NEAL CONAN, host:

From NPR News in Washington, D.C., I'm Neal Conan, and this is TALK OF THE NATION.

Last week, the United Nations' Human Rights Commission declared that the U.S. prison at Guantanamo Bay should be closed, and that those held there either be charged with a crime or released.

Manfred Novak is U.N. special rapporteur on torture.

Mr. MANFRED NOVAK (U.N. Special Rapporteur on Torture): People who have detained there for many years, three to four years, without haven't been brought to any judge, haven't been charged for any crime, amounts to a deprivation of liberty that must be considered as arbitrary.

CONAN: An update on conditions at Guantanamo Bay, and the legal limbo of detainees. Plus, on our Opinion Page this week, an historian of sleep argues that an uninterrupted night's rest is a modern invention.

It's the TALK OF THE NATION after the news.

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

The Bush administration describes the men it holds at Guantanamo Bay as the worst of the worst, dangerous men with information vital to the war on terrorism. Several new reports paint a very different picture of those enemy combatants. Many may, in fact, be neither enemies nor combatants, and could be guilty of no more than being in the wrong place at the wrong time. And whether they're just unlucky or diehard terrorist, all of them are stuck in legal limbo.

Set up soon after 9/11 to house prisoners from the war in Afghanistan, Guantanamo Bay has grown from the temporary Camp X-Ray into the multi-million dollar Camp Delta. About 500 men remain. There are no female prisoners at Guantanamo Bay. Their legal standing can be described as surreal. They are not, the administration insists, prisoners of war. Only a very few have been charged with any crimes. They may or may not be within the jurisdiction of U.S. federal courts. None knows when or even if he will ever be released.

The Bush administration says that all are treated humanely and that none is tortured. Many international organizations, most recently the U.N. Human Rights Commission, disagree. They demand the prisoners be either tried or released, and that Guantanamo Bay be closed.

Later in the program, sleep is on the TALK OF THE NATION Opinion Page this week. An historian argues that Thomas Edison has a lot to answer for.

But first, a fresh look at Guantanamo Bay. If you have questions about conditions at the prison, who's there, who isn't, or what laws apply, our number here in Washington 1-800-989-8255. That's 800-989-TALK. The email address is talk@npr.org.

Our first guest returned from Guantanamo Bay over this past weekend. Con Coughlin is defense and security editor for Britain's Daily Telegraph, also the author of America Ally, Tony Blair and the War on Terror. He joins us from his home in London.

Nice to have you back on the program, Con.

Mr. Con COUGHLIN (Author, America Ally, Tony Blair and the War of Terror): Great to be with you, Neal.

CONAN: Most of us think of Guantanamo Bay and the image we get, I guess, is the old Camp X-Ray; the idea of these outdoor cages.

Mr. COUGHLIN: Yes. Well, those cages are now completely overgrown with ivy, and the only thing you find in cages are the things called banana wrap, which are one of the local delicacies in Guantanamo. But on a serious level, the American military has turned Guantanamo into a modern prison camp. I mean, that's what it is. There are five separate camps now. And each camp holds a different category of prisoners, from those that are fully compliant with the prison camp regime, to those sort of hard-line, hardcore al-Qaeda people who just won't have anything to do with it; and are basically indulging in a dirty protest, and just refuse to have anything to do with it.

So, it, but I think the thing that really struck me when I went to Guantanamo last week, is the size it. I mean, this is like a small American town. The guards live in suburban streets, and things like that, in very nice houses. The conditions in which the prisoners are held have vastly improved from those first harrowing images we saw of the people in their orange jumpsuits, being led around chained to guards. So, it has evolved.

And I think the impression I took away from Guantanamo is that it is going to stay a detention facility for a very long time to come.

CONAN: Did you get a chance to talk to any of the prisoners there?

Mr. COUGHLIN: No, I wasn't allowed to. I could see them, but we weren't allowed to talk to them by the camp authorities.

CONAN: As it was described to you then, I understand that their conditions varied quite a bit, depending on how much they're willing to cooperate with their, with their jailers.

Mr. COUGHLIN: Yes. I mean, the military officials I spoke to, who previously had no experience of detaining prisoners, said that basically the, it is modeled on what goes on inside a federal state, a federal penitentiary in the United States. And so, a prisoner that doesn't behave, who doesn't abide by the rules is treated very harshly, indeed. They are held basically in solitary confinement with very, very few personal effects. They are allowed three 30-minutes exercise periods a week, and that's it really.

