MSNBC show
Alan Keyes is Making Sense
Alan KeyesJune 11, 2002
ALAN KEYES, HOST: Welcome to MAKING SENSE. I'm Alan Keyes.
Up front tonight, the case against Jose Padilla, now being held in a military brig in South Carolina.
Today the lawyer who represented the terror suspect before he was transferred to military authority told a federal judge that her client is being detained unconstitutionally. She adds that Padilla denies the government's allegations that he is involved with Al Qaeda in terrorist plots. Before we get to our guests on whether this is a fair and necessary treatment of an American citizen, some background on today's events from MSNBC's chief justice correspondent, Pete Williams.
Joining us now, we have Michael Noone, military law expert at Catholic University, to help us understand a little bit of the background here. Apparently we had some technical difficulties with the report we were going to have, but I'm assuming that a lot of you have heard some of the details.
I mean, Jose Padilla is the fellow who was arrested back in early May, was taken into custody, was apparently put through certain elements of the civil process while he was being held and interrogated in various ways, but finally was turned over to military authorities and now is being detained under a rubric in which he has been designated as an enemy combatant, somebody who is being detained and held because he has been participating in the military activities of an enemy of the United States.
Here to discuss this situation with us, and its implications, is Michael Noone. And the reason, Michael, that I wanted to start the show with a discussion with you was very simply to try to help people understand how this reflects or departs from the ordinary procedures that we apply when dealing with U.S. citizens in terms of their activities and accusations that are brought against them.
Now this individual is being detained for the purpose of being tried? What is his situation right now?
MICHAEL NOONE, CATHOLIC UNIVERSITY: Thanks, Alan, for the opportunity to try to clarify this, because it has been very confusing, and part of the confusion has been due to the fact that the government has shifted somewhat in the way it described its reasons for holding this young man.
We all know from our practical experience that people awaiting trial can be detained by the federal government. That's John Walker Lindh, who's being held in Alexandria now, awaiting a trial before a U.S. Court.
People can also be detained as material witnesses in trials, and originally, that apparently was the reason that the government offered for holding Padilla in New York.
Now, the government's rationale seems to have changed, and they seem to be claiming that they're holding Padilla as a kind of prisoner of war. And, of course, there is legal justification for doing that, but it's been very unusual to watch the government's position change.
KEYES: Let me ask a question, though. In the first instance, he was involved in a process that eventually was to bring him before a judge for a determination by a court, right?
NOONE: And apparently he did appear before a judge. That's my understanding from the news, that the proceedings were sealed — but my understanding, and maybe incorrect, was that he was represented by counsel at that time in New York.
KEYES: But that a final determination was supposed to be made and they kind of put him under military authority before that happened.
NOONE: Yes, and that's the unusual shift. Now, once again, of course, he'll have the opportunity, presumably, to be represented by counsel, although the third U.S. citizen being held by authorities in — I believe it's Norfolk's brig — the U.S. has opposed granting him a lawyer, and part of the U.S.'s rationale is that this man is not awaiting charges. He's a kind of prisoner of war. Prisoners of war don't have any right to a lawyer.
KEYES: Let's examine that, though. Because if you're basically saying this is a prisoner of war, an enemy combatant, somebody who has in effect been engaging in actions contrary to the law of war on behalf of an enemy of the United States — now, if you catch him on the battlefield, he's wearing the enemy's uniform, shooting at your troops, doing various other sort of things, obviously that's a determination pretty easy to make. But as I understand it, he denies the government's allegation that he has been involved with Al Qaeda and so forth and so on.
How does one make the judgment of fact that is required to apply this label to an individual, because it seems to me that he could end up being detained without trial indefinitely under this rubric, couldn't he?
NOONE: Yes, and I think that's why people concerned with civil liberties are watching this case very closely. Certainly the Department of Justice's claim that they've looked into the facts here, that he's been associated with Al Qaeda, that he was planning an attack on the United States, is a rationale for holding him as a kind of quasi-prisoner of war, although he doesn't satisfy the Geneva convention's requirements for being a member of an armed force.
But people are right to be suspicious of the government's actions where U.S. citizens are held indefinitely without trial, so we need a hearing, a writ of habeas corpus hearing to — for a judge to make the determination of whether or not he's being held legitimately.
KEYES: So that would be the next stage of the process? Who would initiate that?
NOONE: Presumably, a lawyer on his behalf. And I would assume that the lawyer who represented him in New York could, if the lawyer wanted to, on the instructions of her client, could go to the New York judge, and say to the New York judge, “Hey, my client's been moved to Charleston. I want you to direct the government to release him or at least explain to you why he's been released.”
In the alternative, the judge could go — sorry, the lawyer could go to a Charleston judge and say the U.S. is holding my client in a military prison without charges. Police have a hearing to find out why they are claiming that they should hold him.
KEYES: But wouldn't it be theoretically possible, though, for them to take into custody an American citizen who hasn't been in touch with a lawyer, hold that citizen kind of incommunicado under this rubric so that no such process involving a writ of habeas corpus would ever be initiated?
NOONE: It's theoretically possible, and that's why the civil liberties folks are very concerned about the rationale offered by the government.
In real life I think that a federal district court judge, if approached by a lawyer claiming to represent a U.S. citizen being held under those circumstances, a U.S. district court judge is going to say, “Let's have a hearing and find out what the government's justification is.”
KEYES: So we have, then, a factual situation right now where we're probably going to have the intervention of a lawyer and an eventual determination before a civil court as to whether or not the label that has been placed on this individual has in fact an evidentiary foundation?
NOONE: That's correct, Alan. There is one hanging question, though, which is — I don't know the answer to — which is why hasn't the lawyer for Padilla already appeared and made that sort of request? There may have been a breakdown in communications, or there may have been some sort of private deal negotiated with the government between Padilla and the government, that if he doesn't challenge his confinement, he'll be treated more favorably if he ever faces...
KEYES: From the report I saw today it doesn't seem like that's the case, because the lawyer appeared today before a judge, arguing that he was being held unconstitutionally.
NOONE: That's right.
KEYES: But I'm not sure what was the next contemplated step by his attorney in this case
NOONE: I agree.
KEYES: Thank you for helping us understand a little bit of what the objective situation is.
NOONE: You're welcome.
KEYES: And I appreciate your joining us. Next, we're going to get into the question of whether the procedure that's involved here, whether the accusation of involvement in terrorist activities, should be or is sufficient to deny due process to U.S. citizens and allow their indefinite detention by military authorities without trial.
We know we're in a serious situation right now, a great security challenge, but what kind of danger does that sort of process pose to the freedom we're all supposed to have, and the security we're all supposed to have as citizens?
We'll debate that next here on America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Coming up in our next segment, Jose Padilla, as the name might suggest, a Latino American, converted to Islam in prison and, thereafter, identified himself as an African-American.
Now that doesn't fit the usual profile that we've been used to up to now of the quarter from whence the danger of terrorism comes in these perilous times.
What does the diversity of the Islamic-American community mean to the war on terror? We'll take a look at that issue in our next half hour.
A reminder, too, that the chat room is humming tonight, and you can join in right now at chat.msnbc.com.
But first let's get to our discussion of whether the indefinite detention without trial of a U.S. citizen sets a dangerous precedent for the future.
The lead editorial in today's “Washington Post” ends like this: “The government's actions in this latest case cut against basic elements of life under the rule of law. If its positions are correct, nothing would prevent the president — even in the absence of a formal declaration of war — from designating any American as an enemy combatant. Without proving the correctness of the charge before a court, the military could then detain that person forever. And having done so, it could prevent that detainee from hiring a lawyer to argue that the government, in fact, has it all wrong. If that's the case, nobody's constitutional rights are safe. The administration owes the country a more thoughtful balance; Congress's role — the patriotic thing to do — is to help to find it.”
Now I have to tell you, as I was talking, and before I read that editorial in the “Post,” those were my exact concerns as I heard about this arrest and this issue. And I wanted to look at it yesterday and try to understand it a little better. But those concerns have only waxed in the course of my learning more about this case.
As you know, I have a very strong attachment to the Constitution of the United States. I think in these perilous times, whatever our security threats, we have to proceed in a way that does not damage and destroy our constitutional system. And that's the balance we are, in fact, trying to achieve.
Joining us to get to the heart of that matter, Gary Solis, a retired marine lieutenant colonel. Currently the core chief of oral history and an adjunct professor at Georgetown University Law School.
Also with us, Dave Castro, the executive director of the Center for Community Interest, an advocacy group dedicated to making communities and neighborhoods safer places to live. He is also a former Philadelphia assistant district attorney.
