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Jeffrey Toobin: 'Likely the government will win'

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CNN's legal analyst Jeffrey Toobin

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WASHINGTON (CNN) -- The Supreme Court will hear its first case arising from the government's anti-terrorism campaign following the September 11 attacks, agreeing Monday to consider whether non-U.S. citizens held at a U.S. Navy base in Guantanamo Bay, Cuba, should have access to American courts.

CNN anchor Wolf Blitzer talked with legal analyst Jeffrey Toobin about the issue.

BLITZER: Jeffrey, there's a lot of sense that this Supreme Court [is] pretty equally divided, 5-4, sometimes 6-3, on these kinds of issues. Is it a foregone conclusion what these justices might decide on a specific case like this?

TOOBIN: I don't think it's a foregone conclusion, but if you look at the record of this court, I think it's highly likely that the government will win this case. This is a court that's very deferential to the executive branch on the question of military issues, of foreign policy. This is a case that involves the government's conduct of military operations. On those kind of cases, it's likely, not certain, but likely that the government's going to win.

BLITZER: And there are all sorts of legal precedents involving World War II during a war time [when] the government could have extraordinary capabilities, extraordinary rights they might not have during non-war time. Is there an issue [about whether] there's a formal declaration of war? Would that be something the justices might have to weigh?

TOOBIN: That's one of the things. I mean, one of the interesting things about this case is that these issues really don't come up very often. And really, World War II is where most of the precedents came out.

The main case that this lawsuit is based on involves a very strange set of facts where some German civilians were helping the Nazis in China near the end of World War II. They were arrested over there, tried of war crimes over there, and then they brought a federal lawsuit in American courts.

And the United States Supreme Court said in 1949, look, this is a lawsuit involving foreign nationals. It takes place on foreign soil. They don't have the right to be in an American courtroom.

And that's essentially what the Bush administration is saying here. These are foreign nationals. They're being held in Cuba. This is simply not something that the American courts have anything to say about.

The other side of the argument is the American government simply can't hold people indefinitely overseas or here without charges, without access to lawyers forever. It's a very stark legal debate, and that's really what the court is going to take up.

BLITZER: And there are political aspects of this, as well. Several of those detainees are from friendly countries like Australia or Britain -- two allies in the U.S. war against Saddam Hussein and the war against terror. And they've been pressuring the Bush administration to at least let these suspects, these terror suspects, get some sort of adjudication outside of a military tribunal or some place with some actual charges being filed.

TOOBIN: It's political at several levels. It's political internationally, because, as you say, several of our closest allies, including England and Australia, have been saying, look, we're with you on the war on terrorism, but don't do this to our citizens. Also, it's political in terms of United States politics. One of the things that the Democratic candidates have been talking about is what they perceive as a crackdown on civil liberties.

One of the issues -- another set of issues that is starting to work its way through the courts -- [is] the USA Patriot Act, the great, big law that was passed in the immediate aftermath of September 11th, which restricted civil liberties in certain respects, improved security, according to other people. Those are the cases that are working their way through the courts as well. And the Supreme Court may get some of those cases before this term is over.

BLITZER: I interviewed ... a father of one of the suspects at Guantanamo Bay in Cuba, a Kuwaiti actually. The Kuwaiti father spent some time talking to me about his son. He says his son has no involvement in terrorism, and he simply made a mistake in going to Afghanistan and being at the wrong place at the wrong time, Khalid al-Odah. ... The Kuwaitis have been among the closest allies of the U.S. in this whole war against terror as well. And there are plenty of people in Kuwait who are pretty concerned about this.

... Bottom line, Jeffrey: How often do the politics of this spill over into the legal adjudication of a sensitive issue?

TOOBIN: Well, I think they are often present, but [for] this administration, you know, there is no greater priority than the war on terror and no greater enemy than al Qaeda and the people we were fighting over in Afghanistan. They simply are saying these are the equivalent, not exactly using this term, but they are the equivalent of prisoners of war, and we simply don't give them lawyers. We don't give them access to the legal process.

But, you know, as time passes and as the war shows no sign of ending, because this is not a traditional war, the political pressure will continue to rise to do something with these prisoners, either release them in the way that prisoners of war are ultimately released when wars are over, or give them some sort of legal proceeding. As of now, they simply have no rights, and that's why this lawsuit has been brought. ...

BLITZER: One of the complaints that is being raised, Jeffrey, as you well know, is that if Americans were held by a foreign government for prolonged periods of time in this kind of a circumstance without any charges being filed, without any legal rights, without any access to a lawyer, the U.S. would be shouting pretty loudly as well.

TOOBIN: Yes, they would. And, you know, this is really a case of victor's justice -- that, you know, when a nation is involved in a successful military campaign, one of the issues that they tend to resolve on their own is what to do with the combatants on the other side. Yes, we would be upset, but, you know, this is a significant priority. And, you know, with all due respect to that fellow and his son, you know, our government may have a different view of what his role was, other than perhaps just teaching and helping people over there.

The problem from our government's perspective is we're saying we're not even allowing any inquiry into the role of individual people. You have to take our word for it. The legal system is somewhat -- is sometimes reluctant to let governments do that. But when you have a circumstance where these are foreign nationals, where this all takes place on foreign soil, and they are held even on foreign soil today, this has traditionally not been an area where the American courts have been allowed to intervene.

BLITZER: And the Supreme Court...

TOOBIN: That's why the court is taking it up. It's a tough issue.

BLITZER: And making it a little bit more complicated. Yes, Guantanamo Bay is in Cuba, foreign soil, but the U.S. controls that tiny sliver at the Guantanamo Bay Naval Base, and that's the specific focus of this inquiry, this review by the U.S. Supreme Court.


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