Justices To Learn How Israel Handles Detainees
RENEE MONTAGNE, host:
When the Supreme Court begins its new term, one of the biggest cases will test whether detainees at Guantanamo Bay, Cuba have the right to challenge their detentions in federal court.
The issue involves both constitutional questions and pragmatic ones. So a brief filed by Israeli scholars may be of particular interest to the justices.
NPR's Nina Totenberg reports.
NINA TOTENBERG: The Israeli scholars include law school deans and other legal experts, among them current and former military judges.
None, of course, is a member of the U.S. Supreme Court bar, so NYU law professor Stephen Schulhofer is their counsel. The point of the brief, he says, is to provide the court with information about how Israel has dealt with detainees and terrorism. The brief notes that Israel has sustained staggering losses, with more than a thousand Israelis killed and 6,000 injured in terror attacks overall since 2001.
On a per capita basis, that would translate in the U.S. to 49,000 deaths and 290,000 injuries. And yet, the Israeli scholars say, Israel has a system that affords far more rights to detainees than we do at Guantanamo.
Professor STEPHEN SCHULHOFER (New York University): We identified eight crucial safeguards. Every one of them has proved to be workable. None of the eight is provided to Guantanamo detainees.
TOTENBERG: The eight safeguards are: prompt review by independent courts; access to a lawyer for the detainee within a month of capture; a bar to coerced testimony, including, in Israel, a ban on stress positions and sleep deprivation; judicial review of classified evidence to determine if secrecy is justified; and periodic review of the detainee's status.
The way the system works in Israel is this, according to the brief. Supposing a terrorist suspect is seized during a shootout in Israel or elsewhere, he would be brought before a judge within 14 days. In most instances a lawyer is provided at the first hearing, but in no case may the detainee be without a lawyer for more than 34 days.
If there's classified evidence, the judge reviews it. After the judge's decision, the case can be appealed all the way to the Supreme Court. If the detention is upheld, the case is completely reexamined every six months. And at any stage the court is required to release a detainee if he's not a threat, even if the detainee once was a fighter. If he's no longer seen as posing a likely danger, he must be released.
The Bush administration contends that the Guantanamo detainees do have access to an independent review of their status. These are hearings before panels of three military officers. But unlike in a court-martial, there's no professional and independent group of judges separate from the chain of command. Rather, these combat status review tribunals, called CSRT's, are appointed through the chain of command.
Professor Stephen Schulhofer.
Prof. SCHULHOFER: One of the biggest criticisms of the CSRT is that it deliberately sets aside the safeguards of independence that we view as essential in our own court-martial system.
TOTENBERG: What's more, the Guantanamo panels do not see all the evidence. They see summaries and even summaries of summaries of evidence. And even when they recommend that a detainee be released, that is only a recommendation. A second or even third panel can be and has been convened with different personnel to achieve a different result.
The Israelis, according to their brief, have a system that from first hearing to Supreme Court review takes only a few months. It's not a civil libertarian's paradise, they say, noting that in most cases the detention is upheld. But not always.
Nina Totenberg, NPR News, Washington.