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Liberal Lady Lawyer Runs Rings Around Bill O'Reilly on Subject of GITMO Detainees

Reported by Marie Therese - May 25, 2005

For all his bluster and bravado, yesterday [5/24/05] Bill O'Reilly was bested by his guest, law professor Rosa Brooks, a feisty, strong, knowledgeable human rights attorney who did a wonderful job of driving Bill crazy! After his usual hateful Talking Points Memo, in which he tried to justify his inflammatory "beheading" statement about Michael Kinsley of the L. A. Times, the Bloviating Billster took on Ms. Brooks in a long segment on the topic of the Guantanamo detainees. They were still at it well into the "cut to commercial break" theme music. Bill was a mass of frustration by the end of this verbal sparring match. One wonders if Ms. Brooks will ever be asked back again! Here's the (long) transcript.

BILL O'REILLY: Do captured terrorists have rights? That is the subject of this evening's Talking Points Memo. An editorial in today's L. A. Times entitled "Perhaps O'Reilly Is Wrong" spells out the paper's reasons for demanding that captured terror suspects get lawyers and Geneva Convention protections. We posted the entire editorial on billoreilly.com. We urge you to read it because the debate is vitally important to your safety.

Also, the editorial is a good one because it stimulates a very important debate. It was written after editorial writer Michael Kinsley heard this on the Radio Factor.

AUDIO CLIP of Bill O'Reilly on The Radio Factor, May 17, 2005: Shutting down Guantanamo and giving suspected terrorists legal protections would help restore our reputation abroad. No, it wouldn't. I mean that, that's like saying, well, if we're nicer to the people who wannna KILL US, then the other people who wanna KILL US will like us more. Does that make any sense to you? Do you think Osama is gonna be more favorably disposed to the U.S. if we give the Guantanamo people lawyers? .... I mean, but this is what they're saying. I - it is ju - uh - you sit there, you go: They'll never get it until they grab Michael Kinsley out of his little house and they cut his head off. And maybe when the blade sinks in, he'll go: Perhaps O'Reilly was right. [End clip.]

O'REILLY: Now, I stand by every word of that but Kinsley and his paper dissent. Their position is that by providing lawyers to captured jihadists America's image will improve in the Muslim world. The paper also believes the Bush administration's hard line policies have fueled Muslim anger. Here's where those theories go wrong.

A) No Al Qaeda informer or any other sane person would testify in a criminal proceeding against captured terrorists. That would mean an immediate death sentence for that person and their entire family. Al Qaeda makes the mafia look like Brittany Spears.

[B)]With no direct public testimony against them, many captured terrorists would be acquitted.

C) The [Geneva] Convention clearly states that terrorists are not entitled to the treaty's protections. You must wear a uniform to get that.

D) The anger and ferocity of Islama-fascists rose under the Clinton administration which was largely non-confrontational vis a vis Muslim fanatics. Clearly, the soft approach did not work and never has worked with fanatics. (Louder) Being nice to Hitler did not stop Hitler, as every student of history knows.

E) No matter what kind of olive branch the U. S. extends to the Muslim world, it will not be reported accurately. Al-Jazeera is not fair and balanced. The hateful clerics who control much of the information flow in the Middle East are not gonna like the U. S. A. more if we give the jihadists lawyers.

And F) The Bush administration's tough stance against Al Qaeda and other terrorist organizations has badly hurt them. Again, reasoning with the unreasonable is a waste of time and can be dangerous. Hello again - Third Reich.

So that's my answer to the L. A. Times which would not provide a spokesman this evening. I hope you compare my Talking Points with the paper's editorial and please let me know what you think. And that's the memo.

And now for the top story tonight - another view of this. joining us from Charlottesville, Virginia, Rosa Brooks teaches law at the University of Virginia. Now, Professor, you can start anywhere you want with this but i was very specific in pointing out why the L. A. Times and all the other left-leaning - 'cause they all follow the same thing. Give them lawyers. Given them Geneva Convention protections. And, where am I going wrong?

BROOKS: Bill, I'm actually kind of disappointed in you and in the L. A. Times. You're goin' soft here a little bit. This cutting the head off stuff. I kinda had you figured as a boiling in oil guy.

O'REILLY: No. I'm just - and I would never do that to Mr. Kinsley. I respect his ...

BROOKS: That is really reassuring.

O'REILLY: But look. I don't think ... I think ...

BROOKS: You don't want to make your guests nervous, too, here.

O'REILLY: No. I think those people live in a theoretical world ..

BROOKS: Well. You know what ... I must say I'm also ...

O'REILLY: ... that the beheadings of Nick Berg and the other people aren't real to them.

