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Prisoner Faces New Tribunal Process at Guantanamo Bay

March 26, 2007 at 6:10 PM EDT

JUDY WOODRUFF: More than five years after the naval base at Guantanamo Bay was designated as a detention and interrogation center for alleged enemy combatants, the first Guantanamo detainee case came before a military court on the island this afternoon.

Thirty-one-year-old Australian David Hicks was arraigned on charges he provided support for al-Qaida terrorists and the Taliban in Afghanistan during American air raids there in the fall of 2001.

Hicks, who has spent the last five years on Guantanamo, was originally scheduled to go before a military commission in November of 2005, but proceedings were canceled after the Supreme Court ruled the Bush administration’s initial military commission process was unconstitutional.

Carol Rosenberg of the Miami Herald was in the courtroom this afternoon, and she joins us now.

Carol Rosenberg, this was a long time coming, and it took longer than expected. Tell us what happened.

CAROL ROSENBERG, The Miami Herald: Well, as with many things at Guantanamo, it didn’t exactly go to script. We had a three-and-a-half-hour hearing that was supposed to be an arraignment, but David Hicks didn’t enter a plea, and they didn’t read the charges. They waived all of that.

And we spent three-and-a-half hours mostly on procedures and getting a first look at David Hicks in two-and-a-half years.

JUDY WOODRUFF: So was he charged? You said they didn’t read the charges?

CAROL ROSENBERG: They waived the reading of the charges. They announced that he was charged with material support for terrorism, but because of procedural reasons, he didn’t answer “not guilty” or whatever he might have responded.

They got caught up in basically the rules of the game, how this was going to work, as this is the first one of these U.S. war crimes tribunals since World War II. And they spent some time debating and discussing whether or not he could have his civilian attorneys, and the two civilian attorneys who came to the table left.

And by the time they got to the reading of the charges, some other issues had intruded, and they waited until they get through some motions next time. So it was an arraignment without an answer to the charge.

JUDY WOODRUFF: Why did two of his lawyers leave?

CAROL ROSENBERG: Well, one of the attorneys who was sitting at the table was Josh Dratel. I think he’s pretty well-known in New York; he’s a pretty big criminal defense attorney.

But the new rules for the commissions just came through Congress late last year, and there still is not an understanding about what allows a civilian attorney to sit at the table. And the Marine colonel who’s organizing the thing basically said he hadn’t signed the right paperwork and excused him from the room.

JUDY WOODRUFF: So it sounds like not according to — at least not according to what you and others expected. Tell us about what David Hicks looked like, the atmospherics in the courtroom.

CAROL ROSENBERG: Absolutely. This was the first opportunity to see David Hicks since two-and-a-half years ago, when the last time they tried to have one of these trials before the Supreme Court ruled them illegal. And last time, he had a suit, a tie, and almost like a military-style haircut.

Today, he looked like Rip van Winkle. He had his hair down to his back. He was wearing what looked like scrubs. It’s a prison uniform in beige, top and bottom. He had shaved, but there was a bit of a — I don’t know, five o’clock shadow. And the guy looked like he just walked out of history. I can’t say anything more than that. He looked like a troubled character.

JUDY WOODRUFF: Did he speak? And what did you make of that, of his demeanor?

CAROL ROSENBERG: Yes, he was clear. He was respectful. He has quite a strong Australian accent. He said, “Yes, sir.”

He told the colonel he was shocked, that his defense team had been devastated. He has been working for the past two-and-a-half years with these two civilian attorneys, as well as the Marine Major Dan Mori who’s been assigned to his case.

And in the course of this hearing, the other two people were disqualified. The Marine made it clear — the Marine colonel in charge made it clear he could come back, but right now, as of today, it’s just David Hicks and the Marine major at the table.

JUDY WOODRUFF: So do we know where this goes from here, since he has not pleaded one way or another, guilty, not guilty?

CAROL ROSENBERG: I suspect we’ll all be back here in a couple of weeks. There’s going to be motions hearings. The Marine major, who is the defense attorney for Hicks, is going to be having to file some motions on whether or not the — excuse me, he’s going to have to file some motions on how they want to proceed on this trial.

