Alan Keyes
January 21, 2002

ALAN KEYES, HOST: Hi. I am Alan Keyes. Welcome to MAKING SENSE.

It's a happy coincidence that this premier edition of MAKING SENSE is coming to you live on Martin Luther King Day. I think it's especially appropriate, because today, we're going to tackle an issue that represents, I think, one of the deep-seated commitments of Martin Luther King's life. Not as you might think race or ethnic conflict. No, I think that the first concern of his heart was, in fact, what he fought for all his life, and that is justice. We're going to be tackling an issue of justice as it arises against the grim backdrop of our war against terrorism.

But before we get there, let me tell you a little bit about the program, because what you're about to see, it will look familiar in some ways, but also unconventional in others. We're going to start out just looking at the facts, the background, so that we'll have a benchmark, a foundation to start from in our understanding of the issue we're going to tackle tonight. Then, we'll get to a panel of folks just like you, people that we have brought in from communities and backgrounds that are very similar to yours. And they're going to be talking from a common sense point of view about the issue of the day.

This is a show, in fact, that comes from my deep conviction that as I have gone around the country, I have met all kinds of people at political meetings, at churches, in airports. I have been deeply impressed with the common sense of the American people, and I think that we need to start showcasing that common sense in ways that go beyond the daytime talk shows and the usual pundits and really just put good, clean, clear common-sense thinking before the American people, so that we can learn to respect that in ourselves again.

And this show is about your participation. You can contact me at 1-866-Keyes-USA. That's K-E-Y-E-S-U-S-A. You can also send me e-mails at AlanKeyes@msnbc.com. And during the course of the program, I'll be keeping an eye on the chat room, chat.msnbc.com. And in all those ways, we invite you to join in and participate in the program.

Now, tonight, we're going to be dealing with an issue that has aroused controversy on all sides of the spectrum. Ever since President Bush announced that he is going to be dealing with terrorists by sending them before military tribunals. Interestingly enough, that idea has gotten some criticism from all sides of the spectrum, conservative as well as liberal. And it has gotten strong support from both sides of the spectrum, conservative as well as liberal. We're going to be taking a look at it from the point of view of both the facts that are involved and the history of its usage in America's wars and in other context, and also in the context of the constitutional principle, the constitutional heritage that helps to define our understanding of justice.

But first, we're going to be joined by Kevin Barry, a retired military judge with the Coast Guard and the vice chair for the Military Law Committee of the Bar Association of the District of Columbia. And Kevin is going to be helping us to understand the factual background of military tribunals — welcome to MAKING SENSE, Kevin, and thanks for being with us tonight.

KEVIN BARRY, FMR. COAST GUARD MILITARY JUDGE: Pleasure to be here, Alan.

KEYES: Now, first of all, give people a sense, just what are we talking about? What are these military tribunals?

BARRY: Well, these are a very special kind of a military tribunal. They are called Military Commissions, and they're the common law war court for the armed forces that are used only in time of war and only really for two purposes. One, to substitute for the regular courts, when they can't operate because of the war. And the second purpose, and that's more relevant here, is they are the tribunal that is used to try war criminals — try spies and saboteurs and guerrillas and those sorts of folks.

KEYES: Now, have we routinely made use of these commissions in the past? Or is it a pretty unusual measure?

BARRY: Well, it is both unusual and routine. They have been used by that name all the way back to the Mexican War, 1847, where they were convened by General Winfield Scott. They were used during the Civil War. They were used again...

KEYES: Now, in fact as I recall, during the Civil War, the people who assassinated Abraham Lincoln and those who were accused of helping them out, weren't they tried before such a tribunal?

BARRY: They certainly were. And the controversy over that is still in the federal courts. Mudd v. Caldera is in federal courts right now.

KEYES: Now, that's people who are trying to clear the name of one of the folks that they said was unjustly convicted by such a tribunal, right?

BARRY: That's exactly the case. The argument is that a civilian should not be tried by a military tribunal or by a military commission, more properly, when the regular courts are open and available.

KEYES: Now, what exactly was the content of the Executive Order that was issued by President Bush? Because I think judging by what I have seen in the response, there has been a little bit of a misunderstanding. For instance, folks were under the impression that maybe Walker could be brought before a military tribunal. But as I read the order, would that be possible?

BARRY: It would not be possible under the order, because President Bush limited the order to non-citizens, who met one of three categories, and only by a personal determination of the president. Either members of al Qaeda or people who had engaged in some sort of international terrorism, or who had, in some say, harbored either members of al Qaeda or international terrorists.

KEYES: Now, the folks who sit on the tribunal are military officers?

BARRY: Well, that's not clear yet. The president's order was very sketchy, and it only laid out a couple of parameters, primarily it appears modeled on the military commission orders issued by President Roosevelt...

