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Alan Keyes is Making Sense
Alan KeyesJune 12, 2002
ALAN KEYES, HOST: Welcome to MAKING SENSE. I'm Alan Keyes.
Up front tonight, back to the case of Jose Padilla. Now, a writ of habeas corpus has been filed by his lawyers.
Let me stop for a minute — habeas corpus. That means that you have a writ which says that the government has to produce an individual, take him before a judge so a judge can decide that there's really grounds for him to held, quite simply.
The government has until June 21 to state its case along those lines against the suspected terrorist, and specifically state why he should not receive due process.
In the meantime, we're finding out more about his life and his circuitous path to what the government claims is an al Qaeda connection.
Before we get to our guests in discussing this matter, let's go to MSNBC Pentagon correspondent Jim Miklaszewski.
(BEGIN VIDEOTAPE)
JIM MIKLASZEWSKI, NBC CORRESPONDENT (voice-over): Jose Padilla, seen here on the right, being arraigned here on gun charges in Florida 11 years ago. He was convicted and served 10 months in jail. Now he's being held by the U.S. military as an enemy combatant. But today in Manhattan federal court, his attorney argued there's not enough evidence to hold Padilla. The federal prosecutor says he can't even talk about it.
JAMES COMEY, U.S. DISTRICT ATTORNEY: I'm not allowed to talk about what happened in connection with grand jury proceedings.
MIKLASZEWSKI: But U.S. sources tell NBC News there's a substantial amount of evidence that links Padilla to Osama bin Laden's al Qaeda terrorist network. The trail began last February in Pakistan. U.S. consulate officials in Karachi grew suspicious when Padilla, an American citizen, applied for a new passport. They reported him to security officials, but at the time, there was no clear link to al Qaeda.
A month later, U.S. investigators got their big break when they raided a dozen safe houses in Pakistan, arresting al Qaeda ring leader Abu Zubaydah. U.S. officials report Zubaydah and several other al Qaeda members identified Padilla from his passport photos and claimed he was plotting a bombing campaign inside the U.S. Investigators found more evidence in the safe houses, documents and computer hard drives that reportedly linked Padilla to plans to build a radiological or “dirty bomb.”
Sources report one more link. A top al Qaeda official, Ibn Al-Sheikh, now being held by the Egyptians, also tied Padilla to al Qaeda. On April 1, Padilla was put on the FBI's terror watch list. But by then, U.S. authorities had lost track of Padilla. They picked up his trail again in late April in Cairo, followed him to Zurich and then on to Chicago, where he was arrested May 8.
(on camera): U.S. officials say there is one big gap in the chain, 14 months when Padilla simply disappeared. They believe that's when he got his basic training in one of al Qaeda's terrorist camps.
Jim Miklaszewski, NBC News, the Pentagon.
(END VIDEOTAPE)
KEYES: The Padilla case is raising some important issues about how we are going to handle the threat to our security from terrorists and those who work with and facilitate their activities, and particularly from those who may be American citizens, and therefore ought to be entitled to a whole range of protections under law that we take for granted, including, of course, the ability to defend yourself against the charges brought against you by the government, and to have that defense conducted in a way that is not in public opinions polls, not on the media, not on TV or anywhere else, but in a court of law where you have a fair chance to state your case before an independent and impartial judge.
Independent, that is, of the executive power that is bringing the charge against you.
All those things have been considered absolutely fundamental to American liberty. It should be pretty obvious to us why it's dangerous to mess with that.
At the end of the day, let's say we have a label — enemy combatant. And I, as the executive — the President, whatever — can put that label on you.
And once I've put it on you, you are stripped of your rights, and I can then hold you incommunicado, don't get to talk to a lawyer, don't have access to a court. And I simply throw you in the brig, keep you there like a prisoner of war like these folks in Cuba until the war ends.
Of course, if it's war like the war on terror, maybe it never ends and you just stay there forever.
That means a knock could come on your door some night, and the executive could place that label on you. And you'll say, no, I haven't done anything. But nobody will hear you, because there will be no court in which you get actually to make that case.
Now, you'll say, but that's not the case with Padilla. No, it's not, because he was originally held under the actual procedures we follow now, as a material witness. He therefore had a lawyer, and that lawyer has now filed a writ according to the due process that we are all supposed to be accorded.
Imagine, though, that he'd been picked up and put into this new system where he's just — you're an enemy, and a combatant. You're thrown into prison. Who knows you're there? What lawyer can you contact? Nobody.
You can get tossed down a deep hole just on a determination you don't even get to defend yourself against.
You think that's just dangerous to terrorists? I've got news for you. The abuse of that power could be real dangerous to you and me, and every other citizen.
And the greatest danger of it is that once the accusation is brought against us that we are the enemy, we don't even get a chance in a fair and open day in court, much less before a jury of our peers, to make the case that that's not so.
Well, in a USA Today Gallup poll, 80 percent of Americans say they would give up some freedoms to gain security.
I guess I'm spitting in the wind, then, aren't I. I suppose I might be, in the sense that, if that's the way people think.
Think of all those people who fought against dictatorship and against the regimes in the world that don't respect this basic right of due process, this right of people to defend themselves against the charges brought against them.
You know, we sent people out to die for that. They gave up their security on battlefields around the world, because they thought freedom was important than security.
And now we're taking the polls where Americans have decided that, no, security's more important. We're not going to take any risks. We're not going to live in a world that has any margin of risks in order to hold to that freedom.
I think it's time we start thinking about this. And if you think that, no, we can trust them — that was what the gentleman was saying on my show last night — we get to — if we're not going to give credibility to the governments, what are we going to do?
You know, our founders, first of all, didn't say the government was to be trusted. It said government has to be watched. It is to be checked and balanced with safeguards, starting with the safeguards in due process that allow individuals to be free from the abuse of arbitrary power — power not checked by a fair process that allows you a proper defense against the charges brought against you.
And so, if you're going to have a system where that's no longer the case, it will happen that people get dropped out of sight. It's already happened.
There's this outrage I saw today in the “Washington Post” about a former Boston cab driver once identified by authorities as a major terrorism suspect, who was kept in solitary confinement for more than eight months without seeing a judge or being assigned a lawyer.
According to the report taken from court records, and lawyers familiar with the case, 35-year-old Nabil Al-Marabh was taken into custody on September 18, not brought before a federal magistrate to face charges until May 22.
Even under a system where the safeguards are supposed to exist, people can be forgotten. You institute a system where their safeguards aren't even part of the process, and folks won't even have a chance to be forgotten, because there won't even be a sense that they should be remembered by anybody but their jailers, if they're lucky.
I thought that was the kind of system that we have spent many decades in this country fighting against — the knock on the door in the middle of the night, the folks who cart you off to we know not where, irresponsible to report to anybody about your whereabouts, so that you can't even raise a voice of protest against the charge that you are an enemy of the state.
That's the America we're supposed to live in. And I don't think we can afford to allow the insecurity induced by terrorism to put us in a position where we are more timid, more cowardly than those Americans who stood on battlefields with the bombs exploding all around them, and still thought it better to die than to give up their liberty.
We need to fight the war on terror, but I think we need to fight it in a way that preserves and respects the requirements — the fundamental requirements of our liberty.
And this notion of a trial and the right to defend yourself, and the freedom from the arbitrary abuse of power — that's not just some other right. That's a fundamental, perhaps one of the most fundamental rights.
Once you can become the target of arbitrary executive power, your freedom of speech is next and your political participation is next, because fear spreads like a cancer.
And as you watch others being carted off, you think to yourself, if I open my mouth, I'll be carted off, too.
And that's how it happened in Eastern Europe, and that's how it happened in other places that fell under the shadow of the tyranny and despotism we fought so hard to defeat in the last century.
And then we have to ask ourselves, is it even necessary? So far, in the investigations that have been conducted about what led to 9/11 and what failure there was in our national security system, has the fact that we have too much freedom been identified as one of the reasons for our failure? I haven't noticed that.
Matter of fact, Congressman Porter Goss, an important figure running one of the committees investigating the intelligence failures leading up to 9/11 said this about it.
He said, should we have known? Yes, we should have. Could we have known? Yes, I believe we could have, because of the hard targets CIA operatives were tracking.
In a world where we didn't have this kind of assault on our fundamental liberties, where we respected the basic rights, our people had the kind the information as it is coming out now that could have prevented this attack.
If that is the case, then maybe we're being asked to give up freedom, when we ought to be looking at how we properly fix the instruments of national security that failed us.
For our freedom did not fail us. And it will not fail us, unless we fail it.
And I think that's the question now, that we are in fact addressing.
Next, we're going to get to these very matters on the heart of the matter. We're going to ask ourselves whether post-9/11 America has become too timid for freedom?
Whether security is so important to us that we're ready to give it all up, so long as we can be safe.
Rich Lowry and Terry Jeffrey — two good friends of mine, two fellow conservatives — are going to be taking the other side in this discussion. And so I think it should be a pretty interesting debate.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Coming up in our next half hour, America's bishops arrive in Dallas for their all important annual meeting, where the church sex scandal is at the top of their agenda, of course.
We'll preview and get a live report from the conference and debate whether the bishops will hold themselves — not just the priests who abused, but also themselves, who were part of the cover-up and complicity — well, will they hold themselves accountable?
A reminder that the chat room is humming tonight. And you can join in right now at chat.msnbc.com.
But first, back to our discussion about the issues that arise from the arrest and incarceration, now, of Jose Padilla.
Joining us to get to the heart of the matter, Terry Jeffrey, the editor of the weekly magazine, “Human Events,” and Rich Lowry, editor of the weekly magazine “National Review.”
I have to comment again, both of these gentlemen are esteemed colleagues of mine. I have the greatest respect for both of you, and I hope we are good friends. And I think that this is one of those issues, though, where I guess my sense of the primacy of trying to preserve, even in the midst of this insecurity, our Constitutional freedoms, comes to the fore.
