High Court Blocks Guantanamo Tribunals
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MARGARET WARNER: And with me to discuss the impact of the Hamdan decision are Neal Katyal, a professor at Georgetown University Law Center. He argued on Salim Ahmed Hamdan’s behalf before the U.S. Supreme Court.
Andrew McBride, a former federal prosecutor now in private practice, he filed a friend of the court brief supporting the government’s position in the Hamdan case.
Joseph Margulies, a trial lawyer at the MacArthur Justice Center at Northwestern University Law School, he’s the author of the book, “Guantanamo and the Abuse of Presidential Power.”
And John Yoo, a professor at the University of California at Berkeley School of Law, he was a primary architect of the Bush administration’s detainee and interrogation policies while working in the Justice Department’s Office of Legal Counsel. Since then, he’s written a book on presidential powers in time of war.
And welcome, gentlemen, to you all.
And Mr. Katyal, to you, of course, first. What is the practical impact of this ruling on your client, Mr. Hamdan?
NEAL KATYAL, Hamdan Lawyer: Well, Mr. Hamdan has simply asked for one thing for the past four years, which is a fair trial. And the Supreme Court gave it to him today.
It said they had to comply, if they did try him, with rules for courts martial or a civilian trial and have to comply with the Geneva Conventions. And so the ultimate affect is not to have a fake court system, which is what President Bush set up four years ago, and have a reality criminal trial, one that Americans can be proud of.
MARGARET WARNER: But, I mean, as a practical matter, how will he get this? Is he going to go — are they going to take him into federal court now? Or does the government have to, with any kind of certainty within a time frame, establish either a court martial or a different procedure for him?
NEAL KATYAL: Well, at this point, the government has to let us know what they’d like to decide. I mean, we do think that the rule of law extends to Guantanamo, and there are a number of constraints placed on the government in that regard. And so we would ask them to move quickly for a fair trial under rules the Supreme Court has set forth.
MARGARET WARNER: All right, Mr. McBride, you were on the other side of this case. What do you think the implications are for Mr. Hamdan and the other Guantanamo detainees?
ANDREW MCBRIDE, Former Federal Prosecutor: Well, first, for Mr. Hamdan, he still will be detained, I think, as a prisoner of war and probably tried in some manner. I imagine that the president — the president has said that he’s looking forward to working with Congress to try and establish some procedures that he can live with.
I think the larger issue here is the legalization of war, the judiciary saying that they’re going to superintend a military tribunal to punish foreign combatants who violate the laws of war.
MARGARET WARNER: And what do you mean, “superintend”?
ANDREW MCBRIDE: Well, that role has traditionally been the role of the commander in chief and the military itself. If a foreign force uses a flag of truce in the battlefield to fool our troops and then shoots at them, I don’t think that our military needs to consult a judge before they punish that act. And I think that having the judiciary intervene in that and superintend that weakens our military.
MARGARET WARNER: But you’re saying that’s what this ruling does?
ANDREW MCBRIDE: I’m saying that’s what this ruling does, by emphasizing the role of the court in evaluating whether or not statutory criteria are met. I think the president, as commander in chief, can use military tribunals in the same way that he uses bunker busters.
The effect of the ruling
MARGARET WARNER: Joe Margulies, what do you think the effect of this ruling is? I mean, if you were advising Mr. Hamdan -- and he already has an adviser, of course -- and the other Guantanamo detainees, what would you tell them tonight is going to happen to them?
JOSEPH MARGULIES, Northwestern University: Well, I think that, in a sense, Mr. McBride captured it. He said that the decision legalizes detentions at Guantanamo. And his objection is that he would prefer that the detentions remain lawless, that is that they remain beyond the scrutiny of the judiciary.
And Neal is exactly right. What happened in Hamdan is that those who are facing military commissions -- and there's only 10 -- now have to have a fair trial. And the remainder, approximately 440, have to have a fair hearing in court. They are entitled to their court, their day in court.
And it is time now -- what I would say for the 440 who are there, some of whom are still my client -- it is time for the government in court to put up or shut up. They've had four years to say that these are the worst of the worst, and it is incumbent upon them now to demonstrate that in open court.
MARGARET WARNER: All right, let me make sure -- let's explain the difference between the 10 and the 400-plus others. The 10 are the ones who have been charged with some kind of war crime. And they're the ones that were designated for military commissions, is that right?
JOSEPH MARGULIES: Well, except for that they were charged with conspiracy which, in fact, is not a war crime. But, yes, there were 10 that were charged in commissions, and the other 440 have no lawful process, no mechanism by which they can demonstrate that they've got the wrong person, the government has the wrong person.
MARGARET WARNER: But are you saying that all of them now, with this ruling, are now free to go into federal courts because they already had pending cases that the Congress had tried to cut off last December with the Detainee Treatment Act?
JOSEPH MARGULIES: That's right. It's not that they're free to go into court now; they were free to go into court after the decision two years ago in Rasul, where the Supreme Court acknowledged the role of the judiciary to force the government to test, or rather to demonstrate the lawfulness of the detentions. And now it's time for the government to make good on that rule.
