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What’s Next for Gitmo, Detainees and U.S. Handling of Terror Suspects?

January 11, 2012 at 12:00 AM EDT
A decade after the detention center at Guantanamo Bay, Cuba, began accepting prisoners, the debate continues over how the U.S. treats terror suspects. Jeffrey Brown discusses the ongoing issue of military detention with Vincent Warren of the Center for Constitutional Rights and David Rivkin, an attorney with Baker Hostetler.

JEFFREY BROWN: Now two views of where things stand. Vincent Warren is executive director of the Center for Constitutional Rights, which has defended detainees at Guantanamo and helped coordinate hundreds of lawyers providing pro bono legal work there. David — excuse me — David Rivkin is an attorney who served in the Reagan and first Bush administrations. He’s filed Supreme Court and appellate amicus briefs in several leading national security cases since 9/11.

And I’ll try to keep my throat clear — cold coming on.

Welcome to both of you.

Vincent Warren, what’s your chief concern here with the new legislation, specifically, when you look at the issue of indefinite detention of suspects?

VINCENT WARREN, Center for Constitutional Rights: Well, you have to look at Guantanamo. Here we are 10 years later. There are only three ways that you get off the island of Guantanamo.

One is by going to trial. Two is by being transferred to a third country. The third way is in a body bag. And the new legislation, the NDAA, which codifies indefinite detention, restricts the ability to be tried in federal courts. And it also restricts the ability for people to be transferred off the island. That’s a huge problem.

The question that really should be asked is, when have we ever seen a war that has no location, no geographical limit, and no time limit? That's the situation that we're in now.Vincent Warren, Center for Constitutional Rights

JEFFREY BROWN: Do you see this, David Rivkin, as something new?

DAVID RIVKIN, former associate White House counsel: No, I do not.

In fact, this legislation does not in any way alter the parameters of preexisting law. Nobody who could not have been detained in military custody or prosecuted by military commission before NDA was enacted would brought into this regime now.

The real thing, I think, that concerns people — and this debate really is a surrogate for the broader debate about the relevancy of a laws of war paradigm to this conflict, whether it’s real war. The real significance of this legislation, frankly speaking, is it provided political imprimatur by Congress.

For the first time, Congress has explicitly put its stamp of approval on what heretofore has been done either based upon indirect congressional support in operations to use military force, executive branch practices, and judicial decisions.

What’s interesting, for years, the critics have been asking for two political branches to speak in unison. They have done so now. They just don’t like the answer.

JEFFREY BROWN: Well, what is your response to that in this broader context of the Congress and the White House?

VINCENT WARREN: Well, I think the big problem here, of course, is that if you look at the indefinite detention pieces, particularly those with respect to can you detain U.S. citizens on U.S. soil, the potential for that, the Bush and the Obama administrations have taken the position that that is authorized under previous congressional authority.

But that’s never been settled in the courts. So I disagree. I actually don’t think that this is status quo. I think that what it does, the codification really is about the calcification of an indefinite detention policy. It’s put indefinite detention on the table.

Congress is setting the parameters for what that looks like. And that’s something that’s new.

JEFFREY BROWN: What — no, go ahead.

DAVID RIVKIN: For respect, that’s just not true.

The Supreme Court, in the plurality opinion by Justice O’Connor in Hamdi, has clearly spoken the proposition that — and I hate the word indefinite, because it’s not true — you can detain an enemy combatant, including a U.S. citizen, for duration of hostility.

And all that really matters is an opportunity to challenge the status classification, the determination that a person is an enemy combatant. And there’s a fulsome process for it laid out in the Hamdi decision, also the Padilla decision. There’s really nothing new about it. We, frankly, should be having a broader conversation about why it makes sense to use not solely, but at least part of the arsenal tools available to our political branches, the laws of war paradigm.

The problem, I’m afraid, with my colleague here, he really doesn’t believe that it’s war. He thinks it’s just another set of law enforcement problems to be treated purely through a civilian justice system.

JEFFREY BROWN: Well, do you think — will you go to that kind of paradigm, or do you think this — the way we started this, which is looking at it through where to — how to detain and how to try suspects, is the way to look at it?

VINCENT WARREN: We have in this country confused the war paradigm and the law enforcement paradigm.

And the NDA is the precise example of that. And my colleague is right that the Supreme Court has talked about…

JEFFREY BROWN: You mean it’s codifying the war, the war approach?

VINCENT WARREN: It’s codifying…

DAVID RIVKIN: As one approach.

VINCENT WARREN: It’s codifying the conflation of it, in my view, because the Supreme Court has spoken to that — the issue in Hamdi.

But in the Padilla case, where you had someone that was captured in the United States and the Bush administration tried to push him into military custody, before the Supreme Court could rule on it, the Bush administration moved him out, because — frankly, because I thought that they thought that they were going to lose.

So, in fact, the broader discussion really here is about to what extent should law enforcement actions and crimes be treated as crimes in the U.S., and to what extent should crimes of war and violations of the war — of law of war be treated as military situations…

DAVID RIVKIN: Let’s be — let’s be honest.

Do you not accept the notion, as many critics allege, that propels the exclusive use of the civilian justice paradigm? Would you support the trial of somebody, at least high-valued detainees, clearly individuals who are enemy combatants by revamped military commissions that operate in full accordance with the Constitution, with the highest standards of military justice? Or do you think that they’re all a bunch of muggers and rapists and bank robbers, so be tried in the district courts?

VINCENT WARREN: No, I would support — I would support military courts for people who have violated the law of war.

But what I don’t support is a conflation of criminal activity and military activity by calling the U.S. a battlefield, and then anybody that is captured on the battlefield of the United States has the option of going to…

JEFFREY BROWN: The president signed off with reservations. Do you think he just should not have signed off on the bill altogether?

VINCENT WARREN: I think that the president — when the president signed off on the last NDAA, he signed off with reservations.

Of course, one of his reservations was is that he would veto a future into bill, which, of course, he didn’t do this time. I don’t think that that reservation is…

JEFFREY BROWN: And what of Guantanamo, the — 10 years later, here we are, on this day.

DAVID RIVKIN: Guantanamo is going to stay open. But, again, as I said, Guantanamo was going to stay open prior to the passage of NDA.

But let’s — let’s — it’s interesting. Let’s look at it. Guantanamo has been condemned by this president. This president and his attorney general came in. They tried to close it. They worked through a political process. Lots of Democrats in Congress have opposed it.

That’s how a political system works. Guantanamo is going to stay closed — is going to stay open, but not only as a matter of political reality. Guantanamo is essential, not as a place, specific place, but ask yourself this question: If it’s real war, when have we ever had a war in human history that did not have a detention component, if you will, a prisoner of war camp?

It’s not just about people who are there now. I have written about an individual by the name of Daqduq who killed American soldiers in Iraq. We had no place to bring him here, because the administration would not put him in Guantanamo.

JEFFREY BROWN: All right, and a brief last word. Do you see Guantanamo, any change in the future?

VINCENT WARREN: The question that really should be asked is, when have we ever seen a war that has no location, no geographical limit, and no time limit? That’s the situation that we’re in now.

JEFFREY BROWN: All right. We…

VINCENT WARREN: That’s why Guantanamo has to close.

JEFFREY BROWN: We do have to leave it there.

Vincent Warren, David Rivkin, thank you both very much.

DAVID RIVKIN: Good to be with you.