And this whole situation, now, as I've said for many weeks and months, since this whole situation came about, one of the first things I said was that this war on terror would pose a threat to our liberties if we were not careful about it.
And so I want to start, Terry Jeffrey, by asking you, I feel that this is one of those dangerous moments when we could very well create an instrument that, in the hands of abusive ambition, will be the instrument that could be used to subvert and destroy our political liberty.
Why don't you agree with that sense of the danger.
TERRY JEFFREY, EDITOR, “HUMAN EVENTS” MAGAZINE: Well, I understand you concern, Alan, but let me quick lay out a four-point argument for why this falls within the Constitution and there's a real check on it.
First, Article I, Section 8 clause 10 of the Constitution gives the Congress the power to define and punish offenses against the law of nations, which the (ph) favors (ph) are very clear about (ph) unjust acts of war.
Secondly, under that power, the Congress passed Title 10 of the U.S. Code, Section 836 of which specifically empowers the President to set up military tribunals, and for the President, on his own, to set the rules under which those tribunals shall act.
They tell him that he has to make it conform as much as possible to the civil and criminal courts, insofar as he thinks that's practicable.
Third, Alan, the Fifth Amendment to the Constitution expressly exempts members of our armed forces in time of war or national danger. So our troops in Afghanistan today fighting al Qaeda do not have Fifth Amendment protection.
Finally, because all this is given to Congress, not to the executive branch, and Congress has made the law under which this happens, if Congress — 435 members of the House, 100 members of the Senate elected by the people — decide that President Bush is abusing the power they've delegated to him, they can change the law, they can have oversight hearings, they can demand by subpoena any paper or any executive branch statement about this.
And in an extreme instance, they can even impeach the President of the United States if they thought he was abusing his power and attacking the freedoms of the American people through this instrument.
KEYES: Mr. Lowry?
RICH LOWRY, EDITOR, “NATIONAL REVIEW” MAGAZINE: I think that's all very well said. I don't think there's going to be a military trial here. I think it's just going to be a detention.
And the courts have held — the Supreme Court in that famous 1942 case involving German saboteurs — said very explicitly that being a U.S. citizen does not relieve you from the consequences of your belligerency.
There's also a 1946 9th Circuit case that held the same thing involving an Italian-American. And once the executive determines someone is an enemy belligerent, there's just on an entirely different track from the domestic legal system.
And, Alan, if you think it's more prudent to treat this case in the domestic legal environment, I think you have to be willing to follow through intellectually on the logical consequences of that, which is that you couldn't interrogate him the way we're probably doing now, and you very well might have to let him go, because it may be that the administration just doesn't have a case against him that could be made in the domestic courts with all the necessary protections and rights of the accused.
KEYES: Right. We will, at an appropriate time, I think, get into the question of what we should really be doing with the folks we think are terrorists.
This whole question of whether law enforcement is an appropriate mentality for war is one that ought to be asked, because there are circumstances I could imagine under which you and I wouldn't be having this debate, because instead of assaulting the Constitutional liberties of all Americans by taking steps that set these dangerous precedents, we would simply assault the terrorists.
And they would not be available to...
LOWRY: Well, Alan,...
KEYES: ... be brought into court, and do...
LOWRY: ... the problem...
(CROSSTALK)
KEYES: ... mistakes.
LOWRY: Alan, the problem is it's not so clean.
KEYES: Don't — I didn't interrupt. I...
LOWRY: It's not, it's not...
KEYES: Excuse me. I didn't interrupt...
LOWRY: ... it's no so...
(CROSSTALK)
KEYES: ... I didn't interrupt either of you, and I don't expect interruptions until I get done.
LOWRY: OK. Sorry about that.
KEYES: You had a chance to lay out your points.
LOWRY: OK.
KEYES: The thing that I find most dangerous about this — and I'll put it out in front of you — very simply is that, I'm an American citizen. I'm sitting here minding my own business.
The President shows up and says I'm an enemy combatant.
Now, under the ordinary assumptions we make in life, I'd get a chance in some formal procedure to say, no I'm not. I'm not an enemy combatant. And I go get a lawyer and so forth and so on.
Who's saying I'm an enemy combatant? Let me cross-examine them, find out the — where's the evidence I'm an enemy combatant? Let it be clear about this.
And the whole thing would go through a procedure in which I get to defend myself against this charge which as the consequence, like a felony, of stripping me of my basic civil rights.
But in this particular case, we're moving toward the acknowledgement, we're in a situation, we're going to say to ourselves, we'll suspend all of that. And when I call you an enemy combatant, I put the label on you. And without further due process, without a lawyer, without access to the ordinary procedures, I drop you down a deep hole and nobody can come get you till I say so.
Now, it seems to me, gentlemen, that everything you argue depends on this determination that I'm an enemy combatant.
JEFFREY: Well, Alan...
KEYES: And yet, if I don't get to dispute that determination, then whether I am or not, whether there's evidence or not, whether it can be proven or not becomes irrelevant.
JEFFREY: Alan,...
KEYES: Because arbitrary power can strip me of the right to protest.
JEFFREY: But, Alan,...
KEYES: Isn't that dangerous?
JEFFREY: This is what arbitrators — a couple of other facts we need to remember.
After September 11, Congress authorized a war against the people who attacked us on September 11, to any nations that aided, abetted them or gave them succor.
So there is a declared war against Jose Padilla. He is a collaborator with al Qaeda. Congress has authorized the President to make war against...
KEYES: Well, Terry,...
JEFFREY: ... Padilla.
KEYES: I don't mean to...
JEFFREY: If Congress wants to...
KEYES: Wait, wait, Terry.
JEFFREY: ... cancel that war, Congress can meet tomorrow,...
KEYES: Terry,...
JEFFREY: ... Alan, and vote to cancel the war.
KEYES: Yes, circular reasoning, Terry.
JEFFREY: No, it's not. Congress has declared war...
KEYES: No, Terry,...
JEFFREY: ... against Jose Padilla.
KEYES: ... let me finish.
JEFFREY: Sure.
KEYES: Circular reasoning. You have just assumed, what in this particular instance is to be proven.
And where an American citizen is concerned, proven through a process that allows me to defend myself.
JEFFREY: Well, then, let me answer that.
KEYES: You have...
LOWRY: Alan,...
KEYES: No, please address this question.
JEFFREY: I will.
KEYES: Because I got this last night, too. And if you don't mind my saying so, I worry about it a little bit.
JEFFREY: I'm going to answer you...
KEYES: You keep saying, Mr. Padilla, the enemy combatant, and so forth — that is the label that has been placed upon him.
According to his lawyer, he is not so.
JEFFREY: All right, but Alan,...
KEYES: OK. And as an American citizen, he says, you have accused me of something I am innocent of doing.
JEFFREY: ... all right...
KEYES: And you are telling me, no, we get to presume your guilt,...
JEFFREY: ... I...
KEYES: ... strip you of your rights,...
JEFFREY: No. That's not what I'm saying.
KEYES: ... and deprive you of...
(CROSS-TALK)
LOWRY: Alan, Alan, you've got to let us talk here, too.
KEYES: I did let you talk, both of you. Go ahead.
JEFFREY: Let me answer the question very quickly, all right.
The law says, I mean, there's Title 10, Section 836 of U.S. Code — people can look that up — that this guy should go to a military tribunal, and the rules there should be set by the President, as much as practicable, like the rules we have in civil, criminal proceedings.
Were the President to hold this person indefinitely, as Secretary Rumsfeld suggests they might, I think that would violate the law that Congress has passed, in which case Congress would have to investigate how the administrative branch — the executive branch was administering the law.
This guy should be tried. He should be tried in the military tribunal,...
KEYES: Well,...
JEFFREY: ... and the rules that are appropriate to that tribunal should be used.
KEYES: Can I raise a problem, though, Terry?
JEFFREY: Sure.
KEYES: Because, under the executive order that the President promulgated with respect to executive tribunals, they are not to be applied to American citizens. He said that himself, before...
LOWRY: Yeah, Alan, can...
KEYES: ... so everything that...
LOWRY: ... can I jump in here?
KEYES: ... everything that you've just said may or may not be the case.
I meet feel a little more comfortable about this if it were the sort of prelude to some kind of ordinary judicial process, and then there might be a different set of objections.
Right now, however, we're being told, no, this guy is a prisoner of war, and until the war is over, we get to hold him incommunicado. And since the war on terrorism has no clearly defined end, it could go on forever, maybe he just drops down a deep hole and never comes back.
LOWRY: Alan, can I kind of address a couple of things. One,...
KEYES: Yes.
LOWRY: ... I think you're right that there is a certain circularity to this process. Why — how do we know he's an enemy belligerent? Because the executive branch says so.
But I do think this is just inherent to the power of the executive branch. They're allowed to make this plenary determination.
And if you think George Bush is not to be trusted with his executive powers, well then you have a problem with George Bush.
And, Alan, you were saying earlier, when I was trying to cut in, that, you know, what we should do with the terrorists is kill them. But the fact is, there's not a clean border in this war.
And the problem is, a terrorist, like we assume Padilla is, can be in Afghanistan or Pakistan yesterday, and show up in Chicago today.
And what you're saying is, once he shows up in Chicago, he is no longer an enemy belligerent, and he is to be treated as just a common criminal and afforded all the rights and protections of a U.S. citizen who has not declared war on the United States.
And I think you have to...
KEYES: No,...
LOWRY: ... you have to address, Alan, that you've — under your scheme you would not be able to interrogate him, and you just might have to release him.
KEYES: Excuse me. I never said anything of the kind. We can get into whether all you just said is true — which I don't think it is — but, the first step that you said, I have to trust President Bush or anybody else.
