in technical fields. you have made a point of being a leader in this area, a mentor within the industry. as an operations executive, you are certainly in small numbers. why is that? which you think the growth is in this industry? >> i think there are more and more women who are moving into operations, who have come into the operations side and the technology side of the business. we have a lot of very bright and successful operations executives, operations leaders and engineering -- female engineers. i think there are enormous opportunities. it goes back to the previous question. there is a great need in this country and at time warner cable for people who have expertise, who are trained in the technology field. .

. local news is of particular interest. it is -- it has the potential, and is in fact a differentiator for us. we are aligning our local news operations to take advantage of their specialty and their particular focus and particular response to customers so

they've all been moved into a structure where the local news divisions are managed in the news division. as you move -- >> as you move into your new responsibilities, what are you most excited about? >> i'm most excited about -- i'm most excited about learning about our customers and -- in different parts of the country. so learning about the needs of customerssin new york city, learning about the needs of customers in upstate new york and in maine. and what's interesting is that while those are very diverse geographies, in many ways, customers need our lines they tend to be the same. it's interesting to see where is that alignment and how can we respond to customers and what things need to be different?

what things need to be different for a customer in new york city versus in charlotte, north carolina. it's exciting to up the thi about finding the right model for serving customers in that diverse geography. >> how public do you expect to be? >> how public do i expect to be? well, you know, i don't know. i imagine i'll be a bit more public than i have been in the past but my -- >> you're in one of the biggest markets in the country. >> my passion is really operations. i love working with a team of people, responding to the needs of customers and developing and introducing products that make customers' lives simple and easy. that's realy my focus. >> thank you very much for talking to us. >> thank you. >> you'll see more of these interviews over the next few months, but if you want to watch this program again or any of our past "communicators"

programs, go to our website at c-span.org. >> coming up on "america and the courts," former attorney general john ashcroft on the rights of terror suspects. later, president opaw ma's nomination of -- president obama's nomination of james clapper for national intelligence director. both chambers of congress return from memorial day recess this week. the senate gavels in monday at 2:00 eastern to consider three judicial nominations with votes scheduled at 5:30. members could return to work on a package that extends tax credits and unemployment benefits. the house passed that measure before leaving for memorial day recess. we expect several amendments to be offered and debate regarding the budget offset. that's live on c-span2. the house returns tuesday at

2:00 for legislative business before voting on bills at 6:30 p.m. later in the week, a bill that provides the federal housing authority the ability to raise premiums. and a possible small business loan measure, which will create a fund to increase the availability of credit to small businesses. the house is live on c-span. next on "america and the courts," former attorney general john ashcroft on the legal history surrounding the rights of terror suspects. a federal appeals court ruled last month that detainees held at bagram air base in afghanistan do not have the right to appear in federal court, setting up a possible challenge to a 2008 supreme court ruling that did extend the right of habeas corpus to guantanamo detainees. from the heritage foundation, this is an hour.

>> it's a great honor to welcome all of you as we continue to reck are nice the second annual protect america month with our concluding lecture today. our live webcast is getting under way at this time. i extend a special word of greeting to all of those who are joining us on my her -- on myheritage.org to watch this event. if you have if off question for our speaker, send it to heritage.org and it will be fed into the system here. those of you here in the audience will have the ability to participate as well. we have distributed question cards and they will be collected during the course and immediately after general ashcroft's lecture. a staff member will bring them up and we'll go through them

and cover as many as we can in the question and answer session. with those preliminary announcements and the caveat that my colleague has probably already given to turn off all things electronic and mechanical that might buzz or otherwise interrupt the proceedings today, it's my very great pleasure at this time to introduce our colleague and our good friend, former senator jim talent to introduce today's special guest. senator talent joined us after serving on the senate armed services committee. before that he represented missouri's second district in the house of representatives for eight years. prior to that, he was in the state house in jefferson city. as a member of the house and senate armed services committees, senator talent was directly involved in some of the most critical debates and decisions regarding national