"The president will go to Congress"
MARGARET WARNER: All right, John Yoo, your sense of the impact of this?
JOHN YOO, Professor, University of Berkeley: Well, it puts the government in a terrible position. They either have to, as Andrew said, continue to hold people and have no trials at all, or have lots of Moussaoui-like trials, because the other alternative is to force the government to go into a situation where they have to put someone on trial in civilian court or a court-martial court, but at the same time risk blowing their intelligence sources and methods.
So I don't think the executive branch is going to want to choose either of those outcomes. I think everybody wants there to be some kind of trial, rather than holding them indefinitely.
So I bet what's going to happen, as President Bush said today, they're going to go to Congress, and, as they did at the end of last year, get another statute which overrules these same justices again, who've been overruled in their Detainee Act of 2005.
But that's going to take a lot of effort and political time and energy, which the court could have saved the president and Congress, if they had just left things alone and let the president and Congress fight between themselves over these matters.
MARGARET WARNER: But, John Yoo, now, as you said, Justice Breyer invited Congress and the president to work together on this, as did Justice Stevens.
But how much latitude does Congress have under this ruling to come up with -- for instance, could they come up with a military commission statute that was just as draconian, in the view of the defendants, as the DOD process? Or are there certain, basic rights that they're saying, under whether it's the Geneva Convention or Uniform Code of Military Justice, that they're going to have to incorporate in that?
JOHN YOO: That's a really good question, and it's one I have to say I think fairly the court did not address.
The court, I think, really tried to avoid the tough question you're asking and not saying, "Well, this is the limit of the president's power," or, "This is the limit of Congress's power."
Instead what they did was they kept to a very technical, close reading of things that Congress had already passed. And I might disagree with some of those or not, but they were not trying to make a bigger decision on the constitutional powers, and rights, and individual liberties that detainees might have.
So, theoretically, Congress could come back around next time in the Detainee Treatment Act of 2006 and pass something that was word for word the same as the president's military commission order, and there's nothing in this decision that would stop that.
MARGARET WARNER: Do you agree, Neal Katyal -- let me get another view of that. Do you agree with that, that they didn't say that -- what about this Common Article 3 of the Geneva Conventions?
NEAL KATYAL: Well, it's certainly the case that the court today said Common Article 3 of the Geneva Conventions, repudiating the Bush administration's position since 2001, extend to the conflict with al-Qaida and provide minimum guarantees for all trials.
MARGARET WARNER: And is that the one that says, essentially, that even people captured in the way that Mr. McBride mentioned are entitled to regularly constituted -- some kind of regularly constituted court affording certain judicial guarantees?
NEAL KATYAL: That's exactly right. And let me say, you know, I respect Professor Yoo a lot on some things, but on this, I think, when he says the court could have saved the country a problem by basically letting the president do what he wanted, I think that fundamentally misunderstands the Constitution and the separation of powers.
As Justice Stevens today for the court said: We have a government of divided powers, and the president can't just make the rules up as he goes along and act as the prosecutor and judge and jury in these things.
Congress could amend military code
MARGARET WARNER: Let me turn the question around a different way, Mr. McBride. One of the lines in Justice Stevens' opinion right at the top said that, essentially, the military commissions were illegal because they violated the code of military justice and the Geneva Convention.
Does that mean that any new process that Congress might come up with and duly legislate would have to meet those same standards, or could they meet a much lower standard, lower in the sense of fewer protections for the detainees?
ANDREW MCBRIDE: I think Professor Yoo is right: They could meet a lower standard, because Congress could simply amend Article 36 of the Uniform Code of Military Justice to say that military tribunals can have standards very different from courts martial of our own service personnel. So I think that's true.
The problem I have fundamentally with this ruling -- and I think the most dramatic part of Justice Stevens' ruling is the importation of Common Article 3 of the Geneva Convention, yes.
MARGARET WARNER: The Geneva Convention.
ANDREW MCBRIDE: To say that al-Qaida detainees, stateless individuals who by definition have sworn a buy-off, an oath to engage in unlawful combatancy, are entitled to any protection under the Geneva Convention, to my mind, completely undermines that document.
And, in fact, it is a twisting of Common Article 3, which applies to essentially civil wars internally within a particular country. It is really, I think -- and it is contrary to past precedent of the court, Eisentrager in particular, that individual rights do not flow from that treaty.
So I find that among Justice Stevens' various errors, the most egregious and the one that is the most arrogant, the judiciary taking a treaty and interpreting it in a way that gives the judiciary more authority than it should have.
Because, at the end of the day, we don't want courts deciding when military force should be used. This president or another president may have to decide to take down a civilian airliner, and we don't want the president to have to go to a court first.
Torture rejected in war on terror
MARGARET WARNER: Mr. Margulies, what is your sense of how broad this invocation of the Geneva Convention is and what the implications are in today's ruling? I mean, does it mean that, for instance, it also applies to detainees, like Khalid Sheikh Mohammed, being held elsewhere out of the country? Does it affect, for instance, interrogation policies?
