Legal Experts Answered Your Questions on Sept. 11 Trials

JONATHAN HAFETZ: Well, I think some do, potentially, and some don't. I mean, I think that's one of the big problems that we have and with the approach of the Administration, and essentially it's a conception of a "war on terror," which means you can really pick up anybody, anytime, anyplace, you know, even if it's, you know, remote from any kind of a battlefield situation.

And so, I think that individuals who are subject, who commit war crimes, combatants who commit war crimes in an armed conflict, could potentially be subject to a fair -- and full and fair -- military system.

But, I think there are other individuals who are really, including a number of people at Guantanamo, who are really civilians. And if they're going to be tried at all, they should be tried in criminal courts.

RAY SUAREZ: A lot of the people at Guantanamo, Lee Casey, fought for no government, were no officers in any army, had not declared war in any legal sense on the United States. Is comparing them to the soldiers of previous conflicts and previous military commissions really a valid comparison?

LEE CASEY: Well, I think it is. I think, first of all, that they have associated themselves with a group or a cause that, at least in its own mind, has declared war against the United States, and has actually carried out acts of war against the United States.

I mean, it is certainly true that this war, the War on Terror, is unusual because our enemy is not another sovereign, and that creates certain real problems for fighting the war.

But the law has recognized that you can be in a state of armed conflict with something other than another sovereign state. The Supreme Court recognized that in the late-19th century with respect to the Indian tribes.

And being in a state of war, actually there's a lot of legal implications from that. Because, if in fact we are not or can not be in a state of armed conflict with al Qaeda, that means for example, that we can't carry out armed attacks against al Qaeda. I mean, if they're criminal defendants, you can't just go shoot them. I mean, you know, no where is that the law.

So, this conflict falls in, admittedly, an unusual area of the Law of Armed Conflict, but it clearly falls within the Law of Armed Conflict.

RAY SUAREZ: Well, Jonathan Hafetz, how about that? That idea that if they were more akin to the mafia -- an ongoing criminal conspiracy -- you'd have to treat them differently, and you couldn't go with an army and shoot at them on the battlefield in order to kill them, and end their activities against the United States and its interests, its citizens.

JONATHAN HAFETZ: Well, I don't accept, and I disagree with the sort of duality that's been posed. I think that certainly it's not the case that you can't use military force outside of a state-to-state armed conflict, the question -- you certainly can use military force, although there are limits on when you can use military force. And certainly, we wouldn't want a situation where, if we accept the administration's position, essentially anyone they suspect of terrorism, associated with a terrorist group, you know it's someone who's a terrorist -- under their definition, you'd be an enemy combatant, you could literally be shot on the street of the United States.

You can use military force, when necessary, if there's some kind of direct connection to hostilities. But the real question is how you treat individuals when you capture them.

And my whole problem with the -- well, my main problem with the military commissions, is there's really not been a compelling case for going outside of the traditional framework that we have in the criminal justice system and the main -- one of the main arguments that's offered in favor of military commissions is sensitive information, but what that largely has come to mean, is information or evidence that was gained by coercion, what really are the modern methods of the rack and the screw, and you've got a system that has really kind of been built on, and created around, a propagation of illegal interrogation techniques. And for that reason, I think you're never going to really have a fair trial, and you're never going to have a system that has any kind of real credibility.

Lee Casey?

LEE CASEY: Sure, I mean, I think there are two fundamental reasons. First of all, because these individuals are enemy combatants, they're not entitled to trial in the civilian system. And, in fact, because they have organized themselves as unlawful enemy combatants -- they don't wear uniforms, they don't carry -- they don't play by the rules, basically -- giving them trials in the civilian system would be rewarding inappropriate, unacceptable, and illegitimate conduct.

But, in addition, there are problems with the civilian system, because of the rules of evidence, because of the kinds of chains of evidence you need to show, the ability to collect and obtain the type of evidence that would be admissible in a civilian trial, from overseas battlefields, in many cases -- is just not realistic. It does happen in some cases, you know.

In the Jose Padilla case, for example, there was evidence, quite serendipitously, discovered by a CIA agent, apparently, in Afghanistan, and he just kept it. And so, at the trial, they were able to show that there was a chain of custody there.

