Court Rules in Favor of Guantanamo Detainees
CHERYL CORLEY, host:
I'm Cheryl Corley, and this is Tell Me More from NPR News. Michel Martin is away. Coming up, a Roundtable of religious leaders talk about how the faith community can help people through tough economic times. But first, the Supreme Court undermined a major component of the Bush administration's policy in the so-called war on terror yesterday. In a five to four decision, the court ruled that detainees do have a constitutional right to challenge their detention in American courts. Joining us to discuss the ruling and its implications is Cully Stimson, he's a senior legal fellow at the Heritage Foundation, a Washington think tank, and he once served as the deputy assistant defense secretary for detainee affairs. Also joining us is Shane Kadidal. He's the senior managing attorney of the Guantanamo Bay Project at the Centre for Constitutional Rights in New York. Welcome to the program.
Mr. CULLY STIMSON (Senior Legal Fellow, Heritage Foundation, Washington): Thanks for having us.
CORLEY: Well Cully Stimson, let's begin with you. How much damage does this ruling do to the administration's efforts to keep Guantanamo Bay detainees confined?
Mr. STIMSON: First off, I want to congratulate Shane and their work. Clearly that's a victory for them, and we've all represented folks who are not so popular, and I think it says that the rule of law rules and the administration must now take this decision and move forward. It's clearly, in answering your question, Cheryl, another punch in the gut to this administration's legal rationale for setting up Guantanamo in the first place.
CORLEY: And so what is the effect going to be on the military's current system for reviewing detainee status?
Mr. STIMSON: Well, I think it's dead, and it now moves to the federal district court, probably here in Washington, although that's not for sure, where detainees and their lawyers will challenge the administration's detention decision and the administration will I think, very quickly, have to pull together the evidence they believe, justifies the determination of their unlawful enemy combatants, and then the judge will have to craft a set of rules in an administration hearing and have a hearing for each detainee and then decide whether or not to release him or allow him to be helped.
CORLEY: Well Shane, you got your congratulations already from a colleague. The Center for Constitutional Rights was involved early on in challenging these detentions. Briefly explain the organization's role in representing detainees.
Mr. SHANE KADIDAL (Senior Managing Attorney of the Guantanamo Bay Project, Center for Constitutional Rights): Sure. Well six and a half years ago, the Center for Constitutional Rights brought the very first case in federal court on behalf of detainees in Guantanamo, and at first, the administration had successful argued that Guantanamo was effectively a legal black hole. That anyone they held there, who wasn't a U.S. citizen, had no right of access to the federal courts to challenge whether they were lawfully held.
And what the Supreme Court did yesterday was basically reaffirm the outcome of its 2004 decision that said that we could go forward in federal courts and argue that our clients, the detainees there, weren't lawfully held. Now between now and then, the Congress had acted twice to try to strip away the right of the courts to hear these cases. Most recently with the Military Commissions Act and what the court did yesterday was said that part of the Military Commissions Act was unconstitutional.
CORLEY: So how specifically is a ruling going to affect the folks that you represent?
Mr. KADIDAL: Well, you know, we've waited six and half years for a day in federal court when we could actually get in front of an impartial judge and argue that, you know, either in the law of the facts in our client's individual cases that they didn't belong in detention. And now that day is much, much closer. You know the government's strategy in these cases has always been one of delay and we expect that they'll try to do things to create more delays and essentially kind of run out the clock on the administration so that they don't ever have to get in front of a judge and try to justify with evidence, you know, the continued detention of our clients. You know, our goal is to make that happen as possible to get a hearing in front of a judge where we can actually force the government to present some evidence in front of an impartial arbitrator.
CORLEY: Well Cully in his dissent, Justice Antonin Scalia says that the court's decision and I'm quoting him "will almost certainly cause more Americans to be killed." I was wondering if you thought that was a fair characterization?
Mr. STIMSON: It's not necessary off the mark, but it's too early to tell. Certainly Shane and I probably both agree that there are a certain number of detainees in Guantanamo who probably are unlawful enemy combatants and are properly classified as such. We know as a matter of fact that at least 36 detainees who have been released from Guantanamo have gone back to the battle field and taken up arms against Americans or coalition forces. And so I suspect that Justice Scalia is simply looking into the future and thinking that well, some of these guys are going to be released and some will go out and kill Americans.
There's a flip side to that Cheryl, and that is think of this decision like any decision as one that creates incentives. What incentive now does the military have in the war that's ongoing to capture people for intelligence purposes as opposed to just sending in a predator drone and killing them? So there may be blood on both sides, but it's too early to tell.
CORLEY: Shane, do you agree first of all that folks are going to be back out in the field, you know attacking American forces?