No, I read the founders very carefully. And they admonished us against trusting anybody with these kinds of abusive powers. It doesn't matter who. Don't try to pretend this is about G.W. Bush or anybody else — no.
It's about setting a precedent that would give to the office of the President a power which, though you describe it as plenary and all, is no such thing.
It is precisely the system of checks and balances, the establishment of an independent judiciary, the Bill of Rights — the whole framework of due process put in place to make sure that the executive cannot be judge, jury and executioner.
JEFFREY: Well, Alan...
LOWRY: Well, Alan, you shouldn't...
KEYES: And that...
LOWRY: So you think the 40th...
KEYES: ... and let me — no, I didn't interrupt you all.
LOWRY: Well, when are you going to stop talking?
KEYES: The point I want to make is, you are now saying that this label — enemy combatant — can be used by the executive, to arrogate to himself the whole power and absolute power of all three branches and bring it to bear...
JEFFREY: Can I answer that?
KEYES: ... without protection on any individual he so chooses.
JEFFREY: Can I answer that, Alan? Let me answer that.
KEYES: How can this be safe?
JEFFREY: Let me answer to that. OK. The Congress has authorized the war against al Qaeda and its collaborators.
So let's say there's a group of al Qaeda in a building in the mountains near Tora Bora. And President Bush is informed and he says, OK, go drop a daisy cutter on those guys.
KEYES: That's right.
JEFFREY: OK. By declaring a war against al Qaeda, which Congress has done, they have authorized the President unilaterally to make the moral decision to terminate the lives of those...
KEYES: That's right.
LOWRY: Sure.
JEFFREY: ... al Qaeda terrorists.
KEYES: Exactly.
JEFFREY: Now, follow my logic on this. These guys get on a plane, fly to Switzerland. They get on a plane in Switzerland, fly to O'Hare airport, and they disperse into the United States with a plan to explode a radioactive device in a U.S. city.
Now, if we capture that guy that Bush could have blown up in this war in Tora Bora, does that mean, all of a sudden he goes into U.S. civil court...
KEYES: Yes.
JEFFREY: ... and can use...
KEYES: Depends — excuse me...
JEFFREY: ... the U.S. Bill of Rights...
KEYES: Yes, yes.
JEFFREY: ... to prevent us from prosecuting...
KEYES: Yes, Terry...
JEFFREY: ... a war against him? Shoot, Alan...
KEYES: ... now, now you're getting...
JEFFREY: ... the Constitution...
LOWRY: Excellent point.
JEFFREY: ... says otherwise.
KEYES: Let me — no. Let me make the point that's clear.
JEFFREY: OK.
KEYES: The answer to your question is yes.
JEFFREY: No.
KEYES: Because otherwise you fundamentally damage our Constitutional system. But, I will say this, I will say this, if we are sending forces out to kill the enemy, and they in good faith identify individual X, knowing nothing more about him, as the enemy, then they have a perfect right to kill that individual, OK?
That individual can be killed on the basis of the determination, you are the enemy.
That's my objection in all of this. Why are we capturing these people, when we ought to be killing them?
LOWRY: Well, Alan...
JEFFREY: Alan...
LOWRY: ... well, Alan, Alan, can I...
KEYES: Let me finish. I let you guys finish. You won't let me finish making a point.
As a matter of the power of the commander in chief facing a war situation...
LOWRY: Exactly.
KEYES: ... the President can order our soldiers to kill the enemy.
LOWRY: It's an executive power.
KEYES: Once you have captured a U.S. citizen, however, you are no longer in that war situation. You are in a situation...
LOWRY: No.
KEYES: ... where the law then applies to that...
LOWRY: No.
JEFFREY: Alan...
LOWRY: Alan, according to your case...
KEYES: And yes, I'm sorry...
LOWRY: ... Alan, according to your case...
KEYES: ... there is a difference between the battlefield and a situation...
LOWRY: According...
KEYES: ... where you are under control, now, of that individual. Go ahead.
LOWRY: Alan, according to your logic, we have been living in a dictatorship since 1942 and that Supreme Court decision.
And this is the fundamental point, Alan. You're saying the executive has a power to wage war.
What you're missing is that this military detention, and perhaps military trial, eventually, is part and parcel of that executive power. And you can't...
KEYES: No.
LOWRY: ... separate it out.
KEYES: Yeah, Rich, here's...
JEFFREY: Alan, let me add something to that.
KEYES: No, one second. Let me answer that, because the point you're missing, Rich, very quickly, OK?
I send the soldiers out. They identify X individual as the enemy and shoot him. They've done their job, OK?
If I send those soldiers out, and at an airport, they capture an individual who is then identified as a U.S. citizen, you must then treat that individual as a citizen...
LOWRY: No, you're just making that up.
KEYES: You cannot simply...
JEFFREY: Alan...
KEYES: I'm sorry...
(CROSSTALK)
LOWRY: Where do you get the authority to say that?
KEYES: Because, because you know...
LOWRY: The courts, Alan, have repeatedly disagreed with you.
KEYES: Excuse me, because...
JEFFREY: Alan...
KEYES: ... because you know...
LOWRY: You're just making this up.
KEYES: ... what that individual has done.
The point that I'm making here is because, when you capture him and you shoot him down on the battlefield, based on the best information you have, and so forth and so on, then you're acting as a soldier within your rights.
When, however, you have captured that individual, he looks...
LOWRY: He's still a soldier when you captured him.
KEYES: ... let me finish — he looks at you, and he says what this man is saying, I'm not with the enemy. That's a lie.
JEFFREY: Alan, let me ask you...
KEYES: At that point, as a U.S. citizen, he has a perfect right to tell you, you have just lied about me, put a label on me I don't deserve, and I get to defend myself before you can deprive me of life, liberty or property.
JEFFREY: Alan, let me answer you with the Constitution itself, the Bill of Rights — I'm looking at the Fifth Amendment. Let me read the first part of the Fifth Amendment.
It says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...”
So James Madison, in writing the Bill of Rights...
KEYES: All right, well how does this apply?
JEFFREY: ... the First Congress said that our own...
KEYES: How does it apply?
JEFFREY: ... military people in time of war...
KEYES: How does it apply here?
JEFFREY: Listen to me very carefully. Our — the framers of our Constitution said in the Fifth Amendment itself, that the Fifth and Sixth Amendments setting up jury trials and grand jury process, said that our own armed forces...
KEYES: How does it apply here, Terry?
JEFFREY: ... in time of war...
KEYES: Quickly, we're running out of time.
JEFFREY: ... do not get protection.
KEYES: How does it apply here?
JEFFREY: What you would be saying is that enemy forces get the protection...
KEYES: He says...
JEFFREY: ... of Fifth and Sixth Amendment...
KEYES: ... he's a U.S. — Terry...
JEFFREY: ... and our fighters don't.
KEYES: ... you're doing it again.
JEFFREY: No, I'm not.
KEYES: And here we have to end...
JEFFREY: Great.
KEYES: ... but I will give myself the last word, because you're doing it again.
Your whole argument depends on circular reasoning.
JEFFREY: It depends upon the Constitution, Alan.
KEYES: You have to — you have to take away the presumption of innocence from a U.S. citizen and say, “you are what I say you are and you don't get a chance to protest and I'm going to throw you down a deep hole.”
That's not a U.S. citizen anymore. That's somebody who has no rights. And if you think you won't be subject to that abuse, I don't see the safeguard that would prevent you, me or anybody else from having that label placed on us, and since we don't get to contest it, we would just go down the hole.
Thanks for being with us, both of you. We've run out of time.
Next, the U.S. conference of Catholic bishops convened in Dallas. Will they deal with the crisis of confidence that comes from the complicity of some of their own in the current scandal damaging the Catholic church?
We're going to hear from a former ambassador to the Vatican and a survivor of priest abuse who are in Dallas for the conference.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE. I'm Alan Keyes.
America's Catholic bishops are in Dallas tonight for their annual conference, where they're to address the priest pedophilia scandal that has plagued the church for months.
MSNBC's Lester Holt is in Dallas with a preview.
Lester, what's the mood there?
LESTER HOLT, MSNBC CORRESPONDENT: Alan, I think the mood could be described as a sense of expectation, a sense of opportunity, not only for the bishops, but for critics of the Catholic church.
This is the point at which they can make a very bold statement against the abuse by priests of the young, not only against it, but build in safeguards and guidelines to deal with it, or it could be an opportunity lost.
They, I guess you could say that they had a breakthrough today even in advance of the actual meetings. The conference gets under way tomorrow but there was a breakthrough in as much as the victims were heard earlier this evening, late this afternoon.
Many of the bishops, of course, began arriving today, but the ad hoc committee and also some of the cardinals sat down with members of SNAP, Survivors Network of those Abused by Priests.
There was a lot of question as to whether they could have be able to have this dialogue because of a lawsuit. Ultimately SNAP withdrew from that lawsuit and they were invited to sit down. Then they all came out and spoke to reporters tonight.
And from both the survivors, the victims, and the bishops, there was a sense of wow, this was important that we had this dialogue. The victims obviously wish they had had it before. They have a lot of issues they want added on to the table here.
The discussion here centers on what to do with those priests who have abused. One of the guidelines that's proposed is that if someone abused only once in the past, was not a pedophile but perhaps abused a teenager and they have since reconciled themselves with the church, they should be allowed to remain in the priesthood. SNAP says no.
And then Mark Serrano, who was with SNAP tonight, help up his photograph, of him as a child, and made an impassioned plea, and told the bishops essentially if you don't do something about those bishops who allowed priests to abuse, who looked the other way, who reassigned them, then you won't have accomplished anything at all.
