MR. NAPOLITANO: Hey there everybody, welcome to “Brian & The Judge” – (audio break) -- Napolitano here in New York on a Thursday morning at our studios at the Fox News Channel. This is Fox News Talk. Brian Kilmeade on assignment today. I, of course, as you know if you’ve been listening to me, was on assignment yesterday when I was a guest of the Defense Department at what I can only characterize as a secret top-level tour of the detention facilities at Guantanamo Bay. And I can only characterize it as illuminating, open, eye-opening and forthcoming.
Here now on the air on the line with us is Charles D. Stimson, deputy assistant secretary of Defense for the Office of Detainee Affairs. Secretary Stimson is an experienced federal prosecutor.
And now, Mr. Secretary, I guess you’re the boss of all those guys I dealt with yesterday.
MR. STIMSON: I’m just a policy guy, Your Honor. Good morning. Sorry I couldn’t join you yesterday.
MR. NAPOLITANO: Oh, I understand you were going to be with us. They promised me they’d bring me down again and I hope that we can make the trip together.
MR. STIMSON: Let’s do it.
MR. NAPOLITANO: Here are my impressions.
MR. STIMSON: Good.
MR. NAPOLITANO: The military is almost – delicate is the word to describe it – in the manner in which it treats these detainees. Its treatment of the detainees far exceeds the minimum requirements of the Geneva Convention. Whether you think they apply or not is a legal argument, but let’s assume for the sake of argument we want to meet the minimum requirements of the Geneva Convention. The way we treat these guys exceeds that.
I was shocked that I hadn’t seen anywhere in the media that 800 – I think the true number is 797 detainees had been there and 230 have been released; 138 are ready to be released. I don’t think anyone has reported on those numbers. And the facilities that are being built are about as modern, upscale, sophisticated and, as prisons go, comfortable as any prison I’ve seen and I’ve visited places like Trenton State in my prior life as a New Jersey Superior Court judge, which is one of the roughest places in the country.
MR. STIMSON: Well, I’m delighted you were able to go. And quite honestly, I’m not surprised at your observations. I am of course very happy to hear that you think, given your experiences and your broad breadth of experiences in the criminal justice system, that you think we far exceed the mandatory minimums that would be required under Geneva. We do and everyone who goes down there believes the same thing, Judge. You know the ICRC goes down there. They have a constant presence there.
MR. NAPOLITANO: The International Red Cross –
MR. STIMSON: Yes, the International Committee of the Red Cross. They actually have a trailer down there –
MR. NAPOLITANO: Yes, they do.
MR. STIMSON: – they have such a permanent presence. They are the only recognized body in the Geneva Convention that have access to and talk with the detainees regularly.
But you know, I’m sure you were told that over 1,000 media have been down there from a very broad spectrum across the world. I mean, Al-Jazeera, BBC, Egypt, Lebanon, all the American media. We’ve had 145 members of Congress go there, 174 staffers go there. I took two European delegations down there just this year – and even Europeans who go down there talk about how professional the guard force is, how humane the conditions are.
So, no, I’m not surprised. I’m delighted you got to see it, because it really matters when you go down there. It really helps, doesn’t it?
MR. NAPOLITANO: Why was I surprised? Why are not the media reporting on the types of things that I’m going to be talking about all day today – both on the radio and on Fox News Channel – that I saw? Is there an ideological bias because we are incarcerating people without trying them? Or is there a feeling that they shouldn’t be incarcerated at all?
MR. STIMSON: You know, I’m not going to wade into that one.
MR. NAPOLITANO: That’s the political side. That was an unfair question.
MR. STIMSON: Well, you can ask any unfair questions you want. A lot of judges have asked me – (laughter) – in front of them either as a defense lawyer or a prosecutor. Look, you know that any nation at war is entitled to detain its enemy.
MR. NAPOLITANO: Of course.