BROOKS: I'm disappointed with the L. A. Times, too, because I read their headline "Perhaps Bill O'Reilly Got It Wrong," and I thought, you know, perhaps the Pope is Catholic. Bill, you did get it wrong and you're wrong on three issues. You're wrong about why lawyers for Guantanamo detainees matter. You're wrong about why our image in the Muslim world matters. And you're also wrong about the press. You want me to go through them one by one?

O'REILLY: Well, let's take the lawyers first.

BROOKS: OK. Lawyers first. If you're ever accused of a crime falsely and arrested you're really gonna want a lawyer. The lawyers aren't there ...

O'REILLY: I'm an American citizen.

BROOKS: The lawyers are not there ...

O'REILLY: I live in America.

BROOKS: ... to protect the guilty. About ten percent ...

O'REILLY: OK. So, wait, wait, wait. Let me stop ya' there. Let me stop ya'.

BROOKS: Yes.

O'REILLY: You're a law professor

BROOKS: Yeah. Yup.

O'REILLY: .... and when you make a statement, I'm gonna challenge the statement.

BROOKS: OK.

O'REILLY: Alright? You believe everybody in the world is entitled to constitutional protections by the United States. (louder) Is that what you believe, Professor?

BROOKS: As a legal matter, no. That's not correct. As a human rights matter ....

O'REILLY: OK. Fine. So the jihadists captured on the battlefield of Afghanistan and captured on the battlefield of Iraq...

BROOKS: But how do you know?

O'REILLY: ... and captured on the battlefield of Iraq...

BROOKS: How do you know? Here's, here's my question ....

O'REILLY: ... are not entitled to lawyers. Correct?

BROOKS: Here's my question for you. Bill, here's something that we know. This is a fact. This is not coming from me or the L. A. Times or the New York Times. It's coming from the U. S. military. We already know that about 10% of the people at Guantanamo ended up being released because they were held wrongly for years. They weren't combatants at all. They weren't just, they weren't just not terrorists or illegal combatants. They were just in the wrong place at the wrong time. It was a mistake. They shouldn't have been there in the first place.

O'REILLY: OK. I have not heard that admission

BROOKS: If we - if we had been able to ...

O'REILLY: I have ... (louder) Professor!

BROOKS: And that is absolutely true. You can check that.

O'REILLY: Let me stop you. I have not heard that admission. If you can tell me where that admission is, I'd be happy to look at it.

BROOKS: Sure. You bet. The U. S. military finally under enormous pressure from the [indecipherable] of the human rights groups ...

O'REILLY: OK. Where is, where is that?

BROOKS: ... has started holding hearings. You can find this all over the place. You can call up the Pentagon.

O'REILLY: All over the place.

BROOKS: ... and they'll tell you the same thing.

O'REILLY (dismissive): Alright. Well, we'll look all over the place. Maybe we'll find it.

BROOKS: Call up the Pentagon. They'll tell you the same thing.

O'REILLY: OK. It's good if you know where it is and who made the admission.

BROOKS: About 10% of them ended up being released.

O'REILLY: It's good in a court of law.

BROOKS: I'm just gonna refer you to the Pentagon on that one, Bill.

O'REILLY: All over the place is all over the place.

BROOKS: Yeah. Well, call the Pentagon.

O'REILLY: OK. Now, look. You have basically, you have basically a theory put forth by you and the L. A. Times ...

BROOKS: This is not a theory. This is not a theory.

O'REILLY: Yes it is.

BROOKS: This is a fact. Some of these people were wrongly detained ....

O'REILLY: That, that these people, all of the captured jihadists ...

BROOKS: We might have been able to release them earlier if we had helped them out a little bit and established their innocence.

O'REILLY: If we had helped them out. OK. So ...

BROOKS: Nobody wants to be detaining innocent people. We want to be detaining the the bad guys. We don't want to be detaining people who were in the wrong place at the wrong time. We sure don't want to end up accidentally killing people who were in the wrong place at the wrong time.

O'REILLY: Alright. So you want to assign a civilian American lawyer to each captured jihadist. That's what you want to do.

BROOKS: No. Actually, that's not what I want to do. That would be one way to approach it.

O'REILLY: OK. One, one way to approach it

BROOKS: There are a lot of different ways to assure fairness in the process.

O'REILLY: So would you give a lawyer -

BROOKS: A lot of different ways.

O'REILLY: Let me ask you a very - I'm a simple man. Would you give a lawyer to every captured jihadist? Yes or no?

BROOKS: How do you know they're captured jihadists? That's my point. You don't know until you have some process.

O'REILLY (frustrated, hits his desk a few times with his hand): OK. I got it. OK. Can't get a straight answer! OK. Let's go on to your second, your second point.