KEYES: Now, would these be people chosen by the president? Or how would they be selected?

BARRY: Well, that's not quite clear yet. It would appear that they would be selected according to regulations to be promulgated by the secretary of defense, perhaps selected by the secretary of defense himself. But again, those regulations have not yet been issued, and a lot of the concerns regarding these commissions will perhaps be resolved once those regulations are issued.

KEYES: Now, would somebody who was facing the commission, who was convicted by it, would they be able to appeal, say, to the Supreme Court, or not?

BARRY: According to the order, they would not be able to appeal to any court. The only possibility seems to be that they may be able to bring a writ of habeas corpus or petition for such a writ to a federal court. But again, if these commissions are held outside the country on people who are aliens, non-American citizens, there may be no writ of habeas corps available either. So there may be no federal or judicial review of these convictions at all.

KEYES: Now, that would mean, though — wouldn't it — because as I see it, we call them military commissions, military tribunals, but they really take place entirely in the context of the Executive Branch. Is that correct?

BARRY: Well, they are. This is a function of the Department of Defense. It's a part of the war fighting function. It's akin in a certain sense to a court martial, but courts martial are a creature of statute, the Uniform Code of Military Justice, and they apply to our troops. It's a party of keeping...

KEYES: Well, does that mean that in the course of these hearings, or in the course of these trials, the usual procedures that we see portrayed on our law shows on TV and so forth would be respected? Or is it something different?

BARRY: Well, that depends. I will tell you that every since there have been military commissions, they have always followed the same procedures and rules that courts martial follow. And the last ones did that, to the most part, in World War II. The problem that is created is there has been a lot of law in the last 50 years. The Uniform Code of Military Justice, which was designed to correct the problems and the unfairness of the military justice system during World War II, was implemented in 1950. The Geneva Conventions were in 1949. The International Covenant for Civil and Political Rights, which we ratified in 1992. There is a lot of law that has come up, and the...

KEYES: Now, it's your sense that all of that — all of those developments would have to somehow be reflected in the rules that were applied in these tribunals, or what?

BARRY: That would absolutely be my sense. The order that the president signed looks a lot like the orders that were signed during World War II. And the real issue to be decided at some point is whether or not that can cut the mustard, when we are looking at a situation that's 50 years later in the 21st century.

KEYES: Kevin, thank you very much.

BARRY: (UNINTELLIGIBLE).

KEYES: I appreciate the light that you have been able to shed on the factual background for us here. And on that basis, we'll be going into our next segment to talk to people just like you. People who have — we have gathered because they come from backgrounds that aren't necessarily the kind that you'll usually see on a show like this. Later, we'll be getting to what's on your mind. You will be able to call in at 1-866-Keyes — K-E-Y-E-S — USA. E-mail us at lanKeyes@msnbc.com. And of course, throughout, you can join our online discussion at www.chat.msnbc.com.

But first, tell me whether you think this makes sense. Now, you've heard about the Enron business, where they have been spreading political money around on both sides of the aisle and so forth and so on. And then, the company collapses, the little guys take a bath, the rich folks are running off with the money. But tell me something. Some people want to revive the campaign finance reform effort on this basis, and yet from what we hear, the politicians have got no benefits. A lot of them who bought stock in Enron took a bath, lost a lot of money. Enron, it got the phone calls answered, but no favors were done. So politicians didn't get benefits, no favors were done. And yet, this proves that money is a poisonous influence in our politics. Hmm. Does this make sense?

KEYES: Welcome back to MAKING SENSE. We have come to that portion of the program we call “People Just Like You,” and that's because we have gathered folks who are just like you to come together with me and get on with the business of MAKING SENSE.

Joining me tonight is Suzanne Foti, who is an international business policy analyst; Todd Felts, a government consultant; and Hank Wynn, a branch manager of a mortgage company in Virginia Beach, Virginia.

We all heard the little introduction and the talk that I had with Kevin Barry. First question I want to put on the table for you to kick things off is this. We come from a tradition in America that I think in the course of this discussion has actually been too much neglected. And at the risk of boring everybody, seeming a little paretic (ph), I just want to read one little passage from the famous work, “The Federalist Papers,” where it was written to — giving a little exposition of the Constitution. In No. 78, when he talks about the judiciary, Hamilton writes as follows, and he is talking about the fact that in our tradition, the founders thought that it was very important to have what's called the “separation of powers.” Remember that? We were all worrying about this at some point in school, the executive, the judicial, the legislative and so forth. And these weren't just branches of overnment. They were — represented an important principle. And he states it here. He says: “It equally proves that although individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter. I mean so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree,” and here he quotes Montesquieu, who was a very respected philosopher among the founders — quote — “There is no liberty if the power of judging be not separated from the legislative and executive powers.”