I mean, but a lot of these people, as I say, are diehard al-Qaeda fighters. I mean, they make no bones about it. In their interrogations, they say they are committed to al-Qaeda; if released, they would continue their attacks against the Americans. And in several cases, they've tried to attack and seriously injure the guards who are holding them.

CONAN: Mm-hmm. Which has prompted several of the incidents, of which we've read.

Mr. COUGHLIN: Well, that's right. I mean the guards are only human. And, you know, I think when you hear, I mean some of the things I've heard that went on, so as far as the prisoners were concerned, the way they tried to sort the guards, and the manner by which they do so, which I won't repeat over a civilized radio program. But it's, you know, you can see why the guards, who are only human have reacted, have over reacted in the way they have.

CONAN: Hmm.

Mr. COUGHLIN: I did speak to the camp commander who said that he'd been there two years. He had investigated 15 allegations made against the guards; and of those, only five in his view stood up. And disciplinary action had been taken against the guards. So given that they're holding 500 people, 24 hours a day for over a four year period, you know, five upheld complaints is not excessive.

CONAN: What about the hunger strikers of whom we've read, who are, we've also read, forced fed.

Mr. COUGHLIN: Well, force feeding, as you probably know Neal, has been deemed by the United Nations to be torture. Basically, the United Nations argued that the detainees had the right to take their own lives. Now, the camp officials say that it's their duty to protect life, to preserve life. And so some of the detainees are being forced fed.

Now, I asked a lot of questions about this, as you'd expect.

CONAN: Mm-Hmm.

Mr. COUGHLIN: At the height of the force-feeding, at the height of the hunger strike, there are a hundred detainees refusing food. When I left at the end of last week, there were five detainees still being force-fed. Of those, only one of the detainees had been on a hunger strike since it first started last August.

CONAN: Now, four years on, just about five years on for some of these guys, do these prisoners still have useful information?

Mr. COUGHLIN: Well, that's what the authorities say at Guantanamo. I mean, basically, there are two big arguments made by American officials for continuing to detain these people, who were picked up on the battlefield in Afghanistan in the fall, early winter of 2001. The first is that if released, they would launch further terror attacks against the United States and coalition allies. The second is that they continue to provide valuable information to help in the fight against global terrorism.

And certainly, you know, from my own domestic perspective, they gave me information that related to the London bombings that took place in July, last year. And the American officials I spoke to insist that these detainees are still capable of providing current, relevant intelligence that can help fight in the global war against terrorism.

CONAN: And we've also read of a dozen or so, at least according to the Department of Defense, who have after being released from Guantanamo Bay, return to the battlefield and have been subsequently picked up in other operations. But again, not a lot of documentary evidence for that.

Mr. COUGHLIN: No. I think the most bizarre case I heard was of a former Afghan fighter who received battlefield injuries and was treated by the medical staff at Guantanamo. They have a very state of the art medical facility there and he was fitted with a prosthetic leg. He was then released because he was deemed not to be a security threat. I think 250 out of the original 750 detainees have now been released, but this individual, with his brand new prosthetic leg was found attacking Americans in Afghanistan a few months after his release.

NEAL CONAN, host: Your most recent book is about the alliance between the United States and Britain. Tony Blair, very loyal to George W. Bush, nonetheless, feel that Guantanamo Bay is a liability.

Mr. COUGHLIN: Yes, well I think this is again shows the difference in approach between Europe and the United States. Of course, you know, the Untied States has suffered a far more serious attack then Britain or its allies in Europe. But yes, you're quite right, Tony Blair who has been very steadfast in his support for President Bush since 9/11 does beg to differ with him on the issue of Guantanamo.

And, of course, remember, Tony Blair was previously a lawyer before he became Prime Minister and his view is that it is legally untenable, you either try this people, you've changed the law so you can try them or you release them, or you find another way to deal with them like send them back to their home countries.

CONAN: Con Coughlin, thanks very much.

Mr. COUGHLIN: My pleasure, Neal.

CONAN: Con Coughlin, defense and security editor of The Daily Telegraph, published, of course, in Britain. He is also the author most recently of American Ally Tony Blair and the War on Terror and he joined us by phone from his home in London.

With us here in Studio 3A is Corine Hegland, reporter for The National Journal, who's written another count of what's been going on at Guantanamo Bay and one of the things that you've discovered in your account in the NATIONAL JOURNAL Corrine is enemy combatants, in fact you say there's some evidence to believe that a lot of the men being held at Guantanamo Bay were neither enemy nor combatants.

Ms. CORINE HEGLAND (Reporter, The National Journal): Yes, that's accurate. The majority of the men in Guantanamo Bay are actually not accused of having taken part in hostilities against the United States.