security policy, both prior to and immediately after the 9/11 world that we live in today. here at heritage, jim talent specializes in issues involving foreign policy, military readiness, and his old favorite on the domestic front, welfare reeorm. he's one of the most astute commentators in the conservative realm of ideas, we're privilege to have had him with us as our colleague, jim will you please come up and introduce our distinguished speaker? [applause] >> my thanks to dr. fulmer for giving me the privilege of introducing our honored guest who is a fellow missourian, which is the reason i have the privilege of doing this, and a man who has accomplished so much across such a wide range of responsibilities and offices over the years that it would embarrass him for me to try to list them all, and intrude in

his speaking time. but i want to touch on the highlights. john ashcroft entered office for the first time in 1973 when he became missouri state auditor. he followed that with two terms as missouri's attorney general, unaware of what that was preparing him for in the future he followed that with two terms as governor, i'll summarize those years in missouri by saying we we in the state of missouri created 330,000 new jobs in those eight years, balanced the budget eight years in a row. he left office with a surplus. and we had the 49th lowest tax burden per capita in the whole country. or as we like to say at the time we had the second best tax policy in missouri at the time. after that, he went to the u.s. senate in the turbulent and exciting years of the 1990's when we balanced the budget,

produced surplus, did do welfare reform, criminal justice reform, regulatory reform in a broad range of areas, as well as cutting taxes a number of times. mr. ashcroft was at the cent over much after thoove activetism he became attorney general of -- in 2001, i believe in february of 2001. those of us who knew him realized that at the time he was enjoying that office immensely for seven months. and then the united states was attacked in september of 2001. he's going to address, i'm sure, many of the issues he had to deal with in those days in the context of looking at the development of those issues constitutionally but i'll say, when i'm asked today, and i do get asked this a lot because i do a lot in the area of anti-terror, when i asked why the united states has not been successfully attacked again since september of 2001, i

usually offer as the two top are reasons, the vigorous activity of our armed forces and intelligence services in taking the battle to them, and attacking them in their safe havens, and then the second reason, the vigorous, decisive, and wise leadership of john ashcroft in quickly adapting the department of justice to the needs of the war against terror. it remains only for me to say i had the opportunity to work personally with mr. ashcroft in a number of instances, the first was when i was a young leader of the republican party in the missouri legislature in his second term as governor, and as all those who know him will attest, he is in his perge life a model of integrity, humility and humanity. ladies and gentlemen, it's a great pllasure on behalf of the heritage foundation to introduce to you the former attorney general of the united states, john ashcroft. [applause]

>> thank you, ed fulmer and jim talent. it is a pleasure to be with you. i like the way they sort of scoot across the top of history and to the avoid the valleys and hittle on the peaks. he didn't mention i've lost more elections in three of the last four decades, i lost elections, i happened to be the only person ever to have lost his senate seat to a deceased opponent. so your willingness to sort of cast me in the role of a winner is something for which i am + grateful. i have a lot to say and that may mean i just make a lot of mistakes. i understand that i'm not as immune as i might have been when i was member of the senate from attack for what i would say, but i'm grateful for this opportunity. i believe the defense of america is tantamount to the defense of freedom and freedom

is worth defending. freedom is what the alchemists were looking for in the middle ages. when in those days, it was thought that if you could just touch ordinary metal with some magic substance, you could change it into pure gold. sort of the pixie dust that would make us all what we hoped we could bfment there isn't any such thing in the area of physics or in the natural world, we know that. in the fifth grade or seventh grade, wherever it was we memorized the periodic table and understood that elements have their own character and are not susceptible to transition. but there is a pixie dust in human existence and it is freedom. it is what changes ordinary people into world beaters. it is what makes america exceptional. some people like i was grew up

thinking we weee maybe better than other folks around the world until it dawned on me we couldn't be better than other folks, we are other folkk. the thing that made america a special place, that made it exceptional, that made it different, that made it a priority place a city on the hill, if i can borrow the phraseology of one of america's greatest presidents, was that freedom was respected here. it wasn't the nature of the people, it was the nature of this special alchemy which changes base metal into gold which changes the also-rans the wretched refuse of the teeming shores into world beaters. freedom is a value which is simply without parallel. as attorney general, people came to me on an insistent basis and said, you've got to learn to balance freedom and security. obviously, we all have a sense of the necessity for security.