Now, we have heard a lot of issues about the military tribunals, and whether they'll be fair, and whether they would follow due process and so forth. But the first thing I'd like to ask you is in light of that tradition of separation, is it safe for us to begin to make ordinary recourse in a prolonged — what looks like a prolonged war and conflict to the use of tribunals that amalgamate the judicial and executive branch powers, which these obviously do. What do you think?

TODD FELTS, GOVERNMENT CONSULTANT: Well, when Kevin was speaking earlier, I think most of the things that he was talking about what Bush would do. And it sounds like it comes from the executive, maybe even go as far as saying executive tribunals. And so, does the — how much involvement will the judicial branch of government have?

KEYES: But why do you think that this was a concern? I mean, it's not just a matter of words. Why would it be unsafe to have the executive exercising the judicial power?

HANK WYNN, MORTGAGE BANKER: Well, let's frame the context.

KEYES: Yes.

WYNN: Are we talking about the al Qaeda people in Guantanamo, who have never set foot on American soil? At what point do these people fall under the jurisdiction of our courts anyway?

KEYES: Well, see, this is a good question, and I often raise it with folks. Because when you look at the Constitution, things that talk about due process and so forth, like the 14th Amendment and then the 5th Amendment applied to the 14th, it's interesting that the Constitution actually, though it's aware of the distinction between citizen and others, right? In those sections of the Constitution, the phrase is “no person shall be...”

WYNN: Exactly.

KEYES: ... not “no citizen.”

WYNN: Exactly.

KEYES: And so the idea being, of course, that foreigners who come to this country can expect to be treated justly. What do you think?

SUZANNE FOTI, INTL. BUSINESS POLICY ANALYST: Well, I think that that's exactly the point. The situation that we're in is not a domestic situation, it's an international situation. That means international — the world is looking at how we choose how to exert justice in this case. And I think we have to be very cautious that we live up to our own standards and demonstrate that that's where we stand.

KEYES: Oh, come on. We saw this terrible event, the World Trade Center brought crashing down, thousands of people dead. I think one of the concerns that people have is the possibility that you get involved — and we've seen it before, of court circuses and lawyers coming on to get people off. I mean, what if we watched such a spectacle, and these terrorists, who are aiding and abetting and helping and even perpetrating these acts actually went free because of that. I mean, given the outrage, given the anger that we naturally feel...

WYNN: My problem...

KEYES: Wouldn't that be unacceptable?

WYNN: My problem is, is that what you read from “The Federalist Papers” is exactly right. But I don't see how it applies to those guys in those cages down in Guantanamo Bay. I don't understand how it applies to people in Afghanistan. I agree that if they can set their feet on American soil, it becomes an issue. Now, I don't know that I necessarily agree that we should put them in the federal courts for the reasons that you were just giving. It would be turned into a circus. But I don't — I can't quite frame the issue in the context of those people that are on foreign soil and in Guantanamo Bay. Are we going to send federal judges to Cuba to try these people? I mean...

KEYES: So you're saying, you understand it in the context. Because as a matter of fact, Kevin brought out this distinction — right — between what's done in the war zone, what's done in the context of prosecuting the war and what's done elsewhere. So you seem to be saying that that's a distinction that you understand and that holds true here — Suzanne.

WYNN: And I...

FOTI: Yes, but the problem that I have, though, is that isn't it wrong for us to be saying that the only way for justice to be done in this case is to take it out of our civil system? Isn't that saying that our own system doesn't really work to provide justice, or that we don't trust it? I mean, I just worry that if you continue on a long, prolonged process, that you're not going to find justice. I mean, if there are still questions about what happened during the Civil War in our court system, when is justice ever going to be exacted? And that's something that the Americans...

WYNN: That was a gross miscarriage of justice. What happened with those trials of the alleged assassins and accomplices of Abraham Lincoln. I mean, that was a gross miscarriage of justice. That was...

KEYES: But what conclusion do you yet then draw from that? Because that is one of the precedents...

WYNN: What I draw...

KEYES: ... in terms of the use of these commissions.

WYNN: What I draw from that is that George Bush apparently saw that mistake, or somebody who advises him saw that mistake, and excluded American citizens. These people were all American citizens. So George Bush and whoever drafted that resolution — or whatever it was that they drafted that stated their purpose and their goals left out anyone who is an American citizen.

KEYES: But now — OK, go ahead.

FELTS: I was just going to say, I keep going back to this executive power. And in focusing on the fact that we have had this heinous thing happen on our soil in America, and I think it changes things a little bit. And I think we have to start focusing on who has all this power to make decisions on how we try people who come into our nation and do these heinous crimes.

