both policy and procedure from the commander-in- chief, from the president. What I suspect the president would do, operating through our military leaders, is to set up some form of tribunal, such as we have seen mentioned in the November 13 executive order, that would provide some form of basic due process for those who are captured. And if the punishment if their acts warrant the death sentence, then to mete that out overseas. There wouldn't be any reason to bring them back here, stateside.
[Kagan:] All right, Congressman, we have fixed our problems with the ACLU Nadine Strossen. Nadine, can you hear us now?
[Strossen:] I am. I'm so sorry I missed the rest of the discussion.
[Kagan:] It was fascinating. You missed good stuff, but we'll give you a chance to catch up, OK?
[Strossen:] Great.
[Kagan:] We're talking about military tribunals do we have go to break? Did I just hear that? No. OK, we don't have to go to break yet. A chance for you to get your two cents in, here the ACLU stance on them?
[Strossen:] Well, it's not only the ACLU stance, but interestingly enough, many respected conservatives, including "The New York Times" columnist William Safire, have also been highly critical of these tribunals. In fact, a number of the critics include national security experts and Justice Department prosecutors, who say they are counterproductive...
[Kagan:] Nadine, based on what? Instead of just saying they're bad. What is the basic problem with them?
[Strossen:] Well, the basic problem is that they violate fundamental human rights. And therefore, our allies are refusing to extradite for trial in the United States, actual terrorism suspects. And that is far more important, that we be able to try those people, than that we round up the thousands of people who are suspected only of immigration violations in this country. The proceedings would be secret. They would have absolutely no legitimacy in the eyes of the world. We would be defeating the very aims that we say we're seeking to serve namely, to promote democracy, the rule of law and human rights, internationally. Prosecutors an experienced prosecutor wrote in "the New York Times" this morning that it's counterproductive to try these people so quickly and so secretly because then you are not able to get the maximum amount of information from them that could help to yield clues and and lead to to lead to people who perhaps are even more involved or other people who are involved in terrorism.
[Kagan:] Congressman, maybe you maybe you could I want to get the Congressman's take on something that you brought up, Nadine. There is a kind of a basic process problem here with some countries. It might not be the United States that finds the suspects. It might be other governments, and they hold on, stand by one more time. We have some more information. So we're going have to Nadine and the Congressman stand by. Joie, you have more information on the situation in Indiana?