How Will Hamdan Ruling Affect Presidential Power? The Supreme Court rules that the Bush administration violated the Geneva Conventions and U.S. law in its effort to try Guantanamo detainees in military tribunals. Guests discuss the Supreme Court's ruling and how it will affect the use of executive power in the war on terror.
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How Will Hamdan Ruling Affect Presidential Power?

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How Will Hamdan Ruling Affect Presidential Power?


How Will Hamdan Ruling Affect Presidential Power?

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This is special coverage from NPR News. I'm Neal Conan in Washington. Earlier today, the Supreme Court ruled that the Bush administration violated the Geneva Conventions and U.S. law, in an effort to try some of the enemy combatants held at Guantanamo Bay before military tribunals. The verdict presents a major blow to the way the White House prosecutes the war on terror, and raises new questions about the extent of presidential power in time of war.

The Court split five to three. Chief Justice John Roberts recused himself because, prior to his appointment to the High Court, he was a member of the federal appeals court that heard this case. Justice John Paul Stevens wrote the majority opinion. In a concurring statement, Justice Stephen Breyer wrote if that, quote, “Congress has not issued the Executive a blank check.” In dissent, Justice Clarence Thomas said the verdict would seriously hamper the president's ability to confront and defeat a new and deadly enemy.

The case centered on a Yemeni national named Salim Hamdan, once Osama bin Laden's driver and bodyguard. Hamdan was captured in Afghanistan, and has spent the past four and half years in the prison camp at Guantanamo Bay.

Later this hour, a conversation with Afghanistan's ambassador to the U.S., but first: Hamdan versus Rumsfeld. If you have questions about the Supreme Court ruling, its affect, and how it changes the debate over presidential powers, our number here in Washington is 800-989-8255.

To start off, we're joined by David Savage, Supreme Court reporter for the Los Angeles Times.

David, nice to have you back on the program.

Mr. DAVID G. SAVAGE (Supreme Court Reporter, Los Angeles Times): Hi, Neal.

CONAN: This looks to be a strong rebuke to the Bush administration. But, actually, this was two decisions.

Mr. SAVAGE: Yes, that's right. It's an interesting day at the Court. John Paul Stevens is 86-years-old, the last World War Two vet on the Court, believes very strongly in the military justice system and the Geneva Convention. He read a very strong opinion, saying there's nothing wrong with military trials, but they have to be authorized by law. They either have to be authorized by Congress. And the Geneva Convention says you need to try people in wartime under some competent tribunal, that the rules are set. That is, the president can't just make up the rules and say we've got a new set of rules; in fact, they're going to change. He spoke for four.

Justice Kennedy agreed with the essence of the conclusion. That is, these military tribunals are illegal, because they've not been authorized by Congress. He didn't actually join the part of the opinion that talks about the Geneva Convention. So, Stevens talked about the Geneva Convention, but there's actually not a five-member majority on that point.

CONAN: Mm-hmm. The first ruling was whether, in fact, the Supreme Court was -had standing to review this case at all. It decided it did.

Mr. SAVAGE: Yes, that's right. Congress, in late December, passed a part of the Detainee Treatment Act, and said no federal court has jurisdiction to take up any of these claims, these habeas corpus petitions. But the Court, the majority interpreted that to say it applies to all new cases. It doesn't apply to pending cases.

CONAN: Mm-hmm.

Mr. SAVAGE: This was a pending case, and they said we have jurisdiction to go ahead.

CONAN: Then on the dissenting side, as the Court emerged today, we saw something I'm not sure we had ever seen before: Clarence Thomas reading a dissenting opinion from the bench.

Mr. SAVAGE: Yes. He said in the 15 years, he had never read a dissent before. He was clearly very - and he's got a very deep voice, and a very strong presence. And he was really quite bothered by this. He said, you know, 10 days ago, we deferred to the Army Corps of Engineers to tell us what's a wetland, and you're telling me we're not going to now defer to the president on this, sort of, wartime issue about trying war criminals. Justice Scalia also read a dissent. And Sam Alito, the new Justice, sort of - he didn't read his dissent but agreed with them.

CONAN: Mm-hmm. And again, justice - Chief Justice Roberts out of this case, because he had sided with the government earlier when the appeals court heard this case.

Mr. SAVAGE: Yes. So you could say this really was a five to four split on the Court.

CONAN: And that fifth vote, the swing vote, Justice Kennedy, that's important.

Mr. SAVAGE: Oh, absolutely. In fact, every case, has been decided recently by Justice Kennedy. Kennedy's view is sort of like what Stevens said, which is military trials are fine, but you need a sort of set rules. I think Kennedy's view and Breyer's view is you could try these people under the Court-Martial Rules. Or you could go back to Congress, and have Congress pass a new set of rules that apply to enemy combatants in the war on terrorism.

CONAN: Mm-hmm.

Mr. SAVAGE: But what you can't do is just have the President say, well, I'm going to come up with the rules on my own, and those are the rules.

CONAN: And by rules, you mean procedures under which the trial is held: who has access to what sorts of evidence, consultations with lawyers, rules of procedure.

Mr. SAVAGE: Yes, that's right, a whole series of fairness rules. Mention a couple. One is, under the President Bush's rules, you could actually use coerced evidence, coerced testimony. You can't under the regular Court-Martial Rules. But, in other words, if one of these people says, hey, I was beaten up or roughed up, and forced to talk, that kind of evidence could be used under the rules that were struck down today. They couldn't be used under the normal Court-Martial Rules.

CONAN: Let's get some listeners involved in the conversation, 800-989-8255 if you'd like to join us.

This is Gary, Gary calling from Memphis, Tennessee.