BROOKS: OK. Why does it matter?

O'REILLY: Image in the Muslim world.

BROOKS: Why does it matter? It matters ..

O'REILLY: My theory is no matter what we do we're not gonna get a fair shake in the Muslim world. You say - what?

BROOKS: Well, I say I've been to the Muslim world. I don't know if you have, Bill.

O'REILLY: Yes I have been.

BROOKS: But I've been to the Muslim world. People don't just watch Al-Jazeera. A lot of them get on the internet. Some of them, believe it or not, even watch your show. They get information from a lot of different sources. You're absolutely right that you can't reason with unreasonable people, which does raise the question of what I'm doin' here. But we'll leave that aside. You're absolutely right about that but we're not trying to change the mind of Osama bin Laden. We can't do that. You're right. We are trying to change the minds of ordinary people in the Muslim world ..

O'REILLY: And how do you change those minds?

BROOKS: ... 99.9% of whom are not extremist terrorists.

O'REILLY: How do you change those minds?

BROOKS: They're getting their news from a lot of different sources. We show that when we talk about justice and democracy and human rights that we are not just hypocrites. We show that we mean it. We show that we're willing to get tough when we have but we also show that we care deeply about the rights that we say we care about.

O'REILLY: And what does that mean? Do we give ....

BROOKS: And that's gonna make it a lot more likely that when we go out looking for intelligence, that [when] we go out looking for a little bit of help, that we're gonna get it.

O'REILLY: Now where we - you've entered the land of Oz again, because, I mean, I believe the U. S. military has conducted themselves magnificently in this war on terror. Am I wrong?

BROOKS: I think for the most part they have but we've made some terrible, terrible mistakes ...

O'REILLY: We've? Who's "we've"?

BROOKS: ..... and we've handled them very, very badly.

O'REILLY: Who's "we've"? Who's "we've made the mistakes"? Who's "we've"?

BROOKS: The Bush administration and some members of the U. S. military.

O'REILLY: The Bush administration.

BROOKS: The vast majority of them are doing a magnificent job. They've been badly undermined by the abuses.

O'REILLY: OK. Give me one mistake ....

BROOKS: They've been badly undermined by the abuses.

O'REILLY: Give me one mistake that we've made. One.

BROOKS: I think one of the many mistakes is having no due process for detainees at Guantanamo. If we had been able to sort out the innocent and the guilty earlier on, it would have made a big difference.

O'REILLY: OK. So we're back to the lawyers that you won't tell me whether you would given them or not. We're back to that. OK. How about Geneva Convention protections. I have the ...

BROOKS: There again, that's what - you got it wrong on the law. You got it wrong on the law.

O'REILLY: I have the treaty right here. (holds up sheets of paper)

BROOKS: You're absolutely right that you're not - you can at least make an argument you're not entitled to Geneva Conventions if you are a terrorist but that's the question:

O'REILLY: OK.

BROOKS: How do we know if these guys are terrorists or just taxi drivers.

O'REILLY: Have you read the Geneva Convention?

BROOKS: You bet I have, Bill.

O'REILLY: Alright. And what is the defining thing that you have to have, if you're captured?

BROOKS: You have to have arm - you have to have a fixed symbol recognizable at a distance ....

O'REILLY: Alright. You have to have a uniform.

BROOKS: Yeah.

O'REILLY: OK?

BROOKS: Well, it doesn't say uniform.

O'REILLY: Yes it does. It says ...

BROOKS: You've got it in front of you. It doesn't say uniform.

O'REILLY: Yes it does.

BROOKS: Uniform or fixed symbol recognizable at a distance.

O'REILLY: Now you just made a mistake. OK? (reads) "The members must wear a uniform or other fixed distinctive emblem."

BROOKS: That's absolutely right.

O'REILLY: They have not.

BROOKS: Not necessarily - but, but, that's - if they're not members of a militia at all. If they're just a civilian who got picked up by accident ....

O'REILLY (holding up the pages): But- but what?!! (louder) Here's the treaty. They didn't do it. (angry) There's no "but"!! Here's the treaty. They didn't do it!! You want 'em to give them the treaty!

BROOKS: Bill, are you wearing a uniform?

O'REILLY: I'M NOT A TERRORIST!!!

BROOKS: If you got off a plane and you - well, that's, that's what a lot of these folks claim and some of them are telling the truth!

O'REILLY: Alright.

BROOKS: We want to keep the terrorists. We want to punish the terrorists. We don't want to let them out. But we don't want to, we don't want to be holding the innocent.

O'REILLY (petulantly): So, in your - in Rosa Brooks' world every captured jihadist immediately gets a lawyer, immediately gets access to our courts ...

