'Journal Editorial Report,' November 14, 2009

This is a rush transcript from "The Journal Editorial Report," November 14, 2009. This copy may not be in its final form and may be updated.

PAUL GIGOT, HOST: This week on the "Journal Editorial Report," the War on Terror comes home again. Lessons from the Fort Hood massacre.

And the Obama administration says the mastermind of 9/11 to stand trial in, believe it or not, a New York criminal court.

And health care reform and the abortion uproar. Is the Stupak Amendment really a pro-life victory? And how big a role will the issue play in the Senate debate to come.

Plus, bailouts for newspapers? Why your favorite daily may soon be getting a helping hand from the government.

Welcome to the "Journal Editorial Report," I'm Paul Gigot.

Military prosecutors announced late this week that that they will charge Fort Hood shooting suspect Major Nidal Malik Hasan with 13 counts of premeditated murder. The charges come as investigators try to piece together the circumstances surrounding the Texas military base and whether key warning signs were ignored, including e-mail exchanges between Hasan and a radical cleric in Yemen, who knew three of the September 11th hijackers and who has advocated jihad against the United States.

And in a stunning change in the legal war on terror, the Obama administration announced we'll try the mastermind of 9/11, Khalid Shaikh Mohammed, and four other enemy combatants at Guantanamo in a court in New York City. What's behind this decision and is it possible they could be acquitted?

Joining the panel this week, Wall Street Journal columnist and deputy editor, Dan Henninger; editorial board member, Dorothy Rabinowitz; and columnist Bill McGurn.

So, Dorothy, was Hasan a terrorist, really a terrorist hiding in plain sight and why didn't people see that?

DOROTHY RABINOWITZ, EDITORIAL BOARD MEMBER: Well, the last question first. Yes, he was apparently. Everything in his life that pointed to this. He said outrageous things at long lectures and the response was, we have to let him do his things.

GIGOT: This was at a presentation at Walter Reed Medical Hospital.

RABINOWITZ: At Walter Reed. And then people sent him, to of all things, school. They thought if they sent him to a university lecture place, he would be responsible to all of this. He carried a card that said, "Soldier of Islam," we now discover. He seethed at hatred at the war.

GIGOT: People are seeing all of this. Why didn't anybody blow the whistle?

RABINOWITZ: Look, what's really happened is Americans are not going to forget this happened. Cowardice prevented anyone from interfering. That is the only word to use. You have to drop political correctness.

GIGOT: Cowardice on whose part? Inside the military?

RABINOWITZ: On the part of the military as well as all of his superiors. You could not say — there's a woman in charge there that wouldn't give her name to a reporter, who said, you know, we cannot simply allow people who are different to be picked on. Now, that difference...

GIGOT: That's political correctness and a diversity ideology, I guess.

RABINOWITZ: Yes, it's political — those are the words, but the real animating feeling is cowardice.

GIGOT: Cowardice, why, because they're shirking their jobs for their careers?

RABINOWITZ: Cowardice because, A, yes, you could be written up for insensitivity. The general of the Army, who could sit there and say...

GIGOT: General Casey.

RABINOWITZ: General Casey. It is cowardice. This is something — this is Army policy. And one of the things that has happened, very unlike September 11th's aftermath where you didn't really know. Everyone was paralyzed. What you really had here is the sharp laser focus on cowardice and the omission of the necessary steps.

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Paul?

GIGOT: Quite an indictment.

HENNINGER: Yes. Well, let me try to, shall we say, extend Dorothy's remarks beyond cowardice. I would say it's more confusion. You know, if we're going to talk about KSM here in a minute and clearly the country is about to embark on a huge fight over whether it's appropriate to try him in New York or not. Look, the people — we've had the same fight over the war on terror since the day it started and we passed the Patriotic Act seven years ago. You recall that, for instance, electronic surveillance, the Foreign Intelligence Surveillance Act, it was fought in the courts over what the scope of it should be. If you're an Army or CIA or FBI analyst and your job is to monitor Hasan's call to an imam at Yemen, at what point do you make the judgment he's over the line? If you're watching a political class that can't make up its own mind about these things.