CONAN: So not picked up on the battlefield.

Ms. HEGLAND: Not picked up in the battlefield. The majority were picked up by third parties and the largest single group was actually picked up in Pakistan by Pakistani third parties who then turned them over to Pakistani authorities who held them in prison and then gave them to the United States.

CONAN: Yes, and others were in fact turned over by the Northern Alliance, a group that was battling the Taliban before the United States got into the war.

Ms. HEGLAND: Yes, our local allies within Afghanistan also captured some men and turned them over to the United States as well. Some of those people the Northern Alliance captured has surrendered on the battlefield to the Northern Alliance. Others came in, in drips and drabs from all other areas.

CONAN: So it's possible that-your story's arguing that some of these men may in fact be telling very elaborate and well told lies about what they were doing there in Afghanistan in the first place, or in Pakistan. But that in fact if you go in and check their stories, at least according to what their families say, there's reason to believe that some of them may be right.

Ms. HEGLAND: That's accurate, the lawyers-most of the men in Guantanamo Bay now have a petition pending in Federal Court in which they have asked for a Federal Judge to review their case. Those petitions have been brought by about 500 volunteer American lawyers and many of those lawyers have gone overseas to meet with the men's families before meeting with the men. The stories that the families told those lawyers matched what the detainees are telling US authorities now.

CONAN: We'll be back with more about this report in the NATIONAL JOURNAL, we'll also be talking with Robert Chesney, a law professor at Wake Forest Law School who teaches about National Security law and take your calls about Guantanamo Bay. 800-989-8255, e-mail is TALK@NPR.ORG. We'll be back after the break. It's TALK OF THE NATION from NPR News.

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CONAN: This is TALK OF THE NATION; I'm Neal Conan in Washington. We're talking about Guantanamo Bay. A recent UN Human Rights Commission Report calls for all terror suspects held at that prison to be tried with a crime or released and the prison to be closed. Our guest is Corine Hegland, a law professor, excuse me, Corine Hegland, who's a reporter for the NATIONAL JOURNAL and if you'd like to join the conversation our number is 800-989-8255, 800-989-TALK, e-mail us Talk@NPR.org. Let's get another caller on the line. This is Evie. Evie calling us from Boise in Idaho.

EVIE (Caller): Hi.

CONAN: Hi, go ahead you're on the air, please.

EVIE: Well, first, I want to say that I'm appalled at what my government has done and I'm just horrified that we haven't charged or released. I agree with the UN and I want to know, have the names of the detainees, the prisoners down there, ever been released.

CONAN: Corine?

Ms. HEGLAND: Not formally, no. Many of the names have come out through court proceedings either brought by the men or by their families. But the US government, so far, has declined to release those names.

CONAN: There also have been well over 100 men who have been released from Guantanamo Bay, have they also explained who some of the other being held people were?

Ms. HEGLAND: No. When men are released, their released an anonymous statement saying so and so was transferred to, say the (unintelligible) government today. None of the names have ever been formally released.

EVIE: May I ask another question?

CONAN: Sure, go ahead, Evie.

EVIE: Where are they released?

CONAN: Where are they released?

EVIE: Yes.

CONAN: Where are they released?

Ms. HEGLAND: Largely to their home countries. Early on there were one or two large batches of men who were sent home to Afghanistan and Pakistan. Since then men have been released to the UK, Australia, Denmark, and then a number of Middle Eastern countries. Some have been transferred for continued detention in their home countries and others have been outright released.

EVIE: Thank you very much.

CONAN: Thanks very much for the phone call.

In terms of the stories that these men tell about where they were, what they were doing when they were picked up for-by various people and then eventually found their way to Guantanamo, what sources are you using, or were you left believing them?

Ms. HEGLAND: What I did is that I looked at the Federal Court files. The Defense Department has declined to release names or information about these men, but by virtue of the cases that their lawyers have filed in court, the Defense Department has had to file evidence records of about 20 to 60 pages long on each individual man. And this consists of what the man told his government tribunal that decided he was an enemy combatant and the government's evidence against him.

And for the most part, the stories match up. What the men tell their tribunal matches the charges against them. When those diverge, then it's often another detainee has fingered the man, or he may be lying, it's not clear. But they don't actually diverge very often.

CONAN: Some of the accounts that you have in your story, while surreal doesn't seem to contain it, there's a man who says finally after hours and hours and hours of questioning yes I saw Osama bin-Laden five times including twice on television.

