'This Is a Monumental Decision'

J$P Instant Transcript! The Judge rules on the Supreme Court's Gitmo opinion. More GOP propaganda from Fox!

From Studio B, June 29 2006:

SHEPARD SMITH [FOX NEWS]: Joining us now in Studio B, Judge Andrew Napolitano, Fox News Senior Judicial Analyst and a former New Jersey Superior Court Judge. In a phrase, your reaction to what they did?

JUDGE ANDREW NAPOLITANO [FOX NEWS]: In a phrase, this is the rule of law over the need of the moment, because the Supreme Court declared, with a lot of certainty and clarity, that the Geneva Conventions apply to the war on terror. It governs the President's waging the war on terror. It not only applies to these people in Guantanamo Bay, but it applies to wherever American forces go around the world. And the Geneva Convention supplies a minimum standard of appropriate behavior in all wartime.

SMITH: And as rulings go, over recent history of the Supreme Court, how would you put this one?

NAPOLITANO: I think this is a monumental decision. This is an enormous, enormous setback for the administration. The Supreme Court did not have to find that the Geneva Conventions apply to the whole war on terror. But basically what the court said was: you can't just make up the law as you go along. We had signed the Geneva Conventions in 1949. Under our constitution, a treaty is the equivalent of the Constitution. And the Geneva Conventions apply to these guys, who are not wearing uniforms, and who are not part of a government army. And those conventions say: you've got to give them a real trial, it's got to be a fair trial, you can't use hearsay, and they have to be able to see the evidence against them.

SMITH: Tony Snow played this very low. Your estimation of whether the Bush administration would have anticipated such a thing to this level?

NAPOLITANO: Oh I think the Bush administration anticipated most of this.

SMITH: It's a worst-case for the Bush administration?

NAPOLITANO: It is a worst-case scenario, because of that finding that the Geneva Conventions apply to the entire war on terror, even though the only issue before the court was these tribunals in Guantanamo Bay. See, the President and his advisors created these tribunals in such a way that it would be easier to get convictions.

SMITH: In other words, without evidence being presented.

NAPOLITANO: Correct, or with secret evidence being presented.

SMITH: Ah, yes.

NAPOLITANO: The Geneva Conventions say you can't do that. You've got to try your enemy combatants using the same rights that you give your own citizens in your own courts. Now that doesn't mean in a civilian court of law in the United States. It can be in a Court Martial before military officers in Guantanamo Bay. But with fairness.

SMITH: You get to be there.


SMITH: You get to hear the evidence against you.

NAPOLITANO: Absolutely.

SMITH: You get to face your accusers.

NAPOLITANO: Absolutely.

SMITH: The kinds of things that one might argue that the founding fathers wanted for everybody involved with anyone American in any way.

NAPOLITANO: That's why our protections in the Constitution protect "persons", not "citizens"--

SMITH: Not citizens.

NAPOLITANO: --persons, all individuals subject to the government.

SMITH: Now Lindsay Graham, listen to what Lindsay Graham said today. Listen:

LINDSAY GRAHAM [VIDEO]: I am suggesting I'm going to go to work with Senator Kyl to come up with a statute that would authorize military trials of terrorists. I believe it is very inappropriate to try these people in civilian court. It would undermine our national security. They need to be tried in a military commission, military tribunal--

SMITH: That was on Fox News. The President referenced that very statement. Can they do that?

NAPOLITANO: No. The reason--

SMITH: So what Lindsay Graham is suggesting there cannot be done?

NAPOLITANO: Correct. And in fairness to him, the opinion's 132 pages long, he probably didn't have a chance to read it.

SMITH: Of course.

NAPOLITANO: The opinion does not require trials in United States District Courts. It gives the government the option of trials in the United States District Courts or trials before Court Martials. But it absolutely prohibits establishing another court system, like tribunals or commissions, just for these people, because it says the Constitution and the Geneva Conventions prohibit that. And the Congress can't change the Constitution or the Geneva Conventions.

SMITH: There are a lot of people out there furious about all this. Is it possible to look at this, is it right and proper even to look at this, and say: you know what we just did? We just said to the world: we have a system. We've agreed to some rules; we're going to work through them. It's not that we want to let people who have wanted to harm America or kill Americans off the hook. It's that we want to show the world this is how we do things. This is how democracy works. When you sign on to conventions, you stay with them. And we're going to work within the rules, and we're still going to figure out a way to prosecute them, because we can do that in this system called democracy.

NAPOLITANO: I think you just summarized the case very nicely. It basically says we're going to give the same rights to those who hate us and want to kill us and want to destroy us, as we give to our own people. There isn't a system on earth that does that.

SMITH: That sounds like a victory in some ways.

NAPOLITANO: It's a victory for the rule of law. It's a victory for American taking the high road and doing the right thing, even when the people are bad and evil and would destroy us if they could.

SMITH: It's not like we have to let them out of prison, do we?

NAPOLITANO: No, no, we don't have to let them out of prison. And anybody that thinks the Supreme Court ordered that is incorrect. But we have to give them a fair trial.

SMITH: Judge, thank you.

posted: Thu - June 29, 2006 at 04:06 PM       j$p  send