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Q&A

Legal Battles in the War on Terrorism

Aired December 19, 2003 - 14:30:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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MICHAEL HOLMES, CNN INTERNATIONAL ANCHOR (voice-over): A step back for the Bush administration's legal war on terror. The U.S. federal appeals court rules terrorist suspects held on foreign soil deserve access to lawyers and the American legal system.

UNIDENTIFIED FEMALE: They have so far proceeded as if they alone -- the executive branch alone -- can make the rules, enforce the rules and answer to no one.

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY: What I would say is that the president's most solemn obligation is protecting the American people.

UNIDENTIFIED FEMALE: It is a very bad day for the administration, but it is a very good day for the constitution.

UNIDENTIFIED FEMALE: When you are at war and during hostilities you have to detain individuals who are trying to harm U.S. citizens.

HOLMES: On this edition of Q&A, the legal battles in the war on terror.

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HOLMES: And welcome to Q&A. Some setbacks for the Bush administration in the U.S.-led war on terror. A U.S. federal court ruling that the military cannot continue to deny access to lawyers by more than 600 detainees being held in Guantanamo Bay, Cuba. But while the court in San Francisco says they should have attorneys, another court has rules that the prisoners have no rights to the American legal system. And this isn't the only court battle over the Bush administration's war on terror.

With us from Washington, Ruth Wedgwood, international law professor at John Hopkins University and advisor to the U.S. Department of Defense. Thanks for being with us.

Also in the U.S. capital, Elisa Massimino, director of the Washington office of the Lawyers Committee for Human Rights.

We are also opening up the phone lines to hear what you have to say. The phone number 1-404-827-1010. Write that number down and we're not paying.

All right. Let's get things going here. Ruth Wedgwood, the rulings by no means are final decision on the Bush administration's policy in this regard. But my goodness, it does show that they are willing to challenge the administration's procedures.

RUTH WEDGWOOD, INTERNATIONAL LAW PROFESSOR, JOHN HOPKINS UNIVERSITY: Well it wasn't a good hair day for the administration yesterday. It is true. We have double-barreled rulings. Cynics even think the 9th Circuit might have read the 2nd Circuit's opinion before, given the time zone difference. In the 2nd Circuit case, concerning Jose Padilla, what the court did by a 2-to-1 split decision was to say that Congress in a 1971 statute called the Nondetention Act had forbidden detention of any American citizen unless there was an act of Congress authorizing it. And where the majority and minority disagreed was whether the declaration of the use of force against al Qaeda had been sufficient to be that act of Congress.

In the 9th Circuit case, Judge Steve Reinhardt, who is a famous old liberal, a nice man, ruled for the majority that Guantanamo as a Naval holding station in Cuba was actually part of U.S. territory. It was sovereign U.S. territory. And, therefore, under existing case law of Supreme Court she could have habeas corpus. This will be a surprise to Fidel Castro.

HOLMES: Elisa Massimino, if we could bring you on the debate now. This certainly must intensified the clash, if you like, between the executive and judicial branches. Where does this ultimately get settled?

ELISA MASSIMINO, DIRECTOR, WASHINGTON OFFICE, LAWYERS COMMITTEE FOR HUMAN RIGHTS: Well, I think that one of the things this court case really stands for is it reinforces the role of each branch of government in making these decisions. Nobody disputes that the executive has enhanced powers during times of war. But the powers aren't unlimited. And that is one of the things that the 2nd Circuit and the 9th Circuit as well I think seems to be saying here. There is a role for the courts. And there is also a role for Congress. The 2nd Circuit, in particular, said that the constitution doesn't give the president these powers.

And, in fact, the Congress has spoken to this very issue on the ability of the executive to detain U.S. citizens. It has said, no, it can't do it without statutory authorization. And that was what the court was reinforcing here. So, yes, many of these cases are working their way through the courts now. But I think one of the things that these cases yesterday stand for is that there is a role for all three branches of our government. I think that is a very healthy development.

