'Special Report' Panel on Detainee Abuse Photos; Battlelines in Supreme Court Nomination Fight

This is a rush transcript of "Special Report With Bret Baier" from May 13, 2009. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals.

In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion, and to put our troops in greater danger.

(END VIDEO CLIP)

BRET BAIER, HOST: Well, that was the president today in a sharp reversal of a decision he made, agreeing with the Pentagon, to release pictures, photos that show alleged abuse by military personnel of detainees, agreeing in a case of the American Civil Liberties Union to release these photographs.

The ACLU not happy today, releasing this quote: "The decision to not release the photographs makes a mockery of President Obama's promise of transparency and accountability. It is essential these photographs be released so that the public can examine for itself the full scale and scope of prisoner abuse that was conducted in its name."

Let's bring in our panel: Juan Williams, news analyst for National Public Radio; Nina Easton, Washington bureau chief of Fortune magazine, and Steve Hayes, senior writer for The Weekly Standard.

Steve, your thoughts?

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: I think the ACLU response is a little bit hysterical. I think they said that now the Obama administration is complicit in Bush administration torture. I think that's a little extreme.

I think he deserves credit for making a good decision, for making a thoughtful decision. And I'm told, having talked to some people about this, that he did this in part, at least, as a result of conversations that he had with senior military officials, including those responsible for winning the wars in Iraq and Afghanistan, who pressed him very hard and said this would really cause us problems as we try to win in Afghanistan and as we try to pull back from Iraq.

BAIER: Yes, we are hearing General Ray Odierno really made a full-court press to have these not released — Nina?

NINA EASTON, WASHINGTON BUREAU CHIEF, FORTUNE MAGAZINE: It's one of those flip-flops — if we can call it that — that I think was welcome and incredibly responsible on the president's part.

By the way, I think it's also politically astute, because if, for example, these inflammatory photos were released and if, for example, a terrorist got a hold of American soldiers and decided to retaliate with some kind of high profile beatings of them, I think that Democrats would pay a big political price. So I think it was a good political move.

What's going to happen, though, is that it's not clear that this —the legal system will move in the direction of keeping these blocked. I think the ACLU is probably right when they say that the second circuit has already ruled on it. The district judge has ruled on it. The national security concerns have already been raised, already been hashed out.

I'm told by legal scholars that the odds of the Supreme Court granting certain — actually accepting this for review — are not very high. It is not a likely thing.

So the thing that the president should do and could do down the line is issue an executive order that would provide an exemption for the Freedom of Information Act during wartime. I think that's probably the legal route that would really block this.

BAIER: Because then, Juan, that is interesting, the White House saying that the president felt that the legal argument wasn't really played out in the court on the national security issue and he wants to go back to the courts.

However, he could sign the order and make it moot.

JUAN WILLIAMS, SENIOR CORRESPONDENT, NATIONAL PUBLIC RADIO: Right.

But what the court said that it was speculative that, in fact, this would further endanger American troops, that there is no way to know that. And secondly, the court said, this has come before us and we have decided that as a function of the Freedom of Information Act, the only way you can get a waiver from releasing these photos is if you can prove that you would endanger somebody. And they said that just wasn't there, again, coming back to this speculative argument.

The argument I think now becomes a legal argument. And, in part, you would have to say that this is a political decision by President Obama.

President Obama previously was saying he had no choice in the matter. He wasn't going to simply extend it because he didn't believe that he could win and he wasn't going to force it on the high court and, as Nina pointed out, it's unlikely the high court will take it.

But here he is now as someone who is clearly listening to his military commanders, someone who is sensitive to the Pentagon. I think this is a clear message from the administration: When it comes to military matters we are with you; we are with the men and women who are out there fighting.

It comes at a time when we are putting more people on the found in Afghanistan, amping up efforts that will extend into Pakistan. We still have almost 150,000 people in Iraq, don't forget. People tend to whiz right by that. So this is at a dangerous moment and I think he's sensitive to that timing issue.

BAIER: And one point on the quantitative analysis. After the Abu Ghraib pictures were released, military commanders said ten days after the attacks went up 200 percent in Iraq. That is kind quantitative on the ground in Iraq.

WILLIAMS: Here they are saying, though, military people are saying that these pictures are not as bad as the pictures from Abu Ghraib — that you have some nudity, but that's about it.

BAIER: What about the left's reaction? I have already seen the blogs heating up. They're just livid that the president is not standing up for this and releasing this, and transparency.

They point to this quote on his second day: "I will hold myself as president to a new standard of openness. Information will not be withheld just because I say so."

You've got one article says he is "neocon-in-chief" already. Go ahead, Nina.

EASTON: I just think that they don't get the point that transparency and accountability come right head to head up with protecting the national security time and time again.

This is not something that's just new in the history of this country. This is a classic clash. They have an interest in transparency and accountability. And I think the president is finding out his main interest is national security.

HAYES: Yes, but this, I think, just underscores the difficulty he faces in actually governing, as opposed to campaigning and saying things like my administration is going to be the most transparent in the history of the country.

Now you have to make these decisions, and you have people like Ray Odierno and others saying this isn't speculative. The court may say it is speculative, but I think Ray Odierno is saying we have data that shows that this isn't speculative — attacks will increase.

And those are pretty compelling arguments, I think, for the president.

