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High Court Blocks Guantanamo Tribunals

The Supreme Court on Thursday ruled that the Bush administration's policy of trying terror suspects before military tribunals is illegal. The 5-3 ruling said that the tribunals violated U.S. military law and the Geneva Convention.

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    And with me to discuss the impact of the Hamdan decision are Neal Katyal, a professor at Georgetown University Law Center. He argued on Salim Ahmed Hamdan's behalf before the U.S. Supreme Court.

    Andrew McBride, a former federal prosecutor now in private practice, he filed a friend of the court brief supporting the government's position in the Hamdan case.

    Joseph Margulies, a trial lawyer at the MacArthur Justice Center at Northwestern University Law School, he's the author of the book, "Guantanamo and the Abuse of Presidential Power."

    And John Yoo, a professor at the University of California at Berkeley School of Law, he was a primary architect of the Bush administration's detainee and interrogation policies while working in the Justice Department's Office of Legal Counsel. Since then, he's written a book on presidential powers in time of war.

    And welcome, gentlemen, to you all.

    And Mr. Katyal, to you, of course, first. What is the practical impact of this ruling on your client, Mr. Hamdan?

  • NEAL KATYAL, Hamdan Lawyer:

    Well, Mr. Hamdan has simply asked for one thing for the past four years, which is a fair trial. And the Supreme Court gave it to him today.

    It said they had to comply, if they did try him, with rules for courts martial or a civilian trial and have to comply with the Geneva Conventions. And so the ultimate affect is not to have a fake court system, which is what President Bush set up four years ago, and have a reality criminal trial, one that Americans can be proud of.


    But, I mean, as a practical matter, how will he get this? Is he going to go — are they going to take him into federal court now? Or does the government have to, with any kind of certainty within a time frame, establish either a court martial or a different procedure for him?


    Well, at this point, the government has to let us know what they'd like to decide. I mean, we do think that the rule of law extends to Guantanamo, and there are a number of constraints placed on the government in that regard. And so we would ask them to move quickly for a fair trial under rules the Supreme Court has set forth.


    All right, Mr. McBride, you were on the other side of this case. What do you think the implications are for Mr. Hamdan and the other Guantanamo detainees?

  • ANDREW MCBRIDE, Former Federal Prosecutor:

    Well, first, for Mr. Hamdan, he still will be detained, I think, as a prisoner of war and probably tried in some manner. I imagine that the president — the president has said that he's looking forward to working with Congress to try and establish some procedures that he can live with.

    I think the larger issue here is the legalization of war, the judiciary saying that they're going to superintend a military tribunal to punish foreign combatants who violate the laws of war.


    And what do you mean, "superintend"?


    Well, that role has traditionally been the role of the commander in chief and the military itself. If a foreign force uses a flag of truce in the battlefield to fool our troops and then shoots at them, I don't think that our military needs to consult a judge before they punish that act. And I think that having the judiciary intervene in that and superintend that weakens our military.


    But you're saying that's what this ruling does?


    I'm saying that's what this ruling does, by emphasizing the role of the court in evaluating whether or not statutory criteria are met. I think the president, as commander in chief, can use military tribunals in the same way that he uses bunker busters.