Welcome to MAKING SENSE, both of you.
DAVE CASTRO, EXECUTIVE DIRECTOR, CENTER FOR COMMUNITY INTEREST: Thank you.
KEYES: Now, we know that we're living in the face of a tremendous terrorist threat, that we have to go after these people and try to get them before they harm people in America.
In this case that involves a United States citizen who, at the moment, appears to be detained without trial, under a rubric that could keep him in that detention indefinitely.
What does that pose as a threat to the civil liberties of the country? Or is this, in fact, a necessary step for our security?
Gary Solis?
GARY SOLIS, ADJUNCT PROFESSOR, GEORGETOWN UNIVERSITY LAW SCHOOL: Well, first I have to say that I speak only for myself and not for the Marine Corps. And I agree with you that this is a step toward possible constitutional difficulties, and a step that need not be taken.
What the heck is an enemy combatant? It's a status that I've never heard of before. It's certainly not in the law of war. I have not heard of it in constitution law or any other area. So just by designating someone an enemy combatant we're able to hold them incommunicado for an indefinite length of time?
Well, I never thought that I would be defending anything that an enemy of the United States was doing. This is troublesome.
KEYES: Well see, I think, Gary I, at least, am not in the position of defending anything this guy may do. And I think we ought to be finding effective ways to stop these people, kill them if necessary, in order to defend the people of this country.
But if we create a rubric like this, it seems to me we have to look to the future. Today it's being used against somebody who I would think, you might think, is really a terrorist. What if tomorrow some ambitious soul, unscrupulous guy without morals or, but with great ambition, gets into the White House?
And after Bill Clinton, don't try to tell me that can't happen in America, because I don't believe you — see.
I think the American people can put somebody who is deeply immoral into the seat in the White House. You hand him this kind of arbitrary power, Dave Castro, and what are the implications of that power?
CASTRO: Well, two points. I think first of all. I think we have to really look carefully at the context here. And we have to ask yourselves: Do we credit the information that we've been given by the government about this person?
I mean, if we do, then we would have to believe that this is an al Qaeda combatant. In fact, an enemy conspirator who entered the country for the purpose of committing murder and mayhem against the citizens of the United States.
Now, I think that argues for a different category. We really have to look at this as part of the power that the nation has to wage war against terrorism.
KEYES: Now Dave, I have to stop you for one second. One second. Because you said “if we credit the information the government has,” and so forth, and so on.
Is that the way America works? That the government acts, and then we're supposed to stand by and just have confidence that the government is acting in the right way? Is that the way our system was set up?
CASTRO: I think the question — I think it's a question that turns on the context. We have to look at the context, and we have to say: In this circumstance, is it reasonable for us to credit the information that the United States is giving us?
And I think that it is reasonable in this case.
KEYES: Reasonable or unreasonable, I'm asking a question about whether under our system of government, our security, and the security of our rights is supposed to depend simply on whether we give credit to the official actions of the government. We have no other safeguards than that?
CASTRO: I think you have to ask the question: depend when? I mean, obviously, in the first instance we can and do and must depend on the judgments of our political and military leadership.
I think the question is: Is there a point in the process down the line where somebody gets to review that judgment? And I think there is here. And I think you talked about it in the first part of your program, when you talked about the writ of habeas corpus. That is the test of whether this person is held legitimately and whether his characterization as an enemy combatant is legitimate.
And I believe that there will be an opportunity for a writ of habeas corpus in order to test the conditions of this — the confinement of this person.
KEYES: Well there could be. But the question is — as part of the process envisaged here — one of the things that I find a little disturbing is that that depends, doesn't it, on there being a lawyer or there being somebody who knows about and is interested in what is going on so that you have somebody intervening?
CASTRO: But clearly here there is a lawyer. There is a lawyer, and...
KEYES: I know, I'm not talking about this circumstance, because when you establish a precedent like this, you can't just look at the particulars of today. We are setting a precedent for later.
And let us say that you move against an individual in this fashion. One of the things that you're doing, first of all, is you are accustoming the executive instruments of government to act without a prior, necessary consultation with civil authorities, with respect to a U.S. citizen in order to accord that citizen the right to answer the charges against him.
That is not a necessary part of this process, is it?
CASTRO: I don't agree with that. I think that you have to — again, you've have to look at the context. You can't rip this out of the context.
Let me give you an analogy. Suppose that we were on the battlefield and we were engaging gunfire with the enemy, and we discovered that one of our fellow soldiers was a spy who was plotting to blow us up. Would we then be reading this fellow his Miranda rights and calling his lawyer? I don't think so.
KEYES: Well, the sad thing is though...
(CROSSTALK)
KEYES: I am sorry. That, to me, is a dangerous argument, because you are basically going to say now that this situation we're in with terrorism, puts all of us on a battlefield in which we must then be treated as if we were soldiers under that military command, where by and large an arbitrary authority is exerted in the interest of the overall goal on the battlefield.
Gary Solis, I find that to be a very disturbing analogy.
SOLIS: Well, it is. This is disturbing on several levels. First of all, it's the government, it's the civil authorities that are making what some of us consider to be a mistake. Not only that, but the analogy that was posed by Mr. Castro simply isn't the case. If this was on a battlefield, it would be an entirely different situation, but that's the point — this is not on the battlefield. This is...
CASTRO: I don't agree with that.
When you have Al Qaeda soldiers, which infiltrate the country, in the guise of citizens, as they already have, to commit acts of murder and mayhem against the people of the United States, we have to defend ourselves...
SOLIS: Yes, we do...
CASTRO: ... and, of course, this is part of defending yourself, to discover those people who are enemy combatants in the guise of civilians, and to apprehend them and stop them from committing acts of violence.
KEYES: Gary, go ahead.
SOLIS: But I would ask what evidence you have that this guy is an enemy combatant or that he came into the country for some malevolent purpose ...
CASTRO: It gets back to the question of do we credit the government's statements?
KEYES: No! I have to answer that question. Let me answer that question quite precisely. When an accusation is being brought against a U.S. citizen, the answer to the question of whether we simply credit the executive to prosecute and detain and hold that citizen, without giving that individual a fair right to defend him or herself against that charge, and whether we just credit the government and let them be tossed down the deep hole, the answer to that question, sir, is no, we don't in America.
No, we can't in America. And I don't care...
CASTRO: That is not what the supreme court says.
KEYES: ... who the executive is and I don't care what you would like to credit — no. We can't afford to put that much power in the hands of an executive, so that a mere label that he puts on you without being scrutinized in terms of its evidentiary basis by any judicial branch of this ...
CASTRO: That is a mischaracterization of what's happening.
KEYES: That is not. That label would be ...
(CROSSTALK)
KEYES: ... drop you down a deep hole.
CASTRO: There's an opportunity for review by the writ of habeas corpus. That is the constitutional review that this man is entitled to. The writ of habeas corpus will determine whether his characterization as an enemy combatant is legitimate or not.
SOLIS: It's a bogus characterization to begin with. There is no such thing as an enemy combatant ...
CASTRO: That is not true. Have you read the Querin case ...
SOLIS: Of course I read the Querin case.
CASTRO: ... clearly defines the status of an enemy combatant, and the facts are very analogous to this situation.
SOLIS: I have the Querin case sitting right beside me.
CASTRO: How would you distinguish the Querin case from this?
(CROSSTALK)
SOLIS: The Querin case involved eight enemy saboteurs who landed, wearing portions of the enemy uniform.
CASTRO: One of whom was an American citizen.
SOLIS: Two of whom were citizens, as a matter of fact, but the Querin case is not necessarily controlling, although it certainly does say that even U.S. citizens can be apprehended and held.
CASTRO: But in that case the writ of habeas corpus was denied, was it not?
SOLIS: It was indeed. In this case there has been no opportunity, as far as I know, for a writ of habeas corpus. And the military is being stuck ...
CASTRO: This man has a lawyer. Why can't his lawyer file a writ of habeas corpus tomorrow?
SOLIS: I think he can. Why hasn't he filed it in the last 38 days?
CASTRO: Because it wasn't necessary at that point to test the conditions of his confinement.
KEYES: But he was at that point being allowed — because this is a problem here.
As I understand it right now, he is being held without communication with his lawyer, and so you mentioned a minute ago, the wishes of the individual with respect to the lawyer — those wishes can't be determined if you can't talk to your lawyer, and apparently, under the present terms of his detention, he's not able to talk to that lawyer.
Second, the question I raised a minute ago is still extremely important. Yes, under these particular circumstances a lawyer is standing there. That is not, however, essential to the case that the government is presenting in terms of his detention.