GIGOT: Do you buy that, Bill, that people would have jeopardized their core had they spoken up and said, this guy scares me, he's a threat?

BILL MCGURN, COLUMNIST: I really think so. I blame Jack Bauer for a lot of this stuff because I think people have a view of law enforcement officials and FBI...

GIGOT: He's a fictional character.

(LAUGHTER)

MCGURN: Yes, but the people think our guys are going to do whatever it takes and they forget that they're government workers and they respond to incentives. And one thing about an Army, it's a big bureaucracy, and a lot of people behave as people working in a big bureaucracy. They know the incentives for getting ahead. And in the absence, now we all connect the dots and so forth. And in the absence of that, you bring it up, it's going to be he's picked on and so forth and people are afraid. We have the same thing all the time. We say, who connected the dots, and then we make it difficult for people to connect the dots.

GIGOT: And, Dorothy, I want to move on to KSM.

Bill, Khalid Shaikh Mohamed coming to a New York court, stunning news. What's behind this, what's the administration thinking?

MCGURN: They've sort of said this all along. How long have you been writing editorials on this and people are — people don't pay attention.

(LAUGHTER)

GIGOT: Don't remind me.

MCGURN: But you know what? Now they see President Obama's speeches, hope and change, and living up to our ideals, and they see what it means in reality. And that's why it's stunning news, it's not surprising news.

GIGOT: No, it's not surprising. I agree.

MCGURN: We knew it was coming, but it's stunning because people say, gee, this really has consequences. When you take a law enforcement approach, this is what you're going to get. and I think they're going to pay a high price for it.

GIGOT: Former Attorney General Mike Mukasey wrote in our page, "This is a mistake." I think he probably knew this was coming. And one of the reasons is it's very hard to apply the rules of evidence of a criminal trial to what you can gather in the battlefield. I mean, we don't have Kandahar CSI dusting off the fingerprints in the battlefield.

RABINOWITZ: Absolutely, and you have the rules of evidence. And then you have the way again of all of the civil rights complainant about torture and the release of the torture documents that initiate everything. However, this is the unspoken thing. This event, which, believe me, no one should underestimate, is, as Dan says, it's a huge event that we've just lived through. The pain of this.

GIGOT: Hasan and the Fort Hood.

RABINOWITZ: Hasan. It is in everyone's heart and it's going to fill in all of the spaces. I think we're in for a bit of a surprise at the pushback of any efforts of any effort to in any way exculpate KSM in any way.

GIGOT: Could he — Dorothy makes a good point about evidence, Dan.

HENNINGER: Of course.

GIGOT: His attorneys are going to say...

HENNINGER: Of course.

GIGOT: ... the evidence against him cannot be admitted because it was the product of torture. Could he possibly be acquitted?

HENNINGER: I think he could, which the president of the United States has described as torture.

RABINOWITZ: Exactly.

HENNINGER: What stronger witness could one ask for than that? And you know, KSM, everybody goes, the mastermind of 9/11, yes, he was not in the United States when he masterminded this plot. It was a conspiracy. Conspiracies are very difficult to prove. I think we're in for a nightmare of bringing this guy into the criminal system here.

RABINOWITZ: And you remember what happened when, in the summer, they released, against all the wishes of the Army and everyone else concerned, all of that testimony about torture that they got. And the president went marching into the CIA to reassure them. All of this is coming together in a great big witch's brew, which I think the administration will pay for.

GIGOT: Dorothy, last word.

When we come back, Nancy Pelosi gets her health care bill with the help of some abortion foes in Congress. But will the Stupak Amendment prove to be a lasting victory for the pro-life movement?