but i always wanted to reject the idea that freedom had any peer in terms of values. that there is no such thing as the need to balance freedom. there is the need to enhance freedom. there is the need to support freedom. there is the need to safeguard freedom. and when you think about security, i think we should say there is the need to secure freedom. security isn't a counterweight to freedom. s the way for us to make sure that freedom stays intact. and has its positive catalytic value on the character of humanity. so security is not a competitor to freedom. it's an enabler of it. when we speak of security, we should specify the object. you secure your home you secure your car, we should seek to secure freedom. that's what the security of america is about.

fro providing security for this environment of freedom which reinforces and establishes and honors human dignity in ways that have never been reinforced, established, or honored in human existence in any other setting. when the declaration of independence recites that we hold these truths to be self-evident that all men are created equal, endowed by their creator with inalienable rights of life, liberty, and the pursuit of happiness, we know that's related to freedom. we have long known that the pursuit of happiness defines freedom. the ability of individuals to pursue the things to which they aspire. that's really what freedom is about. we are fast learning on the other hand, however, that the provision of happiness by government defines and delivers debt, rather than freedom. and what it does, it impairs

freedom. the pursuit of happiness is the definition of freedom, the provision of those things that people say might make them happy, very frequently has a high cost. one of the reasons that i'm delighted to be here at the heritage foundation, that it is a foundation that understands that the opportunity to seek productivity, the opportunity to create and the opportunity to advance, reinforcement of human dignity that comes from having faith in mankind, that's what this institution is all about. whenever our culture converts needs into rights, that it's not that we pursue things that would meet our needs and expectations, but they are provided by government. we ultimately find that freedom is shrinking and the value of human dignity is undermined. when government protests or protect mispursuit of happiness, it enhance

misliberty. when it seeks to provide for my needs, it frustrates my freedom. the defense of freedom, then is the single most important responsibility of a culture and i'm grateful for this institution, which understands freedom and relentlessly seeks to protect it. this month of defense of america which is an annual event here at the heritage institute, is a wonderful, wonderful month. we find ourselves talking about the defense of freedom or protecting america. i want to equate those phrases. to me in my heart, it may not mean the same to others, that's what's important. america, the last, best, hope of freedom. is to be protected. not just for its sentimental value or because our ancestors were here but because the conditions exist here that reinforce human dignity and reward the achievements of individuals, reward the risks

taken in those achievements by individuals who are willing to exercise freedomm point one. point two, freedom is under attack. it is such an attractive and appealing value that it's hard for us to believe that freedom sunday attack. freedom is under attack by those who say that they are either -- well, we watched nazi germany say the rest of the world was racially or ethnically inferior. freedom has been under attack by those who say we don't worship the right god. those who would want to impose upon us who don't believe that spirituality is something of inspiration they think it's something that -- that spirituality is something of imposition, so they want to impose on us their views of the way god ought to be respected. something that america rejects because america believes in freedom. there are people who are attacking freedom because they

don't believe that mankind is worthy of freedom. it's subtle. they are the ones who say that, well if they all understood what we would do for them, they would but they can't understand, so we need to take charge and impose on people the imposstion of those things which are unwanted is the denial of freedom, regardless of the so-called virtue that could be associated with that which is being imposed upon us. i believe there are people who might even -- well there may be a room full of people here who could make better decisions about my life than i could. but the mere fact that you might make better decisions than i could about my life doesn't mean i want you to make those decisions. there is a virtue in my being able to make my own decisions. i cling to the ability that america offers me to make my own mistakes. and not to have you make either

good decisions or mistakes in my behalf. so freedom is this important quality and i believe it must be defended aggressively and that's why, again, i express my appreciation to heritage for featuring this month-long discussion of the defense of america. but it also must be defended legally. in accordance with principles and it must be defended in a way that respects freedom itself. and the law provides an intersection at which this expectation of freedom and the protection of freedom come together. and when the principles might be in question we seek to adjudicate thooe and most frequently that's happened in a legal process called habeas corpus. now, i'm no latin scholar, i'm not really a legal scholar, but habeas corpus sort of stands

for have the body. it means that in the court if you've challenged someone's detention, the court says, let's have the body. bring the person in here. we'll find out whether there's been an appropriate detention of this individual or not. this is a rich part of america's history. i think perhaps the most charming, least exciting because it's old, story about this comes when andrew jackson was fighting in the battle of new orleans. you may remember johnny horton's folk song about that, you know in 1814, took a a little trip, along with colonel jackson down the mississipp. fired our cannons until the barrel melted down, then we grabbed an alligator and fired another round, filled his mouth with canon baals and powdered