(BEGIN VIDEO CLIP)
MARK SERRANO, SNAP: We met today not just to change policy or thinking, but to change hearts. We talked about the children we once were. This is me when I was 12 years old. I was sexually abused between the ages of nine and 16. This child had sexual terror committed against him, including forced masturbation and oral rape. That's what this is about. It's also about my children today.
(END VIDEO CLIP)
HOLT: It was a very powerful moment in that news conference, as he held his picture up as a child, and he wanted to impress upon the bishops that that was the person that was abused. This is the person you're looking at today who has dealt with that baggage.
And there are others with similar horrific stories of being raped or abused at the hands of priests, who want these bishops, Alan, to know, in no uncertain terms, that you've got to deal not only with those who abuse, but again, those who allowed it to happen.
KEYES: Well, this is something that I think I have been raising quite frequently on my program, as a real issue. We're doing it again tonight, the accountability of the hierarchy.
And the question I have for you — we have heard about concrete proposals aimed at holding priests accountable and making sure that they are dealt with, but in terms of the sources of the mistaken judgments that led to the kind of tolerance and cover-ups and looking the other way, has there been an effort to clarify how that is going to be addressed, in terms of what we can only call the spiritual and moral mismanagement that was represented among the hierarchy?
HOLT: Not leading up to this meeting.
Interestingly enough, there was the ad hoc committee of bishops that came up with the draft language, the essential proposals. Alan, hat wasn't even on the table. These victims have come here and said you need to put it on the table.
Tonight the man in charge, the bishop in charge of the ad hoc committee, Bishop Harry Flynn, said it is something they are going to talk about now. In fact, he says they're likely going to burn the midnight oil tonight, not only over this, but they've got something like 107 pages of amendments that have been offered. He didn't say from whom. — essentially other bishops —that they need to go through.
We know there is support among some of these almost 400 bishops for safeguards, for disciplinary action, against those who allow this to happen. There is also a lot of talk about how do you enforce whatever they come up with here. That's something that was not listed among these initial proposals, Alan.
KEYES: Lester Holt, thank you very much for that insight into some of the thing, and I think to a major development in terms of this issue of accountability, at least now being on the table for the hierarchy itself.
By the way, Lester will be reporting from the conference in Dallas all day tomorrow.
When we come back, will the bishops hold themselves accountable? We'll talk to former U.S. ambassador to the Vatican, Ray Flynn, and Barbara Blaine of the Survivors Network of those Abused by Priests.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
Joining us now, Ambassador Raymond Flynn, the former U.S. ambassador to the Vatican. He is also author of “Pope John Paul II: A Personal Portrait. And Barbara Blaine, founder of the Survivors Network of those Abused by Priests, or SNAP. She joins us from the bishop's conference in Dallas tonight.
Welcome to MAKING SENSE, both of you. Thank you for coming.
BARBARA BLAINE, SNAP: Thanks for having me.
KEYES: You're welcome.
Before we begin, I want to look at these NBC NEWS “Wall Street Journal” poll numbers just released tonight.
53 percent of devout Catholics, according to this survey, believe the church is trying to cover up and get past the sex scandal. And when devout Catholics were asked whether the bishop's proposed plan to deal with the scandal matter was enough, 61 percent said no.
Now it seems to me — that's among devout Catholics — not just the folks who are Catholics by name, but practicing, devout Catholics.
Raymond Flynn, it seems to me that what we're faced with here still is not just a crisis that deals with particular sexual abuse and acts by priests, but a crisis of confidence in the hierarchy because of the perception that over the years, they did not deal in a morally and spiritually upright way with this problem of abuse.
Is it possible that that crisis of confidence can be dealt with if they don't have in their document something that addresses a remedy for the future in terms of this accountability among the bishops themselves?
RAYMOND FLYNN, FMR. U.S. AMBASSADOR TO THE VATICAN: Yeah, I think so. I certainly believe that, Alan.
I think today I was very surprised and very pleased as a Catholic to see the first step that was made in terms of focusing their entire concern, the bishops' entire concern, on the concerns of the victims. I thought the press conference — I wasn't at the meetings, but the press conference was very moving, and as a Catholic I felt much better about being a Catholic when I heard Barbara and some other people say that they had a good discussion with the bishops and it will be brought to the full floor of the bishops tomorrow.
So I think that's the first step. I think if you don't get to that point first, if you don't solve that first problem, Alan, nothing else happens if you don't have some sort of peace and understanding with the victims, and then you get on to a wide range of other issues that also have to be dealt with.
KEYES: Now, Barbara Blaine, in terms of that question of accountability among the hierarchy, this, I think, perception, in some ways supported by, unhappily, a whole range of facts now.
I have heard about a “Dallas Morning News” survey that was done, where they did an investigation into the extent to which there was in fact some looking the other way, some willingness to tolerate these priests. It turned out that according to this investigation, there were bishops who let accused priests work after allegations, 111 out of 178, or 62 percent, have in the record something that suggests that there was this willingness to sort of engage in this kind of, I think, really spiritual mismanagement.
Barbara Blaine, that was put on the table today, we saw, in a very moving way. What do you think needs to be done? We're not talking here just about the priests now, but in terms of the accountability of the prelates, the hierarchy, to make sure that these issues are going to be approached in a different spirit by the bishops themselves? What sort of things do you think need to be done to signify that?
BLAINE: Well, basically, you know, the way the bishops' proposal is laid out right now, it's merely a group of suggestions. There is nothing in their policy as it stands right now that holds anyone accountable.
And we have asked the bishops and the cardinals to address that concerns, that we do not want to leave Dallas with another set of lofty words. What we're looking for is a way that if the bishops decide not to follow the recommendations, that they will experience some type of repercussions, and that there will be consequences for those bishops and leaders who fail to follow the policies.
KEYES: Raymond Flynn, do you think that that's necessary?
FLYNN: Well, I certainly believe whether it's decided here or tomorrow in Dallas on Friday, and quite frankly I believe it should — I hope it's not like the Congress, where they discuss everything and then they solve nothing.
So I think there are specific issues that they have to vote on, and that they have to take a definitive position. Certainly the issue, as I said, as Barbara so beautifully articulated today, the issue of the victims, number one, and also let's stay focused on one strike, you're out. Zero tolerance.
I don't think that they should fudge that at all. I think their feet should be held to the fire, and I'm glad that the victims are going to have a full opportunity tomorrow to address the entire bishops' conference tomorrow.
I think those are all important, positive steps.
KEYES: Now in terms of the accountability of the prelates, one question I've always — and I've thought a lot about, Ray, in looking at this whole crisis — why do you think so many bishops were in fact willing to look the other way, to move people around, and take these kinds of steps? What was the source of this error?
FLYNN: Well, there were a number of people.
I do a radio show, Alan, as you know, and Michael Rose was on the program today, and he said there's a homosexual culture in the Catholic church and there's a protection in the church for that particular culture.
The extent of it, 30 percent, 50 percent, I don't know. I was on NBC with “meet the Press” with Tim Russert and Father Cousins said it's between 30 and 50 percent of the priests in the priesthood, are homosexual.
I don't know that, but that might be a factor as well.
BLAINE: Alan, let me tell you that — Alan, you know what I believe to be the problem is that the bishops and the cardinals themselves have really failed to comprehend the devastating impact that this abuse has on the victims and our family members. Because I believe if they really understood how much pain and suffering that we experienced, that they wouldn't allow any more children to be put at risk.
This issue of zero tolerance wouldn't even be discussed.
KEYES: One of the things that worries me, though — and this is for both of you but let's start with Barbara. I sense — and it's tied in with this issue of homosexual culture, but it also goes to the larger question of why one wasn't focused on the victims.
Wasn't that actually a kind of moral, spiritual blindness, in which one was failing to appreciate the real consequences of this grave sin, which gave scandal not when it appeared in the paper, but when it affected those young lives and young hearts and young minds and young spirits? Why wasn't there more of an appreciation of the moral, spiritual dimension of this sinful behavior in its impact on those Christ told us we had to especially respect, the children?
Barbara, let's start with you.
BLAINE: And one other thing, Alan — why didn't the bishops respond with a moral, pastoral response to the victims?
What they have done really is tended to put the focus on the perpetrators, and in a sense the victims have been treated as though we are the enemy when we come forward. And we are anonymous. The bishops don't know us and they don't know our family members.
But they do know the priests and unfortunately what they do is...
KEYES: No, G ahead.
(CROSSTALK)
KEYES: Raymond, very quickly — this pastoral problem...
FLYNN: Yes, I think that's why it's so important that this crisis, this situation, no longer be considered just a sin or a sickness but also a crime. It should be taken out of the hands of pastors and it should be turned over to proper law enforcement officials so that they go through the legal process just like everybody else. And if that requires putting priests in jail, then let's do that as well.
KEYES: I want to thank both of you tonight. I hope indeed that the kind of insight, forthright courage, Barbara, that you and your folks are showing, and the response it gets, will lead to a real and constructive outcome here, because I think the church really needs it.
Thank you both for being with me tonight.
Next, my “outrage of the day,” also focused a little bit on this question of the attitude that may have led in fact to some of the mistakes in judgment among the prelates.
Stay with us, we'll be right back.
(COMMERCIAL BREAK)
KEYES: Now for my “Outrage of the Day,” this time not unrelated to our topic.
This week, the leader of Brooklyn's Catholics, outraged an alleged victim of priest sexual abuse by telling a joke while being grilled by the man's lawyer.
The joke came amid Bishop Tom's Daily's deposition at a hotel near LaGuardia Airport, where he was asked about his oversight of a notorious child-molesting priest while a top official of the Boston archdiocese.
It was a joke insulting people with psychiatric problems.
It seems to me that the prelates need to remember, psychiatry literally means doctor of the soul, and the true doctor of the soul, according to their faith, is Jesus Christ. They should represent him in their attitude toward the victims here.
That's my sense of it.