MR. STIMSON: And you know, the Nazis who we were fortunate enough to detain during World War II, we detained them without charges. They didn’t get a quarter to call their lawyer and get a criminal lawyer. They didn’t know when the war was going to end. And you know, there are some groups that you can characterize one way or the other that believe that these people deserve more rights than the Nazis or any other persons who were detained during a time of war. Well, that’s just absurd. I mean, look –
MR. NAPOLITANO: Well, there’s no legal basis for that.
MR. STIMSON: No, there is not.
MR. NAPOLITANO: There may be a political argument. You can make any political argument you want.
MR. STIMSON: Right, exactly.
MR. NAPOLITANO: Here is the legal conundrum that I think you guys are in, and even the senior general and the senior admiral agreed with me on this: there’s no question but that the guys that are still there are bad guys. There’s no question about that. The military is convinced of it. I’m convinced of it after having examined the evidence with FBI agents and with Naval Criminal Investigative Service investigators there telling me, this was found from this one, this was found from that one. And the tracing of their behavior even in the – some of them had been to the United States before they fought us in Afghanistan.
MR. STIMSON: Yeah, that’s an interesting part of the brief, isn’t it?
MR. NAPOLITANO: Right. That was the most terrifying part of the briefing – the part that the FBI –
MR. STIMSON: And you can be darn sure there are others already in America.
MR. NAPOLITANO: Right, right. The problem is that not all this evidence would withstand the rigors of the federal rules of evidence if these people were to be prosecuted either in a federal court or in a traditional court-martial. It would for many of them, but not for all.
So what do we do with those? We cannot send them back, because they will return to kill the guards, to kill the guards’ families. They will strap explosives to themselves. They will kill themselves. They will wreak – they will cause enormous damage and havoc to innocent Americans.
MR. STIMSON: Yeah, and you know, you –
MR. NAPOLITANO: It’s those in that category, as to which there is a firm and compelling belief of their danger and guilt, but as to which the evidence would not withstand the judicial scrutiny through which evidence has to go in this country. What do we do with those?
MR. STIMSON: Yeah, and I want to make sure your listeners understand two important concepts. One is the concept and the system that you and I have lived in as professionals: criminal law where you have defense lawyers, prosecutors, evidence, DNA, a court system, a court process. And if the person is indicted and charged and convicted and sent to prison, they’re sent to prison because they were convicted of an articulable crime and they’re punished for it.
MR. NAPOLITANO: Right.
MR. STIMSON: That’s on the one side of the ledger. On the other side of the ledger is history and the law of war. And what we did in World War II and World War I and all the other wars we’ve fought and all other countries have fought -- and that is if you’re lucky enough to detain your enemy, which you have no doubt – as if anyone else going down there would have any doubt – that that is our enemy that you looked at yesterday. And during a time of war, you’re entitled to detain your enemy as long as you determine he’s an enemy combatant. That’s it. You don’t have to file any charges. They don’t get lawyers. They stay detained to prevent them from going back on the battlefield and killing other Americans or other allies.
MR. NAPOLITANO: And here’s where you’ve exceeded Geneva’s wildest imaginings: you’ve given them lawyers! These people can have all the lawyers they want. Again, I didn’t realize that. The worst of the worst can get an American civilian or American military lawyer.
MR. STIMSON: And here’s how I think we got there – here’s how I think we got there: because what I would call – and I think court TV is a wonderful idea, because I believe in the First and the Sixth Amendment. But because of the “court TV-ization” of America and because we’re at a time where reasonable concepts sound reasonable like, well, you know, they’re detained, they should be tried. If you say that enough times, it almost becomes reality in some people’s minds.
MR. NAPOLITANO: Yeah.
MR. STIMSON: But they are not requiring – they are mixing two important concept: on the one side of the ledger, the criminal trial process that you and I know so well, and on the other side of the process history, the way the war is fought. And for most of these people, they haven’t been through World War II because they’re not old enough. They weren’t around during World War I. They don’t understand that we detained over 400,000 Nazis in this country.
MR. NAPOLITANO: Right. Nicely stated.