Ms. HEGLAND: That's accurate. Somebody had fingered him as a bodyguard for Osama Bin Laden. He says he was not a bodyguard for Osama Bin Laden and the interrogators pushed him and pushed him, and pushed him, and pushed him and then finally he said fine, I saw Bin Laden five times. Three times in Al-Jazeera and twice on Yemeni News. And after that, the Interrogators dug in some more and some more, and some more and eventually they got this detainee admitted to knowing Bin Laden. But he didn't, he just say him on television.

CONAN: Yes, but that's just strange belief that anybody would-it's not useful to put information that dumb in somebody's interrogation file.

Ms. HEGLAND: There's somebody else who slammed his hands on the table after a very long interrogation and said, fine, you've got me, I'm a terrorist. This man is an alcoholic Saudi. His interrogators knew it was a sarcastic admission, but the government tried t use it against him later. Detainee admitted he is a terrorist. He told his interrogators and then interrogators sought out a US military officer to say, hey, this was sarcasm, it's not a confession.

CONAN: Let's get another caller on the line. This is Tim. Tim calling us from Miami.

TIM: Hello, greetings to you and thanks for taking my call.

CONAN: Sure.

TIM: I have two related questions. First is how the US finds itself running a detention center in of all countries, Cuba. And next, what moral or ethical grounds do we have to hold anyone that's not a prisoner of war, without charge.

CONAN: First question, Cuba, there's a lease on Guantanamo Bay.

Ms. HEGLAND: We have a long standing with Cuba for which we pay a certain amount of money each year and that lease can only be broken with the cooperation of both parties, the United States and Cuba.

CONAN: Cuba, it should be pointed out, does not cash the check.

Ms. HEGLAND: Yes.

CONAN: And the other question?

Ms. HEGLAND: I'm sorry.

TIM: The other one is, did you guys get it?

CONAN: Yes, it was about where do we get, excuse me Tim, I don't mean to paraphrase, but where do we get the ethical and moral grounds to hold prisoners without charge? Is that it?

TIM: That's right.

CONAN: Okay.

Ms. HEGLAND: I can't answer that question per say, I can say legally the administration says that these are enemy combatants and the Executive, the commander in chief has long had the authority to hold enemy combatants, People who fought against us, in detention until the end of hostilities.

CONAN: And I should point out in Corine Hegland's story ends with a set of rhetorical questions. Who would do differently, who would raise their hand to release the man who might fly into the next skyscraper. These are not easy decisions.

Ms. HEGLAND: No.

CONAN: No. Tim, thanks very much for the phone call.

TIM: Well thank you.

CONAN: For more on the legal questions about the Guantanamo Bay, we turn now to Bobby Chesney a law professor at Wake Forest University School of Law. He specializes in National Security Law and he's with us from the studios of member station, WFDD in Winston-Salem, North Carolina. Good to have you on the program today.

Mr. ROBERT CHESNEY (Law Professor, Wake Forest University): Thanks for having me on Neal. It's great to be here.

CONAN: And maybe you can expand a little bit on the legal grounds the Bush administration argues for its right to detain these men.

CHESNEY: Sure, maybe I'll do this by mentioning the UN report that you brought up earlier on. This UN report that came out last week is a very interesting document. It's most notable because it denies that the US has the legal authority to detain anyone at Guantanamo and that's a position I disagree with and perhaps I can answer your original question by explaining why that is.

First of all, it helps to back up and think of what happened after 9/11, not only did the President and the Executive Branch determine that we're in a state of armed conflict with al-Qaeda and the Taliban, but also let's not forget that Congress took the same position when it authorized the use of military force on September 18, 2001, against the entities that perpetrated the 9/11 attacks, which of course turns out to be al-Qaeda and also entities that harbor al-Qaeda, which turns out to be the Taliban. NATO took the view that the 9/11 attacks had been an armed attack on the United States. The UN Security Council on the 12th enacted a resolution that referred to the US Right of Self Defense against armed attacks, so there's clearly ground for concluding that we have a state of armed conflict between the United States and al-Qaeda and that's the important factor to keep in mind when you're figuring out why do we have the legal right to operate Guantanamo and it has to do with the laws of war that come into play when you have a state of armed conflict. Now, the laws of war have long established that in addition to having the right to shoot at the opponent, you have the right to capture that person and in lieu of killing that person, you can detain them.

You can detain them for them for the duration of hostilities. It's a fundamental concept that comes along with the laws of war. And at bottom, the Guantanamo facility is a facility to carry out that detention. Now, there's a difference between saying that we have that lawful right and that it's a good policy to execute that right in the way that we have. So let me get that distinction out there right now.

CONAN: Yes, I was going to say the laws of war are seemingly encapsulated in the Geneva Conventions, which the administration says do not apply in this case.