(COMMERCIAL BREAK)

GIGOT: A last-minute compromise to strip federal funds from insurance plans that cover abortions may have saved Nancy Pelosi's health care reform bill which passed the House in a late-night vote last Saturday, a deal negotiated by Michigan Democrat Bart Stupak, and supported by the National Right to Life Committee, gave some 40 Democrats cover to support the larger bill. But will it prove a lasting victory for the pro-life movement? The anti-abortion amendment faces its first test next week in the Senate where Majority Leader Harry Reid plans to unveil his chamber's version of the health care bill.

Bill, you wrote this week that you thought it was a victory — excuse me, a defeat for Nancy Pelosi and the abortion rights movement. Why?

MCGURN: For one, Nancy Pelosi didn't want this amendment. She gave it up only at the end when she needed the votes. The criticism of it only makes sense if you believe that the Republicans could have stopped the final vote. And I believe as a Republicans voted present to, some people said, defeated the amendment. Apart from the issues of cynicism about the Republican Party, that would have freed up all the Stupak members to go south and push the bill through.

GIGOT: Just at that political procedural level, don't you think this made her job easier because it gave some of those Democrats the cover to say — go back to their constituents and say, I got this, I got this.

MCGURN: It might have. But why didn't she give it until the 11th hour.

GIGOT: She didn't want to. I have to agree with you.

MCGURN: She didn't want to.

GIGOT: She didn't have to.

MCGURN: And now she has a civil war. If you look at "Politico," the Hill, all papers in Washington, abortion is causing turmoil for Harry Reid now. I don't know we know whether it will stay in. I'd rather have them having a civil war on the issue than our side having a civil war on the issue.

HENNINGER: But there's another aspect to this. It was brokered by the Conference of Catholic Bishops. Stupak had them in his office, he said to Speaker Pelosi, I've got these people and you've got to talk to them. People think that the bishops are a single issue group, abortion. They're not. They've been for...

GIGOT: Not normally, but in this case they did seem something like that.

HENNINGER: No. They have explicitly been in favor of universal health care for years. They have — they are — they support what Pelosi is trying to achieve on that broader health care bill. And this was frosting on the cake for them. They literally explicitly enabled her to get it.

GIGOT: But when you talk to the right to life issue, obviously, the Bill's concerned about prenatal life, OK? What about the end of life? If this bill leads to, as I suspect, it will — I don't suspect. I believe it will — rationing by the government of health care.

MCGURN: It will. It will.

GIGOT: Of health care at the end of the life. And particularly, that means the aged and that means people that are grievously sick, terminal cancer patients. Will they be able to get the new experimental drug, for example, that's terribly expensive? The government doesn't want to finance it and, by the way, it's only going to extend your life nine months or a year, so, sorry, ma'am, you don't get it. That's also a right to life issue.

MCGURN: I agree with that. I don't have a problem with that. Some of the other people on the Democratic side don't agree with that. I think what's happened is you have a block now that's been very difficult to Pelosi. And if you read, Rahm Emanuel had a meeting, Planned Parenthood, these people are screaming at him. I'd rather have them screaming at each other. I think this amendment has made it more difficult to get a final — not on its own, but other things.

And as far as Dan's points, the bishops' — the bishops' view, I think is this is what makes the bill minimally acceptable. They're very split, I think, more then for comprehensive coverage and coverage for illegals and so forth, but this was the minimum they were holding out.

GIGOT: I tell you, Dorothy, I think there's no way in the world that the left, the pro-abortion left is going to let this issue interfere in a way that kills the health care bill. I think, in the end, they'll cave, notwithstanding all the to and fro'ing now, which will help their fundraising.

MCGURN: If they cave, the amendment stays in, right?

GIGOT: I'm sorry?

MCGURN: If the pro abortion left caves, then the amendment stays in.

GIGOT: Then the amendment will stay in but the larger bill passes, which creates much bigger problems, in my view, for the right to life movement.