Thanks. “THE NEWS WITH BRIAN WILLIAMS” is up next. See you tomorrow.
Up front tonight, back to the case of Jose Padilla. Now, a writ of habeas corpus has been filed by his lawyers.
Let me stop for a minute — habeas corpus. That means that you have a writ which says that the government has to produce an individual, take him before a judge so a judge can decide that there's really grounds for him to held, quite simply.
The government has until June 21 to state its case along those lines against the suspected terrorist, and specifically state why he should not receive due process.
In the meantime, we're finding out more about his life and his circuitous path to what the government claims is an al Qaeda connection.
Before we get to our guests in discussing this matter, let's go to MSNBC Pentagon correspondent Jim Miklaszewski.
(BEGIN VIDEOTAPE)
JIM MIKLASZEWSKI, NBC CORRESPONDENT (voice-over): Jose Padilla, seen here on the right, being arraigned here on gun charges in Florida 11 years ago. He was convicted and served 10 months in jail. Now he's being held by the U.S. military as an enemy combatant. But today in Manhattan federal court, his attorney argued there's not enough evidence to hold Padilla. The federal prosecutor says he can't even talk about it.
JAMES COMEY, U.S. DISTRICT ATTORNEY: I'm not allowed to talk about what happened in connection with grand jury proceedings.
MIKLASZEWSKI: But U.S. sources tell NBC News there's a substantial amount of evidence that links Padilla to Osama bin Laden's al Qaeda terrorist network. The trail began last February in Pakistan. U.S. consulate officials in Karachi grew suspicious when Padilla, an American citizen, applied for a new passport. They reported him to security officials, but at the time, there was no clear link to al Qaeda.
A month later, U.S. investigators got their big break when they raided a dozen safe houses in Pakistan, arresting al Qaeda ring leader Abu Zubaydah. U.S. officials report Zubaydah and several other al Qaeda members identified Padilla from his passport photos and claimed he was plotting a bombing campaign inside the U.S. Investigators found more evidence in the safe houses, documents and computer hard drives that reportedly linked Padilla to plans to build a radiological or “dirty bomb.”
Sources report one more link. A top al Qaeda official, Ibn Al-Sheikh, now being held by the Egyptians, also tied Padilla to al Qaeda. On April 1, Padilla was put on the FBI's terror watch list. But by then, U.S. authorities had lost track of Padilla. They picked up his trail again in late April in Cairo, followed him to Zurich and then on to Chicago, where he was arrested May 8.
(on camera): U.S. officials say there is one big gap in the chain, 14 months when Padilla simply disappeared. They believe that's when he got his basic training in one of al Qaeda's terrorist camps.
Jim Miklaszewski, NBC News, the Pentagon.
(END VIDEOTAPE)
KEYES: The Padilla case is raising some important issues about how we are going to handle the threat to our security from terrorists and those who work with and facilitate their activities, and particularly from those who may be American citizens, and therefore ought to be entitled to a whole range of protections under law that we take for granted, including, of course, the ability to defend yourself against the charges brought against you by the government, and to have that defense conducted in a way that is not in public opinions polls, not on the media, not on TV or anywhere else, but in a court of law where you have a fair chance to state your case before an independent and impartial judge.
Independent, that is, of the executive power that is bringing the charge against you.
All those things have been considered absolutely fundamental to American liberty. It should be pretty obvious to us why it's dangerous to mess with that.
At the end of the day, let's say we have a label — enemy combatant. And I, as the executive — the President, whatever — can put that label on you.
And once I've put it on you, you are stripped of your rights, and I can then hold you incommunicado, don't get to talk to a lawyer, don't have access to a court. And I simply throw you in the brig, keep you there like a prisoner of war like these folks in Cuba until the war ends.
Of course, if it's war like the war on terror, maybe it never ends and you just stay there forever.
That means a knock could come on your door some night, and the executive could place that label on you. And you'll say, no, I haven't done anything. But nobody will hear you, because there will be no court in which you get actually to make that case.
Now, you'll say, but that's not the case with Padilla. No, it's not, because he was originally held under the actual procedures we follow now, as a material witness. He therefore had a lawyer, and that lawyer has now filed a writ according to the due process that we are all supposed to be accorded.
Imagine, though, that he'd been picked up and put into this new system where he's just — you're an enemy, and a combatant. You're thrown into prison. Who knows you're there? What lawyer can you contact? Nobody.
You can get tossed down a deep hole just on a determination you don't even get to defend yourself against.
You think that's just dangerous to terrorists? I've got news for you. The abuse of that power could be real dangerous to you and me, and every other citizen.
And the greatest danger of it is that once the accusation is brought against us that we are the enemy, we don't even get a chance in a fair and open day in court, much less before a jury of our peers, to make the case that that's not so.
Well, in a USA Today Gallup poll, 80 percent of Americans say they would give up some freedoms to gain security.
I guess I'm spitting in the wind, then, aren't I. I suppose I might be, in the sense that, if that's the way people think.
Think of all those people who fought against dictatorship and against the regimes in the world that don't respect this basic right of due process, this right of people to defend themselves against the charges brought against them.
You know, we sent people out to die for that. They gave up their security on battlefields around the world, because they thought freedom was important than security.
And now we're taking the polls where Americans have decided that, no, security's more important. We're not going to take any risks. We're not going to live in a world that has any margin of risks in order to hold to that freedom.
I think it's time we start thinking about this. And if you think that, no, we can trust them — that was what the gentleman was saying on my show last night — we get to — if we're not going to give credibility to the governments, what are we going to do?
You know, our founders, first of all, didn't say the government was to be trusted. It said government has to be watched. It is to be checked and balanced with safeguards, starting with the safeguards in due process that allow individuals to be free from the abuse of arbitrary power — power not checked by a fair process that allows you a proper defense against the charges brought against you.
And so, if you're going to have a system where that's no longer the case, it will happen that people get dropped out of sight. It's already happened.
There's this outrage I saw today in the “Washington Post” about a former Boston cab driver once identified by authorities as a major terrorism suspect, who was kept in solitary confinement for more than eight months without seeing a judge or being assigned a lawyer.
According to the report taken from court records, and lawyers familiar with the case, 35-year-old Nabil Al-Marabh was taken into custody on September 18, not brought before a federal magistrate to face charges until May 22.
Even under a system where the safeguards are supposed to exist, people can be forgotten. You institute a system where their safeguards aren't even part of the process, and folks won't even have a chance to be forgotten, because there won't even be a sense that they should be remembered by anybody but their jailers, if they're lucky.
I thought that was the kind of system that we have spent many decades in this country fighting against — the knock on the door in the middle of the night, the folks who cart you off to we know not where, irresponsible to report to anybody about your whereabouts, so that you can't even raise a voice of protest against the charge that you are an enemy of the state.
That's the America we're supposed to live in. And I don't think we can afford to allow the insecurity induced by terrorism to put us in a position where we are more timid, more cowardly than those Americans who stood on battlefields with the bombs exploding all around them, and still thought it better to die than to give up their liberty.
We need to fight the war on terror, but I think we need to fight it in a way that preserves and respects the requirements — the fundamental requirements of our liberty.
And this notion of a trial and the right to defend yourself, and the freedom from the arbitrary abuse of power — that's not just some other right. That's a fundamental, perhaps one of the most fundamental rights.
Once you can become the target of arbitrary executive power, your freedom of speech is next and your political participation is next, because fear spreads like a cancer.
And as you watch others being carted off, you think to yourself, if I open my mouth, I'll be carted off, too.
And that's how it happened in Eastern Europe, and that's how it happened in other places that fell under the shadow of the tyranny and despotism we fought so hard to defeat in the last century.
And then we have to ask ourselves, is it even necessary? So far, in the investigations that have been conducted about what led to 9/11 and what failure there was in our national security system, has the fact that we have too much freedom been identified as one of the reasons for our failure? I haven't noticed that.
Matter of fact, Congressman Porter Goss, an important figure running one of the committees investigating the intelligence failures leading up to 9/11 said this about it.
He said, should we have known? Yes, we should have. Could we have known? Yes, I believe we could have, because of the hard targets CIA operatives were tracking.
In a world where we didn't have this kind of assault on our fundamental liberties, where we respected the basic rights, our people had the kind the information as it is coming out now that could have prevented this attack.
If that is the case, then maybe we're being asked to give up freedom, when we ought to be looking at how we properly fix the instruments of national security that failed us.
For our freedom did not fail us. And it will not fail us, unless we fail it.
And I think that's the question now, that we are in fact addressing.
Next, we're going to get to these very matters on the heart of the matter. We're going to ask ourselves whether post-9/11 America has become too timid for freedom?
Whether security is so important to us that we're ready to give it all up, so long as we can be safe.
Rich Lowry and Terry Jeffrey — two good friends of mine, two fellow conservatives — are going to be taking the other side in this discussion. And so I think it should be a pretty interesting debate.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Coming up in our next half hour, America's bishops arrive in Dallas for their all important annual meeting, where the church sex scandal is at the top of their agenda, of course.
We'll preview and get a live report from the conference and debate whether the bishops will hold themselves — not just the priests who abused, but also themselves, who were part of the cover-up and complicity — well, will they hold themselves accountable?
A reminder that the chat room is humming tonight. And you can join in right now at chat.msnbc.com.
But first, back to our discussion about the issues that arise from the arrest and incarceration, now, of Jose Padilla.
Joining us to get to the heart of the matter, Terry Jeffrey, the editor of the weekly magazine, “Human Events,” and Rich Lowry, editor of the weekly magazine “National Review.”
I have to comment again, both of these gentlemen are esteemed colleagues of mine. I have the greatest respect for both of you, and I hope we are good friends. And I think that this is one of those issues, though, where I guess my sense of the primacy of trying to preserve, even in the midst of this insecurity, our Constitutional freedoms, comes to the fore.
