MARGARET WARNER: The Bush administration is exploring ways to hold suspected terrorists for a lifetime, even if they haven't been convicted by a court.
According to Sunday's Washington Post, administration officials are preparing plans for indefinitely imprisoning suspected terrorists whom they do not want to set free or turn over to courts in the United States or other countries.
Pentagon Spokesman Bryan Whitman told the Post, "Since the global war on terror is a long-term effort it makes sense for us to be looking at solutions for long-term problems."
The article said the Pentagon, the CIA, the State Department and the White House are all involved in the current review. The outcome could affect hundreds of present and future detainees whom the government doesn't have the evidence to charge in court, but still considers dangerous.
To explore this latest development, we get two perspectives. David Cole is a professor at the Georgetown University Law Center. He's also an attorney with the Center for Constitutional Rights. And John Yoo is a professor at the Boalt Hall School of Law at the University of California, Berkeley. He served as a deputy assistant attorney general earlier in this Bush administration.
Welcome to you both.
MARGARET WARNER: John Yoo, let me start with you. Just give us a little factual grounding in exactly what is being considered here. First of all, what is the problem? Why is a new approach needed for some detainees?
JOHN YOO: Well, it's important to remember that all the people that are being talked about are enemy combatants. They've been captured in this war against al-Qaida.
Under the laws of war the United States may detain those enemy combatants and traditionally under the laws of war there's never been trials or judicial proceedings to review whether those people ought to be detained as enemy combatants.
MARGARET WARNER: Can I interrupt you just for a minute, John. Let me just interrupt you. Before we get into the legal argument really let's help our viewers understand what it is we're talking about here. Why are... why is a certain category of detainee now need some other kind of facility than the ones they're being held in right now?
JOHN YOO: Well, there's about 500 people at Guantanamo Bay and Guantanamo Bay was originally not constructed as a long-term permanent facility because under the laws of war you detain these enemy combatants till the end of the conflict.
And so what the Defense Department is doing I think, which is a sensible thing, is saying, well, we need to construct some kind of permanent facility for the people that we are not going to try for war crimes by military commissions but can still be detained under the laws of war as enemy combatants till the conflict is over.
MARGARET WARNER: And as I read the story, there are really two categories of prisoners here that they're talking about. Some are as you describe, people probably already at Guantanamo whom they feel they don't have the evidence to charge but still think are dangerous but they said the other category that were the problem suspects were those being held by the CIA overseas.
What can you tell us about that category of prisoner and why they need some other facility now?
JOHN YOO: Well, you know, the reports we have about that group of people are fairly sketchy. A lot of the stories have appeared in the press lately. They basically include, it seems like, about a dozen high-level al-Qaida leaders such as Abu Zubaida Ramzi Binalshib, and Khalid Shaikh Mohammed who are all part of the group that actually planned the Sept. 11 attacks.
According to press reports they were captured in Pakistan in early 2002 into 2003 and they've been interrogated but they could not really be released because they are high-level al-Qaida leaders. Releasing them back into the public would allow them to go back into their former lives, planning more attacks on Americans.
So the problem there is you have to figure out a way to detain them for a long period of time until al-Qaida is no longer a threat to the United States.
MARGARET WARNER: All right. David Cole, let me switch to you. A couple of the ideas being discussed to take them out of the current spartan or temporary facilities are, one, a new facility at Guantanamo Bay; I think they're going to call it Camp 6 where frankly it's more comfortable.
They're allowed to socialize with one another. They're no longer subject to interrogation. Another idea, I guess, is to build special jails in other countries for them but overseen by the State Department. Do you think new approaches like that are needed for these categories of detainees?
DAVID COLE: I think we definitely need a new approach. I think we've needed a new approach from the beginning but I don't think giving them bagels and lox instead of giving them bagels is the way to do it.
I think we've had problems from the beginning with how we detain them. What did we do? We threw out the Geneva Conventions. We have problems with: How do we interrogate them? What did we do? We threw out the convention against torture and cruel, inhuman, and degrading treatment. Now we have a problem with detaining them for long periods of time. We want to throw out the prohibition on indefinite detention without trial or charges.
Now other countries have faced this problem as well. Great Britain -- recently the highest court there held that it is - it violates basic principles of international law to hold people indefinitely without trial or charges, which is what the Brits were doing.
MARGARET WARNER: So you're saying that in your view and now we will get into the legal argument you don't think this meets the smell test of either domestic constitutional law or international law to hold any detainees indefinitely?
DAVID COLE: I think you can under the laws of war hold people who are fighting against you for the duration of the conflict. So if someone is clear... if you give them fair proceeding to assure that they are in fact fighting for the enemy -- if someone is fighting for al-Qaida and it's clear that they're fighting for al-Qaida, I think that person can be held for the duration of that conflict.
But, interestingly that's not the position the government takes. The position the government takes is they can hold them until the global war on terrorism is over. The global war on terrorism will never be over because as they define it, again, Donald Rumsfeld, he said it would be over not when al-Qaida is defeated because al-Qaida will be defeated, but he said it's when there are no longer any terrorist organizations of global reach left in the world.
That is a maximalist approach just like the approach that said throw out the Geneva Conventions, just like the approach that said throw out the convention against torture and interrogate people by putting cigarettes in their ears.