MR. STIMSON: Look, when Hitler attacked Britain, was Winston Churchill wrong in sending captured German soldiers to isolated camps in Canada from where they would be released only five years later? No, of course not!
MR. NAPOLITANO: He did absolutely the right thing.
MR. STIMSON: That’s exactly what you do during war.
MR. NAPOLITANO: Charles Stimson, deputy assistant secretary of defense, Office of Detainee Affairs, thanks for joining me. And thanks for that trip you sent me on!
MR. STIMSON: I’m really glad you went.
MR. NAPOLITANO: So what do you think about the detention – (end of available audio).
MR. HENNEN: Well, right now I want to set the record straight on Guantanamo Bay. I'm about full to the brim on all the distortions in the media that our out there. It's even come out in the president's trip to Europe right now - somebody yesterday suggesting that power and morality should go hand in hand, as to suggest somehow it is not at Gitmo Bay.
To help us get the facts on this and get some things that have not been in the media out there, "Cully" STIMSON joins us -- he's deputy assistant secretary of Defense in the Office of Detainee Affairs - today from the Pentagon on WDAY.
Cully, how are you?
MR. STIMSON: Scott, I'm great. How are things on the prairie?
MR. HENNEN: They are just beautiful today. I've got a nice summer day here.
MR. STIMSON: Well, that sounds great. I wish you could send some nice weather our way.
MR. HENNEN: Yeah, well, we actually need a little rain, but other than that - you know, you've got to complain a little. So we could use a little rain for our farmers, but other than that, we don't have the hot, sticky, you know, D.C. kind of weather. So we're doing okay.
MR. STIMSON: Yep.
MR. HENNEN: Listen, what's the current status of Guantanamo Bay? It seems as though the hue and cry has said some people worried more about terrorists and whether or not they get their rice pilaf on time than they do about the heinous acts that they're doing and would be doing if they weren't contained.
Can you tell me where we're at with Gitmo right now?
MR. STIMSON: I'd be happy to, Scott. And I was glad you used the word power and morality in the same sentence, because we provide safe, secure and humane facilities for those terrorists we have in Guantanamo. We have about 460 of them right now.
Make no mistake about it: these are our enemy. And as in past wars, World War II, World War I, any country - the United States, any European country - we're entitled to hold our enemy throughout the duration of the conflict. We're doing that. The Guard force down there are doing a superb job monitoring, guarding, feeding, providing opportunities for these detainees.
I mean, we have sent, Scott, over 1,000 media journalists down there from 400 different outlets. We've sent 145 members of our Congress, 174 of their staffers. I mean, when I talk about the media going down there, Scott, I'm not talking about, you know, just Fox News or folks who are here in the United States. I'm talking about Al-Jazeera. I'm talking about the BBC. I'm talking Sweden and Spain and Germany and Italy and France, Lebanese, Korean, Middle East News -- I mean Chinese. And you don't hear the hue and cry from them after they come back, because they see what it's really like down there.
MR. HENNEN: My understanding also is that the International Community (sic/Committee) of the Red Cross literally can go to any detainee any time anywhere, right?
MR. STIMSON: They're down there right now. And they have a virtual constant presence down there. They go down for long stretches of time, sometimes up to six weeks. They - under the Geneva Convention, they're the sole internationally recognized body who can talk to detainees. They do that. We listen to their recommendations. They're confidential in nature, so I can't go into them. But yes, they're down there virtually all of the time.
MR. HENNEN: So why are we apologizing for anything in Guantanamo Bay? Why are we suggesting that it should be closed or these detainees ought to be moved?
MR. STIMSON: I mean, that's a great question. And we've got to be careful here, because - and I know you listen to your callers, and when your callers call in after this make sure that they don't mix two important concepts.
One concept, Scott, is the concept of criminal law. And that includes charges, court, defense lawyers, trials, convictions. That happens in your state and every one of our wonderful states in this country. And when somebody is convicted they go to jail and they serve their time because they're being punished.
