JIM LEHRER: Two legal setbacks for the administration from two separate court of appeal. Terror suspect Jose Padilla cannot be detained as an enemy combatant, and the Guantanamo prisoners should have access to lawyers and the American court system.
We look at these two cases now with two law professors who have been following them closely. John Yoo of Boalt Hall Law School at the University of California, Berkeley. He's a former deputy assistant attorney general in the Bush Administration, and David Cole of Georgetown University Law Center and the Center for Constitutional Rights. He's the author of "Enemy Alien: Double Standards and Constitutional Freedom in the War on Terrorism."
JIM LEHRER: Mr. Cole let's take the decisions one at a time. The Padilla case the court in New York said as an American citizen Jose Padilla he is "entitled to constitutional protection extended to other citizens." Did the court get it right?
DAVID COLE: Absolutely. What they said is that the president acting alone doesn't have the authority to simply go out and label any American citizen picked up anywhere in the United States, an enemy combatant or as President Bush puts it a bad guy and then put that person into indefinite, incommunicado military custody -- that at a minimum he has for to act with congressional statutory authority and they pointed in particular to a statute that Congress enacted in 1971 that said American citizens may not be imprisoned or detained except pursuant to an act of Congress, and there is no act of Congress here. The president acted entirely unilateral, and was essentially saying I'm above the law, I don't have to have congressional authority; I don't have to have review in the courts.
JIM LEHRER: Professor Yoo, do you see it differently?
JOHN YOO: Yeah. I think what happened here was that the 2nd Circuit is trying to turn the clock back to Sept. 10 and the reason I say that is the way the court looked at the case and the war on terrorism generally is that we should handle it according to the criminal justice system and not according to what the Bush administration has tried to treat the war on terrorism as, as a war.
And so, for example, in this case they say al-Qaida operatives in the United States are to be treated as criminal defendants, not as enemy combatants.
JIM LEHRER: If they're American citizens.
JOHN YOO: I think it's true if American citizens, but I don't see any reason in the judicial decision why it would be limited to American citizens and the other thing is there is no reason to think al-Qaida would only hire non-U.S. Citizens as their operatives in fact, they're moving in the other direction, it seems.
JIM LEHRER: And so you would say -- you would disagree with the court and David Cole -- you say the president already has -- I just said in the in the News Summary -- but Padilla was arrested at O'Hare Airport in Chicago 18 months ago on charges or on suspicion that he was going to -- he was involved in plans to detonate what's called a dirty bomb, radioactive bomb, et cetera. That, in your opinion, would be enough to hold him no matter what?
JOHN YOO: Right. I think there is two grounds. I think that's exactly right; I do disagree with David, I think the 2nd Circuit got it wrong -- two reasons: one, the president has commander in chief authority to protect the country against attacks. And if Padilla's coming to the United States to blow up a radioactive nuclear device, his commander in chief authority allows him to protect the country by detaining people who threaten to harm the country.
JIM LEHRER: What about that?
DAVID COLE: Well, first of all, the court didn't say the president can never detain a person under those circumstances. What it said is that he has to -- he can't do it acting alone where Congress has said that he can't do it. In other words, if he were to act pursuant to statutory authorization from Congress, if Congress had said, under these circumstances in wartime when you meet these conditions you can hold people as enemy combatants, then that would be a very different question. But Congress said exactly the opposite, in light of a belated recognition of what went wrong during World War II, Congress in 1971 said American citizens shall not be imprisoned or detained except pursuant to an act of Congress. There is no act of Congress here to authorize this.
JIM LEHRER: But what about Professor Yoo's point that the potential act of terrorism -- doesn't matter whether it's a U.S. citizen or whatever -- the president has not only the right but the responsibility to protect American citizens from these kinds after attacks?
