MICHELE NORRIS, host:

In the weeks and months after September 11, a working group of top military lawyers began meeting at the Pentagon to consider how to handle these captured prisoners. These lawyers knew the prisoners would present new challenges, but the lawyers were not comfortable with the total overhaul of the established military justice system. What the military legal team did not know was that White House lawyers were working on a plan to create a whole new system of military tribunals for enemy combatants.

Retired Rear Admiral Donald Guter was the Judge Advocate General of the Navy at that time, part of the Pentagon working group. All along, Admiral Guter, who is now retired, has had strong reservations about the war crimes tribunals. And he says, he's not surprised by today's court ruling.

Admiral DONALD GUTER (U.S. Navy, retired): I had told several people before today that I though the president certainly had the authority to convene commissions under the Uniform Code, but that I was concerned that the court would find that the procedural aspects that were set forth by the administration still might not be enough to satisfy the court. That the basics of due process and the rule of law would be satisfied by the final rules that were contested in this case.

NORRIS: So while you were having these discussions, a team of White House lawyers were having a series of their own discussions in creating this parallel legal system. Your reaction when you found out about this?

Mr. GUTER: Well, I think a little bit was frustration, I think would be an adequate word. And also, I thought we were being marginalized. To a large degree when that happens in any bureaucracy, you lose your effectiveness, obviously. So there was a great deal of frustration and I have to say that the other service, judge advocates, we talked amongst ourselves and I think there was a feeling that we would continue to give the best advice we could, but we were pretty sure that it was not falling on receptive ears.

NORRIS: And when you were offering this advice, how did the White House respond?

Mr. GUTER: Well, we didn't communicate directly with the White House. Our discussions were always within the Pentagon. The highest level of any official that was ever in the meetings that I attended anyway was the general counsel of the Department of Defense. Then he would have meetings at the White House and he would usually, he or his deputy would be the conduit for whatever came back for us to work on.

NORRIS: I'm wondering if for you at this point with the ruling if this is a bit of an I told you so moment?

Mr. GUTER: Well I don't think so.

NORRIS: I know it's not polite to necessarily use those words, but do you feel that you've been vindicated in some way, that the White House should've listened?

Mr. GUTER: Well, I'm more comfortable with that formulation, I suppose. I think the damage that's been done to our reputation, the damage that's been done to at least our standing with respect to the rule of law and arguing for respect for our military prisoners and others, I think that has been so diminished by what has happened and what we've done that it's hard to feel any kind of gloating over the decision.

I'm hoping that this gives us a basis to sort of return to equilibrium. I'm not one of those people that thinks at this point we need to shut down Guantanamo, only, only because I'd like to know what the alternatives are first. There's been so scrutiny of Guantanamo Bay rightly so, that I think it may be if I may use the word, the cleanest place that we're holding people right now.

So I understand the president's desire to now close it. But I would certainly like to know what the alternatives are before I would say that that might be a good thing to do. I think we've suffered probably irreparable harm in the international community for my lifetime and our children's lifetime, but I think this might be a chance to start fresh.

NORRIS: Admiral Guter, thanks so much for talking to us.

Mr. GUTER: Pleasure.

NORRIS: Donald Guter was the Judge Advocate General for the U.S. Navy from 2000 to 2002. He's now the dean at Dusquesne Law School.

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