Mr. CHESNEY: Well, it's interesting, and I don't want to get into too many of the details, because it may drive away the listener ship, but the position is that the Geneva Conventions applied as to the conflict with the Taliban in Afghanistan, but not with, what I would guess you could characterize as the closely intertwined conflict with al-Qaeda, which is both in Afghanistan and elsewhere. As to the Taliban, the administration concluded that although the Conventions did apply, the Taliban Forces did not qualify for prisoner of war status under the Conventions. As where with al-Qaeda, since the administration took the position that the Conventions did not apply at all, you never reach that status question.

CONAN: Yes. But without that status, then there is this new status, enemy combatant.

Mr. CHESNEY: Well, you know looking in the background of all of this is the question of how about how we treat these people once they're detained. So maybe it's worth pausing to draw a few distinctions here that I always want to emphasis with my students when we talk about this. There's really at least three separate legal questions and each one of them can also be a policy question of course.

CONAN: Yes.

Mr. CHESNEY: First, do we have the right, legally, to use military detention at all. Second, even if we do have that right, are we using the right or legally sufficient procedures to figure out that a given detainee is within the scope of that power to detain. And then lastly, even if you've correctly categorized someone as, for example, an al-Qaeda member, what are the legal rules for how you treat them. And I think it's important to bear mind that the US could have very strong grounds on one of those prongs of the argument, but perhaps less strong grounds on the other. I think we're certainly strongest on this baseline question of do we have the right to use military detention. The UN report takes the position that we don't have that right. And I'm going to quote from the report here, says that terrorism suspects should be detained in accordance with criminal procedure, and skipping ahead, we should expeditiously bring all Guantanamo detainees to trial meaning criminal trial, or release them.

Now, the significance of this, of course, is that it reflects sort of the traditional perspective that terrorism is simply a criminal law problem, to which you can apply traditional criminal justice procedures.

CONAN: There's also, and we're going to get more listeners involved and hear some more about this, but there's, the choice of Guantanamo Bay, kind of a non-place, the Bush administration hoped that it would be outside, that the courts would agree would be outside the jurisdiction of U.S. federal courts. Doesn't that weaken the case that if, if they're being held with perfect right, put them in Leavenworth?

Professor CHESNEY: Well, bear in mind that we're not talking about citizens detained there, nor are we talking about people who were captured in the U.S. who were then brought there. You're talking, in each instance, about a non-citizen captured, whether by us or by someone else, captured overseas, and all, initially, before coming to Guantanamo, all held in locations or in situations where it is relatively clear that the U.S. courts would not have jurisdiction. Now, to this, at this moment, there are any number of military detainees, both in Afghanistan, and in Iraq, and no one would contend, that at least in the case of non-citizens, no, there is no serious contention that the U.S. courts could exercise jurisdiction over those detentions.

So, the baseline from which people came into Guantanamo wasn't a baseline of federal court supervision, but a baseline of no federal court supervision. Now, that said, you're right. This was, this was chosen because there was a belief that that condition would continue to obtain if we used Guantanamo. There was a memorandum from the office of legal counsel that considered that question, said that it's a debatable issue, but probably the courts would not assert jurisdiction. That turned out to be wrong in 2004, and Congress recently enacted legislation to try to restore that expected status quo.

CONAN: And suspending habeas corpus for these men. Let's get some more listeners involved in this conversation, and turn to Bob. Bob's with us from Westwood, Massachusetts.

BOB (Caller): Thank you for taking my call. I have two-fold question. First, if you recall, John Walker, the American Taliban, my question for your guest is, what distinction, legally, does it make where the birthplace is or citizenship of the American, of the government combatanent, and what gives us the right to force-feed a human being in our custody? The second part of the question is, when do we know this al-Qaeda or, or the war on terrorism is over, and we can resume Constitution and get rid of this temporary suspension?

CONAN: Mm-hmm.

BOB: I will listen from the radio. Thank you.

CONAN: Thank you, Bob.

Professor CHESNEY: Thanks, Bob, those are great questions, each of them. Let me start with John Walker Lindh. A lot of people like to compare the John Walker Lindh case with the case of Yasser Hamdi, who was much in the news a couple of years ago, and he was one of the enemy combatants held in the U.S. You have one who's put through the military detention process, Hamdi, and then Lindh, who was brought back to the U.S., and, and very famously prosecuted in the regular criminal justice system. My students often ask, you know, what explains that disparate treatment?