DAVID COLE: The point is that the president is not above and beyond the law, even in wartime. The Supreme Court during the Korean War said that the president could not act unilaterally to seize a steel mill, to seize property. It's a much more extreme measure to go out and pick up a U.S. citizen at O'Hare Airport and simply lock him up incommunicado without giving him any kind of a hearing, any kind of charges, any kind of access to a lawyer. And yet the administration was taking the position that we can do that even when Congress has said we can't without providing this person with any access to a jury. This is essentially an assertion that the law doesn't apply to the president when we call it a war.
JIM LEHRER: What about the court said, well, he can be turned over to civilian authorities and tried like anybody else. What's wrong with that?
JOHN YOO: I think that goes again to the fundamental problem with the way the 2nd Circuit looked at the case, which was, we're going to treat terrorism as a crime; we're going to use all the usual rules which we use to supervise the police, to supervise the war on terrorism. And I think the reason why it's important that we treat it as a war is intelligence and information. Information is the primary commodity in this conflict. It's more important than bombs, it's more important than missiles or guns. The reason we want to hold someone like Jose Padilla as an enemy combatant is so that you can interrogate him and get information from him about future attacks that are going to occur and who his contacts were in the country, how he was going to build the bomb, where he was going to get the fissionable material from. You can't do that the in the normal criminal justice system. You get Miranda, lawyers and your lawyers will tell you immediately not talk to the government.
JIM LEHRER: Now, speaking of lawyers, let's go to the second case, Guantanamo, the appeals panel in San Francisco said the Guantanamo detainees, most of whom were picked up or captured in Afghanistan are entitled to access, to lawyers and access to the American judicial system. I assume you don't agree with that either?
JOHN YOO: No. And I hate to say it -- I think that this decision is legally irrelevant because the Supreme Court has already decided to hear this issue, how far federal courts in their jurisdiction over habeas corpus actually extend to Guantanamo Bay. And people at the time were surprised that the court granted cert in that case because the D.C. Circuit upheld the government's power. Now it looks like the court has pressure.
JIM LEHRER: Another case...
JOHN YOO: Another case in the Washington, D.C. federal court where that court held that the federal courts don't have jurisdiction over Guantanamo Bay. And so the court in a way was pressured because maybe they foresaw that there would be another court like the 9th Circuit, which has a habit of acting sort of outside the legal mainstream -- at times would go the other direction -- and so they're going to decide this case, not the 9th Circuit.
JIM LEHRER: How do you see the Guantanamo situation?
DAVID COLE: Well, I think, you know, the entity that's outside of the legal mainstream here is the Bush administration. It's the same principle really in both cases. In the Padilla case and the 9th Circuit Guantanamo case -- the administration saying we can act without legal limitation and in the Guantanamo case they say, these people who we have similarly labeled as enemy combatants have similarly been provided with no hearing whatsoever no, no process, no trial -- we can label them and we deny them any access to any court anywhere in the world to challenge the legality of their detention. That's essentially saying we're above the law.
What I think both the 2nd Circuit and the 9th Circuit said was this is a system of checks and balances; this is a system where we don't give the president unilateral authority where we rely on checks through congressional legislation and checks through judicial review to make sure that the administration acts within the law and nowhere is that more important than when the administration is locking up a human being, depriving a human being of liberty. That is a very significant government power. It's got to be subject to law. The administration basically was taking a position in both cases that it's not subject to law.
JIM LEHRER: Professor Yoo, is that it?
JOHN YOO: I think again this is a good example of how people sometimes think about terrorism as if it were Sept. 10. It's a war. Enemy combatants in a war do not get lawyers; they do not get trials; they can be held in prisoner of war camps until the end of a conflict. That's essentially what's happening in Guantanamo Bay and the government is treating members of the al-Qaida and Taliban as prisoners in an armed conflict.
All of the liberties that David just listed are great luxuries for a domestic system to have when it is treating criminal suspects within its own borders. But when you have an attack from a foreign source, someone is trying to destroy you -- that's a war, and the rules of war -- there is a legal system. It's not that they're -- the government is acting without bounds; there's a legal system called the laws of war that decide how you treat enemy combatants and that's what's happening in Guantanamo Bay.
