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Interview With Judge Andrew Napolitano
Andrew Napolitano, John Gibson
Fox News: The Big Story w/ John Gibson
June 22, 2006
JOHN GIBSON, HOST: Hi, everybody. I'm John Gibson.
A "Big Story" exclusive for you tonight -- our judge, just back from a visit to GuantanamoBay, home to some of the world's most dangerous terrorists. The government invited Judge Andrew Napolitano and a select few others -- there's his snapshots -- to check out our prison in Cuba.
He was allowed to personally examine evidence against the detainees, and he watched in an interrogation.
The FOX News senior judicial analyst joins us now to break down the trip for us.
So, judge, one of the most interesting facts I have heard about your trip already is, there are 100 guys there, bad guys, that they know have been in the United States casing this country. What, 37 trips?
ANDREW NAPOLITANO, FOX NEWS JUDICIAL ANALYST: Oh, John, it was terrifying.
We -- we received about eight or nine briefings, starting on the flight down and concluding with as we were leaving GuantanamoBay. Clearly, the most compelling -- and, from my point of view, the most terrifying -- was from the FBI agents. There's a full team of FBI agents down there.
And they tracked the behavior of many of the detainees and showed that nearly 100 of them, collectively, had visited 38 states in the United States, legal, lawful entry into the United States, some for as long as two years to -- to attend junior colleges, some for as short as two days, many to visit traditional American tourist sites. But they had all been -- but that many of them have been there.
GIBSON: Bad guys. They don't have the evidence to -- to put them on trial, and they don't want to let them go.
NAPOLITANO: This is the government's legal, not military or political -- this is the government's legal conundrum.
The government's chief lawyer and those working for him conceded to me that they do not have enough evidence to get a conviction before a military commission, which is the easiest, before a court-martial, which is the next most difficult, before a federal district court jury, which is the most difficult.
But they are satisfied, and they persuaded me from the evidence that they showed me, that these are such bad, evil human beings that to release them into society, whether in the United States or outside the United States, would be suicidal, because these guys would for sure return to kill their captors, to attack the families of the captors, or to wage war against us again in the Middle East.
GIBSON: You have been an opponent of what is going on in Gitmo. You have spoken out against it. And I think you have even written about it.
NAPOLITANO: I have written extensively about it.
GIBSON: In both your books.
You saw interrogations. Did you see anything objectionable?
NAPOLITANO: Oh, no, no, not at all. The people conducting the interrogations freely admit that the procedures that they used before 2004 were more aggressive than now.
When the Supreme Court came down with its 8-1 decision, saying the Constitution applies, the treaties apply, and the law applies, and the federal courts of jurisdiction, they stopped using the methods that about five FBI agents had complained about.
So, the interrogations that we saw, John, were about as mild as you and I conversing now. It's one interrogator. It's -- excuse me. It's one detainee. It's three interrogators, one of whom is a translator.
The whole thing is taped. Four people are watching the entire interrogation as it goes on. In my case, they allowed us to watch it through closed-circuit. So we weren't in the same room, and we couldn't hear the words being used. We watched the guy being interrogated, who is the number-two person there.
The government has ranked them, all 400 of them, in the order of their influence over the others. This is the number-two person. And they interrogate him about every two weeks, just to see what information he wants to share with them or what lies he wants to give them, which allows them to compare what he said with what others are saying.
GIBSON: What has happened since the recent suicide of detainees?
NAPOLITANO: Well, since the recent suicide of detainees, the administrative tribunals have stopped. So, we thought we could see an administrative tribunal or a commission.
This is the interrogation of a -- of a detainee, formally and on the record and before a panel of three judges. Those stopped. Security has tightened considerably. And people who were about to get moved up to an area of the camp which is not as -- as aggressive were put back at the bottom of the line.
GIBSON: Judge Napolitano has opposed Gitmo for some time. A little later in the show, we are going to have him back, after he has seen this thing, to explain to us, what are we supposed to do about it?
Judge, we will see you in a little bit.
NAPOLITANO: OK, John.
