O'Reilly: When It Comes to Terrorism, Lose the Constitution!
Reported by Marie Therese - November 10, 2004 -
On November 9, 2004, Bill O'Reilly interviewed FOX Senior Judicial Analyst, Judge Andrew Napolitano, on three subjects: The Ashcroft resignation, the dismissal of Juror #7 (which we won't cover here) and the recent actions of Federal Judge James Robertson, who halted the military trial of Salim Ahmed Hamdan on constitutional grounds. O'Reilly titled this segment "Dangerous Ruling?" He was in rare form, bashing yet another federal judge in his Tuesday Talking Points memo:
"So who is Judge James Robertson? Appointed to the federal bench by President Clinton, the judge is an activist, often working for progressive causes."
"Last September, Robertson denied the Bush campaign's request to order the Federal Election Commission to move against moveon.org and other left- wing Web sites which abuse the spirit of campaign finance reform. Judge Robertson also denied oil exploration in Utah and threw out Ken Starr's tax fraud indictment against Webster Hubble."
"Now, remember, Starr wanted that action to force Hubble to testify against the Clintons in Whitewater. Subsequently, Hubble did not testify, the Clintons were not prosecuted."
"So Judge Robertson is a very interesting guy and has now made it much harder for the federal government to prosecute accused terrorists. In turn, that can't be good news for us, as we are the targets of terrorism, aren't we, Judge?" (End of excerpt, Talking Pts. Memo, 11/9/04)
After plugging Napolitano's new book, "Constitutional Chaos," O'Reilly questioned him about John Ashcroft's resignation. My report/transcription follows.
Andrew Napolitano responded that, although he has criticized Ashcroft for the past four years, the Attorney General was "in a hard spot" because America was unprepared for 9/12 and Ashcroft was granted sweeping new powers by the Congress. "By exercising those new powers he came off as a tyrant. I think he did his job from his point of view aggressively and fairly. I don't think he had regard for the Constitution. I think he decided to let the courts worry about that. In that respect, he was a good Attorney General...[however] he invaded privacy. He disregarded the Fourth Amendment in a noble, zealous cause, to keep us safe from the terrorists. But, the Constitution is the supreme law of the land, not the Attorney General."
O'Reilly: And he's gone because he's just exhausted ...?
NAPOLITANO: I think he's exhausted and I think he has some medical problems.
O'Reilly: Oh, I think Bush was lookin' around for a change in there anyway.
Later:
O'Reilly: Now, this Judge Robertson. I mean, come on. I mean, you're a big privacy guy, but - Jesus - I mean ...
NAPOLITANO (interrupts): I'm a big Constitution guy.
O'Reilly: ...ridiculous.
NAPOLITANO: I understand your frustration.
O'Reilly (petulantly, getting louder): The Geneva Convention is NOT in the Constitution.
NAPOLITANO: The Constitution says this Constitution and all treaties entered into pursuant to it, of which the Geneva Convention is one, are the supreme law of the land. The Congress has said, when you arrest somebody from another government, you have to give him a trial to decide if he is entitled to prisoner of war protection. In this case he [Salim Hamdan] didn't get the trial. President Bush declared he was not entitled to POW protection. President Bush, by doing that, violated the law.
O'Reilly: So you think that, as soon as these guys get picked up on the battlefield, they gotta go before you, another judge?
NAPOLITANO: No. They can go before the military tribunal. That's what the Congress has written in the Uniform Code of Military Justice.
O'Reilly: Alright. So, what the Bush administration should have done was not just declare them an enemy combatant but parade them in front of a military tribunal ...
NAPOLITANO (interrupts): A fair tribunal.
O'Reilly: ... in Guantanamo?
NAPOLITANO: In Guantanamo it would have decided [if] he's a prisoner of war and he gets Geneva protections [or if] he's not a prisoner of war, he goes before a military tribunal. That would have solved the problem.
O'Reilly: But this judge has gone further than that, saying that even the military tribunal designation might not stack up. You read it.
NAPOLITANO: Correct.
O'Reilly (loudly): Might not stack up!!!
NAPOLITANO: And let me tell you ...
O'Reilly (really angry): ‘Cause he wants all terrorists to be POW's!!
NAPOLITANO: No, he doesn't.
O'Reilly (really angry now): Yes he does!!!!
NAPOLITANO: He wants the Constitution enforced because the Supreme Court said ...
O'Reilly: Aw, stop ...
NAPOLITANO (raising his voice) to be heard): ...as recently as June, Bill, that the...
O'Reilly (exasperated whisper): Come on.
NAPOLITANO (speaking faster): ... Constitution applies in Guantanamo Bay. Let me tell you why. The President's Commission proposal ... allows secret evidence presented against you without you in the courtroom. The Constitution and the Supreme Court have prohibited that.
O'Reilly: No. In a military court, you can present the evidence to the military tribunal, right?
NAPOLITANO: In the presence of the defendant and his lawyers.
O'Reilly: Yeah. He's there.
NAPOLITANO: But the Commission rules that the President wrote - that the Defense Department was going to enforce against this guy, until Judge Robertson intervened - said you can have secret evidence that the defendant can't see. The Constitution prohibits that.
O'Reilly: Alright
NAPOLITANO: And so does the Supreme Court.
O'Reilly (more calmly): You basically are saying that the Bush administration can't designate anyone a terrorist (louder) anyone! That it all has to come back to one judiciary. You can't fight a war on terrorism like that! You cannot do it.
NAPOLITANO: The Bush administration can follow the Uniform Code of Military Justice, enacted by the Congress, and the Geneva Conventions, adopted by the Senate and simply ...
O'Reilly: Geneva Convention doesn't apply. These are civilian criminals.
NAPOLITANO: When the Geneva Convention doesn't apply...
O'Reilly (interrupts): It's civilian criminals!
NAPOLITANO: ... it says you have to give them a hearing to decide if it applies. You can't just have a Presidential declaration!
O'Reilly: I don't mind giving them the hearing. But, Robertson went way further than that.
NAPOLITANO: Robertson wanted a fair hearing and that's what the Supreme Court ....
O'Reilly (interrupts): I can't believe you're sympathetic to this guy.
NAPOLITANO: I'm not sympathetic to him.
O'Reilly: He's an activist judge. Ya' oughta ...
NAPOLITANO: And I disagree with those ...
O'Reilly (interrupts): He's tryin' to gut the whole ...
NAPOLITANO: I disagree with those other decisions of his which you so nicely criticized in your opening. But he is following the Constitution and the Supreme Court. And the Supreme Court opinion he's following is only five months old! It's not like to change.
O'Reilly: Well, they're gonna appeal this, obviously, the Justice Department, gonna appeal this.
NAPOLITANO: Well, I have a source at Guantanamo Bay who tells me all Commission hearings have stopped. The Defense Department is gonna file an emergency appeal to stay the effect of this.
O'Reilly (sarcastically): Right. Isn't it nice? Isn't that nice? Now they've stopped the whole process because this guy says the Geneva Convention should apply to CIVILIAN terrorists!!! I mean, I'm just - crazed!
NAPOLITANO: It's the beauty of the system.
O'Reilly (sarcastically): Yeah. It's beautiful.
NAPOLITANO: We give everybody a fair trial, Bill.
O'Reilly (unhappy): Judge Napolitano, thanks very much. We appreciate it.
COMMENT
And these are the opinions of the top-rated cable TV host on the subject of the Constitution, the Supreme Court and the Rule of Law? What's wrong with this picture?