his behind, when we touched the powder off, the gator lost his mind. you do remember. absolutely. jackson was a pretty aggressive defender of freedom. he loved it and america loved him for it. now, you know that that was not the age of the blackberry or even the cell phone or even the telephones. i don't think they had invented two tin cans and a string at that time. jackson was down fighting the british in january of 1815, not knowing, not knowing that the treaty of ghent had been signed on the 24th of december of 1814. even after he pretty much slaughtered the british, it was a brutal battle, in 1815, early in january, not too -- early to mid january. no one knew about the treaty having been signed. at least it wasn't official. but it became pretty apparent

the british weren't a threat like they once were. so an edtorial appeared in the french-speaking newspaper in new orleans that said, you're a great general, counselor jackson but please give us our freedom back. you've declared martial law, and he had, and was running the+ city in accordance with his own sort of idea of what was necessary for the ultimate security of the city. and he -- the editorialist requested, now that the war is over, or there's no threat, please give us our city back. well, jackson was not what you would call a civil liberties enthusiast. so he found the writer of the editorial and had him jailed. and so guess what the writer of the edtorial does? try and contest his incarceration he files a writ of habeas corpus. and the judge, augustin hall,

issued the writ and says, bring this writer of the editorial before me. we'll adjudicate the appropriateness of his detention. he ordered that the editorial writer be brought forward. jackson was not db you know jackson had his difficulties with members of the judiciary later on when it came to stories about the bank but jackson was not to be intimidated so instead of bringing in the editorial writer he incarcerated the judge and slated the judge for detention alongside the writer of the editorial, though he eventually relented on that and took the judge to the edge of the military district, at which time he gave him what i like to refer to as the right foot of fellowship and the judge out of the district. this story has always charm that fiction would have, except you wouldn't believe it, were it fiction. obviously the news of the peace treaty comes and the civil

government is restored in new orleans, the judge who had issued the order of habeas corpus, which had not been followed, which had been more than repudiated, had been contempts youly disobeyed he orders and finds jackson in contempt of court and fines jackson $1,000. in 1815. $1,000 in those days was roughly enough money to buy, i think, between 2 1/2 and three mid western states. that was a lot of money. jackson paid it and went on into his career as a public servant, becoming president of the united states. the post-script, the footnote which is just amazing to me son his deathbed, the congress of the united states votes to refund the $1,000 to andrew jackson, but all of which to say ii habeas corpus has been a

significant part of adjudicating the right principles, the limits, on what can be done to defend the constitution and to defend freedom in america. and the executive branch operates within limits and the legislative branch operates within limits and at times, the judicial branch has operated within limits, althoogh i think they define their own limits and given the fact that they reserve the right to migrate or evolve or morph or what -- when they want to make it sound greenist, they say they have an organic constitution. so they can do it like, what do they call it when the japanese shape the trees and tie them? bonsai, they sort of bonsai the constitution so we make it provide shade and protection in one area. never mind. i'd like to just run through as

we get toward events that are so current they are now pending, i would like to run through a series of cases just of habeas corpus thing will help you sort of put in a frame of reference what's happened in the united states over the course of the last century. we'll take a big jump from andrew jackson in 1816 to get up into the world war ii area but perhaps one of the most interesting habeas corpus cases of all times was the quirin case. it's part of history that somehow escaped my junior year in high school where i thought they told me all there was to know about the second world war but either they missed this or i missed it. but there were eight individuals, saboteurs, released from submarines off the coast of long island in new york and florida, obviously, in the southeast. they came in and ultimately were apprehended.

they were released on about the 15th of june by the 15th of august, they had been -- those who had been adjudicated eligible for the death penalty and not reprieved in some way, they were -- they had been executed and the president -- and president roosevelt had convened not as a result of military commissions established prior to their appearance but military commissions created specifically to deal with their cases, president roosevelt had convened the commissions, the supreme court ruled that the commissions were appropriate, and they had been executed within 60 days. it's not a proud time in american history, although it's kind of interesting that the president seems so intent on making sure that there was such a -- such alacrity and such

dispatch in the way the case was processed. the truth of the matter is, some of those individuals who had come into the country immediately went to the f.b.i. and said, we're here and we're here to destroy critical infrastructure in america. you better stop this operation. now, it's an unproud moment for the f.b.i. because the first exposure to these people with that confession resulted in, oh, you guys are kidding. and then a second approach resulted in the actual taking serious of this and i think the president, it is reported that the president was upset and obviously it is reported that j. edgar hoover was significantly upset over the idea that america could be so vulnerable and susceptible to damage in this way that the president said, we better move quickly here if at all possible resm solve this issue and signal to the world that we are not weak in this respect.