RABINOWITZ: And creates huge cynicism on the passage of that particular exchange. Should they present to the larger country a feeling that something underhanded has gone on here, something that may be betrayed? And it feeds into resistance for the entire bill for the sense ever overall government manipulation. Something is rotten here in every case, including in this exchange.

GIGOT: And I would argue that Rahm Emanuel at the White House is probably smiling at the debate. If everybody is screaming about abortion, they're not focusing on the other real problems of this bill, which is that it's going to break the federal budget and lead to that rationing of federal care.

MCGURN: You don't get the sense from the stories that they're smiling. Nancy Pelosi didn't give this until the end because she didn't want to. She realizes it caused a problem there. I think they've got a lot of complications on their hands. And I also think that people can disagree with the national right to life but they have a right to pursue their issues. This was an amendment that Stupak pursued for a long time, that Republicans asked for a vote on back in September. I mean, almost all of them. It's hard for them to oppose it.

GIGOT: Bill, last word.

Still ahead, we've bailed out car companies, banks, pretty much all of Wall Street. So are newspapers next? When we come back, a closer look at the call for the government to give our beleaguered industry a helping hand.

(COMMERCIAL BREAK)

GIGOT: The government has given them to car companies, banks, pretty much all of Wall Street, so why not a bailout for newspapers? With so many on the brink of bankruptcy, that move may be closer than you think. Just last week, the state of New Hampshire agreed to back a loan to one of its dailies. And several bills have already been introduced in Congress, including a measure sponsored by Maryland Democrat Ben Cardin that would allow newspaper companies to restructure as nonprofits with a variety of tax breaks. Back in September, President Obama said he would, quote, "Be happy to look at that bill and others."

For more, we're joined by senior editorial page writer, Colin Levy.

Colin, is this really an idea that's being taken seriously in political circles?

COLIN LEVY, SENIOR EDITORIAL PAGE WRITER: Well, I think it is being taken sort of seriously. And you have to remember, Paul, this is an incredible Faustian bargain for newspapers. There was a report done by former "Washington Post" editor, Leonard Downey, and "Columbia Journalism Professor Michael Shuston, that basically talks about all sorts of ideas for how the government can help the press. What you're talking about here and what they're suggesting is that the only way for the press to maintain its independence is for it to basically surrender that independence in the form of government subsidy.

GIGOT: One of the specific ideas they're talking about, I gather one of them is to have these subsidies, seed money, if you will, for local news reporting councils around the country. One of the concerns is local newspapers are having the business models blown up and their losing that local coverage. So we sprinkle government money to local cities. Congress would love that.

LEVY: Yes, Congress sure would. And this is a disastrous idea, what you'd basically be doing is creating a national network of state-funded reporters and that wouldn't be good for local reporting. It would also, you know, probably not be good for the circulation of local papers because local readers would start to find that sort of coverage dubious.

GIGOT: Here is the idea, Colin, as people say, it would be nothing more than the National Endowment for the Arts, say, you know, we subsidize a certain art and that isn't politicized at all. So what's the problem with reporters?

LEVY: Come on. Right. Well, two things on that. Obviously, I wouldn't say the National Endowment for the Arts is particularly a shining example here. But the other issue is, you know, more seriously, the National Endowment for the Arts isn't directly tasked with being a watch dog for government. And that's simply a very different sort of relationship that newspapers have.

GIGOT: All right, Dan, defense subsidies for the press, please.

HENNINGER: Absolutely, not.

(LAUGHTER)

Look, here is the problem. The "Columbia Review" study talked about taking newspapers to nonprofit status. In fact, for at least the last 40 years most journalists on these papers think they've been engaged in some sort of nonprofit enterprise. They see newspapers as a public trust, as a public good and that the money that supported them sort of came from the tooth fairy out there. I really can't think about that stuff because I'm doing all these good things.

GIGOT: Not even profits.