JIM LEHRER: You draw no distinction between enemy combatants in the time of war and civilians in a civilian judicial process?
DAVID COLE: Absolutely, and I don't think either case eliminates that distinction. I think what the 2nd Circuit said was yes enemy combatant detentions may well be justified but if you're dealing with U.S. citizens on U.S. soil, you've got to have some congressional authority and here what you have is congressional negation of authority based on the wrongs that happened during World War II.
JIM LEHRER: But Guantanamo, these are not American citizens who were arrested; in fact, most of them are arrested on a battlefield end quote in Afghanistan.
DAVID COLE: Right. But the question of course is are they enemy combatants or not, and the court didn't say you can't -- in the 9th Circuit they didn't say you can't hold them if they're enemy combatants. They said they're entitled to some process and they....
JIM LEHRER: To determine that you mean.
DAVID COLE: Exactly -- because the whole question is who are these people -- some of these people allegedly were taxi drivers who were picked up to get a bounty from the military by the Northern Alliance and in fact, were not al-Qaida or Taliban.
But we have never provided even the most basic process required by the rules of war, required by the Geneva Conventions which acknowledge the authority to lock up the people who are fighting for enemy but provide that where there's any doubt you have got to provide a hearing; we have never given that hearing.
JIM LEHRER: What would be the problem in forcing the government to at least prove -- not prove -- at least offer some evidence that these people were in fact, enemy combatants?
JOHN YOO: Well, first this is not the kind of rules that apply in war; it would be a special exception. So for example, in Iraq the United States captured hundreds of thousands of prisoners of war. They don't have lawyers; they don't get to go to federal court and make a claim; they can't hire Johnny Cochran or David Cole, run to federal court and say, I'm not really an Iraqi POW -- free me, I want the government to show the reason why they thought I was an enemy prisoner. That's just not the way laws of war work.
The second thing is you have David Cole as your lawyer; he's going to say don't say anything to the government. That totally defeats the purpose of interrogating enemy combatants to try to get information about the future.
Let me just say -- the congressional authorization issue, it's a hard issue. I mean, the Congress did pass an authorization immediately after Sept. 11, authorizing the use of force against al-Qaida and anyone else involved with the Sept. 11 attacks. So the question is: is that enough to give you detention authority or not? I think the 2nd Circuit actually reached a weird result because it would say that the government can use force -- Congress authorized you to use force against people -- but they didn't authorize you to detain those same people.
JIM LEHRER: All right. Each of you quickly - this is now -- both of these cases one way or another are going to end up being resolved by the U.S. Supreme Court; based on the your reading of the present day court how do you think they're going to come down on the issues, taking this -- not necessarily these particular cases but the issues raised by these cases?
DAVID COLE: Well, I have said it's not a good idea to predict ever since Bush versus Gore, but I think that the Guantanamo case presents a strong claim that at a minimum you have got to decide whether the people are enemy combatants before you bar them from any judicial review whatsoever and with respect to Padilla, this is the broadest assertion of unilateral executive authority that I think we have seen in our lifetimes. I fully expect the court to hold back that kind of assertion of power.
JOHN YOO: Well, after Bush Versus Gore, I fell in love predicting what the Supreme Court is going to do. So let me give it a try. I think on Guantanamo Bay they will uphold the D.C. Circuit and say the treatment of enemy combatants outside the territory of the United States is just something federal courts aren't going to get involved in.
The Padilla case is really much harder and they will review the case. I think the real question there is whether they're going to allow access to an attorney, so they won't go as far as the 2nd Circuit but they could compromise in between.
JIM LEHRER: Is this important, these cases today, is this decision an important decision?
DAVID COLE: I think they're important because they underscore the importance of checks and balances even during war time.
JOHN YOO: It's important because it's a complete rejection of the administration's theory that the war on terrorism is a war.
JIM LEHRER: Thank you, both, very much.
JOHN YOO: Thank you.
DAVID COLE: Thank you.