if that's the case and i think it's probably so, i think the president deserves at least the credit for preserving the safety and security of american freedom as a result of moving with december patch and the principle involved there is one, whhther it was abused or not in that setting which ought to be understood by us, that the way in which you deal with individuals will signal and set a standard for and provide either a disincentive to or in some cases perhaps even an invitation to individuals who might think that the way in which things are undertaken for dealing with or otherwise processing these kinds of matters would provide an opportunity to disrupt the freedom of the united states of america. oddly enough, on the commission -- the commission was meeting regarding the innocence or guilt of these individuals,

whose basic charge was they operated without uniforms and therefore violated the laws of war, the penalty for the violation of the law of war, any law of war, has traditionally been up to and including the death penalty and they were given he death penalty for that the supreme court, which was hearing the case at the same time the commission was processing these individuals so that these things were sort of on parallel tracks, this wasn't a sequential operation where you cleared it through the courts and then went to the commission. this was sort of multitracked. and there are times in government when you should be multitracking things. the verdict was rend early august. the court said that it affirmed the right of the commission to act and that the opinion would follow. it is something of an embarrassment, i believe, to the respect we have for freedom in the uniied states that the opinion did noo follow until

october, a couple of months after individuals' lives had been taken in term of retribution or punishment for the crime which had been committed and it was not a normal crime. it was something adjudicated by a military commission, which means it was a war crime, and not a violation of -- it may also have been a violation of the statutes of the united states, but the adjudication in military commissions of criminal activity relates to the adjudication of war crimes. we don't try criminal code matters as we do in a civil matter. first case of this century that i would point out to you is the querin -- the supreme court in the querin case validated military commissions used to try individuals who had committed these kinds of crimes. second case was isentrager. it happened to be the case of a group of germmns involved in

china and at the time the war was declared over between the united states and germany, instead of ceasing to fight, they went on assisting the japanese. now, it is a war crime once your country has surrendered for you not to obey the terms of the surrender system of 27 individuals were charged, 21 were convicted. they were being nelled a prison in germany, we still have a presence in that area. they filed a habeas corpus to say get us out of prison here and the court basically said, though that's now in dispute, it was for decades understood that the court said, we don't have jurisdiction to handle things that don't have a nexus to a u.s. district court territory in the united states and this is the territory of -- in germany. so the court refused to grant

the writ of habeas corpus there. interestingly enough, one of the things that struck me about this was that 27 out of -- of the 27 cases brought before the military commission, only 21 were convvcted. and there is a mythology about military commissions that i think needs correction in our culture. there is a suggestion that they are -- that they don't operate fairly and that they don't provide an opportunity for innocent individuals to be adjudicated in a context which is acceptable. what i have noticed in my understanding of military commissions, in that case, about 77% conviction rate, after the second world war, generally, military commissions, about upper 80's in conviction rate. as my experience at the justice department said that the conviction rates of u.s. attorneys are usually in the mid to upper 90's and anything below that on the part of a u.s. attorney would be an embarrassment. it's not an automatic that if

you have an adjudication or due process that is undertaken by way of military commission rather than the civil or criminal courts that generally attend our society that somehow that's unfair or unlikely to provide an outcome which is acceptable or comports with the truth. the rights of individuals are respected by our military, they are the people who give their lives in order to defend those rights. and it is less than fair to suggest that because you have a military commission, somehow you will be disrespecting justice. the isentrager case pretty much said if you're outsidd the limits of the united states, you're nottgoing to be having habeas corpus. i want to leapfrog then from the second world war cases to the cases that relate to the modern circumstance of the war on terror. and they take us to the cases