During a time of war, people are detained. They're taken off the battlefield so they won't kill again. And we don't want to be in the position, as a country - or any country, for that matter, doesn't want to be in the position where we have to automatically try or release people who are our enemy. I mean, throughout history, and in the Geneva Convention, you're entitled as a country to detain your enemy and that's what we're doing.
So I don't think we should be going for the head fake that we need to close our detention facilities just because of international pressure. I mean, the president said he wants to close Guantanamo. That's obviously aspirational, and there may come a point where he'll come out and say that. But the point is, we are detaining our enemy. We are preventing them from coming back and killing other Americans or other people and that's the business we're in.
MR. HENNEN: Right now there are no plans to close Gitmo?
MR. STIMSON: All I know is that we are - we haven't sent anyone to Gitmo since 2004, September. And since then, the number has been declining because we're transferring a number of people back to countries, countries who we hope will take responsibility for the terrorists that we have in Guantanamo. But no, I know of no plan to close Gitmo at this point. But of course, the president could come out and say that. It's his prerogative to do that.
MR. HENNEN: But that doesn't mean that we're releasing these criminals. It means they go elsewhere and we have the confidence, as the United States of America, that these people aren't going to be free to do us harm again.
MR. STIMSON: They're not criminals. They're terrorists. And that's the distinction that I'm trying to get across. And we can't meld those two concepts, because as soon as you say criminal, then somebody says, well, what about a trial? We don't have to try these people.
MR. HENNEN: I'm embarrassed to say we have a senator from our state that actually has argued that these terrorists ought to lawyer-up better and we ought to provide more for them.
MR. STIMSON: Well, let me - I mean, here's what I would say to that senator, and I'm sure you could do it with your voice there in the prairie: I mean, which American general would have organized criminal trials for the 10 million German soldiers we captured during World War II before Berlin's unconditional surrender? None.
MR. HENNEN: Yeah.
MR. STIMSON: None.
MR. HENNEN: Zippo.
MR. STIMSON: And we don't want to be in a position - I mean, watch what you ask for, because what if country X somewhere else in Europe detains - gets attacked and is at war and detains 10,000 people who are their enemy. Does that country want to be in a position where they automatically have to give them a slick criminal defense attorney and try them or immediately let them free?
MR. HENNEN: And by the way, lest anybody think these terrorists are lily white, some that have been released have - we've caught again on the battlefield, correct?
MR. STIMSON: Worse than that. At least 15 have come back to take up arms against our people and tried to kill us.
MR. HENNEN: So you get a sense of what we're dealing with here. So if there are any transfers, number one, we're confident that where they're going is secure? And number two, if there's releases, we're confident that it's not going to be somebody we're going to find later in a similar situation? Is that what you're telling me?
MR. STIMSON: No, I'm not. There's no such thing as a no-risk transfer, but we engage in very robust discussions with countries and we hope that they live up to the assurances that they provide us with respect to how they're going to mitigate the threat once these folks are returned to their countries.
So no, there's no - in wartime, there's no such thing as a perfect solution.
MR. HENNEN: And lastly, there have been some news recently of some suicides among detainees, terrorists, at Gitmo. What do we know about what happened there?
MR. STIMSON: Well, all I can tell you at this point is that the investigation is very thorough. It's ongoing. And when the investigation is complete, you can bet your bottom dollar that we will roll out whatever it is that we find out during the investigation.
MR. HENNEN: Unlike any of our enemies, I might add.
Cully, I appreciate the update today very much. And I think it's important to get these facts out into the people's hands, because unfortunately, they're far too often not in the mainstream media reporting on what's happening in Guantanamo Bay, and I think most importantly today a great reminder and refresher again that these aren't criminals; these are terrorists.
Cully STIMSON, deputy assistant secretary of Defense in the Office of Detainee Affairs at the Pentagon, our guest today on "Hot Talk."
Thank you, Cully. We appreciate it.
MR. STIMSON: Thanks, Scott.
MR. HENNEN: Take care.
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