HOLMES: Ruth Wedgwood, I am curious whether you think there is likely to be some sort of eventual legal challenge to the Bush administration's decision to arbitrarily really call those at Guantanamo Bay detainees or enemy combatants, very seriously avoiding and cleverly avoiding the use of the word prisoner of war and, thereby, avoiding all the benefits and protection that goes with that. Do you see a court challenge in the future on that?

WEDGWOOD: Well, if habeas corpus were extended to the battlefield detainees held by the U.S. at Guantanamo, or by the same logic, frankly, anywhere in the world, then one of the kind of substantive claims I am sure that a detainee would like to make is that a court should order the president on how to balance the reciprocity that is necessary in enforcement of the laws of our own conduct, conflict. One of the points about Geneva has always been that al Qaeda doesn't follow Geneva. The Taliban didn't follow Geneva. And all of treaty law it depends upon reciprocal performance.

HOLMES: But isn't it a vacuous moral argument to say that? I mean, to say, well, they don't do it so why should we. Isn't that, you know, lowering oneself in the debate in general?

WEDGWOOD: Well, unfortunately, in international law there is no uber government to assure that the other side performs. The problem with al Qaeda has been that it violates the laws of our own conflict in the sense of targeting civilian targets with weapons of mass destruction. And because of that, that is what puts the administration to the dilemma of how to prevent future attacks. That is why criminal law is not well suited because you can only go to court in a criminal case very late in the process. You may never have -- you may have very good intelligence that an attack is impending, but not enough that is admissible in a common law trial to actually arrest the person criminally until after the attack has already occurred.

HOLMES: Indeed, Elisa, I will bring you back into the mix now. In one sense, do you think that the Bush administration has really lost a very important point by the courts very willingness to challenge its exclusivity that these decisions are at the whim if you like of the executive branches. Is that a loss for the Bush administration?

MASSIMINO: Well, clearly it is, clearly it is. And, you know, one of the things that is striking about these cases is that the breadth of people and groups who are weighing on the side of expressing concern about the overreaching of the executive branch is really quite striking. We now have former government officials, former military officers weighing in saying, you know, respect the Geneva Conventions. This is a really important issue for our own military to uphold the Geneva Conventions.

You have even former officials in the Bush administration, this Bush administration Viet Dinh, and Michael Chertoff, a federal judge now, saying we really need look at a process for determining what happens to these people both at Guantanamo and also with the enemy combatants here in the United states. And particular, the U.S. soldiers, like Jose Padilla, that it is just not tenable to assert executive power, to hold a U.S. citizen incommunicado in detention, indefinitely without charge. The courts now said that that can't happen.

HOLMES: We've got some callers on the line. I want to bring them into the mix as we get them. Ahmed (ph) in Germany, go ahead. What is your comment or question?

CALLER: Yes, my comment. Yes, hello.

HOLMES: Yes, go ahead.

CALLER: Yes, my comment. Those people cannot be there just for the end of their lives. They should be jailed, whatsoever the outcome. If they are guilty, they should be punished. There is no doubt about that. But if there are innocent they should be free. There is no reason that to keep them without any trace (ph).

HOLMES: All right, Ahmed (ph), let's put that to the guests. Ruth, why don't we start off with you.

WEDGWOOD: Well, the normal prerogative to hold a combatant who has been captured on the battlefield is that if you let him lose he would go back to fighting, the war would resume. The attacks would resume. But I quite agree that there has to be a process to make sure that there are no mistakes in capture. But that has not traditionally, in war time, involved federal courts, articles, free courts, civilian courts. That is a norm that's largely been enforced by the reciprocal interest, as Elisa says, of countries in assuring that good practice is maintained.

I think the dilemma with al Qaeda is that because they are a private group there is no state that can be demobilize them, even Osama bin Laden probably could not demobilize what he has set in motion. And probably we should in the medium term, or short term, think about a process where we would look at each individual and determine if he is still dangerous. Perhaps the burden of proof should be on him if he has been caught as a combatant to show that he is no longer dangerous.