Those kinds of approaches I think are not fair and balanced. They're not an attempt to sort of really struggle with attention. Instead what they are is an assertion of maximalist power which we've seen already has greatly undermined the legitimacy of the U.S. efforts in the war on terror.
MARGARET WARNER: John Yoo, didn't the Supreme Court of the U.S. rule last June that in fact the U.S. Government doesn't have-and I don't want to get into a long debate about that decision.
But I mean, how does this jibe, let's say, with the Supreme Court ruling, which said that these Guantanamo detainees at least were entitled to some sort of hearing either in the federal courts or by some neutral decision-maker, in other words that they did have their right to some sort of proceeding?
JOHN YOO: That's right. You've accurately described the Supreme Court's decision - on the Supreme Court's decision enemy combatants detained at Guantanamo Bay have some right to a hearing in a federal habeas corpus court.
The court didn't say what that hearing would be like or even what would be tested in that kind of hearing. So, for example, if the government comes forward in those hearings and says, look, we captured this al-Qaida member on the field in Afghanistan fighting say in Tora Bora, that should be it seems to me sufficient to meet the requirements of the court's standard.
You know, perhaps the detainee will have a chance to provide evidence that seems to prove that he wasn't there or that there was a mistake. But if the government shows that sufficient evidence, then the court's decision doesn't really answer the question we have before us which is, okay, what do you do with this person?
And I think David Cole made an important point is that we can't detain these people until the end of the conflict. The hard question is: when is this conflict over? I agree there's a conflict with al-Qaida. Once al-Qaida is defeated, al-Qaida members should be legally released. But none of those questions were answered by the Supreme Court. All the Supreme Court said is you get a chance to have a hearing.
MARGARET WARNER: But do you think... I mean again and we're going off stories that were or a story that was written in the Post but the Defense Department did seem to confirm it that -- do you think that the U.S. has legitimacy to detain people absolutely indefinitely whom they feel are dangerous in the, quote, global war on terror, not just members of al-Qaida but a broader definition as David mentioned?
JOHN YOO: I think it's a mistake to use the word indefinitely. And I think that's the thing that's causing the problems. I don't think the government is saying that they can detain people beyond when this conflict with al-Qaida is over. I think the reason we all use the word indefinite is because we don't know right now because we are still in the middle of the war when that conflict will be over.
But I don't think that's unusual that there's uncertainty about that. For example, World War I -- if it was in the early winter of 1942, we wouldn't know at that time that World War II would be over in only three years in 1945. That's the same position we're in now. The laws will permit detention. It might be a very long time. There's no doubt about it because al-Qaida is a difficult, capable enemy. But that doesn't mean it's going to be forever.
MARGARET WARNER: What about, David Cole, what about the CIA, the people being held by the CIA at different bases abroad. I mean, as John Yoo said the information is very sketchy but some of them are very top people.
One, did the Supreme Court ruling apply to them? Two, why can't they have trials considering that some of them... I mean, we've seen some of them on tape boasting about their role in 9/11?
DAVID COLE: Right. Well I think first of all it's unclear whether the Supreme Court's Guantanamo decision applied to them because the court was dealing only with people held at Guantanamo and it has a unique status.
Although the principles would seem to apply to anyone who is being detained by the United States but second of all, yes, I think they could be tried. We indicted Osama bin Laden before 9/11. And we were prepared and ready to try him. We never got him here but we were prepared and ready to try him.
We've captured these people. I think the reason they don't want to try them is in part they want to keep interrogating them but in part because they've used such tactics in interrogating them like water boarding where they hold people under water until they think they're drowning in order to encourage them to talk that it would be a major embarrassment if these people were put on any kind of public trial because it would be a trial not only of them and the horrific acts that they committed but of us and the horrific acts we've committed in the interrogation process.
And so I think the administration has created this problem by basically allowing the gloves to be taken off, especially at these undisclosed CIA detention facilities where the worst abuses apparently are going on.
MARGARET WARNER: Is that part of the reason, John Yoo, that they're not putting some of these very top al-Qaida people on trial?
JOHN YOO: No. I really reject the notion that there's some kind of equivalence between what people like Abu Zubaida or Ramzi Binalshibh or Khalid Shaikh Mohammed -- did in planning the 9/11 attacks and the methods the United States has had to use to fight terrorism and stop future attacks.
I think all you have to do is look at the case of Zacarias Moussaoui, the alleged 20th hijacker in Virginia. That trial which has been going on now for several years cannot move forward because there are too many demands placed by the defendant, access to information, witnesses presented in the courtroom, too many demands to reveal sources and methods of our intelligence.
These would not be problems if the war were already over. We could have these trials; we could try these CIA-held people in open court if there were no more cost to doing that if the war were over. The problem is that the war is going on right now.
And so all the guarantees we give in our very I think very good civilian criminal justice system would have costs in the war on terrorism by producing information about sources and methods we use to fight al-Qaida that would come out into the open.
And al-Qaida watches our courtroom proceedings and our public governmental proceedings and they adapt and react to it. So it doesn't seem to me that civilian jury trials of the kind that would normally take place are the answer here.
MARGARET WARNER: All right. We're going to have to leave it there. But thank you both. John Yoo, David Cole, thanks.