That could have proceeded in the absence of any lawyer being present in this circumstance, and then the question would be — is there, as a part of this process, a necessary opportunity to allow the individual to defend him or herself against the charge of being part of the enemy? Where does that occur in the government's understanding as a part of the process they have set forward? That's what I'd ask you.
CASTRO: The program is called MAKING SENSE. I think you have to ask two questions.
One, does it make sense to assume that our leadership in the military and in the justice system is going to Willie Nillie, on trumped up charges, throw people in military prisons? I don't think any American citizen believes that today. I think that people believe that the statements that have been made about this individual are true. I also think that we would have to conclude that they would be doing this without notifying the public, in secret. I mean, it's always possible in the kind of society that we live in, for the police and the military to abuse their authority.
KEYES: When was this man arrested? When was this man — when was this man first arrested?
SOLIS: He was arrested on 8 May.
KEYES: When did you and I hear about it?
SOLIS: Yesterday.
KEYES: In the interim ...
CASTRO: He had a lawyer. He clearly had a lawyer.
(CROSSTALK)
KEYES: Let me finish, though. From the point of view of what you just said, because we don't get around it, he was being detained without that public knowledge, and hearings were being held in secret. I am not necessarily questioning the necessity for that, but I'm just saying let's not get careless with our understanding of what has gone on here.
SOLIS: Mr. Keyes, you should keep in mind that the military is being unfairly saddled with this individual, by the way. The military did not seek him out. The military doesn't want him. The military is being made to carry the burden that the federal government has been unable or unwilling to carry.
In the military, under the uniform code of military justice, everybody's who's in pretrial confinement or any confinement, has a right to a lawyer within 48 hours. If he's not getting that lawyer within 48 hours, it's not because the military isn't doing its job, it's because the federal government is precluding them from doing that, and that should not be the case.
CASTRO: Well, what should we do with Al Qaeda operatives that enter the United States, even U.S. citizens who enter the United States in the guise of civilians and plot murder and mayhem against the citizens of the United States?
KEYES: Let me say this, in answer to that question, I think before we can even get to that, from the point of view of a U.S. citizen, the first question I ask is — let's make sure that the determination that this individual is in fact the enemy cooperating with the enemy and working for the enemy, that that determination is made in a way that accords the individuals the due process — that is to say the right to defend oneself — in such a way that you can confront the witnesses and charges against you and provide you with an opportunity to refute those charges.
That's what citizenship means here.
SOLIS: And you're only describing the normal process.
KEYES: Yes.
SOLIS: As a matter of fact, as you know, Mr. Keyes, in New York in federal courts there have been 26 terrorists who have been tried and convicted. And it's not presented a problem to the federal ...
CASTRO: Well, we have to be fair to the Justice Department. The Justice Department has said, clearly, I think, that if he is prosecuted, he will be turned back over to the court system.
KEYES: No. But what we're worried about here, Dave, is — one of the things that deeply worries me, because it was one of those characteristics of the governments that during the course of my adult lifetime, I fought so hard against the communist governments and all these people — is that bureaucrats could, with the cooperation of the security forces in the military — people who thought they were just doing their jobs and who got used to the fact that they could be ordered to do these things were sent.
They would arrest people, they would put them in places out of communication with other individuals, and they could leave them there indefinitely without bringing them to trial, without bringing charges against them, without giving them an opportunity to defend themselves. That's not a characteristic of America, that's a characteristic of the countries that I fought and other people fought hard during their whole careers to defeat, to stop the spread of that kind of government.
Now we don't want it here, and I don't think we should allow it to come here by accident or inadvertence in the way in which we handle ...
SOLIS: That's not a characteristic of the military. The military has a system in place which ensures that that will not happen. As a matter of fact, the Posse Comitatus Act has not been mentioned here at all, which should preclude military from assisting in the prosecution of civilian laws, and that's exactly what the civilian government, the Department of Justice, is forcing the military to do here.
Why has the military got this guy at all? He should be in the hands of the civil government. There should be charges brought against him in court so that he can have a lawyer and a hearing.
CASTRO: My point is, aren't we making a category mistake here to apply these constructs — I mean, this is really a situation that's unlike any that's faced America, where we actually have, you know, enemy soldiers — and I think you have to call them that — enemy soldiers who have infiltrated the country and who are acting, really, in the guise of spies. People who are in here to plot acts of murder an mayhem against innocent civilians ...
(CROSSTALK)
KEYES: Wait. Stop. You keep saying that, but under our system, you cannot treat someone as if they are guilty of an offense until after you have proven it.
CASTRO: Of course not.
KEYES: You're putting the cart before the horse.
CASTRO: You're the one that's making the mistake here.
KEYES: Let me finish, Dave. Let me finish. You are saying quite obviously, “This man is an enemy of the United States.”
CASTRO: No. I am not. I am not.
KEYES: That's what you just said.
CASTRO: That is jumping to a conclusion.
KEYES: OK, go ahead. Explain to me how I missed that.
CASTRO: What I'm say here is that it is necessary in order for public safety for us to be able to find and capture and hold people who are believed to be enemy Al Qaeda operatives who are in the United States plotting acts of terror.
Once we are certain that they are not, then the justice system can come back in and I think that's what we've been told.
(CROSSTALK)
KEYES: No, Dave. That is so absurd. I am sorry. What you have just said, you are, again, doing what you just denied you were doing. You are saying once you — if they are not, meaning to say we will assume that they are, we will treat them as if they are, we will hold them without trial as if they are, for as long as we feel like it, and then when the executive is satisfied, then maybe we'll turn them back over to the civil authorities. You want your civil liberties to be subject to that kind of arbitrary process?
(CROSSTALK)
KEYES: We've come, I'm afraid — they're telling me we're at the end of our time. We obviously have just begun to scratch the surface of this debate, and it's a critical one.
Thanks, both of you, for being with me tonight.
Next we'll debate whether the war on terror could become a racial war.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to making sense. I'm Alan Keyes.
The capture of home grown terrorist suspect Jose Padilla is a reminder that the nation could have potential enemies within.
United States officials belief Padilla concerted from Catholicism to Islam while in prison.
There are nearly 6 million Muslims in the United States. Obviously, most of them wonderful, law-abiding Americans and citizens. 1/3 are South Central Asian, another 1/3 are African-American, and 1/4 are Arab. There are Europeans and others in the mix.
It's important, I think, that as part of our response to the Jose Padilla story, we begin to open our eyes to a truth that I think has been neglected in the course of the discussions that have gone on about racial profiling, terrorist threats and other things.
We have John Lindh Walker, we have the individual with the shoe bombing of a European background. We now have this individual, Jose Padilla, who is a Latino American, and we have the clear understanding that we are faced with a community that is diverse, as diverse, in fact, as the world, as all America.
And when I listen to people talk as if, well, it's going to be easy. We'll just have this particular profile and we'll stop all those kinds of people, and so forth — it's not going to be that easy.
We're obviously going to have to stick to methods that respect the requirement of getting the specific information, paying attention to the individuals, not making our judgments on a group basis, because we are dealing with a threat the that could come, in point of fact, from any quarter. Any quarter. Not just this particular group or that particular ethnic group.
That's one of the things that I think we need to focus on as we think about all of these issues.
Well, joining us now to talk about the implications of this diversity in the Islamic community, among other things, is a Dr. Aminah McCloud, professor of Islamic studies at DePaul University.
Also with us, Niger Innis, national spokesman for the Congress of Racial Equality, an organization committed to community development and empowerment.
I'd like to start with Prof. McCloud, because as I've been thinking about the implications of this, it seems to me that we have in the story of Mr. Padilla a kind of cautionary tale that ought to start to kind of limit the gallop that some people have wanted to make, to base our approach to terrorism on some kind of racial profiling or ethnic profiling, and so forth and so on.
It seems to me that the tremendous diversity that we are seeing in the Islamic community and in the possible sources of threat to this country would militate against that kind of approach, wouldn't it?
PROF. AMINAH MCCLOUD, DEPAUL UNIV.: Absolutely, and I think so. But I think that you're the first person I've heard on TV really point that out.
It probably should have stopped with John Walker Lindh, I think his name is. But it didn't stop even there.
And today's papers kind of let us know that in spite of obvious, some of the media are intent on trying to figure out how to make this a profile.
KEYES: Well, see, this is part of what I don't understand. Because it seems to me when we look at the breakdown of the statistical makeup of the Islamic community, here's what it looks like.
Let us assume for a moment, that as seems to be our experience so far, we are dealing with a threat that comes at the moment from the 1/4 of Islamic extremists and Islamist fundamentalists and all of that. That still doesn't give you some easy racial or ethnic profile. Why?
