JIM LEHRER: Margaret Warner has the Guantanamo story.
MARGARET WARNER: Most of the nearly 600 foreign prisoners being held at Guantanamo naval base in Cuba were captured during the Afghanistan War. Late yesterday, for the first time, the Pentagon announced an internal military review process that will let every one of them challenge his detention as an enemy combatant.
The move comes on the heels of last week's Supreme Court ruling that the prisoners had the right to challenge their detention in federal court.
To explain the Pentagon's move, we turn to Eugene Fidell, president of the National Institute of Military Justice; and David Rivkin, a lawyer in private practice who served in the first Bush and Reagan administrations. He's advised the current administration on terrorism- related legal matters.
All right. First, just give us, a "by the numbers" picture here of what this process is going to be, Gene Fidell.
How will the situation change for these nearly 600 detainees?
EUGENE FIDELL: For the first time there's going to be an organized format for deciding whether these detainees are enemy combatants. The administration has created something called a combatant status review tribunal; yet another institution that we're seeing evolve in this panoply. And the purpose of it will be to decide whether people do or do not qualify for that label, enemy combatant, and these will be little boards of three military officers, people who haven't had prior involvement in the decision to label people enemy combatant, their interrogation, their apprehension, anything like that. Of the three people there will be a lawyer, there will also be a second lawyer as a legal advisor, recorder to these panels and there will be an opportunity for the individual detainee to present his case.
MARGARET WARNER: But Mr. Rivkin, the Pentagon is saying they're not going to actually have their own lawyers, they're going to have something called personal representatives -- how is that going to work and why not get them military lawyers?
DAVID RIVKIN: The reason they're not going to get military lawyers is you have to remember the context for this particular hearing. This is being done by military tribunal, very similar to that provided under the Geneva Convention Article 5. They really function as informal fact and truth finding bodies. The typical military tribunal performing this function will be three officers meeting in a tent somewhere in the desert, and it is not a fanciful scenario; that's what happened during the Gulf War One, without anybody being present but the detainee, in essence saying look we've captured you, you know, out of the uniform but your hands still smell of cordite, or we saw you bail out of a tank, we think you're an enemy combatant. What say you?
Here the person is going get a lot more process, a lot more due process rights, if you will, than in a typical tribunal. A lawyer would be really out of place here. It's very much common sense process. And remember, under the laws of war you're only entitled to it in the case of doubt. Here we're going to do it for everybody, with a lot more due process. And without a lawyer being present, that's not, in my opinion, any kind of a defect.
MARGARET WARNER: And what is the standard, Gene Fidell, by which this three-judge or three-person panel decides if this person is truly an enemy combatant?
EUGENE FIDELL: The standard is preponderance of the evidence so, that 51 percent of the evidence, the balance has to tip, however slightly, in favor of the determination that the individual is an enemy combatant and there's a presumption under this regulation in favor of the government's evidence.
MARGARET WARNER: So before I ask you what you think of this process, let me just read you what Larry DiRita, the Pentagon spokesman, said today. He said: "The intent is clear; it's to be utterly faithful to the Supreme Court decision."
Explain the Pentagon's strategy here. What do they think they're doing by setting this up vis-à-vis the Supreme Court?
DAVID RIVKIN: Well, they are clearly taking up on the notation that the plurality opinion - really majority because I would count Thomas in that and Hamdi --
MARGARET WARNER: Now, that's a different case, that involves a U.S. Citizen.
DAVID RIVKIN: You have to read all those cases together. In that case involving a U.S. Citizen, Mr. Hamdi, the court said that the level of due process that we're going to a court, that is due to you as an alleged enemy combatant may be satisfied in a duly constituted military tribunal, this is for a U.S. citizen. In the Guantanamo case they basically said non-U.S. citizens detained in Guantanamo have at least as much of a right as a U.S. citizen.
So in a way we are putting together a process that takes up on the notation, often in the case involving a U.S. Citizen, extending the same level of due process to a non U.S. citizen, which I don't think anybody would object to.
MARGARET WARNER: But didn't the Guantanamo case, the majority opinion in that, Mr. Fidell, say that these detainees had a right to go into federal court, federal civilian courts?