But that's very catch-as-catch-can. The civilian system is set up very much to protect the rights of the individual as against the state in a situation where the state has far more power. This is a situation where the state, in fact, does not have all of the power, the state is dealing with a foreign threat, and so we need to rejigger the balance a little bit.

RAY SUAREZ: David writes, from Tempe, Ariz., "What theory of constitutional law supports executive authority to make the ultimate determination that certain individuals must be tried in a newly created legal system which has never had jurisdiction over any person? President Bush's order determined that the men at Guantanamo are 'detainees.' Only detainees may be tried by the military commission, and the detainees have only limited recourse to any judicial review outside of the military commission system. Which statute authorized President Bush to make the determination discussed above?"

Jonathan Hafetz?

JONATHAN HAFETZ: Well, to give the response, the administration's argument would be there's a force authorization that was passed by Congress. A joint declaration in the wake of Sept. 11, which essentially paved the way for the military campaign in Afghanistan, is the principle source of legislative authority that the administration had initially relied on in designating individuals as enemy combatants, and they've since relied on the 2006 Military Commissions Act.

But, I think it's an excellent question because the notion that was discussed a minute ago about, that these people don't deserve the protections of American justice begs the question of whether the people are who the government says it is.

And the system that we have, that we've always had, for determining whether a person is a criminal or a bad person, is to charge them with a crime. I mean, people are presumed innocent until found guilty.

I think it's also, you know, slightly misleading to suggest the criminal justice system is something that coddles defendants. It does give procedural protections, but it also metes out severe punishments.

You know, the recent verdicts in the Jose Padilla case, where he was given 17 years. That's just one example. A number of individuals since Sept. 11 have been tried for terrorism charges, for conspiracy charges, for providing support to terrorism, and have gotten lengthy, lengthy sentences.

By contrast, the only person, so far, whose been actually put before a military commission in six years, David Hicks, and who pled guilty, was given a nine-month sentence, and is now free. So, it's actually ironic that the criminal justice system actually is much harder and more severe, and in that sense, may be more protective of national security than military commissions.

RAY SUAREZ: Lee Casey, John Walker Lind, Jose Padilla and Zacarias Moussaoui were all tried in American mainland courts with a full panoply of guaranteed rights -- what was wrong with those trials that make this separate Guantanamo process necessary?

LEE CASEY: Well, I think those were instances where we were lucky enough to have the evidence available in admissible form. Now, keep in mind, of course, Walker Lind pled guilty, and so they never actually went to trial and in the other cases, Moussaoui, of course, was arrested, captured here in the United States, and the evidence was here, on which he was convicted, at least largely. And Padilla, as I mentioned, had, you know, there was some good fortune involved in that case, as well.

It's not that it can't work in individual cases, but as a systematic matter, when you're dealing with an armed conflict that is fought largely overseas -- at least we hope continues to be fought largely overseas -- it presents problems that can ultimately result in individuals, frankly, going free to return to the battle, which kind of makes it kind of very, very kind of sick game. And I mean, I think that is why the resort to military commissions was made in the first place.

Jonathan Hafetz?

JONATHAN HAFETZ: Well, I think that's an excellent question that points to, really, two fatal flaws in the commission system, and at Guantanamo, generally.

First, is that, no, the person would not necessarily go free, even if acquitted by a military commission, that's been the administration's position all along. That they would continue to be able to hold individuals, to detain them as enemy combatants, and recently it was stated by the individual who oversees the tribunal process, effectively that no one should be acquitted. And so, you have this command influence that permeates the commission process.

But the second point is that the commissions are really part of a larger system at Guantanamo, and in some ways, a small part -- only a handful of individuals in more than six years have even been charged. As I mentioned, none have been tried other than David Hicks, who pled guilty. And the rest of the individuals, the 750 people who have passed through Guantanamo, and the approximately 300 who remain, have simply just been detained, indefinitely, without charge. And the administration says that only a third or even less than a third of the individuals who are there now are ever going to be tried.

So, what you really have is a system where people are being locked up, most people are being locked up for years, maybe for decades, without being charged in any system, let alone a full and fair system.

RAY SUAREZ: Lee Casey, you just heard Jonathan Hafetz depict an almost, "heads I win, tails you lose" house advantage against the detainees. Even if they manage to prevail in court, that isn't likely to get them out of prison.