In both cases, you had U.S. citizens, one getting the military treatment, one getting the criminal justice treatment, and I think a big part of the answer lies in the, the newness of the situation, and the lack of very clear existing procedures, especially in late 2001, early 2002, as to how to handle various persons, and perhaps also, differences in what the available evidence was in each case.

But Bob's question really raises sort of a distinct question: Lindh, he's a citizen, he ends up in the usual criminal justice system; everyone else is a non-citizen, they seem to all end up at Guantanamo. Why the difference based on citizenship, and again, I want to distinguish between what's, what's lawful and what's good policy. There may be policy reasons to criticize what the system provides for, but from a legal perspective, it, it's certainly the case that a citizen has the right to invoke constitutional rights that are very important civil liberties protections in this context, and a non-citizen, at least when held outside the United States, is going to have, at the very least, a very difficult time establishing the ability to invoke those rights.

Now that's actually an interesting question at Guantanamo where the extent of U.S. control, which you were describing earlier, Neal, the extent of U.S. control raises the question of whether perhaps we have so much control there that even non-citizens pick up civil liberties protections under our Constitution. That's in litigation right now.

CONAN: We're talking about Guantanamo Bay today. Our guests are Bobby Chesney, a law professor at Wake Forest School of Law, and Corine Ms. HEGLAND, a reporter for the National Journal. You're listening to TALK OF THE NATION from NPR News.

And Corine, I wanted to bring you back into the conversation here. These men's lawyers, when they talk to them, the U.N. Commission on Human Rights is not alone in saying, simply, the extent of this incarceration with no time frame, no known time when they will be released, that in itself is a form of abuse.

MS. HEGLAND: One of the lawyers has a man who is on hunger strike, who is not accused of having taken part in hostilities against the United States. He is not accused of having fought the United States, and he was determined to kill himself, if at all possible. And his lawyer explained it to me, look, he's determined to be released, one way or the other. I mean, to be held for four years with no charges, not knowing what the end is, somebody saying, you'll be released tomorrow, next week; somebody else saying, no, you won't be. That's very difficult for a mind to go through.

CONAN: Mm-hmm. And the fact is, isn't it right, Bobby Chesney, that even in some cases, if these men are found innocent by their tribunals, if those go ahead, they could end up still being held indefinitely?

Professor CHESNEY: Yeah, I think you're referring to the case of the Weiger detainees, perhaps, who were still held in Guantanamo after a combatant status review tribunal, which has the job of figuring out whether you're someone who's within the scope of military detention, determined that they were no longer enemy combatants. I think it's worth emphasizing that the reason we're still holding those individuals is that they're, as I understand it, they're Chinese nationals and the United States government is concerned that if they are returned to the Chinese government, they may face a substantial risk of cruel, or torture or other abusive treatment, and we've been...

CONAN: A condition in which, you must admit, makes your head spin.

Professor CHESNEY: Well, I'm not sure I follow you there, Neal. I think...

CONAN: They're being held at Guantanamo Bay for fear that they might be released to China and be tortured. Some would be saying, pick your, pick your torturer.

Professor CHESNEY: Well, what the State Department's been doing is contacting third nations in an effort to try to find a location to accept them, and we haven't released them in the time being. Let me contrast this with the position taken by about, I think, 36 different habeas petitioners at Guantanamo Bay have each filed actions trying to get a court in D.C. to order the government not to release them from Guantanamo to their home countries or states of citizenship, precisely on the grounds that we're declining to entirely release the Weiger detainees. I also understand that the Weiger detainees are, are not actually being held in the same conditions of confinement as the rest of the detainees as Con described it earlier.

CONAN: Yes...

MS. HEGLAND: They are, however...

Professor CHESNEY: I certainly...

CONAN: Go ahead.

Professor CHESNEY: Go ahead.

CONAN: Corine?

MS. HEGLAND: They are, however, still being detained and the Weigers actually are not the only non-enemy combatants, or no longer enemy combatants who are in detention. There are at least two individuals of other nationalities who are also in that position of being no longer enemy combatants, but they are still being held in Guantanamo Bay, and they do not have full liberties.

CONAN: All right, we have to...

Professor CHESNEY: And that's...

CONAN: I'm sorry, we have to put this on hold, just because we've got to take a break, and we'll come back and, and talk some more and take a couple more calls after the break. We're also going to go to the TALK OF THE NATION Opinion Page, where we'll examine the notion of a good night's sleep. Turns out, that's a modern invention. Huh. 800-989-8255, 800-989-TALK. Send us email: talk@npr.org. We'll be back after the break. I'm Neal Conan, you're listening to TALK OF THE NATION from NPR News.

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This is TALK OF THE NATION. I'm Neal Conan in Washington.

