MARGARET WARNER: What should happen to these men? Military tribunals? Repatriation? Indefinite incarceration?
We pick up that debate with Ruth Wedgwood, a professor of international law at Yale Law School and Johns Hopkins University; and David Cole, a law professor at Georgetown University Law Center. Welcome to you both.
There are 300 prisoners that have been there a long time -- 32 more on the way. Not one of them has been charged. Ruth Wedgwood, what is their legal status?
How long can they be held?
RUTH WEDGEWOOD, Yale Law School: Well, under the law of armed conflict and Afghanistan was surely a conflict, they can be held until the conclusion of the hostilities. In an ordinary war, that's easier to determine. You get a demobilization order from the country that is surrendering.
In this conflict it's harder to determine because there's really no organized sponsoring force. And the other problem is that many of these young men are sworn to jihad so they really might not obey any order to demobilize. So we may be faced with a dilemma of how to handle them if the detention has to be prolonged for a good, long time.
MARGARET WARNER: Do you think the law is clear as to what their status is now? I mean, you talked about the law of armed conflict. What do you mean by that? Do you mean the Geneva Convention?
RUTH WEDGEWOOD: Well, it's the law of war sometimes called international humanitarian law. It's the same thing. And the Geneva Conventions are one part of it.
The administration has said they don't consider these folks to be lawful combatants and therefore not technically entitled to all the privileges of Geneva. But the White House has been careful to say that they consider the principles of Geneva to be applicable to the general situation.
MARGARET WARNER: How do you see it, David Cole?
DAVID COLE, Georgetown University Law School: Well, I think it's... I have no sympathy obviously with anyone who is engaged in terrorism or engaged in war crimes.
But imagine if the war had gone differently and Afghanistan had picked up hundreds of U.S. citizens and was holding them incommunicado, the president of Afghanistan was declaring them terrorists publicly but none of them being tried, they were being denied access to lawyers, they were being denied access to families.
If they were going to be tried, they were going to be tried in some Afghani military tribunal and the government said even if they're acquitted, we're going to keep them detained.
Would we say oh, that's consistent with the laws of war, we'll let it go? I don't think so, and that's because it's not consistent. To hold people indefinitely without any charges incommunicado, it's simply not permitted.
The government... Ruth refers to Geneva Convention. The government has said they don't believe the Geneva Conventions even apply to the al-Qaida members. Although they believe they apply to the Taliban, they haven't followed the first step, which is to presume that they're prisoners of war and only make an individualized determination that they are not.
No such individualized determination has been made.
MARGARET WARNER: So in other words you're saying the U.S. Government hasn't even taken the steps to find out what each individual did or at least not in a legal setting.
DAVID COLE: Not in a legal setting. They've made no charges. As we know this is very, very confused over there. Whether someone is an al-Qaida person, whether someone is a Taliban person, whether someone got caught up in this, whether someone was fighting against the Northern Alliance, which is perfectly lawful to do or whether someone was targeting civilians, which is not lawful.
There's been no charges whatsoever and yet at the same time you have Rumsfeld saying these are the most dangerous, most evil terrorists in the world, and you have the president claiming that they're all terrorists without any opportunity to have a trial as to whether or not anyone is, in fact, a bad person.
MARGARET WARNER: Professor Wedgwood, do you think these prisoners are entitled to at least individual hearings of some nature, whether they're military trials though none have been held yet or some other legal -- sort of courtroom- like environment -- in which they can be represented to determine, as Professor Cole was saying, what they did and what their culpability might be?
RUTH WEDGEWOOD: Well, let me first just mention they're not being held incommunicado. The Red Cross visits them regularly. And insofar as any are dual nationals they have allowed consul or visits, the government has.
But their status is not necessarily that of criminals. They are being detained as combatants, the same way German POWs were detained in World War II, hundreds and thousands of them, many in this country. They don't have to be charged with a crime to be considered a combatant.
Now, the kind of proceeding that David is referring to is one that this is kind of an in- take proceeding where there are substantial questions of doubt. At the very highest level of the National Security council with all the administration lawyers, there was a determination made that technically Geneva doesn't qualify them for full privileges, and therefore there's nothing for this....
MARGARET WARNER: As prisoners of war.
RUTH WEDGEWOOD: Yeah. I mean the humane standards are there for sure, but some of the privileges like roaming the camp and having these personal hygiene, pen knives, or being immune from charges of crime for attacking military targets, which a lawful combatant would be immunized for. Serious matter to call them lawful combatants.