WILLIAMS: You know, the thing is that the argument from the left would be that those pictures are important to prove the scope and extent of abuse of detainees or prisoners and that it ties into the larger conversations taking place here in Washington about the Bush administration offering rationalizations from the Justice Department for engaging in enhanced interrogation, but that this was widespread.

BAIER: And what about the argument about critics who said this administration left these memos out, but now is closing the door on releasing these photos?

WILLIAMS: Well, the photos, it seems to me — we know what happened in the photos and they are after the fact. The clear implication of the investigations and memos is: Was there an effort by the Bush administration to break the law and knowingly do so in terms of allowing torture to take place?

BAIER: Any analogy at all to the two?

HAYES: I would just point out that, clearly with the release of the memos, I think there was an argument that that was going to be politically advantageous for the administration.

Here, I think, if he puts these photos out, he will get a lot of questions, particularly from members of the military, why are you doing this? And there wasn't an obvious answer. I think that made it politically difficult for them to do that.

BAIER: We're still waiting to learn who the president will nominate for the Supreme Court. But he is already trying to smooth the way for whomever it is. We will talk about this campaign, next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SENATE JUDICIARY COMMITTEE CHAIRMAN PATRICK LEAHY, D-VT.: I think the Republicans know that a nominee by President Obama is not a nominee by a President Bush or if it had been a President McCain. That's understood.

SENATE MINORITY LEADER MITCH MCCONNELL, R-KY.: We did have a discussion about the importance of following the law and not acting like a legislator on the bench. Suffice it to say that if I were making this nomination, "empathy" would not be a word that I would have chosen.

(END VIDEO CLIP)

BAIER: Well, Senate leaders at the White House talking about a possible nominee for the seat opened by Justice David Souter, retiring justice. And there you see the meeting at the White House.

What about this choice that's coming up? We're back with the panel — Steve?

HAYES: I think there are a lot of reasons to believe he is going bold. I think when we look at the kinds of decisions that he has made over the course of his first, what, 90 days in office, he has typically done the boldest thing he can do. He's done that with the stimulus package, he's done that with Afghanistan. He's done it sort of across the board.

And I think, you know, given the numbers, given the political capital he has, it's likely he is going to lean — if he's going to pick a left-wing judge, now would be the most likely time that he would do it.

BAIER: Nina?

EASTON: I think Steve is right in that, first of all, he is going to have the votes, most likely, unless there is an anti-tax problem, or something like that. The Republicans really aren't in a terrific position vote-wise to mount serious opposition.

BAIER: But could they mount opposition?

EASTON: They could, but it's unlikely. I think he will have the 60 votes he needs. Everybody seems to think that, including conservative interest groups that are mounting up opposition to this.

In their case, what they're trying to do is gin up enough opposition votes. They're just interested in getting a lot of "No" votes. They don't expect to bring down a nominee.

And I think the president in reaching across the aisle as he did today, we already saw that. He reached across the aisle on the stimulus bill and didn't get a single House Republican.

I think that a lot of that's for show. I think he is going to nominate who he wants.

And I think that the real issue is going to be inside his own party, because we're seeing a bit of identity politics going on here. Is he going to nominate a Hispanic? Is he going to nominate a woman?

BAIER: Openly gay was a storyline.

EASTON: Openly gay.

So, you know, at the end of the day, I think Democrats will rally around whoever he picks. But I think that's where a lot of the activity is now.

BAIER: There's talk, Juan, that this White House wants 80 votes. The last time we heard that was on the stimulus package.

WILLIAMS: Didn't work out, huh? "How did that work out for you?" as Brit Hume would tell me.

It seems to me that over the last week that the White House has been engaged in a little bit of backtracking or retreating on the person that was thought to be the leading candidate, Ms. Sotomayor. And the reason there is that they're seeing more and more that she could be a controversial candidate.

And if they have a goal in this, the goal is that they would have somebody on the bench by the time the Supreme Court goes into session in October.

They don't want, especially on this first step out, to get locked in a controversy. And the way they view it at the White House is that Republicans would benefit by this by stirring the base.

If the Republicans are able to say this is the kind of judge who is going to create laws and make laws and play on the "empathy" idea that you heard Mitch McConnell mention, then suddenly they say we don't need this controversy.

We want someone that the American people can say this is the kind of judge we have been wanting. The problem has been with the right wing, with these far-right wing people who are always favoring the powerful and always favoring the big corporations.

BAIER: So your guess is that he goes more moderate?

WILLIAMS: I think he does — it's not necessarily that he goes moderate, Bret, but that he stops and he makes — he's sure that whoever he puts forward — it could be Sonia Sotomayor, it could be her.

But they are going to make sure that they have done such strong vetting on her that there won't be any controversial comment, or it will be perfectly explained. If there is something hanging out, then they towards someone more like Elena Kagan, the solicitor general.

HAYES: I think that could be the thinking of some of the White House people involved in the vetting operations. I would be shocked if that was the thinking of the president at this point. He has an opportunity now to put in somebody young, to put in somebody whose worldview jives with his, will pull the court to the left, at least be a replacement for Justice Souter if not pull the court to the left a little bit. Somebody who could potentially persuade other justices in the debates, inside the court. I would be shocked if he was focusing on these short-term potential consequences, and really think he's probably focusing on the long run.

BAIER: And the other point is this White House probably knows or thinks it has a couple more bites of this apple.

WILLIAMS: Justice Stevens is there, Ginsburg is there as people who are way up in age.

But just to Steve's point — the White House version of a mainstream justice is to the left of yours.

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