JUDY WOODRUFF: And, Carol, was this an orderly process? Would you describe it that way?

CAROL ROSENBERG: Well, there was a script. The reporters were expecting a script. We expected a detainee to come in, and to enter a plea, and for it to look sort of like a criminal trial that we know.

But the fact of the matter is, all of these other ancillary issues got caught up in it. And so it was orderly, but it was not according to what we expected the script to be.

JUDY WOODRUFF: And so what was different? You said you expected it to be more like a criminal trial. What set it apart from that?

CAROL ROSENBERG: They’ve never staged one of these before, since World War II. And then it was done under different sets of ground rules. I guess nobody in the room seemed to agree on how this would proceed and how it would be carried out.

JUDY WOODRUFF: All right. Carol Rosenberg with the Miami Herald, marching into new territory there, thank you very much.


The events of the day

Neal Katyal
Georgetown University Law Center
These trials are proceeding under fairly dubious legal grounds and very dubious international grounds... And it's one that, I think, a lot of people believe is likely to get struck down by the courts.

JUDY WOODRUFF: Well, we turn now to a wider discussion of the usefulness of the prison at Guantanamo Bay, where 390 prisoners still remain and which has long been a focus of international and domestic criticism.

Defense Secretary Robert Gates reportedly proposed closing the prison in January because he thought its poor reputation around the world would undermine the credibility of the U.S.-led detainee hearings, which did, as we said, begin today.

Gates' proposal was reportedly rejected by Attorney General Alberto Gonzales, among others. And on Friday, White House spokesman Tony Snow said he doubted that Guantanamo would be closed before President Bush leaves office.

So is Guantanamo worth keeping open? We get two views now. Neal Katyal is a professor at Georgetown University Law School. He successfully argued the 2006 Supreme Court case Hamdan v. Rumsfeld, which struck down the Bush administration's military tribunal system.

And John Yoo, he's professor at the Boalt Hall School of Law at the University of California at Berkeley. He served in the Justice Department's Office of Legal Counsel during President Bush's first term, where he was the primary architect of the administration's detention and interrogation policies.

Gentlemen, thank you both for being with us. Let me first ask you, having just listened to Carol Rosenberg -- John Yoo, let me come to you -- what do you make of today's proceedings around David Hicks?

JOHN YOO, Professor, University of California, Berkeley: Well, as the reporter said, it is the first time that the United States has run one of these military commissions since World War II, so you can see that they're still taking baby steps, as it were, to try to figure out exactly how the procedures are going to go forward.

And we haven't really seen proceedings that hit on the big issues on which people struggled over in Congress, in terms of the kinds of rights that the defendant can have.

On the other hand, I'm sure that, in the end, that the defendant will have -- Mr. Hicks will have the right to have civilian counsel there. It sounds like there is just some paperwork issues there. And we haven't seen anything yet which points to this being unfair in any fundamental way.

JUDY WOODRUFF: Neal Katyal, how do you size up what happened today?

NEAL KATYAL, Professor, Georgetown University: Well, I think is the start of a trial, and trials are always massive public events. And the eyes of the world are watching what happens to David Hicks.

In the eyes of the world, this is also the first trial since we've had the reports of Secretary Gates saying, "Let's close Guantanamo, stop these trials, move them to the United States," as well as Secretary of State Condoleezza Rice saying the same thing.

So I think these trials are proceeding under fairly dubious legal grounds and very dubious international grounds, because there's a lot of condemnation about this trial system. It is a newfangled trial system; we've never seen it before. And it's one that, I think, a lot of people believe is likely to get struck down by the courts.

The rationale behind Guantanamo Bay

John Yoo
University of California, Berkeley
You have both of the branches of government that are elected to make decisions of war agreeing that we weren't going to and we're not going to give the same kinds of access to civilian courts for members of al-Qaida that we do to our own citizens.

