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MARGARET WARNER: Now, a broader look at today’s decisions. We get that from Deborah Pearlstein, the director of the U.S. Law and Security Program at Human Rights First, formerly known as the Lawyers Committee for Human Rights; and Douglas Kmiec, professor of constitutional law at Pepperdine University Law School. They each filed an amicus brief on opposing sides in the Hamdi case. Welcome to you both.
Deborah Pearlstein if you look at all these cases today together on balance do you see it as primarily a defeat or setback for the Bush administration policies, or is there in some significant way also an affirmation?
DEBORAH PEARLSTEIN: I think it’s primarily defeat for the Bush administration policies. I see this as a fairly significant repudiation of the administration’s arguments in each of these cases that because we are at war, the regular laws and the regular rights that individuals have don’t apply. Instead by a fairly sweeping majority in Hamdi in particular by an eight to one ruling the court said, yes, Hamdi and any U.S. citizen held in U.S. custody, whether it’s war time or not, are entitled to a certain basic minimum set of due process protections. So in that sense I think it’s a huge victory.
MARGARET WARNER: Doug Kmiec, do you see it that way as a pretty huge victory for the opposing side, that is a defeat for the administration’s basic tenets here?
DOUGLAS KMIEC: I disagree, Margaret. I think it’s a victory for constitutional principle. I think the Hamdi case in particular was well reasoned and well presented. But as Justice O’Connor articulated, there were serious and substantial interests on both sides of the litigation scales.
Yes, there were important interests of individual liberty and civil liberty that had to be attended to, but the court was also acknowledging the role of the president and the Congress in the conduct of the war, which is one of the reasons why they acknowledged that it was appropriate to detain Mr. Hamdi even as he has a limited due process right to challenge that detention.
MARGARET WARNER: Deborah Pearlstein, the court, I mean even the O’Connor majority did recognize, did it not that’s correct the president had the right to designate certain individuals as enemy combatants? Do you find that significant?
DEBORAH PEARLSTEIN: The court was very careful. Justice O’Connor writing for four justices was particularly careful to make clear that she wasn’t accepting the administration’s argument that the president had inherent authority under the Constitution simply by virtue of his power as commander in chief to declare people enemy combatants and to thereby detain them indefinitely.
Instead Justice O’Connor and all of the other members of the court looked to the congressional authorization for the use of military force And in that congressional language found the authorization. I think that’s a significant distinction because the administration had been relying on the president’s power of his own authority. Here the court seems to be saying, look, the president doesn’t have unlimited power under the Constitution to do whatever he wants in wartime. Instead, we look to Congress as the principal source and the principal authority for the authorization of detentions like this.
MARGARET WARNER: That’s the case, is it not, Doug Kmiec, that when you read O’Connor’s decision she’s saying I’m not even going to approach the question of what the administration’s asserting here, which is that the president has that right, but rather that she rests it on the fact that Congress passed this post 9/11 resolution?
DOUGLAS KMIEC: Although I think it’s fair, Margaret, when you look at the briefing that the solicitor general filed, that others of us filed in the Hamdi case on behalf of the president, we didn’t just rely upon the president’s commander in chief responsibility. We very explicitly relied upon the congressional authorization of the use of force as well. I think it’s entirely appropriate for Justice O’Connor not to speak to the inherent authority alone but to speak to the broadest grant of authority which is that which comes when the president and the Congress act together.
But the significant thing that I find in this opinion is that this is not a court that is chastising the president or chastising the administration. It’s basically admitting these are tough cases. And to understand what due process rights and enemy combatant is entitled to is a somewhat novel question. And the way Justice O’Connor works that out is indeed quite generous to the administration providing for hearsay evidence, providing for presumption in favor of the government’s position, and in essence allowing the government to justify itself in the context of the wartime conditions that we confront.
MARGARET WARNER: Well, Deborah Pearlstein let’s go to the practical effect. What is the practical effect? All are all these Gitmo detainees suddenly… Justice Scalia in his dissent said they can go forum shop in any one of the federal districts in the U.S. Is that the case? What about the Hamdi case? I mean, is he entitled to a full blown trial or something less as Doug Kmiec suggested?