Mr. KADIDAL: Well absolutely not. With all due respect that statistic is utter nonsense. There's a great report from the Seton Hall Law School that details, you know, breaking down prisoner by prisoner, the military's claim that 30 of the detainees have returned to the battle field and the government includes the three English detainees who've been released and haven't been in any sort of trouble in England since then, but participated in the making of a movie about their experiences, and that was cited as sort of militant activity against the United States.
Similarly the five Chinese Uighurs who were sent off to Albania live in a squalid refugee camp, spoke to the New York Times around the time that President Bush was visiting Albania and complained about what had happened to them and their separation from their, you know, any sort of community there in Albania. Those five were listed as people who had, you know, quote unquote, "returned to the battlefield." You know there have been about 770 men held at Guantanamo and over 500 of then have been released, and you can count on the fingers of your hands the number who have even faced any sort of significant charge once they've been sent home.
It's very clear that the vast majority of people were picked up by mistake, either in exchange for bounties or you know captured by parties other than the United States and turned over to us for money. And you know, that sort of system typically results in a lot of false positives when you're doing mass profiling sweeps when you're paying people, you know, hungry villagers or war lords, to turn people over. It's not surprising that most of the people there shouldn't have been there in the first place.
CORLEY: If you're just joining us, you're listening to Tell Me More from NPR News. We're talking about the Supreme Court's ruling on Guantanamo Bay detainees with Shane Kadidal of the Center for Constitutional Rights and with Cully Stimson of the Heritage Foundation. Cully, we have to note that you came under a lot of criticism towards the end of your tenure for suggesting that firms providing defense attorneys for Guantanamo Bay detainees be boycotted. You later apologized for those remarks, but did you think that even prior to this ruling, that Guantanamo Bay detainees already had too much access to American courts?
Mr. STIMSON: Not at all. In fact, we all misspeak at some point in our career and indeed the day that I gave that very interview, I gave four or five others. One of which I praised the Guantanamo detainees' lawyers and my good friend, Charlie Swift, who represents Mr. Hamdan. Charlie and I served as navy Jags together right after September 11th as senior defense council, and so this whole Guantanamo war on terror, detention issue has become overly politicized, and you know, my comments are my comments, but they were certainly not taken in the full scope the comments I'd made.
Look, I think that organizations like Shane's and others who have fought the fight here have something to be proud of. The Supreme Court has spoken now. They say essentially that 45 square miles tract of land we have now in Gitmo is no different than Maryland, Virginia, or Kansas. It's essentially sovereign U.S. territory and the constitution applies. We have to move forward with that. I am convinced because unlike the Seton Hall study which was written by defense lawyers for detainees, I have seen all the classified evidence on all these guys, and it is somewhat insulting to the military to suggest that they're so stupid that they can't figure out who the enemy is, and they don't know who to capture. That's just incorrect. Bounties have been paid throughout history in warfare for people to be detained. There are enemies of our country at Gitmo. Are all 270 remaining ones there the enemy of our country? I don't think so. But for Shane to suggest that the vast majority are simple little sheep herders, is not based on all the evidence that's available, but he hasn't seen all the evidence that's available. And that's certainly one of the problems.
CORLEY: Well, let me interrupt here because Shane, you say that you are anxious for hearings to occur although you are not sure when or if that will actually happen. Should Americans be concerned that American courts may not even be equipped to render a sound judgment on these detentions?
Mr. KADIDAL: No, not at all. American courts have been fit to try you know al-Qaeda members for the embassy bombings, for the 1993 World Trade Center bombing. They can handle classified information. They can make these determinations as well as any other form can and most importantly they will be legitimate determinations. They will be respected by the world. You know, with respect to the last point that Mr. Stimson made, you know, my favorite sort of analysis of Guantanamo comes from Major General Jay Hood who was a former commander of the base and he told the Wall Street Journal, quote "sometimes we just did not get the right folks" unquote. But he said that innocent people remain at the base because nobody wants to be the one to sign the release papers because there is no muscle in the system, meaning that there is no one to hold the executive branch accountable. And the federal courts are supposed to be that muscle and hopefully yesterday's decision ensures that they will be.
CORLEY: Let me ask you...
Mr. STIMSON: Cheryl, I actually...
CORLEY: I'm just going to have to just ask you real shortly, yes or no? Do you think that there will be a more pragmatic detention policy ever worked up here? Yes or no?
Mr. STIMSON: Not in the remaining part of this administration.
CORLEY: All right. And Shane?
Mr. KADIDAL: I agree. I think that the administration will try to run out the clock and leave this mess for the next administration to clean up just like the war in Iraq.
CORLEY: Shane Kadidal is the Senior Managing Attorney for the Guantanamo Project at the Center for Constitutional Rights. He joined us from NPR's New York bureau and Cully Stimson is a Senior Legal Fellow at the Heritage Foundation. He joined us from Washington. Thank you both.
Mr. STIMSON: Thank you.
Mr. KADIDAL: Thank you.
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