EUGENE FIDELL: Yes, that's exactly right, Margaret. Really the only issue that was presented in the Guantanamo detainees case, Razul is the name of the case, was whether the doors of the federal court were open, and that's the only thing that the Supreme Court squarely addressed. So as David points out, you have to read these cases and sort of tease out from the case involving Mr. Hamdi who was a U.S. citizen detained in Charleston in the naval brig, tease out from that case what the Supreme Court may have had in mind with respect to the non-citizen detainees.
MARGARET WARNER: So what do you think the Pentagon's strategy is here -- that they will somehow supplant the whole federal review process?
EUGENE FIDELL: No, it doesn't such plant it, I believe. I think that the goal was to try to put something in place that would meet the Supreme Court's concern expressed in the Hamdi case, that there had been no process to date. And one of the bones of contention really from the beginning of this set of controversies was that the Article 5 tribunal as called for by the Geneva Convention on prisoners of war had not been conducted.
MARGARET WARNER: Even though the administration says these aren't prisoners of war.
EUGENE FIDELL: That's exactly right. Whether or not that was legally -- I don't want to argue, that but there was a choice that had to be made and I think many people feel that in retrospect the administration would have been better advised even as a matter of discretion to afford those kinds of hearings, because then it wouldn't be sort of playing catch up ball and inventing basically a new process, and the important thing I think to bear in mind is what's going on here is a replica of the Article 5 tribunal that is ordinarily conducted, as David said, on the battlefield, at the time of or very close to the time of apprehension. Now we're talking several years later.
MARGARET WARNER: So do you, David Rivkin, think that this procedure will satisfy, does it meet the Supreme Court standard?
DAVID RIVKIN: I think it meets the Supreme Court standard. But again, I don't want to portray it as administration trying to meet the bare requirement. Remember, there are several things going on. The detainees still have an annual review process; the detainees now have the enhanced Article 5 tribunal.
I think if the administration looked carefully at those decisions, which at least in my opinion, substantially contrary of a common opinion - substantially won for the administration and validating the basic legal paradigm that they've chosen and basically would like to do the following, as Eugene is correct -- this does not supplant the district court action, but they want to develop a record in those tribunals so you would have something the courts can defer to.
And the way I read Hamdi Padilla in the Guantanamo case the court would very much like to defer to the executive, they just want something -- something a little structured.
MARGARET WARNER: So, in other words the Pentagon is hoping and you think also that once - I mean -- some of these detainees have already filed their habeas corpus petitions in federal courts, that the government will be able to go in and say, you know, Mr. X here had a hearing, and here's what we determined, and here's the factual record and he's been afforded due process and the judge would just decide yes or nay whether that would stand --
DAVID RIVKIN: Well, look at the record. But let me say this - this is not at all unusual. Remember, it is very rare in the habeas process - even though the term literally means to produce a body - it's very rare to have a body in the court.
The typical habeas petition is you have somebody sitting in a federal penitentiary, you know, 18 years later, writing a missive as to why he was unjustly convicted -- and the district court or maybe the clerk for a district court judge would look at and it say, look, this is ridiculous, of course that's not the case.
So having a good record would go a long way towards helping the district courts, and I think the government is going to tell various district courts, give us time. And they are doing it very quickly. A very important point: This is going to get off the ground by July 17; by July 17 every person will be told you have a right to this type of hearing.
MARGARET WARNER: Do you think this will satisfy federal judges that, okay, that process, that's enough?
EUGENE FIDELL: I don't think there's anyone that can make a prediction as to how this is going to come out. There's going to be a lot of lawyering between now and the time this case gets back to the Supreme Court.
What I would say is the federal judges have been watching the evolution of the legal doctrines in this case with the same interest or greater interest as or than the rest of us in this country and overseas. And one thing about federal judges, they can be real independent and real ornery.
And as deferential as they may have to be for doctrinal reasons to the executive branch, they don't go to sleep on the bench; they are pretty attentive, and I think if they feel that the process that the administration has put in place basically isn't fair, they're going to say so and take things into their answer hands.
MARGARET WARNER: Gene Fidell, David Rivkin, thank you both.