And this whole situation, now, as I've said for many weeks and months, since this whole situation came about, one of the first things I said was that this war on terror would pose a threat to our liberties if we were not careful about it.
And so I want to start, Terry Jeffrey, by asking you, I feel that this is one of those dangerous moments when we could very well create an instrument that, in the hands of abusive ambition, will be the instrument that could be used to subvert and destroy our political liberty.
Why don't you agree with that sense of the danger.
TERRY JEFFREY, EDITOR, “HUMAN EVENTS” MAGAZINE: Well, I understand you concern, Alan, but let me quick lay out a four-point argument for why this falls within the Constitution and there's a real check on it.
First, Article I, Section 8 clause 10 of the Constitution gives the Congress the power to define and punish offenses against the law of nations, which the (ph) favors (ph) are very clear about (ph) unjust acts of war.
Secondly, under that power, the Congress passed Title 10 of the U.S. Code, Section 836 of which specifically empowers the President to set up military tribunals, and for the President, on his own, to set the rules under which those tribunals shall act.
They tell him that he has to make it conform as much as possible to the civil and criminal courts, insofar as he thinks that's practicable.
Third, Alan, the Fifth Amendment to the Constitution expressly exempts members of our armed forces in time of war or national danger. So our troops in Afghanistan today fighting al Qaeda do not have Fifth Amendment protection.
Finally, because all this is given to Congress, not to the executive branch, and Congress has made the law under which this happens, if Congress — 435 members of the House, 100 members of the Senate elected by the people — decide that President Bush is abusing the power they've delegated to him, they can change the law, they can have oversight hearings, they can demand by subpoena any paper or any executive branch statement about this.
And in an extreme instance, they can even impeach the President of the United States if they thought he was abusing his power and attacking the freedoms of the American people through this instrument.
KEYES: Mr. Lowry?
RICH LOWRY, EDITOR, “NATIONAL REVIEW” MAGAZINE: I think that's all very well said. I don't think there's going to be a military trial here. I think it's just going to be a detention.
And the courts have held — the Supreme Court in that famous 1942 case involving German saboteurs — said very explicitly that being a U.S. citizen does not relieve you from the consequences of your belligerency.
There's also a 1946 9th Circuit case that held the same thing involving an Italian-American. And once the executive determines someone is an enemy belligerent, there's just on an entirely different track from the domestic legal system.
And, Alan, if you think it's more prudent to treat this case in the domestic legal environment, I think you have to be willing to follow through intellectually on the logical consequences of that, which is that you couldn't interrogate him the way we're probably doing now, and you very well might have to let him go, because it may be that the administration just doesn't have a case against him that could be made in the domestic courts with all the necessary protections and rights of the accused.
KEYES: Right. We will, at an appropriate time, I think, get into the question of what we should really be doing with the folks we think are terrorists.
This whole question of whether law enforcement is an appropriate mentality for war is one that ought to be asked, because there are circumstances I could imagine under which you and I wouldn't be having this debate, because instead of assaulting the Constitutional liberties of all Americans by taking steps that set these dangerous precedents, we would simply assault the terrorists.
And they would not be available to...
LOWRY: Well, Alan,...
KEYES: ... be brought into court, and do...
LOWRY: ... the problem...
(CROSSTALK)
KEYES: ... mistakes.
LOWRY: Alan, the problem is it's not so clean.
KEYES: Don't — I didn't interrupt. I...
LOWRY: It's not, it's not...
KEYES: Excuse me. I didn't interrupt...
LOWRY: ... it's no so...
(CROSSTALK)
KEYES: ... I didn't interrupt either of you, and I don't expect interruptions until I get done.
LOWRY: OK. Sorry about that.
KEYES: You had a chance to lay out your points.
LOWRY: OK.
KEYES: The thing that I find most dangerous about this — and I'll put it out in front of you — very simply is that, I'm an American citizen. I'm sitting here minding my own business.
The President shows up and says I'm an enemy combatant.
Now, under the ordinary assumptions we make in life, I'd get a chance in some formal procedure to say, no I'm not. I'm not an enemy combatant. And I go get a lawyer and so forth and so on.
Who's saying I'm an enemy combatant? Let me cross-examine them, find out the — where's the evidence I'm an enemy combatant? Let it be clear about this.
And the whole thing would go through a procedure in which I get to defend myself against this charge which as the consequence, like a felony, of stripping me of my basic civil rights.
But in this particular case, we're moving toward the acknowledgement, we're in a situation, we're going to say to ourselves, we'll suspend all of that. And when I call you an enemy combatant, I put the label on you. And without further due process, without a lawyer, without access to the ordinary procedures, I drop you down a deep hole and nobody can come get you till I say so.
Now, it seems to me, gentlemen, that everything you argue depends on this determination that I'm an enemy combatant.
JEFFREY: Well, Alan...
KEYES: And yet, if I don't get to dispute that determination, then whether I am or not, whether there's evidence or not, whether it can be proven or not becomes irrelevant.
JEFFREY: Alan,...
KEYES: Because arbitrary power can strip me of the right to protest.
JEFFREY: But, Alan,...
KEYES: Isn't that dangerous?
JEFFREY: This is what arbitrators — a couple of other facts we need to remember.
After September 11, Congress authorized a war against the people who attacked us on September 11, to any nations that aided, abetted them or gave them succor.
So there is a declared war against Jose Padilla. He is a collaborator with al Qaeda. Congress has authorized the President to make war against...
KEYES: Well, Terry,...
JEFFREY: ... Padilla.
KEYES: I don't mean to...
JEFFREY: If Congress wants to...
KEYES: Wait, wait, Terry.
JEFFREY: ... cancel that war, Congress can meet tomorrow,...
KEYES: Terry,...
JEFFREY: ... Alan, and vote to cancel the war.
KEYES: Yes, circular reasoning, Terry.
JEFFREY: No, it's not. Congress has declared war...
KEYES: No, Terry,...
JEFFREY: ... against Jose Padilla.
KEYES: ... let me finish.
JEFFREY: Sure.
KEYES: Circular reasoning. You have just assumed, what in this particular instance is to be proven.
And where an American citizen is concerned, proven through a process that allows me to defend myself.
JEFFREY: Well, then, let me answer that.
KEYES: You have...
LOWRY: Alan,...
KEYES: No, please address this question.
JEFFREY: I will.
KEYES: Because I got this last night, too. And if you don't mind my saying so, I worry about it a little bit.
JEFFREY: I'm going to answer you...
KEYES: You keep saying, Mr. Padilla, the enemy combatant, and so forth — that is the label that has been placed upon him.
According to his lawyer, he is not so.
JEFFREY: All right, but Alan,...
KEYES: OK. And as an American citizen, he says, you have accused me of something I am innocent of doing.
JEFFREY: ... all right...
KEYES: And you are telling me, no, we get to presume your guilt,...
JEFFREY: ... I...
KEYES: ... strip you of your rights,...
JEFFREY: No. That's not what I'm saying.
KEYES: ... and deprive you of...
(CROSS-TALK)
LOWRY: Alan, Alan, you've got to let us talk here, too.
KEYES: I did let you talk, both of you. Go ahead.
JEFFREY: Let me answer the question very quickly, all right.
The law says, I mean, there's Title 10, Section 836 of U.S. Code — people can look that up — that this guy should go to a military tribunal, and the rules there should be set by the President, as much as practicable, like the rules we have in civil, criminal proceedings.
Were the President to hold this person indefinitely, as Secretary Rumsfeld suggests they might, I think that would violate the law that Congress has passed, in which case Congress would have to investigate how the administrative branch — the executive branch was administering the law.
This guy should be tried. He should be tried in the military tribunal,...
KEYES: Well,...
JEFFREY: ... and the rules that are appropriate to that tribunal should be used.
KEYES: Can I raise a problem, though, Terry?
JEFFREY: Sure.
KEYES: Because, under the executive order that the President promulgated with respect to executive tribunals, they are not to be applied to American citizens. He said that himself, before...
LOWRY: Yeah, Alan, can...
KEYES: ... so everything that...
LOWRY: ... can I jump in here?
KEYES: ... everything that you've just said may or may not be the case.
I meet feel a little more comfortable about this if it were the sort of prelude to some kind of ordinary judicial process, and then there might be a different set of objections.
Right now, however, we're being told, no, this guy is a prisoner of war, and until the war is over, we get to hold him incommunicado. And since the war on terrorism has no clearly defined end, it could go on forever, maybe he just drops down a deep hole and never comes back.
LOWRY: Alan, can I kind of address a couple of things. One,...
KEYES: Yes.
LOWRY: ... I think you're right that there is a certain circularity to this process. Why — how do we know he's an enemy belligerent? Because the executive branch says so.
But I do think this is just inherent to the power of the executive branch. They're allowed to make this plenary determination.
And if you think George Bush is not to be trusted with his executive powers, well then you have a problem with George Bush.
And, Alan, you were saying earlier, when I was trying to cut in, that, you know, what we should do with the terrorists is kill them. But the fact is, there's not a clean border in this war.
And the problem is, a terrorist, like we assume Padilla is, can be in Afghanistan or Pakistan yesterday, and show up in Chicago today.
And what you're saying is, once he shows up in Chicago, he is no longer an enemy belligerent, and he is to be treated as just a common criminal and afforded all the rights and protections of a U.S. citizen who has not declared war on the United States.
And I think you have to...
KEYES: No,...
LOWRY: ... you have to address, Alan, that you've — under your scheme you would not be able to interrogate him, and you just might have to release him.
KEYES: Excuse me. I never said anything of the kind. We can get into whether all you just said is true — which I don't think it is — but, the first step that you said, I have to trust President Bush or anybody else.