KEYES: That has been something that we faced all along. I mean, it's not as if the founders of this country didn't realize we'd get involved in wars and national security situations, and that under certain circumstances in the (UNINTELLIGIBLE) courts and other places, special kinds of procedures were required, which they knew about even from Great Britain. But they also understood, and seemed to have written the Constitution in such a way that this distinction that I think we're making between the foreigner and the citizens in terms of our administration of justice, they understood that that might prove to be itself a cause of war. I mean, think of the number of times in history that nations have gone to war, because they were upset at the way their citizens were being maltreated by some other nation. Do we want to put ourselves in that situation?

WYNN: Well, I don't know that what we're doing — I mean, we're already at war with these people. We are already at war with al Qaeda. I don't think we're in danger of making the leaders of al Qaeda any more determined to destroy us. I don't think we need to worry about that.

KEYES: But are we at war with all of the countries these folks come from? Because even though we are looking at them right now, but even the discussion we're having belies one first principle of our system, which is, much as we hate the idea of terrorists and the terrible things that they have done, until I go into some kind of trial and prove that you are a terrorist, our system says I'm supposed to presume you are innocent.

WYNN: I understand the problem you have with that, but you know, we didn't ask for this situation. This situation was forced on us. And we had to react to it the best way we could. And I think, so far, we have reacted to it the best way we can. Now, whether or not that can be fine-tuned so that we protect our image overseas with people who, frankly, don't like us very much, and are going to interpret everything that we do as some kind of a miscarriage of justice, some kind of an inhumane activity against them and their people, you know, what we can do about that, I honestly don't know, Alan.

WYNN: But I think that what we have done so far is the best we can do.

FELTS: Yes, and I agree with Hank, and as one of my college professors used to say, how he explained civil rights, he says that, you know, our rights stop where another person's begins. And so when folks come into my country, and they choose to do an act of terrorism, they're taking away their rights instantly. And so what we have to do in this country is we have to try them, I believe, in our federal court system. I think it could work. But on the other — the big question is what do we do when they're over not on our soil? And...

WYNN: See, I don't think they forfeit their rights by attacking us. I don't think they forfeit their rights. But the question is, what are their rights? And what logistically and reasonably can we do to facilitate what, you know, the trial described in “The Federalist Papers?”

KEYES: OK, let me put one other thought, Suzanne, on the table. Because part of what concerns me really has nothing to do with the rights of the terrorists and...

WYNN: And I know what concerns you.

KEYES: What concerns me is that if we, as a people, get used to treating certain classes of crimes as if those classes of crimes are to be put into a category in which we them amalgamate executive and judicial power — sure. Right now, President Bush is in office. He can be trusted and so forth. But once you've established that institution, what if it gets into the hands of somebody who can't be trusted? The founders thought that if you allowed the same person to execute and apprehend the criminal and bring the charges, and then put the courts together and accuse the person and judge that person, can't we see right there that you're going to be judging your own cause?

WYNN: Absolutely.

KEYES: That that's going to lead to abuse?

WYNN: Absolutely.

KEYES: What's the problem?

FOTI: But that's a different situation, because that's domestic, and that is people coming all with the same set of rules from the get-go. The rules are different for terrorists, because they have changed the rules by the way that they have acted. And if you want to make sure that the military tribunal, which is a reality, does balance with the checks and balances of our system, one possibility is to make sure that on that panel you have a judicial representative and a congressional representative.

KEYES: Well, see, but what we're talking about there, it seems to me, especially given the fact, this isn't like our other wars, where you sort of have a beginning, a middle and an end. You fought the war with the expectation that you were going to bring it to an end. A lot of our leaders seem to be talking about this war as if it's something we should get used to. It's going to be an ongoing thing. It's almost like we're in a situation where this has become — will become a fact of life for who knows how long. Does that mean that we're going to institutionalize this peculiar amalgam of executive and judicial power? Because that's not just a tribunal. That strikes me as the introduction of a very new institution into our Constitution (UNINTELLIGIBLE). Do we want that?

WYNN: No better — no matter how perfect a system is, when it's implemented, it produces the opportunity for abuse. Any system is only as good as the people who administer that system. So the problem here I don't think is with what has been set up as far as our domestic courts and the tribunals.

KEYES: I'd like to refer a little bit to what's going on in the chat room here. I have one fellow saying: “I have read the Constitution. I defy you to find the place where it says that it applies to foreigners” and so forth and so on. But I look at this exchange that's happening in the chat room, and it bothers me a little bit (UNINTELLIGIBLE). Because in point of fact, the Constitution provides for equality of law and due process for all persons...

WYNN: It certainly has been interpreted that way.