And here are the details from some of the stories we're following here today at NPR News. Iraq has lost more than 10 billion dollars in oil revenues, due to corruption and sabotage. It seems the Iraqi Oil Ministry's own militia, contracted to help protect the infrastructure, has been at the very heart of the problem. Also, legendary baseball broadcaster Curt Gowdy is dead. The longtime broadcaster for the Boston Red Sox, also the long-time voice of TV's the Game of the Week, was the first sports announcer to win the Peabody award. He was 88. Details on those stories, and, of course, much more later today on ALL THINGS CONSIDERED from NPR News.

In just a couple of minutes, we'll go to the TALK OF THE NATION Opinion Page. We'll be talking about a history of sleep, but right now, we're wrapping up our conversation on Guantanamo Bay. Our guests are Corine Ms. HEGLAND, a reporter for the National Journal, and Bobby Chesney, a law professor at Wake Forest School of Law. If you'd like to join us, 800-989-8255, or email talk@npr.org. And let's get another caller on the line. This is Angela, Angela calling us from, is that Marbreth(ph)?

ANGELA (Caller): Narbreth.

CONAN: Narbreth, Pennsylvania. Okay, go ahead.

ANGELA: I was wondering, considering the fact that the relatives of any criminal that you could think of, let alone the terrorists, are always astonished that these people are involved in everything, and even the father of, like, Atta, even when it, when there was visible proof, always disclaimed the son's involvement. Is there some entity or some procedure whereby the stories that are being gleaned by the lawyers of these people can be checked with people, maybe, in the home country or some kind of cross-reference to back up any of these stories?

CONAN: Of course, the possibility, Corine Hegland, of lying, does come up in your story.

MS. HEGLAND: It does, but, fundamentally, what happens is the detainees have told the Defense Department stories that very closely match the stories that their families have given the lawyers individually. Now, they could be cover stories, or they could be the truth. We really don't have a mechanism in place for separating them out. There were a lot of reasons men went to Afghanistan before 9/11. Some went to fight with the Taliban. Some went for al-Qaeda. Some went for charity. Some went to teach the Koran. Some went for cultural tourism, just to see what this government looked like before they returned to their lives elsewhere.

CONAN: Mm-hmm.

MS. HEGLAND: And we have men from all of those groups sitting in Guantanamo Bay today. When I say most of the men did not fight on the battlefield, that's not me talking. That's actually based on the government's own accusations against the men in the cases that I read, and then that finding that most of the men did not fight the United States was actually subsequently confirmed by a study from Seton Hall Law School that said the majority of the men in Guantanamo Bay are not accused of participating in hostilities.

CONAN: Against the United States.

MS. HEGLAND: Against the United States.

CONAN: Okay. Angela, thanks very much.

ANGELA: Thank you.

CONAN: And let's get another caller on the line and this is Andy, Andy's calling us from, boy, I'm having a hard time reading the screen today. Emanuous, Pennsylvania, is that right?

ANDY (Caller): Emmaus, PA.

CONAN: Emmaus, all right, at least they didn't spell it wrong. I just thought there were too many vowels in there.

ANDY: Yeah, it's a little baffling that way. In any case, I think one of the things that frustrates people so much in these conversations is that there are, there are several that aren't happening. One is the legalese inch-by-inch parsing of they're not prisoners of war, they're enemy combatants, and the fact that we, apparently presidents always have this power and exercise it, doesn't make people like me feel better about what we're doing now, the fact that it might always be going on, you know, well, that's just, you know, fuel to the fire.

And it seems to me that it's a little bit, you know, the idea of asking what, what's the status of Guantanamo Bay and these people is a lot easier to understand if you switch the question around and say, to what question is Guantanamo Bay the answer?

We're at war with a noun, I think is the only thing we ever declared war on was terrorism, and unless you're a citizen of terrorism, which no one is, then you can't be a prisoner of war, you can't have a clear-cut situation, and where did we put them? We put them in one of the only places on earth where there is no sovereignty, no one has a right in Guantanamo, not even the United States government, you know. We're, they're in this limbo-land and it seems almost like this childish olly-olly-oxen-free, let's put them in a place where, when the big problems come up, we'll be protected.

CONAN: Andy, the Congress declared war against no one. It authorized the president to use force against those responsible for carrying out the attacks of 9/11, or those who harbored them.