LEE CASEY: Well, it is, actually an important point, but it shows you how different this systems actually is. Because the individuals being held at Guantanamo, except for those who have been referred to military commissions, are not being held as criminal defendants, they're being held as captured enemy combatants.

Now, there's good and bad to that. The good part to it, from their perspective, is that when the war is over, when hostilities come to an end, they have to be set free, unless some criminal act can be proven against them. Now, when does the war end? Well, I would say the war ends when al-Qaida is no longer capable of carrying out military operations against the United States -- hopefully that will be sooner rather than later -- but it has obviously gone on longer, now, than I think anyone expected at the beginning. But, they still are entitled to be released when that conflict does end.

For those who go to military commissions, if they are convicted of war crimes, yes, they could face the death penalty, or they could face life in prison, i.e., they could be held regardless of whether al-Qaida dissolves, or not. And I think that is fairly important difference here.

RAY SUAREZ: Sam asks from San Francisco, Calif., "Can evidence gathered when using waterboarding be allowed in the court?"

And perhaps, Jonathan, you can explain a little bit the idea in American jurisprudence of "the fruit of the poisoned tree" and whether the use of torture would be enough to poison that fruit.

JONATHAN HAFETZ: Yes, the doctrine about, that you can't use evidence gained by torture, really has two, sort of, bases. The first is that evidence gained by torture techniques, like waterboarding -- even techniques that don't meet the definition of torture, but that are nonetheless, highly coercive -- are inherently unreliable. The Supreme Court has said that on numerous occasions, and for obvious reasons. If you apply significant physical or mental pressure to someone -- waterboarding, or the other techniques, some of the other techniques that have been used like locking people chained in freezing cells, or making them stand for lengthy periods of time -- people will say anything so that the pain will stop. So, it's unreliable.

And the second reason that these techniques, or evidence gained by these techniques is not admissible, is because they are morally unacceptable. It contradicts the values of a civilized society. So, the Supreme Court has outlawed the use of evidence gained through coercion for both of these reasons, and the military commissions have been set up in part to -- as an end-run around this prohibition, and there are ways, numerous ways, in the commission system for this evidence to come in. And that's why the commissions are not going to be fair, and that's why the commissions are not going to be, ever have the credibility that a justice system will have.

RAY SUAREZ: Lee Casey, can the judges sitting at the military commissions at Camp Justice, decide that evidence gained through extreme physical coercion is admissible, just by their own majority vote?

LEE CASEY: Well, that will be an issue for the court. Under the Military Commissions Act, any evidence gained through torture is excluded, period. Evidence gained through other forms of coercion -- things that are not torture, but are still coercive -- there they will have to decide whether, and it will be a totality of the circumstances test, to determine whether the evidence possesses sufficient probative value. And that will be up to the individual judges in each individual case to determine whether it, you know, is unreliable, or whether, in fact, it is reliable.

RAY SUAREZ: Dr. Robert Chacona asks from New York, "The Justice Department and the military have not moved to charged the Guantanamo detainees for 6 years. In a constitutional U.S. Supreme Court decision, Boumediene v. Bush, is now imminent. At this juncture, why is the Justice Department and military not waiting for this important -- and directly related -- Supreme Court decision by choosing to try these six detainees now?"

Lee Casey, what is Boumediene v. Bush?

LEE CASEY: Well, that is a case brought by several detainees at Guantanamo, seeking to have their detention reviewed in habeas corpus proceedings, and it does raise some very important issues of the extent to which the Constitution may apply to aliens overseas, and the extent to which any potential for appeal outside of the Military Commissions Act system, which does have opportunities for appeal, but outside of that -- is permissible. Because Congress did attempt to cut off those appeals, except through the system set up in the statute.

RAY SUAREZ: Anything to add, Jonathan Hafetz?

JONATHAN HAFETZ: Well, only that the timing is somewhat suspicious, and it is an, you know, attempt to try to create the impression that there's actually a viable system at Guantanamo, which I don't believe there is. And as the question indicates, you've had more than six years to try individuals, and only now is there, are these charges brought. I mean, I don't know for certain the exact reasons behind the timing, but I do think it is suspicious, and it is an effort to kind of color, I think, the impression of Guantanamo as a place where people are getting justice, when most people aren't getting any justice, let alone, justice of a criminal trial.