HENNINGER: From 1789 onwards, the newspaper business was a business. In New York City, you used to have seven or eight daily papers competing and fighting it out both for news and for profit. This would simply take newspapers into an area that would make them less competitive, less interesting, all the reasons why people have been fleeing them for financial reasons the past 15 years.

GIGOT: I want to read a different point of view from the "Columbia Journal Review" editorial, all right.

"Government has always subsidized the press in this country," Dan, "starting with legislation in 1792 that established below-cost mail rates for newspapers. Over the years, some subsidies worked well, others less so. But the idea that a purely commercial media alone could continue to deliver the journalism we need is being difficult to swallow. If we don't get beyond the rational, but outdated fear of government, help for accountability journalism, if we just let the market sort it out, this vital public goodwill continue to decline."

Dorothy?

RABINOWITZ: Well, if you knew the number of times the word accountability was used in that particular argument — and what does accountability mean? It means the very important social issues and encouragement and the rest of it. The interesting thing is that this point of view divides the great populous of the United States, which is interested in reading about recipes, apparently, according to the "Journalism Review," and interested in crossword puzzles. Without responding...

GIGOT: Nothing wrong with either of those, Dorothy.

RABINOWITZ: No. Without this kind of funding, we wouldn't have people reading the editorials and reports. This kind of snobbery behind this, that the government should tell us.

GIGOT: Colin, what about this idea that the press has always been subsidized in some way, say mail routes or some ways by the government?

LEVY: Well, the subsidies come in very different forms and I think you have to look at what's happening now. You're actually seeing — this week, we saw for the first time the state of New Hampshire guaranteed a loan worth about $200,000 to one of its local newspapers. So you're now seeing a situation where you have a direct government handout to a newspaper. And I think that the kind of relationship that that creates between editors and reporters and the local politicians they cover, you know, is a lot cozier than the mail...

HENNINGER: You could argue that the tax code subsidizes every business in American one way or another. They're not wholly owned subsidiaries of the government, which is what we're talking about here.

GIGOT: All right, Dan.

We have to take one more break. When we come back, our "Hits and Misses."

(COMMERCIAL BREAK)

GIGOT: Time for our "Hits and Misses" of the week.

Dan, first to you.

HENNINGER: Paul, this week, a jury acquitted two Bear Stearns attorneys who had been accused by prosecutors of sending e-mails expressing concerns about trading practices. The prosecutor said this amounted to felony crimes because they didn't share with their customers. A jury of normal people said, whoa, wait a minute, whatever else was going on here, this didn't rise to the level of a crime. This is a significant case that pushes back at the prosecutors' impulse these days to find new ways criminalize normal business behavior. It's a very, very big deal.

GIGOT: All right.

Dorothy, you have a hit for some muggers who gave a pass to an Army Reservist?

RABINOWITZ: Yes, it was this young man, Kyle Windorski (ph), in Milwaukee, who ran into a bunch of muggers, who, by the way, I should say, probably should go to prison.

(LAUGHTER)

But when they discovered when they had him on the ground — enraged that he had no money, they went through and found his military card, and that was the end of it. "Hey, we can't touch this guy." And this was wonderful. Shook his hand, thanked him for service. And it all reminds one of the times that we have always embraced this idea that your country is more important than anything and the mafia.

GIGOT: Thank you, Dorothy.

Colin?

LEVY: Well, Paul, I'm giving a miss to Harvard which, this week, invited this great former New York Governor Eliot Spitzer to give a lecture at the ethics department. And this was such an egregious invitation that it actually prompted a letter from the former madam who used to procure escorts, saying she'd love to attend, but she couldn't break the terms of her probation.

(LAUGHTER)

So this was a pretty horrible thing. And obviously, he should not be held up as anyone's moral exemplar.

GIGOT: Harvard strikes again.

And remember, if you have your own "Hit or Miss," please send them to us at jer@foxnews.com.

That's it for this week's edition of the "Journal Editorial Report." Thanks to my panel and to all of you for watching.

I'm Paul Gigot. We hope to see you right here next week.

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