Here are the statistics. African-Americans now make up 64 percent of all converts to Islam. We also have, in addition to that, a diverse community in which you have all different kinds of individuals who are converting to Islam; whites, Hispanics, other groups. We also have two major groups in this country, black Americans, who are, I think, about a 1/3 of the all the Islamic people in this country. We have folks of South Asian extraction, another 1/3. We have people who are — whites, make it European extraction, making up about 2 percent.
Arabs, who have been portrayed by the media as the ones who are kind of the key source of threats, the, they're about a 1/4. But that doesn't exactly seem to me to make an approach that is based on racial profiling really likely to be successful because —
Aminah McCloud, don't we have to assume that just like other groups, there are going to be good apples and bad apples in all different kinds of ethnic groups, whether they're Islamic or non-Islamic? And the possibility...
MCCLOUD: Well, absolutely...
KEYES: Go ahead.
MCCLOUD: Well, I was just going to say absolutely. But none of this has come down in a rational discerning kind of way.
Every response that we've made has been a little on the irrational side. All of the anti-Islam, anti-Muslim rhetoric, the assertions that the Koran teaches violence, all the way to all of the extremists in the world, and certainly all of the terrorists in the world, are Muslim.
And then, who is a Muslim? Well, the Muslim is an Arab, and he runs around with a robe on and a hat, and even if that doesn't work, we begin to profile people at airports and bus stations and just in everyday life.
But it also, for myself and others as African-American Muslims, it's a double whammy, because we're already profiled as African-Americans and then further profiled as Muslim, although it's hard to tell.
KEYES: Now, Niger Innis...
NIGER INNIS, CONGRESS FOR RACIAL EQUALITY: Yes.
KEYES: We are, I think, looking at obviously a very serious security challenge for this country.
INNIS: Absolutely.
KEYES: For me, the background and the story of Mr. Padilla is really a cautionary tale, and it's one that raises some implications about the future of this war and of our about to prosecute it that, to my mind, are pretty disturbing, particularly when we consider the implications of some of the policies on detention and so forth and so on.
Do you see those disturbing implications? Would it be possible that when all is said and done, we go down a road where this starts to be a situation that inflames divisiveness and racial and ethnic tension in this country?
INNIS: It could, and we have to be very careful to mind against that.
Alan, I agree with your opening statement completely.
The overwhelming majority of the millions of American Muslims and over a million black American Muslims are peaceful, law-abiding citizens of our country that appreciate the religious and other freedoms that we have in our country.
But there is a tiny minority of extremists. These tend to be marginalized individuals, marginalized from mainstream society.
Nevertheless, there is a potential in the prisons, in the barrios and the ghettos of our country, and I would even argue in poor white America, there is a poem for fertile soil for groups like al Qaeda and other extremists to recruit.
Why? Because for decades, irresponsible individuals in media and academia and the political and cultural elite, have made criminal, anti-social, anti-American beliefs and behavior chic in the African-American community, in the minority community as a whole.
I mean, you see it proliferated in the entertainment industry. You have a billion dollar music industry that pumps nihilism in the minds of young Americans of all colors.
At some point, this nihilism and this anti-social behavior that is pumped into the minds of these young minds, are going to bear spoiled fruit.
KEYES: Well, one of the things that we've obviously been discussing in the first hour, and I think ya'll were able to see it, has to do with the kind of procedures we might be adopting with respect to those accused of these terrorist activities.
When we get back, I want to put in front of you the implications of establishing a relatively arbitrary process that might at the end of the day end up selecting for people of nonwhite background, and what the implication of that will be if there is a perception of arbitrariness. I just want you to think about that.
And later, after we get back with our guests and finish that discussion, you'll hear my “Outrage of the Day” — a priest giving a deposition in this very sensitive case, and was joking about the problems that abused people might face psychologically.
But first, does this make sense? It turns out that Germany is reluctant to come to the aid of the prosecution of Moussaoui — remember him? Because German authorities don't want to hand over evidence to assist in his prosecution for fear that he might be subject to capital punishment, and they're against capital punishment.
So let me see — they don't want to cooperate in helping to convict somebody who goes out and kills innocent civilians, for fear that when he's found guilty, he might be put to death.
Does that make sense?
(COMMERCIAL BREAK)
KEYES: We're back with Dr. Aminah McCloud and Niger Innis.
Now I want to lay something very quickly, because we only have a few minutes, in front of both of you, and get a comment, if I can, about something that worries me.
I'm watching a process develop — we were just talking about it in the first half-hour — where some relatively arbitrary procedures are being put in place that could end up creating a category where individuals put in that category because of their terrorist activities would be deprived of due process, held without trial indefinitely, and so forth and so on.
I'm also looking at a profile of the Islamic community that has Latinos, blacks, and others, that raises the possibility — not the likelihood, but the possibility — that we could start to see, as we saw with a Latino American here, black Americans and others, who would be detained under these kinds of procedures.
I am worried that if we allow these arbitrary methods to be put in place, we could be feeding a perception that would then lead to racial animosity and resentment because of the pattern that might develop in these detentions. Niger Innis, is this something I shouldn't worry about?
INNIS: No, you absolutely should be concerned about it. All Americans of goodwill should be concerned about it.
And what you're doing here, which is putting these procedures under the light of public scrutiny, is our responsibility as Americans. But we are in a state of war, and you know, one thing about our leader at CORE, Roy Innis, my father, incidentally, who was a pioneer in correcting police-community relations, what we said about so-called racial profiling is that we don't believe in so-called racial profiling, but we do indeed believe in criminal profiling, and we could extend that to terrorist profiling, where age, gender, legal status, and indeed, race can be a factor and a tool in law enforcement.
MCCLOUD: But I think you open up a door there that is very, very dangerous.
It's just like saying that the ghettos and places where there are poor people who are frustrated with the system are potential recruits for al Qaeda. If you're going to profile a terrorist, then how are you going — what are you going to put in the category?
Timothy McVeigh came out of the military. He didn't seem to have come from the pits of the social ladder.
INNIS: But the fact of the matter is, professor...
MCCLOUD: I mean, how are you...
INNIS: But the fact of the matter is, professor, the FBI has put white extremists groups that McVeigh was associated with, and they have been profiled for years, for decades, going back to the 1960's and the civil rights movement.
MCCLOUD: Yes, but I mean, so have we. But when you're talking about terrorists, how do you decide, by age — like I was stopped at the airport the other day because I fit an age category, a color category, a religious category. I mean, what is your profile?
INNIS: It should not be random. It should be a certain set criteria that should be made public.
KEYES: Wait a minute. Niger, I have a problem.
INNIS: Sure.
KEYES: And this is the problem I guess I've been trying to raise in this segment.
MCCLOUD: I do too.
KEYES: I will have to confess, I don't have a problem with common sense sort of profiling in police matters, looking at people who commit crimes and stuff. It just makes sense.
If we do it with this terrorism in the way that's described, given the diversity of the potential sources of the terrorist threat, even if you accept the notion that right now we should concentrate on Islamists extremists, and all that — but the Islamic world is as diverse as America.
MCCLOUD: Well, I don't agree that we should concentrate...
KEYES: I'm sure. I'm not saying. But even if you assume that, you still don't get an argument that would lead you to profile for any given group, because that extremism, in our experience already, has emerged with a white face, has emerged with a Latino face, has emerged with an Arab face, and could very probably, given the large numbers, emerge some day with a black face.
INNIS: But Alan...
KEYES: Profiling would defeat your security purpose.
INNIS: But, Alan, you can look at mosques who are providing scholarship to individuals to go to universities abroad.
MCCLOUD: But why would you do that and not look at...
(CROSSTALK)
KEYES: Stop. Stop, please. We've run out of time. I have to apologize. I've got to have you both back, though, because this is just scratching the surface of what I think is a powerfully important and emerging topic. And we will continue to take a look at it here. We just started today.
Thank you both for giving us that start. Thanks.
Next, my “Outrage of the Day.” We'll be right back.
KEYES: I have an “Outrage of the Day” in mind, but the last discussion kind of put another thought in my head that I want to share with you as we leave the program.
There's a connection between part one an part two of tonight's program. We are a tremendously diverse society. The threat that will come against us, and is coming against us, in terrorism, is going to have some deep diversity in it. It's not just Arabs. It could be Latinos, it could be whites, it could be blacks.
I think if there is a perception of the arbitrariness in the way we handle individuals in this matter, it could inflame racial and ethnic sensitivities in a dangerous way.
That means we want to avoid that arbitrariness for a whole range of reasons.