No, I read the founders very carefully. And they admonished us against trusting anybody with these kinds of abusive powers. It doesn't matter who. Don't try to pretend this is about G.W. Bush or anybody else — no.
It's about setting a precedent that would give to the office of the President a power which, though you describe it as plenary and all, is no such thing.
It is precisely the system of checks and balances, the establishment of an independent judiciary, the Bill of Rights — the whole framework of due process put in place to make sure that the executive cannot be judge, jury and executioner.
JEFFREY: Well, Alan...
LOWRY: Well, Alan, you shouldn't...
KEYES: And that...
LOWRY: So you think the 40th...
KEYES: ... and let me — no, I didn't interrupt you all.
LOWRY: Well, when are you going to stop talking?
KEYES: The point I want to make is, you are now saying that this label — enemy combatant — can be used by the executive, to arrogate to himself the whole power and absolute power of all three branches and bring it to bear...
JEFFREY: Can I answer that?
KEYES: ... without protection on any individual he so chooses.
JEFFREY: Can I answer that, Alan? Let me answer that.
KEYES: How can this be safe?
JEFFREY: Let me answer to that. OK. The Congress has authorized the war against al Qaeda and its collaborators.
So let's say there's a group of al Qaeda in a building in the mountains near Tora Bora. And President Bush is informed and he says, OK, go drop a daisy cutter on those guys.
KEYES: That's right.
JEFFREY: OK. By declaring a war against al Qaeda, which Congress has done, they have authorized the President unilaterally to make the moral decision to terminate the lives of those...
KEYES: That's right.
LOWRY: Sure.
JEFFREY: ... al Qaeda terrorists.
KEYES: Exactly.
JEFFREY: Now, follow my logic on this. These guys get on a plane, fly to Switzerland. They get on a plane in Switzerland, fly to O'Hare airport, and they disperse into the United States with a plan to explode a radioactive device in a U.S. city.
Now, if we capture that guy that Bush could have blown up in this war in Tora Bora, does that mean, all of a sudden he goes into U.S. civil court...
KEYES: Yes.
JEFFREY: ... and can use...
KEYES: Depends — excuse me...
JEFFREY: ... the U.S. Bill of Rights...
KEYES: Yes, yes.
JEFFREY: ... to prevent us from prosecuting...
KEYES: Yes, Terry...
JEFFREY: ... a war against him? Shoot, Alan...
KEYES: ... now, now you're getting...
JEFFREY: ... the Constitution...
LOWRY: Excellent point.
JEFFREY: ... says otherwise.
KEYES: Let me — no. Let me make the point that's clear.
JEFFREY: OK.
KEYES: The answer to your question is yes.
JEFFREY: No.
KEYES: Because otherwise you fundamentally damage our Constitutional system. But, I will say this, I will say this, if we are sending forces out to kill the enemy, and they in good faith identify individual X, knowing nothing more about him, as the enemy, then they have a perfect right to kill that individual, OK?
That individual can be killed on the basis of the determination, you are the enemy.
That's my objection in all of this. Why are we capturing these people, when we ought to be killing them?
LOWRY: Well, Alan...
JEFFREY: Alan...
LOWRY: ... well, Alan, Alan, can I...
KEYES: Let me finish. I let you guys finish. You won't let me finish making a point.
As a matter of the power of the commander in chief facing a war situation...
LOWRY: Exactly.
KEYES: ... the President can order our soldiers to kill the enemy.
LOWRY: It's an executive power.
KEYES: Once you have captured a U.S. citizen, however, you are no longer in that war situation. You are in a situation...
LOWRY: No.
KEYES: ... where the law then applies to that...
LOWRY: No.
JEFFREY: Alan...
LOWRY: Alan, according to your case...
KEYES: And yes, I'm sorry...
LOWRY: ... Alan, according to your case...
KEYES: ... there is a difference between the battlefield and a situation...
LOWRY: According...
KEYES: ... where you are under control, now, of that individual. Go ahead.
LOWRY: Alan, according to your logic, we have been living in a dictatorship since 1942 and that Supreme Court decision.
And this is the fundamental point, Alan. You're saying the executive has a power to wage war.
What you're missing is that this military detention, and perhaps military trial, eventually, is part and parcel of that executive power. And you can't...
KEYES: No.
LOWRY: ... separate it out.
KEYES: Yeah, Rich, here's...
JEFFREY: Alan, let me add something to that.
KEYES: No, one second. Let me answer that, because the point you're missing, Rich, very quickly, OK?
I send the soldiers out. They identify X individual as the enemy and shoot him. They've done their job, OK?
If I send those soldiers out, and at an airport, they capture an individual who is then identified as a U.S. citizen, you must then treat that individual as a citizen...
LOWRY: No, you're just making that up.
KEYES: You cannot simply...
JEFFREY: Alan...
KEYES: I'm sorry...
(CROSSTALK)
LOWRY: Where do you get the authority to say that?
KEYES: Because, because you know...
LOWRY: The courts, Alan, have repeatedly disagreed with you.
KEYES: Excuse me, because...
JEFFREY: Alan...
KEYES: ... because you know...
LOWRY: You're just making this up.
KEYES: ... what that individual has done.
The point that I'm making here is because, when you capture him and you shoot him down on the battlefield, based on the best information you have, and so forth and so on, then you're acting as a soldier within your rights.
When, however, you have captured that individual, he looks...
LOWRY: He's still a soldier when you captured him.
KEYES: ... let me finish — he looks at you, and he says what this man is saying, I'm not with the enemy. That's a lie.
JEFFREY: Alan, let me ask you...
KEYES: At that point, as a U.S. citizen, he has a perfect right to tell you, you have just lied about me, put a label on me I don't deserve, and I get to defend myself before you can deprive me of life, liberty or property.
JEFFREY: Alan, let me answer you with the Constitution itself, the Bill of Rights — I'm looking at the Fifth Amendment. Let me read the first part of the Fifth Amendment.
It says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...”
So James Madison, in writing the Bill of Rights...
KEYES: All right, well how does this apply?
JEFFREY: ... the First Congress said that our own...
KEYES: How does it apply?
JEFFREY: ... military people in time of war...
KEYES: How does it apply here?
JEFFREY: Listen to me very carefully. Our — the framers of our Constitution said in the Fifth Amendment itself, that the Fifth and Sixth Amendments setting up jury trials and grand jury process, said that our own armed forces...
KEYES: How does it apply here, Terry?
JEFFREY: ... in time of war...
KEYES: Quickly, we're running out of time.
JEFFREY: ... do not get protection.
KEYES: How does it apply here?
JEFFREY: What you would be saying is that enemy forces get the protection...
KEYES: He says...
JEFFREY: ... of Fifth and Sixth Amendment...
KEYES: ... he's a U.S. — Terry...
JEFFREY: ... and our fighters don't.
KEYES: ... you're doing it again.
JEFFREY: No, I'm not.
KEYES: And here we have to end...
JEFFREY: Great.
KEYES: ... but I will give myself the last word, because you're doing it again.
Your whole argument depends on circular reasoning.
JEFFREY: It depends upon the Constitution, Alan.
KEYES: You have to — you have to take away the presumption of innocence from a U.S. citizen and say, “you are what I say you are and you don't get a chance to protest and I'm going to throw you down a deep hole.”
That's not a U.S. citizen anymore. That's somebody who has no rights. And if you think you won't be subject to that abuse, I don't see the safeguard that would prevent you, me or anybody else from having that label placed on us, and since we don't get to contest it, we would just go down the hole.
Thanks for being with us, both of you. We've run out of time.
Next, the U.S. conference of Catholic bishops convened in Dallas. Will they deal with the crisis of confidence that comes from the complicity of some of their own in the current scandal damaging the Catholic church?
We're going to hear from a former ambassador to the Vatican and a survivor of priest abuse who are in Dallas for the conference.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE. I'm Alan Keyes.
America's Catholic bishops are in Dallas tonight for their annual conference, where they're to address the priest pedophilia scandal that has plagued the church for months.
MSNBC's Lester Holt is in Dallas with a preview.
Lester, what's the mood there?
LESTER HOLT, MSNBC CORRESPONDENT: Alan, I think the mood could be described as a sense of expectation, a sense of opportunity, not only for the bishops, but for critics of the Catholic church.
This is the point at which they can make a very bold statement against the abuse by priests of the young, not only against it, but build in safeguards and guidelines to deal with it, or it could be an opportunity lost.
They, I guess you could say that they had a breakthrough today even in advance of the actual meetings. The conference gets under way tomorrow but there was a breakthrough in as much as the victims were heard earlier this evening, late this afternoon.
Many of the bishops, of course, began arriving today, but the ad hoc committee and also some of the cardinals sat down with members of SNAP, Survivors Network of those Abused by Priests.
There was a lot of question as to whether they could have be able to have this dialogue because of a lawsuit. Ultimately SNAP withdrew from that lawsuit and they were invited to sit down. Then they all came out and spoke to reporters tonight.
And from both the survivors, the victims, and the bishops, there was a sense of wow, this was important that we had this dialogue. The victims obviously wish they had had it before. They have a lot of issues they want added on to the table here.
The discussion here centers on what to do with those priests who have abused. One of the guidelines that's proposed is that if someone abused only once in the past, was not a pedophile but perhaps abused a teenager and they have since reconciled themselves with the church, they should be allowed to remain in the priesthood. SNAP says no.
And then Mark Serrano, who was with SNAP tonight, help up his photograph, of him as a child, and made an impassioned plea, and told the bishops essentially if you don't do something about those bishops who allowed priests to abuse, who looked the other way, who reassigned them, then you won't have accomplished anything at all.
(BEGIN VIDEO CLIP)
MARK SERRANO, SNAP: We met today not just to change policy or thinking, but to change hearts. We talked about the children we once were. This is me when I was 12 years old. I was sexually abused between the ages of nine and 16. This child had sexual terror committed against him, including forced masturbation and oral rape. That's what this is about. It's also about my children today.