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GIBSON: President Bush saying he would like to shut down Gitmo. He's been under pressure from the international community about this prison for some time now. So should we? Our Fox News senior judicial analyst judge Andrew Napolitano just got back from an exclusive trip to Gitmo. That's him in his golf shirt looking around at the facility. Should we close it?
NAPOLITANO: No, I don't think we should close it.
GIBSON: Haven't you called for it to be closed?
NAPOLITANO: No, have never called for it to be closed. I have called for the people there to be put on trial. Because never in American history, I shouldn't say never because Abraham Lincoln did it during the Civil War and Woodrow Wilson did it in during World War I. But F.D.R., to his credit, tried the German saboteurs before they were executed. We've not since the Geneva conventions, which didn't exist until after World War II, held people without a trial.
The president must know that he has spent over $30 million in the past year there, expanding the size of it, building a truly high-tech, first- rate building. I've been in a lot of prisons in my prior life as a judge and I walked through this one. This is about as good as they get in terms of facilities for the inmate, as prisons go, comfort for the inmate and high-tech ability to do what you have to do in a prison. They spent a lot of money on it. They spent $2.5 million last week on a fence to keep out local people that were wandering on to the property.
GIBSON: You know, we hear from the human rights community that one of the reasons that Gitmo should be closed is the sense of hopelessness that detainees have because they don't know how they would ever get out if they're going, are they entitled to hope?
NAPOLITANO: Well, it depends who you ask. That's a great question, John. In my view on the American constitution and the treaties we've signed, they are entitled to a trial. And if the government cannot prove their guilt, they shouldn't be there. The government knows this. How do I know this? Because they haven't sent any detainees there since the Supreme Court ruled 8-1 that the constitution applies. Where are all the detainees from Iraq? They stayed in Iraq. They're under the custody of the Iraqi authorities. There's no new people coming to GuantanamoBay.
GIBSON: And the supreme court is going to decide something soon?
NAPOLITANO: Yes, the case is very complicated but boiled down, 400 detainees filed applications for habeas corpus, meaning they want the government to justify to a federal judge why they're incarcerated without a charge. After that was filed the Congress enacted a statute saying they can't do it. The government now wants to argue that that statute is retroactive, which would wipe out the 400 applications. That's what the Supreme Court will decide. Are these 400 cases still alive? If they are, John, there will be 400 trials before federal judges in Washington, D.C. If they're not, there will just be military commissions with the right to appeal only after the commission rules.
GIBSON: One way or another there will be trials.
NAPOLITANO: One way or another there will be trials even though the top guys I spoke to yesterday said to me we can't prove cases against a lot of these guys. We just don't have the evidence.
GIBSON: Every day we see this, people say we don't have the evidence against these guys, we can't prove a case, we have to let them go. They don't want to say that?
NAPOLITANO: They don't want to say that. They don't want to let them go because they don't trust the governments to which they might go and the 15 of the 230 that they did let go came back and fought against us.
GIBSON: And they actually believe these people are terrorists who have taken a vow to fight the United States?
NAPOLITANO: The vast majority of the 400 detainees that are still there have made threats of such magnitude and severity that anybody who heard what I heard yesterday would believe that they are terrorists sworn to attack the United States. But under the laws and the treaties, they're still persons entitled to trials.
GIBSON: There have been, as you know, many accusations that detainees are tortured at Gitmo.
NAPOLITANO: Until the Supreme Court ruled 8-1 that the constitution applies and the federal courts have jurisdiction, there were some aggressive means used and all of those were outlined by FBI agents who objected to them. They were things like great heat, great cold, sleep and food deprivation. None of that, I'm told, has happened in the past two years since the Supreme Court's ruling. And the interrogation I witnessed, as I said earlier, was a conversation like you and me are having.
GIBSON: Who is their best interrogator?
NAPOLITANO: Their best interrogator is a New York City homicide detective, who volunteered to become an ensign in the Navy so he could go down there and show them how to interrogate and he's a terrific guy.
GIBSON: So law and order prevails at Gitmo. Judge, thank you very much.
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