MARGARET WARNER: Let's talk about the possibility of prosecution because you both referred to this, and this seems to be what the Pentagon actually established this military tribunal's process yet so far, as we heard David Molpus say, apparently in the interrogations they're not getting the kind of information they need to pin specific crimes on specific people.
What could they be charged with? Do they need to be charged at all?
DAVID COLE: Well, my view is if you treat them as prisoners of war, which is government is not doing, if you treat them as prisoners of war, Ruth is right, you can keep them until the cessation of hostilities. You don't actually have to charge them.
But it's the cessation of hostilities in Afghanistan. The government has said we're going to keep them until there are no international terrorist organizations in the world. That means we're going to keep them for eternity because there are going to be terrorist organizations as long as there is a common cold. This is not something that we can --
MARGARET WARNER: Have they made it quite that broad?
DAVID COLE: They've said as long as there are any international terrorist organization in the world that these individuals if released could go back and fight for -- which is any international terrorist organization....
RUTH WEDGEWOOD: Well, David is engaging in the gentle art of exaggeration. The Baath terrorists have very little to do with al-Qaida.
DAVID COLE: That's not what -- what Rumsfeld said was as long as there's any international terrorist organization that they could then go off and join....
RUTH WEDGEWOOD: Any collaborators.
DAVID COLE: And I'm sure that the assumption is that international terrorist organization has the capability of attacking us. Therefore we don't want terrorists to go back.
I don't think terrorists should go back. But I think they should be tried. If they're found guilty of terrorism, they can be sentenced for the rest of their lives but that's based on a determination of guilt, not on an assertion without a trial.
MARGARET WARNER: What if there is no specific evidence tying a specific individual to a specific crime, but they've been members of the al-Qaida terrorist network and that can be established?
DAVID COLE: Then I don't think you have a case. I think you could charge them with conspiracy, with overt acts, with intent to further terrorist activity or war crimes if you can prove that.
But I understand they're considering much broader charges, which would essentially amount to guilt by association. You're guilty because you were with al-Qaida. Well, as we know from the John Walker Lindh case, many people were with al-Qaida because the Taliban sent people to al-Qaida simply to be trained to fight in the Taliban military against the Northern Alliance.
There's nothing illegal about that.
RUTH WEDGEWOOD: Let me make a couple of distinctions that are important.
One is that for a crime, to prove a crime, you have to have proof beyond a reasonable doubt. No one has ever supposed that to hold somebody as a combatant, military combatant, that you need proof beyond a reasonable doubt, so there's a difference there in what you'd have to show.
Number two, though, if you chose to go the criminal route, which is an optional choice, then there are things that would pretty easily fit. One indeed is conspiracy. If you're an al-Qaida member even if he doesn't know specifically what his fellows are up to. Al-Qaida itself was a conspiracy to attack civilian targets, to unlawfully attack military targets, so really the proof of membership, witting membership, knowing the nature of the organization, is itself a conspiratorial crime.
MARGARET WARNER: And what about Taliban members who, as David Cole said, were fighting the Northern Alliance and were instruments at least of the then-Afghan government, the Taliban government, would you make a distinction there?
RUTH WEDGEWOOD: After September 28, certainly. The status of the Taliban changes in the sense that the Security Council of the U.N. itself orders the Taliban government to cease and desist from harboring al-Qaida.
So at least after September 28 in a very real sense, they're accessories after the fact. I should also note that under Geneva itself if you don't give your name, rank and serial number, if you don't clarify your own military status, you're entitled to none of the privileges of Geneva.
DAVID COLE: Well, the fact that the U.N. said the Taliban should not be harboring al-Qaida does not make every foot soldier a war criminal. This is... it is a criminal charge. It's a charge that not that you have fought lawfully but that you have fought unlawfully. That's got to be proven in a court.
MARGARET WARNER: We only have one minute. I want to ask same question to both of you very briefly.
There have been some lawsuits filed in U.S. courts demanding their released, saying they should be released. Does the U.S. - do U.S. Courts have any jurisdiction over these prisoners?
DAVID COLE: I think they do because the United States is using its force in subjecting these people to its jurisdiction. And, therefore, U.S. Courts have to be able to hold the United States to the law.
RUTH WEDGEWOOD: They're being detained under the power of the president as commander in chief and under the delegated power from the Congress of the president to convene military commissions.
So a court can always inquire but I'm sure they would find even if they have jurisdiction that the detention is lawful under the law of war.
MARGARET WARNER: Professor Wedgwood and Professor Cole, thank you both.
DAVID COLE: Thank you.