But if you had a young man who says if you let me out, I am going to go right back to killing Americans, or killing Germans, or Kenyans or Turks or Indonesians, obviously, you can't just stay to him, gee, we don't have admissible proof against even a common law court. It is all hearsay or it is all obtained without police warnings, therefore, go free. That simply is not tenable in the human right to be free from private violence.

HOLMES: Elisa Massimino, I will get you to speak to that. And also to this, when you've got some courts supporting the administration and others not, where does it end if the Bush administration says, well, this is what we are going to do. And the courts are saying, well, not so fast. Who is going to be the final arbiter?

MASSIMINO: Well, the Supreme Court will be the final arbiter in cases where the lower courts are disagreeing. That's clear. And I think that is where we are headed in a number of these cases. Ruth makes some very important points in response to your prior question. Luckily, though, our choices are not between, you know, letting people who have declared that they want to do harm to Americans go and keeping them in a completely legal limbo as we are doing now. I mean, one of the things I think is really quite distressing here is that there is a legal framework for dealing with some of these people, particularly the ones at Guantanamo that the administration did not take advantage of it. And that is the Geneva Conventions. The Geneva Conventions don't require that combatants like many of those are Guantanamo surely are be released.

It doesn't even require that they get access to federal courts. Now unfortunately, for the administration that is the situation that they are in, where there are courts now in the United states saying that these folks all need to get lawyers and get into the federal courts. But if the administration had put in place immediately -- and they still could do it, article IV hearings under the Geneva Conventions, well, you could sort out the sheep from the goats and release people who had no business being there as many from Secretary Rumsfeld on down have said, there are people there who have no business being there. And some of them have now been released. Then the administration wouldn't be put in this box right now.

HOLMES: All right, Peter from Hungary, something to say.

CALLER: Well, it seems to me that if the United States is unwilling or unable to afford the same protections to everybody who comes within its power that it normally affords to American citizens then the American legal and political system is just proving to be a fraud.

HOLMES: OK, interesting comment there. Christiane in Vienna, you go ahead

CALLER: I think it is quite obvious that the classical civil laws, the penal laws are inadequate to face such challenges like al Qaeda and also the traditional logic to war, warfare, which are finding (ph) the Geneva Conventions are inadequate. So we would actually need a completely new legislation to face such as new kind of war. If there were any legislation planned.

HOLMES: All right. Some good comments there. Ruth, we don't have long. But I just want to get you to sum up where you think all this is headed and bring in what some people are concerned about there.

WEDGWOOD: Well, let me build on what Elisa said earlier. I would be delighted if there were a bunch of creative proposals from the human rights community and others of what Congress should do. Up until now, it has been the Bush administration taking the precautions, everybody else reacting. But a complete dearth of any positive proposals for alternative reasons -- it is criminal law or nothing. And, frankly, I think now the ball is in Congress' court. It is the human rights communities court to say how would they handle this problem. But simply saying that it is a criminal trial, retrospective after the attack is insufficient.

HOLMES: All right, I wish we had more time. We do not. Ruth Wedgwood of John Hopkins University, also advisor to the U.S. government. I want to thank you. And also Elisa Massimino, Lawyers Committee for Human Rights. I really appreciate both of your for coming in and discussing this. It is not an issue that is going to go away. That is this edition of Q&A. Before we go, though, want to bring you some more of what you have written to us on our program about whether Saddam Hussein should receive the death penalty, Simon from the United Kingdom wrote: "Executing Saddam Hussein will not be of any benefit o the United states and it allies. Hs blood cannot pay for the blood of the soldiers and the workers who were killed in the cause of liberating Iraq.

Abba from Nigeria said, "Former Iraqi President Saddam Hussein deserves and must face the death penalty for atrocities committed while in office.

While Uchina (ph), also from Nigeria wrote: "I am not one clamoring for the death penalty, I believe it is a cowards way out. Saddam should be locked in a prison so he can feel the treatment meted out to his own people. Don't forget, you can always e-mail your comments and questions to Q&A@cnn.com.

More news in a moment. Don't go away.

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