DEBORAH PEARLSTEIN: Well, let’s take them each in turn. In the Hamdi case I think the result is narrow and fairly clear. Hamdi is entitled to a right to a lawyer. He’s entitled to present evidence in a court. And he’s entitled to challenge the factual basis of his detention. He’s allowed to come back against the government. They’ve asserted that he was picked up on a field of combat abroad. He wants the right simply to challenge the factual basis of that assertion. And he’s won that right today – back to the district court –
MARGARET WARNER: But it’s not necessarily a null blown trial. People should not be expecting something like the Moussaoui case for example.
DEBORAH PEARLSTEIN: That’s right. This is simply a habeas corpus hearing where he’ll have the chance really for the first time to assert his innocence in a court in the United States.
MARGARET WARNER: Let me go to Doug Kmiec first for what his comment on what it may even in the Gitmo — Guantanamo Bay detainees cases.
DOUGLAS KMIEC: Well, Margaret, the Guantanamo cases the more mysterious of the cases that we had today, as Marcia Coyle very eloquently put it, the court interpreted a statute — the statute that grants the right of habeas corpus. Even though the Congress in all likelihood never contemplated when they wrote the statute that they were extending it to both citizen and alien, the court said, well, Congress didn’t specifically say aliens were left out of the statute so we include them. Even though Congress wrote the statute in a way that said you have to file the petition for writ of habeas corpus in a district court that has jurisdiction and of course there are no district courts for Cuba, the court nevertheless found that it could assert jurisdiction and that the mystery is what does it mean?
MARGARET WARNER: That’s what I’m asking you.
DOUGLAS KMIEC: These 600 detainees… well, Justice Stevens didn’t tell us. He basically said we’re now going to leave it up to the district court to work it out on a case-by-case basis. And that could mean anything and everything. It’s especially troublesome because even though they avoided forum shopping in the Padilla case, as Justice Scalia pointed out, the detainees could go into any one of the 94 district courts in all likelihood. That means a great many judges are going to come up with different measures by which to test the factual assertions that the government alleges, and that’s going to produce a great deal of litigation, a great deal of confusion, and in this context that could well hinder the war effort.
MARGARET WARNER: Deborah Pearlstein, do you anticipate the same flood of litigation and confusion?
DEBORAH PEARLSTEIN: I think it’s easy to overstate the likely practical consequences that come out of these decisions. First, the decisions were not narrow. In the sense that, you know, eight Justices voted on the detainee’s side in the Hamdi case, six in the Guantanamo Bay cases so it’s not like they just squeaked by. You have a broad swath of the court from Justice Stevens to Justice O’Connor to Justice Scalia saying there is some right to judicial process here.
As a practical matter for the detainees at Guantanamo Bay only a small handful of them actually have lawyers. Their families have the means and the ability to hire lawyers. For the rest of them, most of them their identities still aren’t in fact known. And practically speaking it’s going to be very difficult for them I think to figure out how to actually make good on the right that the court has recognized today, that is a right just to get a hearing of their claims in the U.S. courts.
MARGARET WARNER: Let me ask you both briefly because we only have about a minute left beginning with you Doug Kmiec, in the broader issue here which was the balance between civil liberties and national security in a time of war, how significant do you think these cases are and will prove to be?
DOUGLAS KMIEC: Well, I think it’s very significant that the courts struck a good balance in the Hamdi case, the case dealing with American citizens and laid out a structure by which an American citizen who is being held in detention can challenge that detention but without being overly intrusive into the powers assigned to Congress and the president. I think the court did a much more incomplete job with regard to Guantanamo and since it’s a large number of detainees, that is a very problematic case and it’s going to have to play out in the days ahead.
MARGARET WARNER: Deborah Pearlstein, how do you see the significant of these cases in that broader issue?
DEBORAH PEARLSTEIN: I think the court has really drawn a line in the sand. The administration has taken a position for the last almost three years now that because we’re in a war against terrorism which is unlike any war we fought before, all bets are off and the normal rules don’t apply anymore. I think the court today has really stood up for the rule of law and said, look, just like war time throughout U.S. history, there are laws here and there are rules. And even the president has to follow them. And the courts have a role in checking his authority.
MARGARET WARNER: Deborah Pearlstein and Doug Kmiec, thank you both.
DEBORAH PEARLSTEIN: Thank you.
DOUGLAS KMIEC: Good to be with you.