(END VIDEO CLIP)
HOLT: It was a very powerful moment in that news conference, as he held his picture up as a child, and he wanted to impress upon the bishops that that was the person that was abused. This is the person you're looking at today who has dealt with that baggage.
And there are others with similar horrific stories of being raped or abused at the hands of priests, who want these bishops, Alan, to know, in no uncertain terms, that you've got to deal not only with those who abuse, but again, those who allowed it to happen.
KEYES: Well, this is something that I think I have been raising quite frequently on my program, as a real issue. We're doing it again tonight, the accountability of the hierarchy.
And the question I have for you — we have heard about concrete proposals aimed at holding priests accountable and making sure that they are dealt with, but in terms of the sources of the mistaken judgments that led to the kind of tolerance and cover-ups and looking the other way, has there been an effort to clarify how that is going to be addressed, in terms of what we can only call the spiritual and moral mismanagement that was represented among the hierarchy?
HOLT: Not leading up to this meeting.
Interestingly enough, there was the ad hoc committee of bishops that came up with the draft language, the essential proposals. Alan, hat wasn't even on the table. These victims have come here and said you need to put it on the table.
Tonight the man in charge, the bishop in charge of the ad hoc committee, Bishop Harry Flynn, said it is something they are going to talk about now. In fact, he says they're likely going to burn the midnight oil tonight, not only over this, but they've got something like 107 pages of amendments that have been offered. He didn't say from whom. — essentially other bishops —that they need to go through.
We know there is support among some of these almost 400 bishops for safeguards, for disciplinary action, against those who allow this to happen. There is also a lot of talk about how do you enforce whatever they come up with here. That's something that was not listed among these initial proposals, Alan.
KEYES: Lester Holt, thank you very much for that insight into some of the thing, and I think to a major development in terms of this issue of accountability, at least now being on the table for the hierarchy itself.
By the way, Lester will be reporting from the conference in Dallas all day tomorrow.
When we come back, will the bishops hold themselves accountable? We'll talk to former U.S. ambassador to the Vatican, Ray Flynn, and Barbara Blaine of the Survivors Network of those Abused by Priests.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
Joining us now, Ambassador Raymond Flynn, the former U.S. ambassador to the Vatican. He is also author of “Pope John Paul II: A Personal Portrait. And Barbara Blaine, founder of the Survivors Network of those Abused by Priests, or SNAP. She joins us from the bishop's conference in Dallas tonight.
Welcome to MAKING SENSE, both of you. Thank you for coming.
BARBARA BLAINE, SNAP: Thanks for having me.
KEYES: You're welcome.
Before we begin, I want to look at these NBC NEWS “Wall Street Journal” poll numbers just released tonight.
53 percent of devout Catholics, according to this survey, believe the church is trying to cover up and get past the sex scandal. And when devout Catholics were asked whether the bishop's proposed plan to deal with the scandal matter was enough, 61 percent said no.
Now it seems to me — that's among devout Catholics — not just the folks who are Catholics by name, but practicing, devout Catholics.
Raymond Flynn, it seems to me that what we're faced with here still is not just a crisis that deals with particular sexual abuse and acts by priests, but a crisis of confidence in the hierarchy because of the perception that over the years, they did not deal in a morally and spiritually upright way with this problem of abuse.
Is it possible that that crisis of confidence can be dealt with if they don't have in their document something that addresses a remedy for the future in terms of this accountability among the bishops themselves?
RAYMOND FLYNN, FMR. U.S. AMBASSADOR TO THE VATICAN: Yeah, I think so. I certainly believe that, Alan.
I think today I was very surprised and very pleased as a Catholic to see the first step that was made in terms of focusing their entire concern, the bishops' entire concern, on the concerns of the victims. I thought the press conference — I wasn't at the meetings, but the press conference was very moving, and as a Catholic I felt much better about being a Catholic when I heard Barbara and some other people say that they had a good discussion with the bishops and it will be brought to the full floor of the bishops tomorrow.
So I think that's the first step. I think if you don't get to that point first, if you don't solve that first problem, Alan, nothing else happens if you don't have some sort of peace and understanding with the victims, and then you get on to a wide range of other issues that also have to be dealt with.
KEYES: Now, Barbara Blaine, in terms of that question of accountability among the hierarchy, this, I think, perception, in some ways supported by, unhappily, a whole range of facts now.
I have heard about a “Dallas Morning News” survey that was done, where they did an investigation into the extent to which there was in fact some looking the other way, some willingness to tolerate these priests. It turned out that according to this investigation, there were bishops who let accused priests work after allegations, 111 out of 178, or 62 percent, have in the record something that suggests that there was this willingness to sort of engage in this kind of, I think, really spiritual mismanagement.
Barbara Blaine, that was put on the table today, we saw, in a very moving way. What do you think needs to be done? We're not talking here just about the priests now, but in terms of the accountability of the prelates, the hierarchy, to make sure that these issues are going to be approached in a different spirit by the bishops themselves? What sort of things do you think need to be done to signify that?
BLAINE: Well, basically, you know, the way the bishops' proposal is laid out right now, it's merely a group of suggestions. There is nothing in their policy as it stands right now that holds anyone accountable.
And we have asked the bishops and the cardinals to address that concerns, that we do not want to leave Dallas with another set of lofty words. What we're looking for is a way that if the bishops decide not to follow the recommendations, that they will experience some type of repercussions, and that there will be consequences for those bishops and leaders who fail to follow the policies.
KEYES: Raymond Flynn, do you think that that's necessary?
FLYNN: Well, I certainly believe whether it's decided here or tomorrow in Dallas on Friday, and quite frankly I believe it should — I hope it's not like the Congress, where they discuss everything and then they solve nothing.
So I think there are specific issues that they have to vote on, and that they have to take a definitive position. Certainly the issue, as I said, as Barbara so beautifully articulated today, the issue of the victims, number one, and also let's stay focused on one strike, you're out. Zero tolerance.
I don't think that they should fudge that at all. I think their feet should be held to the fire, and I'm glad that the victims are going to have a full opportunity tomorrow to address the entire bishops' conference tomorrow.
I think those are all important, positive steps.
KEYES: Now in terms of the accountability of the prelates, one question I've always — and I've thought a lot about, Ray, in looking at this whole crisis — why do you think so many bishops were in fact willing to look the other way, to move people around, and take these kinds of steps? What was the source of this error?
FLYNN: Well, there were a number of people.
I do a radio show, Alan, as you know, and Michael Rose was on the program today, and he said there's a homosexual culture in the Catholic church and there's a protection in the church for that particular culture.
The extent of it, 30 percent, 50 percent, I don't know. I was on NBC with “meet the Press” with Tim Russert and Father Cousins said it's between 30 and 50 percent of the priests in the priesthood, are homosexual.
I don't know that, but that might be a factor as well.
BLAINE: Alan, let me tell you that — Alan, you know what I believe to be the problem is that the bishops and the cardinals themselves have really failed to comprehend the devastating impact that this abuse has on the victims and our family members. Because I believe if they really understood how much pain and suffering that we experienced, that they wouldn't allow any more children to be put at risk.
This issue of zero tolerance wouldn't even be discussed.
KEYES: One of the things that worries me, though — and this is for both of you but let's start with Barbara. I sense — and it's tied in with this issue of homosexual culture, but it also goes to the larger question of why one wasn't focused on the victims.
Wasn't that actually a kind of moral, spiritual blindness, in which one was failing to appreciate the real consequences of this grave sin, which gave scandal not when it appeared in the paper, but when it affected those young lives and young hearts and young minds and young spirits? Why wasn't there more of an appreciation of the moral, spiritual dimension of this sinful behavior in its impact on those Christ told us we had to especially respect, the children?
Barbara, let's start with you.
BLAINE: And one other thing, Alan — why didn't the bishops respond with a moral, pastoral response to the victims?
What they have done really is tended to put the focus on the perpetrators, and in a sense the victims have been treated as though we are the enemy when we come forward. And we are anonymous. The bishops don't know us and they don't know our family members.
But they do know the priests and unfortunately what they do is...
KEYES: No, G ahead.
(CROSSTALK)
KEYES: Raymond, very quickly — this pastoral problem...
FLYNN: Yes, I think that's why it's so important that this crisis, this situation, no longer be considered just a sin or a sickness but also a crime. It should be taken out of the hands of pastors and it should be turned over to proper law enforcement officials so that they go through the legal process just like everybody else. And if that requires putting priests in jail, then let's do that as well.
KEYES: I want to thank both of you tonight. I hope indeed that the kind of insight, forthright courage, Barbara, that you and your folks are showing, and the response it gets, will lead to a real and constructive outcome here, because I think the church really needs it.
Thank you both for being with me tonight.
Next, my “outrage of the day,” also focused a little bit on this question of the attitude that may have led in fact to some of the mistakes in judgment among the prelates.
Stay with us, we'll be right back.
(COMMERCIAL BREAK)
KEYES: Now for my “Outrage of the Day,” this time not unrelated to our topic.
This week, the leader of Brooklyn's Catholics, outraged an alleged victim of priest sexual abuse by telling a joke while being grilled by the man's lawyer.
The joke came amid Bishop Tom's Daily's deposition at a hotel near LaGuardia Airport, where he was asked about his oversight of a notorious child-molesting priest while a top official of the Boston archdiocese.
It was a joke insulting people with psychiatric problems.
It seems to me that the prelates need to remember, psychiatry literally means doctor of the soul, and the true doctor of the soul, according to their faith, is Jesus Christ. They should represent him in their attitude toward the victims here.
That's my sense of it.
Thanks. “THE NEWS WITH BRIAN WILLIAMS” is up next. See you tomorrow.