that relate to detention of individuals at guantanamo and in other settings. the first of the guantanamo cases, obviously, there were two cases that came out on the same day in june of 2004, the rasul case and hamdi case. the hamdi case was an anomaly, hamdi was an american citizen. it's been settled law that american citizens always have the right to petition the court for habeas corpus. hamdi wasn't an american citizen in the way you might expect him to be. he was born in the united states and at a very, very tender age, taken to the middle east and raised in the middle east and became part of those individuals in the middle east fighting against the forces of the united states. but once a citizen, always a citizen. hamdi, as soon as it was discovered that was the case, he was moved to the united states in a prison so the questions about whether geography would control habeas

corpus would be nonexistent.. rasul was not born in the united states but he was incarcerated at guantanamo as a foreign national and enemy combatant. in the rasul case, you get the courts beginning the process of migrating the idea expressed in isentrager that if you were outside the united states you were beyond the limits of our own courts to provide habeas corpus relief. in the rasul case you get the idea that you're asking about the nature of guantanamo, asking isn't guantannmo really part of the united states? and you get into an arena of asking about, if we don't have detack toe sovereignty, if we do have de facto sovereignty even if we don't have deinjure sovereignty. are we controlling a pace so profoundly that we ought to say

it's part of the united states for habeas corpus rights. the court has come to the idea that you can have such profound control of an arena that it would be the space for having habeas corpus. let me just take a minute here to talk about the policy that that raises. the truth of the matter is, you don't want to incarcerate anybody, anywhere, where you don't have pretty good control. you don't want -- and if you have control if that means there's automatically the right of the court to go there, you have to ask yourself, by definition, does that mean any time someone is controlled outside the united states which is the definition of what you do with detainees you control them, does that invite the presence of the court? so we begin our road through this idea that we don't have the clear bright lines of

distinction that geography would provide you begin to ask questions that relate to the facts and circumstancess once you do that, you invite the court into the matrix of understanding and defining how the conflict is undertaken. moot of us have gone through the policy discussions of why it's important to have a strong the flexibility of being able to make quick decisions and do things and move in the right direction to defend the united states. we've watched congress operate. i've been in the congress, jim was in the congress for a long time. we know that the congress is a deliberative body, not an executive body. if you need a military decision you may not want to call on a body that can't decide whether to take something to the floor for six months, let alone what it's going to do on the floor as a means of defending that setting. so the court ruled in hamdi,

obviously, he's an american citizen, he's going to be accorded rights and while he was an enemy combatant, and susceptible to being detained until the end of the conflict, he was still accorded the idea that he could have certain rights to protest and to challenge the conditions of his detention. particularly the reasons for his detention. the next case -- i realize i'm acting like a senator here, once a senator gets the floor, only god can take him off the floor, isn't that what they say? with the hamdan case, he was slated far military commission and the supreme court of the united states indicated there was not a clear authorization for military commissions in the law for the president, at least consistent with the way the military commission was at that

time configured. the authorization to use military force, which was drafted originally passed by the congress, the resolution was general, it didn't seek to spessity everything that needed to be done. i think it was the view of the administration that that provided the generalized authority tt conduct a war in such a way, include degree taining and adjudicating individuals who violated the law in their attack on the united states and the congress basically had made that kind of a generalized authorization. the supreme court said no, but the congress could do something that would provide a basis for the court for the adjudication of people like hamdan, who was said to be osama bin laden's driver. so the congress then acted. they created the military commissions act which became litigated on the bumaain case.

that's the next to the last case. i'm going to buzz through some of these, then we'll talk about the current case and then you can all go eat. bumadin was another military commission's case -- military commissions case and the congress enacted a special military commissions authority called the military commissions act, the effort to reg diwhat the court said wasn't done properly in hamdan and the court said, well you didn't do this well enough either. just so you're coming in and not leaving, i'm fine. the -- and what was kind of interesting in that case, there was a tremendous confusion about the matters because it was thought by the congress that they could respond to the court and satisfy the court, though i think they originally disagreed with the dort in

regard to its jurisdiction, you remember the congress tried to say there will be no jurisdiction, tried to draw a bright line for yours diction no jurisdiction for habeas corpus in the district courts of the united states. the court set those things aside. it caused justice scalia to say the analysis produces a crazy result. you very seldom get that kind of language out of one judge about the opinions of other judgess roberts talked, i believe, in that matter in his dissent about bait and switch justice that you offer to the congress the opportunity to legislate in an area and then as soon as they legislate in the area, you change that and get this sort of migration of the law. scalia chided his colleagues by saying that they had said if the congress just did this and then, scalia in his quotations said, just kidding. like you can't do that and get away wit. we were just kidding about what