KEYES: ... whether you're foreign or not. Now, let me start with the distinction, are we going to make a distinction? Foreigners get one kind of justice, and Americans get another? Or are we going to make a distinction terrorists get a certain kind of justice and non-terrorists get another?

WYNN: But is that what's really happening?

KEYES: Which is what's happening.

FOTI: But what was the context of how they defined person, when they wrote the Constitution? I mean, they weren't obviously thinking of certain groups of people that lived in the U.S. So I mean...

KEYES: Oh, yes, they were. They were thinking of all groups. As a matter of fact, even if you raised the racial issue, black folks are referred to in the Constitution as persons. The famous three-fifths cause, which everybody says denies the humanity of blacks, that three-fifths of all other persons, right?

WYNN: Right.

KEYES: And that meant that they were acknowledging the person out of everybody in the country, and that included folks who were disenfranchised. It included foreigner and so forth and so on. They honored it in the breach to be sure some time. But in the matter of principle that we're dealing with here, here is the problem I have. We start out foreign American distinction, right? But then, somebody comes along with a John Walker and says, well, he was a terrorist. Why are we treating him differently just because he's so called American? He rejected his Americanism. He fought against America. Why should we apply that to somebody who has turned against his country. That's what people have been saying to me.

WYNN: OK. Is that person in this country or outside of this country?

KEYES: Well, he's going to be brought back in, but my citizenship doesn't depend on whether I am here or abroad. I am a citizen wherever I am.

WYNN: And you know, there is also language that addresses someone who takes up arms against their country. At the point where they take up arms against their country, their citizenship is forfeited.

KEYES: No, no, no. I'm sorry. That is not a true statement.

WYNN: OK.

KEYES: Not of American citizenship. If you want to lose your citizenship, you have to consciously, actively stand up and renounce it. Otherwise, you will be punished for that crime. You could be put to death for that crime, but you are not stripped of your citizenship automatically by that. And that's part, I think, of the safeguard that is there. But this is the final question I put in front of you, because I worry, see, we start making these distinctions and before you know it, you have people getting confused as they already have gotten confused over Walker. And they start thinking, well, it's the class of crime that makes the difference, and anybody who commits that type of crime. And then, we suddenly find we're developing a dual system where some people will give — be given due process. Other people will be given military tribunals. But do we still have a Constitution at that point?

FELTS: Well, I...

FOTI: Well, I think that...

FELTS: We'll still have a Constitution, absolutely. And I think it's, you know, very appropriate, Martin Luther King, Jr. Day. I think it's important that we realize that there has been lots of movements made in this country to ensure that everyone have equal rights. And it's very easy after, you know, two twin towers come folding down, I mean, we had a big movement after that happened to start addressing, you know, people who might look like a terrorist, you know.

KEYES: And see, but I think that's one of the problems that the founders meant to address. Don't you think? That we start down this road, and then it becomes maybe a matter of subjectivity and prejudice as to who is going to be put in what category.

FOTI: ... frame the next executive order and see if we have to have that concern, because I think...

WYNN: I don't...

FOTI: ... that the same thing has been done.

WYNN: I'm sorry. I don't think we're creating a different class of crime though, Alan. I think we have an entirely different situation here. I think the situation dictates, you know, what needs to be done to address it, rather than, you know, us creating, as you say, you know, an entirely different type of crime, where terrorism now becomes something where, you know, automatically if you're accused of terrorism, whether you be an American citizen in America, outside of America, or whatever the case may be, that you automatically fall under the jurisdiction of a tribunal. That's not the way, you know, the executive order was worded, and...

KEYES: All right. But you see the thing that worries me...

WYNN: As long as we don't...

KEYES: ... that we are putting a prerogative in the hands of our executive to essentially dispense with the ordinary constitutional separation, when certain classes or categories or crimes and situations are invoked.

KEYES: Now, sure, right now we might think that's not going to be abused. We can trust President Bush. But what the founders understood is that you put a Constitution together, not for now, but for all time, not just for the good guys, but also for the bad guys who might sneak into power with different ambitions. And I think one question we'll have to consider is whether what we do now will stand the test of time in the ups and downs of human character. But we shall see. Thank you all. I really appreciate your being with us today and giving us a little demonstration of the fact that whatever our differing views, we are able to make sense to one another in the context of a few facts.

Next, on the bottom line, we will be talking with Jay Sekulow, and he and I — we have a little bit of a disagreement. We're old friends, but we disagree on this particular subject, and I think that should be interesting.

Later, we're going to learn what's on your mind. You can call in at 1-866-keyes — K-E-Y-E-S — USA. You can send an e-mail to AlanKeyes@msnbc.com. And of course, you can join the chat room discussion at chat.msnbc.com.