BROOKS: No. That's not what - you're putting words in my mouth. That's definitely not what I'm saying.

O'REILLY (ticked off): Well, you wouldn't answer the question! Four times. I asked you four times! Will you give jihadists a lawyer? Yes or no?!!

BROOKS: Bill. I would not - Bill, the issue is whether they are jihadists in the first place.

O'REILLY: That's right. And we don't know that ...

BROOKS: The only way to find that out is to give them a fair chance to make their argument ,,,

O'REILLY: We don't know that unless ....

BROOKS: Giving them a lawyer is one important way to help do that.

O'REILLY: Alright, Professor.

BROOKS: ... to make sure that the innocent don't get detained.

O'REILLY: You have to give them a lawyer to establish that. Sometimes ...

BROOKS: No. You're putting words in my ...

O'REILLY: Sometimes when you - in war ...

BROOKS: Bill, your reaction. You're sort of like ...

O'REILLY: Sometimes, Professor - let me break this to you ....

BROOKS: .... you're like the Catholic Church reacting to abuse claims. You're ...

O'REILLY: Let me break this to you. Sometimes in war mistakes are made. This is a war. You're not not gettin' that! Kinsley isn't gettin' it!

BROOKS: But - but, we try minimize them.

O'REILLY: Alright. Thanks very much.

BROOKS: We try to minimize them. That's part of what it means to fight a war the fair way, Bill. If you try to minimize your mistakes ...

O'REILLY: Fight a war the "fair" way. OK.

BROOKS: ... and make sure you don't hurt the innocent.

O'REILLY (snidely): We're fighting a war the fair way against people who crash planes into the World Trade Center!

BROOKS: You fight it the fair way because you recognize that most people in the Muslim world are civilians just like you, just like me, just like your viewers.

O'REILLY: OK. They're not involved in this. We're not rounding up most people in the Muslim world.

BROOKS: Well, we are, unfortunately.

O'REILLY: No, we're not, Professor!

BROOKS: The sad truth is that we are.

O'REILLY: We are not!

BROOKS: The whole point of your process ...

O'REILLY: You just lost the argument.

BROOKS: ... is to try to make certain we've got the bad guys and not the good guys.

O'REILLY: Alright, Professor. Thanks very much. You know. Just to be clear. We're not rounding up people in the Middle East.

COMMENT
Let's take Bill's last statement. Clearly he needs to supplement his daily vitamins with a hefty dose of memory tonic! On May 2, 2005 Bill interviewed former Army Sgt. Erik Saar, a trained linguist and Arabic interpreter with high security clearance about his new book, Inside the Wire, which documents the Saar's claims that most of the detainees at Guantanamo are not terrorists, but are, in fact, conscripts or innocent civilians turned over the Coalition by the Northern alliance in order to cash in on hefty rewards being offered. You can read a transcript of that interview by clicking here.

Vis a vis Professor Brooks' claim that the military has admitted that 10% of the Guantanamo detainees were non-combatants, I went to the Department of Defense website. Here is the text of a DoD press release dated July 27, 2004 concerning the repatriation of Guantanamo detainees:

Transfer of French Detainees Complete

The Department of Defense announced today that it transferred four detainees from Guantanamo Bay, Cuba to the control of the government of France.These detainees are French nationals.

The decision to transfer or release a detainee is based on many factors, including whether the detainee is of further intelligence value to the United States and whether he is believed to pose a threat to the United States if released.

There are ongoing processes to review the status of detainees. A determination about the continued detention or transfer of a detainee is based on the best information and evidence available at the time. The circumstances in which detainees are apprehended can be ambiguous, and many of them are highly skilled in concealing the truth. The process of evaluation and detention is not free of risk – at least five detainees have gone back to the fight.

During the course of the war on terrorism, the department expects that there will be other transfers or releases of detainees. This transfer was not part of the recently announced Combatant Status Review Tribunal; it was coordinated prior to that announcement.

Because of operational and security considerations, no further details can be provided.

Previously, 129 detainees were transferred for release and 18 others were transferred to the control of other governments (seven to Russia, four to Saudi Arabia, one to Spain, one to Sweden and five to Great Britain). 151 detainees have now departed Guantanamo. As a result of today’s transfer, there are now approximately 590 detainees at Guantanamo Bay, Cuba.

By my calculations, prior to the release of the 151 detainees, there were approximately 741 detainees at Guantanamo. 151 innocent detainees represents an "error" rate of 20%, significantly higher than the 10% claimed by Ms. Brooks. Of those released, the DoD documented that 5 went home to fight the Americans.

However, if one listened to FOX News Channel exclusively, one would think that virtually EVERY detainee released back to his own country was rushing headlong into the arms of Al Qaeda!

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