we would let you do. scalia finished by saying how to handle enemy prisoners will alie with the branch that knows the least. this is the matter that relates to the judicial branch, really the best place to decide how to fight a war? this is the background that has us looking at a case now called maqulah versus gates. in these four cases, hadi, rasul, hamdan, and bimudin, the justice department was overruled in each case. it was overruled at the supreme court level. the 12 judges voted on these four cases, three-judge panels in each case, 11 of the 12

supported the department's position until it got to the supreme court so the appellate judges were convinced that the department had followed the law. it was not until you get to the area where the law is most easily adjusted, if you will, or where it migrates or is organic in its response that you got to the uncertainty that surrounds the area of the tainee -- detainee processing. in the syllabus for the hamdan case, it tells you something about the fragmentation of legal opinion here. i want to read this quickly and then -- here's what the syllabus says. stevens, j. announced the opinion of the court with respects one through four, parts six telesimbingg d three

and part five in which justices suter, bryant joined and in respect to part six d 4. breyer, justice, file and opinion to concur, as to parts one and two, scalia, justice, filed a dissenting opinion in which thomas and alito joined. thomas justice filed an opinion in which others joined except for parts two, three b one. roberts, the chief justice took no part of the consideration or the decision of the case. i mean, that's -- i think the one thing you can be clear about in the setting like that is roberts took no part in the

decision of the case. and if we are trying to say that the law, that the rule of law, provides a set of boundaries in which people can make decisions with confidence, and in the defense of the united states of america, we need for the executive branch to have a set of rules that they can -- in which they can operate confidently. if we can't operate confidently, what does it give to our enemy? it says to the enemy, it suggests to them we are morally ambiguous, it says to them we don't know how we're operating anddwhat we can do. it impairs our ability to defend freedom. the defense of freedom requires the rule of law. and the rule of law is one of the greatest supporters of freedom because it helps people know what they are free do to the co-and what they are not free to do. we move to the case now before the court and the court of appeals has again, as it had in the four previous cases,

sustained the position of the department of justice. and so the question in this case is whether individuals 3 in bagram as unlawful enemy combatants are eligible for habeas corpus treatment and the court at the district court level ruled they were, based on the bumadin case said virtually anyone, anywhere would be subject to the court's juferre diction and the district court of appeals has reversed that judgment. the interesting -- the interesting part of this is that with the solicitor general of the united states being nominated for membership in the court, it's unlikely that she would be able to sit on this case. further, given the fact that she argued a very strong

position in support of the military's capacity to maintain this detention cent for the bagram, absent interference by the court as a result of granting of habeas corpus there, it might even be better if she were sitting on the court when such a decision is made. regardless, given the fact that the court of appeals has ruled 4-4 -- pardon me, has ruled in favor of the position of the department of justice and u.s. military for detention if there is a 4-4 split on the court, which appears to be the worst that's likely a 4-4 split would not overturn the decision of the district court and for the first time in a series of these cases we would have the nofingse united states military in detaining individuals uninter-feared with by the courts. that to me is kind of an interesting anomaly in the way

in which this matter is unfolding. it is entirely possible as well that as a result of the opinion in the maqaleh versus gates, decision at the court of appeals level which seeks to employ a three-prong test from the bumadi; n case in which kennedy expressed himself rather assertively regarding these elements, there could be even a majority decision. the best i believe we can hope for in the defense of freedom is to have a majority decision that clarifies and brings certainty to the arena so when the military of the united states encounters and seeks to detain individuals, last matrix in which decision making can be made with confidence and which does not in some way undermine either the moral high ground the united states deserves or

the decision making capacity that the united states must have in order to defend itself. as i indicated earlier, freedom is the value worth defending. it deserves an aggressive defense. its defense must be undertaken not only aggressively but in accordance with the law and principles. i believe there's an opportunity in the case which will now appear before the united states supreme court which was only announced by the court of appeals on may 21 of this last couple of weeks there will be an opportunity for clarification of the appropriate conduct of the part of the executive branch running the military in the united states of america which could strengthen america. strengthening america is what we are all about. it is the stuff of which freedom is made and i thank you for giving me this opportunity to discuss these matters. [applause]