Thanks. The NEWS WITH BRIAN WILLIAMS is up next. See you tomorrow.
Up front tonight, the case against Jose Padilla, now being held in a military brig in South Carolina.
Today the lawyer who represented the terror suspect before he was transferred to military authority told a federal judge that her client is being detained unconstitutionally. She adds that Padilla denies the government's allegations that he is involved with Al Qaeda in terrorist plots. Before we get to our guests on whether this is a fair and necessary treatment of an American citizen, some background on today's events from MSNBC's chief justice correspondent, Pete Williams.
Joining us now, we have Michael Noone, military law expert at Catholic University, to help us understand a little bit of the background here. Apparently we had some technical difficulties with the report we were going to have, but I'm assuming that a lot of you have heard some of the details.
I mean, Jose Padilla is the fellow who was arrested back in early May, was taken into custody, was apparently put through certain elements of the civil process while he was being held and interrogated in various ways, but finally was turned over to military authorities and now is being detained under a rubric in which he has been designated as an enemy combatant, somebody who is being detained and held because he has been participating in the military activities of an enemy of the United States.
Here to discuss this situation with us, and its implications, is Michael Noone. And the reason, Michael, that I wanted to start the show with a discussion with you was very simply to try to help people understand how this reflects or departs from the ordinary procedures that we apply when dealing with U.S. citizens in terms of their activities and accusations that are brought against them.
Now this individual is being detained for the purpose of being tried? What is his situation right now?
MICHAEL NOONE, CATHOLIC UNIVERSITY: Thanks, Alan, for the opportunity to try to clarify this, because it has been very confusing, and part of the confusion has been due to the fact that the government has shifted somewhat in the way it described its reasons for holding this young man.
We all know from our practical experience that people awaiting trial can be detained by the federal government. That's John Walker Lindh, who's being held in Alexandria now, awaiting a trial before a U.S. Court.
People can also be detained as material witnesses in trials, and originally, that apparently was the reason that the government offered for holding Padilla in New York.
Now, the government's rationale seems to have changed, and they seem to be claiming that they're holding Padilla as a kind of prisoner of war. And, of course, there is legal justification for doing that, but it's been very unusual to watch the government's position change.
KEYES: Let me ask a question, though. In the first instance, he was involved in a process that eventually was to bring him before a judge for a determination by a court, right?
NOONE: And apparently he did appear before a judge. That's my understanding from the news, that the proceedings were sealed — but my understanding, and maybe incorrect, was that he was represented by counsel at that time in New York.
KEYES: But that a final determination was supposed to be made and they kind of put him under military authority before that happened.
NOONE: Yes, and that's the unusual shift. Now, once again, of course, he'll have the opportunity, presumably, to be represented by counsel, although the third U.S. citizen being held by authorities in — I believe it's Norfolk's brig — the U.S. has opposed granting him a lawyer, and part of the U.S.'s rationale is that this man is not awaiting charges. He's a kind of prisoner of war. Prisoners of war don't have any right to a lawyer.
KEYES: Let's examine that, though. Because if you're basically saying this is a prisoner of war, an enemy combatant, somebody who has in effect been engaging in actions contrary to the law of war on behalf of an enemy of the United States — now, if you catch him on the battlefield, he's wearing the enemy's uniform, shooting at your troops, doing various other sort of things, obviously that's a determination pretty easy to make. But as I understand it, he denies the government's allegation that he has been involved with Al Qaeda and so forth and so on.
How does one make the judgment of fact that is required to apply this label to an individual, because it seems to me that he could end up being detained without trial indefinitely under this rubric, couldn't he?
NOONE: Yes, and I think that's why people concerned with civil liberties are watching this case very closely. Certainly the Department of Justice's claim that they've looked into the facts here, that he's been associated with Al Qaeda, that he was planning an attack on the United States, is a rationale for holding him as a kind of quasi-prisoner of war, although he doesn't satisfy the Geneva convention's requirements for being a member of an armed force.
But people are right to be suspicious of the government's actions where U.S. citizens are held indefinitely without trial, so we need a hearing, a writ of habeas corpus hearing to — for a judge to make the determination of whether or not he's being held legitimately.
KEYES: So that would be the next stage of the process? Who would initiate that?
NOONE: Presumably, a lawyer on his behalf. And I would assume that the lawyer who represented him in New York could, if the lawyer wanted to, on the instructions of her client, could go to the New York judge, and say to the New York judge, “Hey, my client's been moved to Charleston. I want you to direct the government to release him or at least explain to you why he's been released.”
In the alternative, the judge could go — sorry, the lawyer could go to a Charleston judge and say the U.S. is holding my client in a military prison without charges. Police have a hearing to find out why they are claiming that they should hold him.
KEYES: But wouldn't it be theoretically possible, though, for them to take into custody an American citizen who hasn't been in touch with a lawyer, hold that citizen kind of incommunicado under this rubric so that no such process involving a writ of habeas corpus would ever be initiated?
NOONE: It's theoretically possible, and that's why the civil liberties folks are very concerned about the rationale offered by the government.
In real life I think that a federal district court judge, if approached by a lawyer claiming to represent a U.S. citizen being held under those circumstances, a U.S. district court judge is going to say, “Let's have a hearing and find out what the government's justification is.”
KEYES: So we have, then, a factual situation right now where we're probably going to have the intervention of a lawyer and an eventual determination before a civil court as to whether or not the label that has been placed on this individual has in fact an evidentiary foundation?
NOONE: That's correct, Alan. There is one hanging question, though, which is — I don't know the answer to — which is why hasn't the lawyer for Padilla already appeared and made that sort of request? There may have been a breakdown in communications, or there may have been some sort of private deal negotiated with the government between Padilla and the government, that if he doesn't challenge his confinement, he'll be treated more favorably if he ever faces...
KEYES: From the report I saw today it doesn't seem like that's the case, because the lawyer appeared today before a judge, arguing that he was being held unconstitutionally.
NOONE: That's right.
KEYES: But I'm not sure what was the next contemplated step by his attorney in this case
NOONE: I agree.
KEYES: Thank you for helping us understand a little bit of what the objective situation is.
NOONE: You're welcome.
KEYES: And I appreciate your joining us. Next, we're going to get into the question of whether the procedure that's involved here, whether the accusation of involvement in terrorist activities, should be or is sufficient to deny due process to U.S. citizens and allow their indefinite detention by military authorities without trial.
We know we're in a serious situation right now, a great security challenge, but what kind of danger does that sort of process pose to the freedom we're all supposed to have, and the security we're all supposed to have as citizens?
We'll debate that next here on America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Coming up in our next segment, Jose Padilla, as the name might suggest, a Latino American, converted to Islam in prison and, thereafter, identified himself as an African-American.
Now that doesn't fit the usual profile that we've been used to up to now of the quarter from whence the danger of terrorism comes in these perilous times.
What does the diversity of the Islamic-American community mean to the war on terror? We'll take a look at that issue in our next half hour.
A reminder, too, that the chat room is humming tonight, and you can join in right now at chat.msnbc.com.
But first let's get to our discussion of whether the indefinite detention without trial of a U.S. citizen sets a dangerous precedent for the future.
The lead editorial in today's “Washington Post” ends like this: “The government's actions in this latest case cut against basic elements of life under the rule of law. If its positions are correct, nothing would prevent the president — even in the absence of a formal declaration of war — from designating any American as an enemy combatant. Without proving the correctness of the charge before a court, the military could then detain that person forever. And having done so, it could prevent that detainee from hiring a lawyer to argue that the government, in fact, has it all wrong. If that's the case, nobody's constitutional rights are safe. The administration owes the country a more thoughtful balance; Congress's role — the patriotic thing to do — is to help to find it.”
Now I have to tell you, as I was talking, and before I read that editorial in the “Post,” those were my exact concerns as I heard about this arrest and this issue. And I wanted to look at it yesterday and try to understand it a little better. But those concerns have only waxed in the course of my learning more about this case.
As you know, I have a very strong attachment to the Constitution of the United States. I think in these perilous times, whatever our security threats, we have to proceed in a way that does not damage and destroy our constitutional system. And that's the balance we are, in fact, trying to achieve.
Joining us to get to the heart of that matter, Gary Solis, a retired marine lieutenant colonel. Currently the core chief of oral history and an adjunct professor at Georgetown University Law School.
Also with us, Dave Castro, the executive director of the Center for Community Interest, an advocacy group dedicated to making communities and neighborhoods safer places to live. He is also a former Philadelphia assistant district attorney.
Welcome to MAKING SENSE, both of you.