JUDY WOODRUFF: Well, let's talk about, though, the bigger question of Guantanamo Bay itself and this new system of justice, as it were. John Yoo, you were, as we said, the architect of much of the interrogation and tribunal language that came out of the administration. What was the original rationale for Guantanamo? Why was it needed in the first place?

JOHN YOO: Whenever you have a war, you're going to detain people. You're never going to have a war that's so clean that you're not going to capture members of the enemy. And, in fact, that's the humanitarian thing to do, is to capture members of the enemy, to detain them.

The problem is that you need to detain them somewhere. And so the point about Guantanamo Bay was to pick a place that would be secure, would not be in the Afghanistan theater, so that it wouldn't be an invitation for more terrorist attacks.

And, quite honestly, they weren't to be brought back into the civilian justice system at home. I think there was another desire that we were not going to take the detainees who were caught in the war on terrorism and treat them like regular criminal defendants with the same rights in our civilian courts as our own citizens or people in our country. And so that was another reason to station it at Guantanamo Bay.

So I think you're quite right: There are concerns abroad and at home about, should we close Guantanamo? And Guantanamo is a symbol of the war on terrorism. You could close it, but you're going to have to have a facility somewhere. It may be that we put one in Afghanistan instead; that might make not as much sense.

JUDY WOODRUFF: Neal Katyal, do you agree that originally there was a sound rationale to have a place like Guantanamo?

NEAL KATYAL: I do not. And I think that Professor Yoo, while I have great respect for him, I think misstates a little bit the original rationale, which he himself stated in the December 2001 memo.

The rationale was not simply, "Let's not treat them as criminal defendants." It was, "Let's put them in a place where the Constitution doesn't apply." Even our most sacred rights, like the right of habeas corpus, the right against ex-post facto laws, that was the rationale, to put them in a legal black hole.

That, I think, ultimately has been deemed, I think, irresponsible by the world community, and I think courts time and time again have bristled at that suggestion.

JUDY WOODRUFF: John Yoo, was that part of the original thinking?

JOHN YOO: Like I said, I don't think we're trying to put anyone outside the scope of the Constitution, but we're not talking about giving people who are caught in the war on terrorism the same rights that our own citizens or that aliens in our country get.

This is not some fantasy made up by the Bush administration. This was something that had traditionally been the practice under the laws of war under Supreme Court precedent. And, you know, Neal did take his case to the Supreme Court. He successfully got the Supreme Court to say that we're going to review, extend the writ of habeas corpus to Guantanamo Bay, and the president and Congress just in last October passed a bill reversing that decision.

So I think that you have both of the branches of government that are elected to make decisions of war agreeing that we weren't going to and we're not going to give the same kinds of access to civilian courts for members of al-Qaida that we do to our own citizens.

The prison's uncertain future

Neal Katyal
Georgetown University Law Center
I think Guantanamo has, whatever the rationale was, now outlived its usefulness and become a net harm to national security, rather than something that might promote it.

JUDY WOODRUFF: Mr. Katyal, whatever the original rationale was, why do you believe Guantanamo should be closed now?

NEAL KATYAL: Well, for the same reasons that I think Secretary Gates and Secretary Rice have said. Guantanamo is now...

JUDY WOODRUFF: That they've reportedly said.

NEAL KATYAL: That they've reportedly said, that Guantanamo is now an albatross around the neck of the United States. It is a place that -- it's a very powerful image: people detained for five years with no constitutional protections whatsoever; people being detained on an island.

We have television shows about that kind of a thing. I mean, it's something that I think is saying to the world: The United States believes in legal black holes.

And, by the way, this is a very untraditional thing for the United States, the kind of guardian of the rule of law, to do, to warehouse people in a place outside of the Constitution entirely.

JUDY WOODRUFF: So it's mainly for image reasons?

NEAL KATYAL: Well, it is for -- I think Guantanamo has, whatever the rationale was, now outlived its usefulness and become a net harm to national security, rather than something that might promote it.

JUDY WOODRUFF: John Yoo, a net harm to U.S. security. Do you accept that?

JOHN YOO: No, I don't. And I think the people who make those decisions have access to both the costs and the benefits.