But first, does this make sense? We have learned from some surveys that in the wake of the terrorist threat, which seems to be pervasive to our cities, our businesses, our schools, our homes, why Americans have gone out and they're starting to acquire fire arms, learn how to use them. Others think that in the face of that, we ought to be pushing gun control laws and doing more to make it difficult for citizens to have access to the means of self-defense. Given the pervasive nature of the terrorist threat, do you think it makes sense to disarm America right now?

KEYES: We've come to that portion of the show we call “The Bottom Line,” because the idea is to get pretty clear about the differences of viewpoint or the common threads of logic and common sense that come out of our examination of a given issue.

To help us do that, joining us now is Jay Sekulow. Jay is a constitutional law expert at the American Center for Law and Justice.

And in all fairness, Jay, I have to forewarn everybody.

Jay and I are old friends who have fought, I think, on the same side of just about every issue under the sun.

JAY SEKULOW, CONSTITUTIONAL LAW EXPERT: I think that's about right.

KEYES: Every now and again, though, something comes up which people who are reasonable folks are going to disagree about. What about the question that really deeply concerns me, just as a matter of objective fact? I am concerned about the amalgamation of executive and judicial power that is represented in the idea of the military tribunals. Is that just a farfetched concern?

SEKULOW: No, I mean, it's a legitimate concern, but I'll tell you a couple of points. First, the Supreme Court has rejected it. It's been made, it's been rejected. The Supreme Court has said — and I think correctly so — and they provided the road map, if you will. I think the Constitution gives the framework. The president is commander-in-chief, has the authority to put forward military tribunals. And these acts of these terrorists took them out of the domestic legal arena. They were out of that arena when they did this act. We're not trying here to prosecute these people so that we don't have — we're not prosecuting to enforce our anti-hijacking laws here or our murder laws. We're trying to stop acts of war aimed at citizens of the United States, civilians, which is a violation of every international code and every international military law.

KEYES: One of the things I don't understand, though, with respect to that is that when the Constitution was put together and they were arguing for it and so forth, the Supreme Court and the judicial system — the judicial power vested in it were said to be competent to deal with the things that arise under our treaties. That is to say with those things which have to do with our relations with other nations. And treaties is what we do it all the time in international business. I mean, it's not as if we accept the notion that somehow, if it's in the international arena, our courts are not competent to deal with it. Quite the contrary.

SEKULOW: Well, our founding fathers, including George Washington, actually utilized military tribunals when we were engaged in our war of independence from Great Britain. It's been used in every military conflict, both declared wars and undeclared Americans of war consistently through our history. So where I disagree with you, Alan, is at bottom here, this is not a domestic, legal issue. This is not a law enforcement issue here. It is a military issue. And when...

KEYES: But where I disagree with you, I think, is that, yes, we can make this distinction, but I see a constitutional issue here. And if we are going to say that somehow or another in the context of war, security issues, international relations, we are dealing with situations that inherently require an amalgamation of executive and judicial power. That seems to me to strike at the very heart of the separation of power that our founders said is one of the key safeguards of our constitutional limits.

SEKULOW: But those very founders said that the separation of powers and those that authored the Constitution itself utilized the military tribunal for precisely the same reason that President Bush is doing it now.

KEYES: Well, I...

SEKULOW: Let me finish. And where they put them in force, it is for two reasons: national security interest, and that is the situation clearly we have here. And also, when you have what's called an unlawful belligerent, an unlawful combatant, these aren't prisoners of war in the traditional sense of we're fighting the Nazis in Germany. But when Nazis took saboteurs into the country, 1942, and landed in Puerto Vero Beach, Florida and landed in Long Island, New York, military tribunals were used against them. Why? Because they were seeking to not play by the rules of war. And they violated those rules of war. And when they did that, they void themselves of protection from the Constitution.

KEYES: So then we are going to say...

SEKULOW: The Constitution is not a suicide pact either.

KEYES: Then we are going to say that those who, in our judgment, violate the rules of war, does that include those who might — holding American citizenship violate the rules of war in the same sense in the way that they might conduct themselves in insurrection or other kinds of conflicts?

SEKULOW: Acts of war defined by international law and by common law. There's a definition of what is a legitimate act of war, actually.

KEYES: So the application of the tribunals during the Civil War, did that fall under the same rule?

SEKULOW: Oh, absolutely. And it did all the way going back to the times of the revolution.

KEYES: So that means, though, that you are entertaining the possibility that these military tribunals will be applied to American citizens who commit certain classes of acts?

SEKULOW: Interestingly, the Supreme Court said, in fact, that a military tribunal could apply to an American citizen, but this president, as did President Roosevelt, decided not to go there. And there's a reason...

KEYES: This is what I don't understand.