DAVE CASTRO, EXECUTIVE DIRECTOR, CENTER FOR COMMUNITY INTEREST: Thank you.
KEYES: Now, we know that we're living in the face of a tremendous terrorist threat, that we have to go after these people and try to get them before they harm people in America.
In this case that involves a United States citizen who, at the moment, appears to be detained without trial, under a rubric that could keep him in that detention indefinitely.
What does that pose as a threat to the civil liberties of the country? Or is this, in fact, a necessary step for our security?
Gary Solis?
GARY SOLIS, ADJUNCT PROFESSOR, GEORGETOWN UNIVERSITY LAW SCHOOL: Well, first I have to say that I speak only for myself and not for the Marine Corps. And I agree with you that this is a step toward possible constitutional difficulties, and a step that need not be taken.
What the heck is an enemy combatant? It's a status that I've never heard of before. It's certainly not in the law of war. I have not heard of it in constitution law or any other area. So just by designating someone an enemy combatant we're able to hold them incommunicado for an indefinite length of time?
Well, I never thought that I would be defending anything that an enemy of the United States was doing. This is troublesome.
KEYES: Well see, I think, Gary I, at least, am not in the position of defending anything this guy may do. And I think we ought to be finding effective ways to stop these people, kill them if necessary, in order to defend the people of this country.
But if we create a rubric like this, it seems to me we have to look to the future. Today it's being used against somebody who I would think, you might think, is really a terrorist. What if tomorrow some ambitious soul, unscrupulous guy without morals or, but with great ambition, gets into the White House?
And after Bill Clinton, don't try to tell me that can't happen in America, because I don't believe you — see.
I think the American people can put somebody who is deeply immoral into the seat in the White House. You hand him this kind of arbitrary power, Dave Castro, and what are the implications of that power?
CASTRO: Well, two points. I think first of all. I think we have to really look carefully at the context here. And we have to ask yourselves: Do we credit the information that we've been given by the government about this person?
I mean, if we do, then we would have to believe that this is an al Qaeda combatant. In fact, an enemy conspirator who entered the country for the purpose of committing murder and mayhem against the citizens of the United States.
Now, I think that argues for a different category. We really have to look at this as part of the power that the nation has to wage war against terrorism.
KEYES: Now Dave, I have to stop you for one second. One second. Because you said “if we credit the information the government has,” and so forth, and so on.
Is that the way America works? That the government acts, and then we're supposed to stand by and just have confidence that the government is acting in the right way? Is that the way our system was set up?
CASTRO: I think the question — I think it's a question that turns on the context. We have to look at the context, and we have to say: In this circumstance, is it reasonable for us to credit the information that the United States is giving us?
And I think that it is reasonable in this case.
KEYES: Reasonable or unreasonable, I'm asking a question about whether under our system of government, our security, and the security of our rights is supposed to depend simply on whether we give credit to the official actions of the government. We have no other safeguards than that?
CASTRO: I think you have to ask the question: depend when? I mean, obviously, in the first instance we can and do and must depend on the judgments of our political and military leadership.
I think the question is: Is there a point in the process down the line where somebody gets to review that judgment? And I think there is here. And I think you talked about it in the first part of your program, when you talked about the writ of habeas corpus. That is the test of whether this person is held legitimately and whether his characterization as an enemy combatant is legitimate.
And I believe that there will be an opportunity for a writ of habeas corpus in order to test the conditions of this — the confinement of this person.
KEYES: Well there could be. But the question is — as part of the process envisaged here — one of the things that I find a little disturbing is that that depends, doesn't it, on there being a lawyer or there being somebody who knows about and is interested in what is going on so that you have somebody intervening?
CASTRO: But clearly here there is a lawyer. There is a lawyer, and...
KEYES: I know, I'm not talking about this circumstance, because when you establish a precedent like this, you can't just look at the particulars of today. We are setting a precedent for later.
And let us say that you move against an individual in this fashion. One of the things that you're doing, first of all, is you are accustoming the executive instruments of government to act without a prior, necessary consultation with civil authorities, with respect to a U.S. citizen in order to accord that citizen the right to answer the charges against him.
That is not a necessary part of this process, is it?
CASTRO: I don't agree with that. I think that you have to — again, you've have to look at the context. You can't rip this out of the context.
Let me give you an analogy. Suppose that we were on the battlefield and we were engaging gunfire with the enemy, and we discovered that one of our fellow soldiers was a spy who was plotting to blow us up. Would we then be reading this fellow his Miranda rights and calling his lawyer? I don't think so.
KEYES: Well, the sad thing is though...
(CROSSTALK)
KEYES: I am sorry. That, to me, is a dangerous argument, because you are basically going to say now that this situation we're in with terrorism, puts all of us on a battlefield in which we must then be treated as if we were soldiers under that military command, where by and large an arbitrary authority is exerted in the interest of the overall goal on the battlefield.
Gary Solis, I find that to be a very disturbing analogy.
SOLIS: Well, it is. This is disturbing on several levels. First of all, it's the government, it's the civil authorities that are making what some of us consider to be a mistake. Not only that, but the analogy that was posed by Mr. Castro simply isn't the case. If this was on a battlefield, it would be an entirely different situation, but that's the point — this is not on the battlefield. This is...
CASTRO: I don't agree with that.
When you have Al Qaeda soldiers, which infiltrate the country, in the guise of citizens, as they already have, to commit acts of murder and mayhem against the people of the United States, we have to defend ourselves...
SOLIS: Yes, we do...
CASTRO: ... and, of course, this is part of defending yourself, to discover those people who are enemy combatants in the guise of civilians, and to apprehend them and stop them from committing acts of violence.
KEYES: Gary, go ahead.
SOLIS: But I would ask what evidence you have that this guy is an enemy combatant or that he came into the country for some malevolent purpose ...
CASTRO: It gets back to the question of do we credit the government's statements?
KEYES: No! I have to answer that question. Let me answer that question quite precisely. When an accusation is being brought against a U.S. citizen, the answer to the question of whether we simply credit the executive to prosecute and detain and hold that citizen, without giving that individual a fair right to defend him or herself against that charge, and whether we just credit the government and let them be tossed down the deep hole, the answer to that question, sir, is no, we don't in America.
No, we can't in America. And I don't care...
CASTRO: That is not what the supreme court says.
KEYES: ... who the executive is and I don't care what you would like to credit — no. We can't afford to put that much power in the hands of an executive, so that a mere label that he puts on you without being scrutinized in terms of its evidentiary basis by any judicial branch of this ...
CASTRO: That is a mischaracterization of what's happening.
KEYES: That is not. That label would be ...
(CROSSTALK)
KEYES: ... drop you down a deep hole.
CASTRO: There's an opportunity for review by the writ of habeas corpus. That is the constitutional review that this man is entitled to. The writ of habeas corpus will determine whether his characterization as an enemy combatant is legitimate or not.
SOLIS: It's a bogus characterization to begin with. There is no such thing as an enemy combatant ...
CASTRO: That is not true. Have you read the Querin case ...
SOLIS: Of course I read the Querin case.
CASTRO: ... clearly defines the status of an enemy combatant, and the facts are very analogous to this situation.
SOLIS: I have the Querin case sitting right beside me.
CASTRO: How would you distinguish the Querin case from this?
(CROSSTALK)
SOLIS: The Querin case involved eight enemy saboteurs who landed, wearing portions of the enemy uniform.
CASTRO: One of whom was an American citizen.
SOLIS: Two of whom were citizens, as a matter of fact, but the Querin case is not necessarily controlling, although it certainly does say that even U.S. citizens can be apprehended and held.
CASTRO: But in that case the writ of habeas corpus was denied, was it not?
SOLIS: It was indeed. In this case there has been no opportunity, as far as I know, for a writ of habeas corpus. And the military is being stuck ...
CASTRO: This man has a lawyer. Why can't his lawyer file a writ of habeas corpus tomorrow?
SOLIS: I think he can. Why hasn't he filed it in the last 38 days?
CASTRO: Because it wasn't necessary at that point to test the conditions of his confinement.
KEYES: But he was at that point being allowed — because this is a problem here.
As I understand it right now, he is being held without communication with his lawyer, and so you mentioned a minute ago, the wishes of the individual with respect to the lawyer — those wishes can't be determined if you can't talk to your lawyer, and apparently, under the present terms of his detention, he's not able to talk to that lawyer.
Second, the question I raised a minute ago is still extremely important. Yes, under these particular circumstances a lawyer is standing there. That is not, however, essential to the case that the government is presenting in terms of his detention.