>> thank you, general ashcroft. we had, by the way, more than 500 people watching on our webcast, we again encourage you to send us questions if you have any. thank you for speaking in protect america month. many americans have shown a renewed interest in the constitution and other founding documents, why is this a good thing? >> well, maybe i should just take off on this to make another little quick speech. it's a good thing when americans care about the constitution. because ultimately, the oversight of american government is found in the american people. i think our courts have forgotten that. when our courts have expressed distrust, particularly in the arena of the detention, they've talked about, well the congress gets elected, there are lots of them and the courts are

independent and there are a few of us, but we are independent and somebody has to be a check on the executive branch, well the american people are a big check on the executive branch. the executive branch is the only branch of government that the entire american population votes on. the congress of the united states is elected more frequently but it is so gerrymandered you have to wonder if it can be as responsive as it ought to be though this year, gerrymandering could be irrelevant given the anger of the american people. and the senate only comes up every six years instead of every four years and so you have to -- i think we need to understand how important it is for the american people to be attuned to these things. they are the primary oversight and i don't think they get the credit for being the oversight they deserve. obviously, that is more available now than ever before. so many things in government used to be hidden.

even in my lifetime. they just weren't known. better not try and hide very much now. there's too much money to be made by the news industry in being the ones that scoop it and provide the most about it and the opportunity for you to comment on it. how is that for grabbing a wrong goal? [laughter] >> project yourself ahead, what would you have done if you were told to close gitmo? >> well, first of all, i'm not going to answer that kind of hypothetical. i would have argued against closing gitmo. i think gitmo is a very, very good place to detain people. people are safe there. people are treated humanely there. the idea of detaining people

who fight against you is an act of mercy. consider the alternatives. take no prisoners was a barbaric way of doing business. it was to slaughter your enemy on the battlefield. never in history has there been a challenge to the idea that the merciful act of removing a person from the course of the battle and maintaining the removal until the end of the combat was anything less than an act of mercy. and so i think it is right to take people out of the battle. it is right to dislocate them and not -- the alternatives are either to kill them on the field or rearm them and send them back out to take another shot or to detain them. i think detention is the only acceptable thing. and the courts have been pretty clear about this. the problem exists when people confuse detention for purposes of removing people from the stream of the bat.

they confuse thht with punishment, which is also incarceration. and we've gone through a lot of discussions about this and i would belittle none of them. in the second world war, some individuals were detained or asked to move away from the coast, japanese were, to camps in wyoming. i think there's a lot of understanding now, that probably -- may not have been the right thing to do, though it's too easy to judge in retrospect in history. other individuals were asked to go and walk into the fire of the enemy because they were drafted. i'm not sure whether i would have gone to a camp in wyoming or died in france. either one of those -- the defense of liberty is not free, it's not cheap. but the idea that somehow there's something evil about guantanamo i think is a bankrupt idea and it only succeeds in the arena of slander. for instance this most recent

case, and the court seems to be focused on the idea that bagram is a theater of war therefore we won't interfere with it and the idea that somehow you should keep the prisoners in the theater of war. first of all, the prisoner is at much greater risk there. it put ours people at greater risk because people will come and try and liberate them and in the civil war, there were attempts made in the united states to go liberate people from the prison camps and rearm them and have them fight from the back side from the other side of the line. so the dislocation of people from the battle arena is a reasonable and rational thing to do, an the idea that the court says, if you control the area too much, we have to get involve. we honor your right to do things in the battle zone. it's an idea that has another side to it, that i think is an important side that ought to be considered. these are difficult questions.

part of the thing, though, is we need resolution of these and the amendment of the idea of what we can do with each case that comes along leaves no one with an appropriate basis for the kind of executive decision making that conflict demands. >> here's one along the line of your last response. >> a question i'm going to respond to. >> no, no. followup, if you will. should enemy combatants be read miranda rights? >> you know, if they're going to be tried in criminal courts, they should be. if they're going to be tried as war criminals, there are a different set of protocols. and the idea -- we have a mistaken idea that you're either a war criminal r you're a criminal that violates the criminal code of the united states