ANDY: Right, which is saying, they authorized the use of force, which means that they're enemy combatants, because we're in some kind of undefined conflict with various people, Taliban, Afghanistan, Iraq, whatever. It, it's, it's a, it's a get-out-of-jail free card for any kind of reasoning that you want to build up later, and, and, and the case was made to the American people, we're declaring war--in the '50s it was communism, and now it's terrorism--but we're declaring war on a noun, and then just doing kind of whatever you want to do, more less, basing it on hiding behind that huge moniker. And the idea of putting them down there is, well, you know...

CONAN: I hear your frustration, Andy. I'll try to shape that into a form of a question, if I can, to Bobby Chesney. And that is, not just the U.N. Commission on Human Rights, an organization that is not exactly, whose reputation is not exactly unblemished itself, but many others around the world, including the United States' allies in Europe, including Britain, all say this is a liability at this point.

Beyond the legalisms, do you think, Bobby Chesney, it is time to say that maybe Guantanamo Bay is costing the United States more than it gains?

Professor ROBERT CHESNEY (Law, Wake Forest University): Well, I'm glad you draw that distinction. It's not really a legal question, right? It's a policy question. And you have to ask yourself, if we were to close it down, then what? What do we do the next day if we capture, let's just assume for the sake of argument, Osama bin Laden? Now...

CONAN: Well, look, there is another super-secret category of prisoners...

Professor CHESNEY: Right.

CONAN: ...that we're not even talking about. Who knows where they're being held.

Professor CHESNEY: Exactly, yeah. Maybe I should give an example that doesn't go to the high-level...

CONAN: Another of Osama's apparently innumerable number three's, okay?

Professor CHESNEY: Well, let's use a real example. We've got the so-called 20th hijacker down there, and I think it's generally understood that this is a person who would've been involved in the 9/11 attacks if he hadn't been turned away at the airport in Orlando.

So if we were to shut down in Guantanamo, what then? The option, according to the Commission on Human Rights authors, is to criminally charge that person or turn him loose. The problem with it may be, and I'm not sure whether his case is a great example of this or not, but the problem is, what if you don't have the type of evidence that's required to get a conviction beyond a reasonable doubt in a federal court process using the usual protections of criminal procedure?

If you don't have that, do we really let them go? And do we take that approach notwithstanding the fact that according to the Congress, according to NATO, according to most observers, it is in fact an armed conflict at least as to al-Qaeda. I agree that there's a lot of rhetorical...

CONAN: Wait, wait. But you're throwing NATO in there. I'll throw the E.U. in there. They say close Guantanamo down.

Professor CHESNEY: Okay, but...

CONAN: And that includes everybody but Canada and, you know, I think Canada's on my side here.

Professor CHESNEY: You have a lot of international opinion that finds it very easy to say close down Guantanamo. And it may be that as a policy matter, it might even be a wise policy to get rid of Guantanamo in favor of some other military detention facility that doesn't have all the baggage that Guantanamo's picked up.

But again, the question that...

ANDY: But isn't that...

Professor CHESNEY: ...interests me is whether or not you're going to, if you're going to shut down Guantanamo, are you really going to rely on the traditional criminal justice process a la the 1990's or before, or are you going to simply shift them into some other location?

I think, I know a number of folks who are significant critics of Guantanamo, and in some ways I am one of these. I think that in some respects, at least insofar as the federal courts are exercising oversight there, which is an issue that's much in play now thanks to Congress trying to remove some of that oversight, but as long as you have some federal court involvement, that's much more oversight than you're going to have in the detention facilities in Afghanistan and Iraq currently.

Ms. CORINE HEGLAND (Reporter, National Journal): But there's another...

Professor CHESNEY: Let alone the...

CONAN: All right...

Professor CHESNEY: Let alone the CIA facilities.

CONAN: Go ahead.

Ms. HELAND: There's another option, though. It's not just a matter of let them go or charge them in a federal criminal court. You can also charge them by court martial or they've set up these military commissions which are an entirely separate issue we won't go into. But you do have a military justice system in which charges could be brought as well.

CONAN: All right, we're going to have to...

Professor CHESNEY: That's true. Let me just throw this out there real quick. It's important to recognize under the law of war, yes, you can prosecute someone for a war crime, but you're allowed to detain the enemy's fighters during the duration of the conflict, without having to go through the trouble of prosecuting them and convicting them of a crime.

CONAN: All right, look, we can argue this, and no doubt we will again. Bobby Chesney, thanks so much for being with us, I appreciate it.

Professor CHESNEY: Thank you, Neal. I appreciate it.

CONAN: Bobby Chesney, a professor at Wake Forest School of Law, and he teaches national security law there.

Our thanks as well to Corine Hegland, a reporter for the National Journal who joined us today in Studio 3-A, thanks so much for your time today.

Ms. HEGLAND: Thank you.

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