SEKULOW: But there's a reason for that. We are not worried about...

KEYES: This is what I don't understand, because the actual distinction which I understand and which I think applies in a war situation, a war zone, a place where our military authorities have to have jurisdiction, say somewhere like Afghanistan where they are in control of a certain territory, have to keep order, it's obvious that they have to administer justice through military tribunals as we did in occupied Europe.

SEKULOW: But do you think we should mandatory then bring the people back to the United States?

KEYES: We did it in occupied Europe. Part of what I don't understand, because I've always understood that principle — but answer me a question. Why are they bringing them back off our shores? Why didn't they handle this in Afghanistan in the war zone...

SEKULOW: I think they want them out of Afghanistan. I think they want them...

(CROSSTALK)

KEYES: ... where they were actually performing their crime?

SEKULOW: ... out of Afghanistan for a national security issue. I think they're in Guantanamo for that very same reason. And when these people engaged in the act of war that they did, violating all of the rules of law that applied since the beginning of really certainly this country, when they did that, they took themselves out of the domestic legal arena.

KEYES: But my problem — you keep saying that.

SEKULOW: Alan, the Constitution is not a suicide pact.

KEYES: But by definition, criminals are people who violate all the rules. And whether...

SEKULOW: This isn't a criminal case.

KEYES: Let me finish, let me finish. Whether those are people — yes, you're making it a criminal case. You're talking about violation of the laws of war.

SEKULOW: Laws of war but outside criminology.

KEYES: Let me finish. Criminality with respect to those laws of war analogous to the kinds of things that folks do in domestic societies. And what you're telling me is...

SEKULOW: You're wrong on that.

KEYES: Hold it. What you're telling me is that something about the violation of our security requires an amalgamation of executive and judicial power. And here's my problem: When...

SEKULOW: The Supreme Court of the United States says that not Jay Sekulow. The Supreme Court of the United States says that.

KEYES: When will this state of war end? The problem is that in the past, we had war...

SEKULOW: Well, let's let it go a little pass September.

KEYES: In the past, we had wars where you could actually foresee an end. I, frankly, believe that the threat of terrorism is a permanent threat, that we are, in fact, faced with an institutionalized security...

SEKULOW: But, Alan, if we are in a permanent war, though, if we're in a permanent war, we have to defend ourselves.

KEYES: And if we develop — Jay, if we develop this response — but we don't have to — in the permanent war, we can't defend ourselves by permanently altering the fundamental principle of our Constitution.

SEKULOW: We're not.

KEYES: And that's what you seem to be willing to accept.

SEKULOW: I think what you've ignored here is the fact that constitutional history clearly supports the use of military tribunals since the beginning of our country.

KEYES: I believe that the...

SEKULOW: Let me finish. Let me respond.

KEYES: The limited use of military tribunals in our history in terms of those instances of extraordinary situations in war zones...

SEKULOW: Have you read the cases?

KEYES: ... that's one thing. I have looked at the cases.

SEKULOW: Read what the Supreme Court said about it.

KEYES: But the problem is that if each and every one of those instances we were not talking about a permanent change in our institutions of government.

SEKULOW: This isn't either. This is...

KEYES: That's like saying that because we can suspend the habeas corpus during the course of the Civil War but can accept it as a permanent reality...

SEKULOW: Alan, Alan, I think — listen, we agree on a lot of things, but the Constitution we disagree on this one.

KEYES: Jay, I appreciate...

SEKULOW: We disagree on this.

KEYES: I appreciate you being with me tonight.

SEKULOW: Good to be with you.

KEYES: And I enjoyed the lively discussion.

SEKULOW: Congratulations on the program.

KEYES: Thank you. Well, thank you for helping us to kick it off.

Later, I'm going to tell you what's on my mind. But first, we're going to hear what's on your mind. You're watching MSNBC, the best news on cable.

KEYES: Hi. Now we're going to take a few moments and see what's on your mind. We're going to start with phone calls, and then we're going to move to some of the e-mails that we've been getting over the last few days.

First, let's go to Sayed from Arizona. Welcome to MAKING SENSE

SAYED: Thank you, Mr. Keyes. It's truly a pleasure to talk to you. What I'm interested in is this. We know very well that we are after terrorists, and the media and everything explained that to us very well. But nobody has told us how we are going to get rid of terrorism, and nobody has ever discussed the history of terrorism, how it started, when and where. Mr. Paul Johnson, the great historian, had just written an article in “Forbes,” and he talks about one-third or one-half of the members of the United Nations general assembly have been the greatest terrorists on earth for the liberation of their country.