That could have proceeded in the absence of any lawyer being present in this circumstance, and then the question would be — is there, as a part of this process, a necessary opportunity to allow the individual to defend him or herself against the charge of being part of the enemy? Where does that occur in the government's understanding as a part of the process they have set forward? That's what I'd ask you.
CASTRO: The program is called MAKING SENSE. I think you have to ask two questions.
One, does it make sense to assume that our leadership in the military and in the justice system is going to Willie Nillie, on trumped up charges, throw people in military prisons? I don't think any American citizen believes that today. I think that people believe that the statements that have been made about this individual are true. I also think that we would have to conclude that they would be doing this without notifying the public, in secret. I mean, it's always possible in the kind of society that we live in, for the police and the military to abuse their authority.
KEYES: When was this man arrested? When was this man — when was this man first arrested?
SOLIS: He was arrested on 8 May.
KEYES: When did you and I hear about it?
SOLIS: Yesterday.
KEYES: In the interim ...
CASTRO: He had a lawyer. He clearly had a lawyer.
(CROSSTALK)
KEYES: Let me finish, though. From the point of view of what you just said, because we don't get around it, he was being detained without that public knowledge, and hearings were being held in secret. I am not necessarily questioning the necessity for that, but I'm just saying let's not get careless with our understanding of what has gone on here.
SOLIS: Mr. Keyes, you should keep in mind that the military is being unfairly saddled with this individual, by the way. The military did not seek him out. The military doesn't want him. The military is being made to carry the burden that the federal government has been unable or unwilling to carry.
In the military, under the uniform code of military justice, everybody's who's in pretrial confinement or any confinement, has a right to a lawyer within 48 hours. If he's not getting that lawyer within 48 hours, it's not because the military isn't doing its job, it's because the federal government is precluding them from doing that, and that should not be the case.
CASTRO: Well, what should we do with Al Qaeda operatives that enter the United States, even U.S. citizens who enter the United States in the guise of civilians and plot murder and mayhem against the citizens of the United States?
KEYES: Let me say this, in answer to that question, I think before we can even get to that, from the point of view of a U.S. citizen, the first question I ask is — let's make sure that the determination that this individual is in fact the enemy cooperating with the enemy and working for the enemy, that that determination is made in a way that accords the individuals the due process — that is to say the right to defend oneself — in such a way that you can confront the witnesses and charges against you and provide you with an opportunity to refute those charges.
That's what citizenship means here.
SOLIS: And you're only describing the normal process.
KEYES: Yes.
SOLIS: As a matter of fact, as you know, Mr. Keyes, in New York in federal courts there have been 26 terrorists who have been tried and convicted. And it's not presented a problem to the federal ...
CASTRO: Well, we have to be fair to the Justice Department. The Justice Department has said, clearly, I think, that if he is prosecuted, he will be turned back over to the court system.
KEYES: No. But what we're worried about here, Dave, is — one of the things that deeply worries me, because it was one of those characteristics of the governments that during the course of my adult lifetime, I fought so hard against the communist governments and all these people — is that bureaucrats could, with the cooperation of the security forces in the military — people who thought they were just doing their jobs and who got used to the fact that they could be ordered to do these things were sent.
They would arrest people, they would put them in places out of communication with other individuals, and they could leave them there indefinitely without bringing them to trial, without bringing charges against them, without giving them an opportunity to defend themselves. That's not a characteristic of America, that's a characteristic of the countries that I fought and other people fought hard during their whole careers to defeat, to stop the spread of that kind of government.
Now we don't want it here, and I don't think we should allow it to come here by accident or inadvertence in the way in which we handle ...
SOLIS: That's not a characteristic of the military. The military has a system in place which ensures that that will not happen. As a matter of fact, the Posse Comitatus Act has not been mentioned here at all, which should preclude military from assisting in the prosecution of civilian laws, and that's exactly what the civilian government, the Department of Justice, is forcing the military to do here.
Why has the military got this guy at all? He should be in the hands of the civil government. There should be charges brought against him in court so that he can have a lawyer and a hearing.
CASTRO: My point is, aren't we making a category mistake here to apply these constructs — I mean, this is really a situation that's unlike any that's faced America, where we actually have, you know, enemy soldiers — and I think you have to call them that — enemy soldiers who have infiltrated the country and who are acting, really, in the guise of spies. People who are in here to plot acts of murder an mayhem against innocent civilians ...
(CROSSTALK)
KEYES: Wait. Stop. You keep saying that, but under our system, you cannot treat someone as if they are guilty of an offense until after you have proven it.
CASTRO: Of course not.
KEYES: You're putting the cart before the horse.
CASTRO: You're the one that's making the mistake here.
KEYES: Let me finish, Dave. Let me finish. You are saying quite obviously, “This man is an enemy of the United States.”
CASTRO: No. I am not. I am not.
KEYES: That's what you just said.
CASTRO: That is jumping to a conclusion.
KEYES: OK, go ahead. Explain to me how I missed that.
CASTRO: What I'm say here is that it is necessary in order for public safety for us to be able to find and capture and hold people who are believed to be enemy Al Qaeda operatives who are in the United States plotting acts of terror.
Once we are certain that they are not, then the justice system can come back in and I think that's what we've been told.
(CROSSTALK)
KEYES: No, Dave. That is so absurd. I am sorry. What you have just said, you are, again, doing what you just denied you were doing. You are saying once you — if they are not, meaning to say we will assume that they are, we will treat them as if they are, we will hold them without trial as if they are, for as long as we feel like it, and then when the executive is satisfied, then maybe we'll turn them back over to the civil authorities. You want your civil liberties to be subject to that kind of arbitrary process?
(CROSSTALK)
KEYES: We've come, I'm afraid — they're telling me we're at the end of our time. We obviously have just begun to scratch the surface of this debate, and it's a critical one.
Thanks, both of you, for being with me tonight.
Next we'll debate whether the war on terror could become a racial war.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to making sense. I'm Alan Keyes.
The capture of home grown terrorist suspect Jose Padilla is a reminder that the nation could have potential enemies within.
United States officials belief Padilla concerted from Catholicism to Islam while in prison.
There are nearly 6 million Muslims in the United States. Obviously, most of them wonderful, law-abiding Americans and citizens. 1/3 are South Central Asian, another 1/3 are African-American, and 1/4 are Arab. There are Europeans and others in the mix.
It's important, I think, that as part of our response to the Jose Padilla story, we begin to open our eyes to a truth that I think has been neglected in the course of the discussions that have gone on about racial profiling, terrorist threats and other things.
We have John Lindh Walker, we have the individual with the shoe bombing of a European background. We now have this individual, Jose Padilla, who is a Latino American, and we have the clear understanding that we are faced with a community that is diverse, as diverse, in fact, as the world, as all America.
And when I listen to people talk as if, well, it's going to be easy. We'll just have this particular profile and we'll stop all those kinds of people, and so forth — it's not going to be that easy.
We're obviously going to have to stick to methods that respect the requirement of getting the specific information, paying attention to the individuals, not making our judgments on a group basis, because we are dealing with a threat the that could come, in point of fact, from any quarter. Any quarter. Not just this particular group or that particular ethnic group.
That's one of the things that I think we need to focus on as we think about all of these issues.
Well, joining us now to talk about the implications of this diversity in the Islamic community, among other things, is a Dr. Aminah McCloud, professor of Islamic studies at DePaul University.
Also with us, Niger Innis, national spokesman for the Congress of Racial Equality, an organization committed to community development and empowerment.
I'd like to start with Prof. McCloud, because as I've been thinking about the implications of this, it seems to me that we have in the story of Mr. Padilla a kind of cautionary tale that ought to start to kind of limit the gallop that some people have wanted to make, to base our approach to terrorism on some kind of racial profiling or ethnic profiling, and so forth and so on.
It seems to me that the tremendous diversity that we are seeing in the Islamic community and in the possible sources of threat to this country would militate against that kind of approach, wouldn't it?
PROF. AMINAH MCCLOUD, DEPAUL UNIV.: Absolutely, and I think so. But I think that you're the first person I've heard on TV really point that out.
It probably should have stopped with John Walker Lindh, I think his name is. But it didn't stop even there.
And today's papers kind of let us know that in spite of obvious, some of the media are intent on trying to figure out how to make this a profile.
KEYES: Well, see, this is part of what I don't understand. Because it seems to me when we look at the breakdown of the statistical makeup of the Islamic community, here's what it looks like.
Let us assume for a moment, that as seems to be our experience so far, we are dealing with a threat that comes at the moment from the 1/4 of Islamic extremists and Islamist fundamentalists and all of that. That still doesn't give you some easy racial or ethnic profile. Why?