We can focus in the media and the public on the diplomatic harms, although I might add that many countries that criticize Guantanamo Bay have no desire to take their own citizens back from Guantanamo Bay, are only too happy for the United States to have to detain them.

But there are also benefits, too. We are preventing people from getting back onto the battlefield. There have been people released from Guantanamo Bay, over a dozen that have been captured fighting against us.

And I think we have to only look at, also last week, the transcript of the hearing for Khalid Sheikh Mohammed, the number-four person al-Qaida we had captured. He had a lot of valuable information about pending terrorist attacks.

If we're going to take people like that and throw them into the civilian justice system, throw them in with the same rights that our own citizens have, I don't think we ever could have gotten that kind of information from Khalid Sheikh Mohammed.

Alternatives to Guantanamo Bay

John Yoo
University of California, Berkeley
I think there is a fair process, and, of course, we have to see how they work. We haven't even had the chance to have one full trial yet.

JUDY WOODRUFF: Neal Katyal, what about those points? And in addition to that, if you don't have a Guantanamo Bay, what do you do with these people who are accused of being enemy combatants, fighting for al-Qaida?

NEAL KATYAL: First of all, I don't know anyone who's responsible who thinks we treat everyone at Guantanamo in the civilian justice system. I think most people believe the existing court-martial system is the way to try these people.

JUDY WOODRUFF: The military system.

NEAL KATYAL: The military system that we use to try our own service members, which since 1916 has been allowed to hear terrorism cases, as well.

Now, with respect to detention, the question isn't, let these people go, as I think Mr. Yoo puts it, and put them on the battlefield. It's where you detain them. And I think detaining them at Guantanamo has been something that's powerfully hurt the United States' image.

The question is, where? We could detain them on military bases in the United States. We could detain them in some other country. But let's detain them in a place where some law applies, either the law of some other country or the law of the United States.

Right now, we're detaining them in a place, Cuba, in which we argue Cuban law doesn't apply and neither does the United States Constitution. This is fundamentally un-American.

JUDY WOODRUFF: John Yoo, what about that last point, about detaining them in a place where American laws apply?

JOHN YOO: Well, first of all, American laws do apply. We are in a war. We have in the past held many, many prisoners abroad outside the United States. As recently as World War II, the Supreme Court have said the normal review of the courts over detention doesn't run out there, wasn't run outside the country.

The second thing is, there's a whole statute that was passed by the president and Congress in October of last year called the Military Commission Act, under which Mr. Hicks is being tried, in fact. And that does provide for a system of procedures and rules and process that are going to govern.

There are different kinds of rules, and I think that's what people find jarring, because they're not the normal rules of a civilian justice system we see on TV or on "Law and Order" every day, but they do have process, and they do have even review in the second highest court in land, the D.C. Circuit Court of Appeals, for convictions under these military courts.

So I don't they're un-American. I think there is a fair process, and, of course, we have to see how they work. We haven't even had the chance to have one full trial yet.


NEAL KATYAL: If Mr. Yoo really believes that these trials are going to be fair, then that's all the more reason to have them in the United States where the federal courts can actually review what happens and not have them abroad in some place where the Constitution doesn't apply.

Mr. Yoo says, well, we detained people in World War II in other countries. Of course. But we said, in our briefs to the Supreme Court at the time, the government said the law of those other countries protects these people.

Here the administration is saying no law protects these people, not the law of Cuba, nor the Constitution. And it's part of the same failed policy.

I mean, here we are five years after 9/11, not a single person has been tried in these things. The administration says that they'll be outside of the reach of the courts. They were wrong on that. They said that they could detain these people indefinitely. The Supreme Court said they were wrong on that.

The administration said that they had no Geneva Convention rights. The Supreme Court said they were wrong on that. This is the part of the same kind of thinking.

JUDY WOODRUFF: We are going to have to leave it there. Neal Katyal here in Washington, John Yoo, thank you both for being with us.

JOHN YOO: Thank you.

NEAL KATYAL: Thank you.