KEYES: Well, thank you very much for your call. I actually think that you make an important point. Terrorism unhappily has become increasingly pervasive in our world. The use of force — now here's where we have to understand the distinction. Not just any use of force, but the use of force against innocent people, people who are not doing anybody any harm and who are not part of any kind of war effort themselves, not armed against you in any way, the use of force against such innocence in order to try to achieve your political goals from the fear that's generated by that result. And, of course, if that terrorism becomes more pervasive, the distinction between war and peace disappears. And I think that's the greatest danger from terrorism both in terms of its domestic effects and in terms of the international effect.

Let's go to Austin from California.

AUSTIN: How you doing, Mr. Keyes?

KEYES: Hi.

AUSTIN: I'm wondering where this wide perception is coming from that the officers in the military tribunal are not competent enough to be fair and just. I mean, I would say if anything, haven't we seen recently that civil courts have many more problems being accurate in judgment? And civil courts are more susceptible to politically correct nonsense that would sway decision, wouldn't you think?

KEYES: I think you're right. And you notice that my objection was not an objection based on the notion that somehow or another, our military people aren't going to be fair and just. I, frankly, believe that's nonsense. I come myself from a military family. My father was in the Army, new military people all my life. And I think in those terms, we really don't have anything to worry about. These are folks who are used and understand the nature of responsibility, obligation, discipline, and I think would reflecting that in the approach that they took to something like this. So from my point of view, it's not really a question about the competency or fairness of our military people, it's a question about the constitutional implications.

Let's go to Tom in Oregon. Tom, welcome to MAKING SENSE.

TOM: Good evening, Dr. Keyes. It's a true pleasure to talk to you.

KEYES: Well, thank you.

TOM: I — my understanding of the military tribunals, of course, there were two points. One was the protection of military secrets and information, which a normal judicial process, discovery and other legal tactics might reveal. The second thing was the intimidation factor. And witnesses and juries would be subjected to this because of the terrorism.

KEYES: Well, I think they're all legitimate concerns, though we obviously have had cases — spy cases, other kinds of things — where our regular constitutional courts have dealt with those difficulties and can do so. If we declare them incompetent to deal with issues that have to do with our national security, we'd be creating a huge grab bag category into which folks of, shall I say, unsavory ambition might in future decades be able to drop a lot of innocent people. And that's the thing I guess that concerns and worries me about getting away from the separation of powers.

Let's go to some of the e-mails. We've got Linda from Maine who writes, “I'm tired of hearing about our 'poor treatment' of the Taliban prisoners. Looks like they've living better than they did in Afghanistan, and they would still kill if given the slightest opportunity to do so.”

Travis writes, “Go, Alan Keys. I have had my local cable company try to sell me cable television for three years now. Once I heard that Alan Keyes had a cable TV show, I called them and told them to get off their coffee break and get out here and hook me up. Thanks, Alan.”

Well, what can I say to that except, go get 'em. Really appreciate it.

We have Bernard in New Hampshire on the phone. Welcome.

BERNARD: Good evening, Dr. Keyes. It's a pleasure to speak to you. My question has to do with the citizenship of Mr. Walker. On his passport, it states that under certain circumstances, he may lose his passport for serving in the armed forces of a foreign state. And he certainly has been under some severe circumstances where he fought against our military. He was involved in an uprising in a prison that led to the death of an American.

KEYES: That's right.

BERNARD: And my — and he also may have had foreknowledge of terrorist attacks against our country. My question is: Should he lose his citizenship? And if so, could he be tried in a military tribunal?

KEYES: Well, I'd put it this way. I think somebody who is guilty of all those things ought to be tried under the most severe laws that we can find within our constitutional framework. You can't make it up, but you can find them. And I, frankly, hope and believe that those ought to be laws under which he will face the possible forfeiture of his life, since he was so willing to cooperate in the cold-blooded destruction of the lives of so many thousands. That would be my sense. But thank you.

Thanks for your calls, for your e-mails.

Next up, I'm going to spend a couple of minutes telling you what's on my mind today. We'll be right back.

KEYES: Tomorrow on MAKING SENSE, a good friend and a very special person to me. Dr. James Dobson will be joining us. You don't want to miss this one.

I've heard that in New York — remember that wonderful flag raising moment when the three firemen raised the flag? Some folks have suggested to doing a statue that commemorated that moment. And then some bureaucrat decided for reasons of political correctness, you'd have to not represent the original firemen but the black person and some other person and so forth. I think that person entirely misunderstood the moment. When I remember that moment, I remembered their great grief. I remember their great faith in that sense that the flag would still be there. But the thing I mostly remember is that in that moment, we transcended all those differences. We were just Americans. And all I remember is our pride. That's my sense of it.

Thanks for being with me tonight. Hope you'll join me tomorrow. Lester Holt is up next. See you tomorrow.