JOSEPH MARGULIES: What the Supreme Court held in the recognition of Common Article 3 as a baseline is that war is not a dissent into lawless anarchy, that you do not allow, no matter who you believe this person to be, no matter what you believe he may have done, no matter where you caught him, no matter what you think he may have been responsible for, we do not return to the time where you could treat prisoners like caged beasts.
Common Article 3 provides a baseline for treatment, the most fundamental basic, essential protections for fair trials, the most fundamental, essential protections for how you treat prisoners, restrictions on interrogations, guarding against cruel and degrading treatment.
Any suggestion that the president as commander in chief can unilaterally order that prisoners be treated in a fashion that is cruel and degrading, deliberately so, that they could be tortured, deliberately so, and that that is somehow something that we need to reserve for the president in his commander in chief power, I am grateful that five members of the court turned their back on that doctrine. That was the right decision.
MARGARET WARNER: John Yoo, you were the co-author, famously, or a co-author of what some people call the "torture memo," but it was a memo, Justice Department memo that argued that, in fact, the Geneva Convention did not apply to these detainees and, therefore, different kinds of more extreme interrogation methods were certainly permissible.
Does this ruling knock the pins out from under that position that you and others in the administration took? And, if so, what are the implications?
JOHN YOO: Well, I do think it's fair to say the court rejected the idea that Common Article 3 doesn't apply in the war on terrorism or that the Geneva Conventions don't apply to al-Qaida in the war on terrorism, so it does knock that out from under the administration's legal position on the status of detainees.
I do think the court was mistaken on that, and if there is going to be one thing that Congress is likely to overrule it will overrule that part of the opinion.
The reason why the court -- I'm sorry, the administration said that was because Common Article 3 was intended, if you look at the materials at the time, to apply to internal civil wars. The rest of the Geneva Conventions apply to international wars.
And so there was a gap about this new kind of war we've been facing, a war against an international terrorist organization that is not a state but that can inflict the kind of violence that would kill 3,000 Americans and destroy the World Trade Center.
The problem is that, after Common Article 3 was passed in 1977, a lot of nations recognized that this was a gap and passed another treaty to fill that gap, and the United States refused to sign on. President Reagan refused to sign that treaty, and he said specifically at the time he didn't want to do it because he didn't want to provide prisoner protections to terrorists.
So the court has rejected all of that, but I think, as you say and other panelists have said, there's a lot of implications that go well beyond military commissions, if the administration has to fight, according to the Geneva Convention Article 3, against an enemy that refuses to obey it.
And so I think that's going to place a lot of strain on the ability of the government to pursue the war on terrorism, and so Congress and the president will both have an incentive to change that part of the ruling.
MARGARET WARNER: Let me go even broader, finally, Mr. McBride. One of the justifications that the president used for doing this sort of unilaterally was that, as Marcia Coyle pointed out, that Congress had granted him this broad authority under the authorization for the use of military force, plus he had inherent powers as commander in chief.
Is the court rejecting that and saying, no, if Congress has a specific statute that addresses the area in question, you can't just override it? And if that's the case, does it have even broader implications, for instance, the so-called warrantless wiretap NSA surveillance, where he's used much the same rationale to justify that program?
ANDREW MCBRIDE: Good question. I would say that the court took a very narrow reading of the authorization for the use of military force in the military tribunal context.
One could argue that surveillance of the enemy is more directly related to protecting against future attack than are military tribunals, and particularly these very specific procedural rules for military tribunals.
But you're right; the general tenor of Justice Stevens' treatment of that AUMF is very narrow and no blank checks.
The discussion of the president's inherent authority in the majority opinion is almost nil. As Professor Yoo pointed out, I think Justice Stevens went out of his way not to broach the constitutional issues, not to tie the hands of either Congress or the president at this point and allow them, as Justice Breyer suggests, to openly bargain over the issue.
Justice Thomas, in his dissent, strongly went after the Article II point and made a more robust argument, frankly, than the solicitor general did, that the president, as commander in chief, has authority to use military tribunals as he sees fit because they are a tool of war.
MARGARET WARNER: And, Mr. Margulies, do you agree -- or just what's your view of this? In other words, whether by undercutting the president's argument on the authorization of military force and what powers they gave him, it could even extend beyond detainee policy in its implications?
JOSEPH MARGULIES: I think that Mr. McBride is right that, while the court just addresses commission questions here, the fact is this is now the second time that they have rejected the administration's position on the authorization for the use of military force, the proposition that the AUMF amounted to a blank and signed check now has been rejected twice.
And it's clear that, if a case in which the administration relies on the AUMF for broad, sweeping powers -- like, for instance, wiretapping or surveillance -- I would anticipate that the court will again take a more circumscribed view of it, in recognition of, as Neal points out, in a system of divided government, the president is commander in chief of the Armed Forces, not of the entire country.
MARGARET WARNER: OK. Joe Margulies, John Yoo, Neal Katyal and Andrew McBride, thank you all.
JOSEPH MARGULIES: Thank you.
ANDREW MCBRIDE: Thank you.