Here are the statistics. African-Americans now make up 64 percent of all converts to Islam. We also have, in addition to that, a diverse community in which you have all different kinds of individuals who are converting to Islam; whites, Hispanics, other groups. We also have two major groups in this country, black Americans, who are, I think, about a 1/3 of the all the Islamic people in this country. We have folks of South Asian extraction, another 1/3. We have people who are — whites, make it European extraction, making up about 2 percent.
Arabs, who have been portrayed by the media as the ones who are kind of the key source of threats, the, they're about a 1/4. But that doesn't exactly seem to me to make an approach that is based on racial profiling really likely to be successful because —
Aminah McCloud, don't we have to assume that just like other groups, there are going to be good apples and bad apples in all different kinds of ethnic groups, whether they're Islamic or non-Islamic? And the possibility...
MCCLOUD: Well, absolutely...
KEYES: Go ahead.
MCCLOUD: Well, I was just going to say absolutely. But none of this has come down in a rational discerning kind of way.
Every response that we've made has been a little on the irrational side. All of the anti-Islam, anti-Muslim rhetoric, the assertions that the Koran teaches violence, all the way to all of the extremists in the world, and certainly all of the terrorists in the world, are Muslim.
And then, who is a Muslim? Well, the Muslim is an Arab, and he runs around with a robe on and a hat, and even if that doesn't work, we begin to profile people at airports and bus stations and just in everyday life.
But it also, for myself and others as African-American Muslims, it's a double whammy, because we're already profiled as African-Americans and then further profiled as Muslim, although it's hard to tell.
KEYES: Now, Niger Innis...
NIGER INNIS, CONGRESS FOR RACIAL EQUALITY: Yes.
KEYES: We are, I think, looking at obviously a very serious security challenge for this country.
INNIS: Absolutely.
KEYES: For me, the background and the story of Mr. Padilla is really a cautionary tale, and it's one that raises some implications about the future of this war and of our about to prosecute it that, to my mind, are pretty disturbing, particularly when we consider the implications of some of the policies on detention and so forth and so on.
Do you see those disturbing implications? Would it be possible that when all is said and done, we go down a road where this starts to be a situation that inflames divisiveness and racial and ethnic tension in this country?
INNIS: It could, and we have to be very careful to mind against that.
Alan, I agree with your opening statement completely.
The overwhelming majority of the millions of American Muslims and over a million black American Muslims are peaceful, law-abiding citizens of our country that appreciate the religious and other freedoms that we have in our country.
But there is a tiny minority of extremists. These tend to be marginalized individuals, marginalized from mainstream society.
Nevertheless, there is a potential in the prisons, in the barrios and the ghettos of our country, and I would even argue in poor white America, there is a poem for fertile soil for groups like al Qaeda and other extremists to recruit.
Why? Because for decades, irresponsible individuals in media and academia and the political and cultural elite, have made criminal, anti-social, anti-American beliefs and behavior chic in the African-American community, in the minority community as a whole.
I mean, you see it proliferated in the entertainment industry. You have a billion dollar music industry that pumps nihilism in the minds of young Americans of all colors.
At some point, this nihilism and this anti-social behavior that is pumped into the minds of these young minds, are going to bear spoiled fruit.
KEYES: Well, one of the things that we've obviously been discussing in the first hour, and I think ya'll were able to see it, has to do with the kind of procedures we might be adopting with respect to those accused of these terrorist activities.
When we get back, I want to put in front of you the implications of establishing a relatively arbitrary process that might at the end of the day end up selecting for people of nonwhite background, and what the implication of that will be if there is a perception of arbitrariness. I just want you to think about that.
And later, after we get back with our guests and finish that discussion, you'll hear my “Outrage of the Day” — a priest giving a deposition in this very sensitive case, and was joking about the problems that abused people might face psychologically.
But first, does this make sense? It turns out that Germany is reluctant to come to the aid of the prosecution of Moussaoui — remember him? Because German authorities don't want to hand over evidence to assist in his prosecution for fear that he might be subject to capital punishment, and they're against capital punishment.
So let me see — they don't want to cooperate in helping to convict somebody who goes out and kills innocent civilians, for fear that when he's found guilty, he might be put to death.
Does that make sense?
(COMMERCIAL BREAK)
KEYES: We're back with Dr. Aminah McCloud and Niger Innis.
Now I want to lay something very quickly, because we only have a few minutes, in front of both of you, and get a comment, if I can, about something that worries me.
I'm watching a process develop — we were just talking about it in the first half-hour — where some relatively arbitrary procedures are being put in place that could end up creating a category where individuals put in that category because of their terrorist activities would be deprived of due process, held without trial indefinitely, and so forth and so on.
I'm also looking at a profile of the Islamic community that has Latinos, blacks, and others, that raises the possibility — not the likelihood, but the possibility — that we could start to see, as we saw with a Latino American here, black Americans and others, who would be detained under these kinds of procedures.
I am worried that if we allow these arbitrary methods to be put in place, we could be feeding a perception that would then lead to racial animosity and resentment because of the pattern that might develop in these detentions. Niger Innis, is this something I shouldn't worry about?
INNIS: No, you absolutely should be concerned about it. All Americans of goodwill should be concerned about it.
And what you're doing here, which is putting these procedures under the light of public scrutiny, is our responsibility as Americans. But we are in a state of war, and you know, one thing about our leader at CORE, Roy Innis, my father, incidentally, who was a pioneer in correcting police-community relations, what we said about so-called racial profiling is that we don't believe in so-called racial profiling, but we do indeed believe in criminal profiling, and we could extend that to terrorist profiling, where age, gender, legal status, and indeed, race can be a factor and a tool in law enforcement.
MCCLOUD: But I think you open up a door there that is very, very dangerous.
It's just like saying that the ghettos and places where there are poor people who are frustrated with the system are potential recruits for al Qaeda. If you're going to profile a terrorist, then how are you going — what are you going to put in the category?
Timothy McVeigh came out of the military. He didn't seem to have come from the pits of the social ladder.
INNIS: But the fact of the matter is, professor...
MCCLOUD: I mean, how are you...
INNIS: But the fact of the matter is, professor, the FBI has put white extremists groups that McVeigh was associated with, and they have been profiled for years, for decades, going back to the 1960's and the civil rights movement.
MCCLOUD: Yes, but I mean, so have we. But when you're talking about terrorists, how do you decide, by age — like I was stopped at the airport the other day because I fit an age category, a color category, a religious category. I mean, what is your profile?
INNIS: It should not be random. It should be a certain set criteria that should be made public.
KEYES: Wait a minute. Niger, I have a problem.
INNIS: Sure.
KEYES: And this is the problem I guess I've been trying to raise in this segment.
MCCLOUD: I do too.
KEYES: I will have to confess, I don't have a problem with common sense sort of profiling in police matters, looking at people who commit crimes and stuff. It just makes sense.
If we do it with this terrorism in the way that's described, given the diversity of the potential sources of the terrorist threat, even if you accept the notion that right now we should concentrate on Islamists extremists, and all that — but the Islamic world is as diverse as America.
MCCLOUD: Well, I don't agree that we should concentrate...
KEYES: I'm sure. I'm not saying. But even if you assume that, you still don't get an argument that would lead you to profile for any given group, because that extremism, in our experience already, has emerged with a white face, has emerged with a Latino face, has emerged with an Arab face, and could very probably, given the large numbers, emerge some day with a black face.
INNIS: But Alan...
KEYES: Profiling would defeat your security purpose.
INNIS: But, Alan, you can look at mosques who are providing scholarship to individuals to go to universities abroad.
MCCLOUD: But why would you do that and not look at...
(CROSSTALK)
KEYES: Stop. Stop, please. We've run out of time. I have to apologize. I've got to have you both back, though, because this is just scratching the surface of what I think is a powerfully important and emerging topic. And we will continue to take a look at it here. We just started today.
Thank you both for giving us that start. Thanks.
Next, my “Outrage of the Day.” We'll be right back.
KEYES: I have an “Outrage of the Day” in mind, but the last discussion kind of put another thought in my head that I want to share with you as we leave the program.
There's a connection between part one an part two of tonight's program. We are a tremendously diverse society. The threat that will come against us, and is coming against us, in terrorism, is going to have some deep diversity in it. It's not just Arabs. It could be Latinos, it could be whites, it could be blacks.
I think if there is a perception of the arbitrariness in the way we handle individuals in this matter, it could inflame racial and ethnic sensitivities in a dangerous way.
That means we want to avoid that arbitrariness for a whole range of reasons.
Thanks. The NEWS WITH BRIAN WILLIAMS is up next. See you tomorrow.