GARY (Caller): Yes, great show. My question is how did the Court, Supreme Court, determine the status of detainees; since the detainees are not recognized as citizens of any country, but rather, are part of al-Qaida? And how did they get Geneva Convention protection? How can they qualify for that in the Court's view?

Mr. SAVAGE: Well, they are - in a decision two years ago, the Court basically said these are prisoners held in the - under the custody of the United States, and therefore, they have some legal and constitutional rights. The Constitution talks about people who are - whose liberty is - they're being deprived of liberty. So the Constitution actually applies very broadly when the government is holding somebody. So the Court said there is some sort of U.S. jurisdiction here. So the Constitution - the basic constitutional rules apply.

The Geneva Convention holding us a little bit tricky because, as I say, John Stevens said that, but there's only four votes for that principle. Geneva says that - Geneva talks very broadly about people caught up in war and combat. And even though the Bush administration says these people were not, quote, “Prisoners of war” because they were not fighting for a recognized army, they were caught up in a military conflict. So the Court believes they are entitled to some basic standards, the most minimal standards of fairness and decency, which Geneva imposes. And the four members of the Court said that also applies to these people, because they're being held by…

CONAN: Mm-hmm.

Mr. SAVAGE: …the United States military.

CONAN: If there had been a fifth vote, if Justice Kennedy had gone along with the four, would this, in fact, have invalidated the category of enemy combatant? It was said if they're controlled by Geneva, therefore, they're prisoners of war.

Mr. SAVAGE: I think so, Neal. I think that had five of them adopted that view, it would have been an even broader holding. Because it would have been saying, contrary to what the administration has said from the beginning, all these people caught up in this conflict are covered by Geneva. But to say that's still open…

CONAN: Mm-hmm.

Mr. SAVAGE: …because they were not five for that holding.

CONAN: Gary.

GARY: If I could just comment real quickly. I don't understand how they can consider them qualified for the Geneva Convention, since the Geneva Convention recognizes the parties who signed on to the Geneva Convention. Those people can therefore qualify. Nowhere has al-Qaeda signed on for anything. So, therefore, I really don't comprehend the Court's decision in that area.

CONAN: Okay. Thanks very much for the call, Gary.

GARY: Thank you.

CONAN: And let's turn now to Neal Katyal, he's the lead counselor for Salim Hamdan, and he joins us by phone from his office here in Washington, DC. Thanks very much for joining us.

Attorney NEAL KATYAL (Lead Counselor, Salim Hamdan): Thank you for having me.

CONAN: How important is this decision, do you think?

Atty. KATYAL: I think it's a hugely significant victory for the rule of law in America, for the idea that no one man, no matter how wise he is, can set up an entire system that he calls justice, but that, I think, most people regard as essentially, a fake court system, on his own.

CONAN: So you're addressing the idea that the executive, the president established a court, appointed, effectively, its officers, the military officers to both be defense and prosecution and the judges and the jury.

Atty. KATYAL: That's exactly right. And that's, you know, fundamentally, not American. We fought a revolution in July 4th that's coming up, we fought a revolution precisely to make sure that our government divided powers rather than concentrating them.

CONAN: And what now happens to your client, to Mr. Hamdan?

Atty. KATYAL: Well, we've - all we've asked for all along is a fair trial. And, you know, I hope that the administration gives him one instead of trying to tinker with the rules and make up another new trial system. I mean, we already have - and this is what the Supreme Court said today so many times - we have an existing civilian court system that's tried terrorism cases. Plus, we have an existing court martial system to try terrorism cases.

So these institutions are already tooled up and are ready to handle the cases. And instead of embarking on a reckless experiment to try and get some legislation passed in a hurry. We should use our existing system, try some folks, and if there needs to be, tweaks, later on, let's have them. But let's be serious here, it's been four and a half years since the president issued this Guantanamo military trial order and not a single person has been tried in it.

It's been a failure from start to finish and it's a failure because we're not using the existing rules and we're trying to create brand-new ones that just look suspect not only in the eyes of the world, but in the eyes of our own American military, which has rebelled against the system.

CONAN: One reason trials didn't go ahead is people were waiting for this decision, but in any case, I assume by…

Atty. KATYAL: Well, let me correct you on that, actually, because, you know, President Bush issued his order November 13, 2001. Not a single person was even charged for two and a half years in this system. And this decision that people were waiting on only wound up enjoining the trial of Mr. Hamdan and one other defendant. That is other commissioned proceedings were under way.

CONAN: Mm hmm.

Atty. KATYAL: So it can't be the case that this decision was the problem. And the reason why these trials didn't go forward was because the rules were suspect from the get-go.

CONAN: Does Mr. Hamdan know about this decision yet?

Atty. KATYAL: Yes, in fact - and I really appreciate the Defense Department's willingness to let me call him, which I did about an hour ago, and informed him of the decision.

CONAN: And how did he respond?

Atty. KATYAL: I'm not sure exactly what I'm at liberty to say and what I'm not. So I'm going to have to defer that question.

CONAN: All right. Can you stay with us a little bit more?

Atty. KATYAL: Of course.

CONAN: Neal Katyal, lead counsel for Salim Hamdan in the case Hamdan v. Rumsfeld, law professor at Georgetown University as well. We'll be back with him after we take a short break. Also with us is David Savage, Supreme Court reporter for the Los Angeles Times.

If you'd like to join the conversation, give us a call: 800-989-8255, that's 800-989-8255. I'm Neal Conan. You're listening to special coverage from NPR News.

(Soundbite of music)

CONAN: This is special coverage from NPR News. I'm Neal Conan in Washington. The Supreme Court ruled this morning that President Bush's proposal to try some of the prisoners at Guantanamo Bay in military tribunals violates U.S. law. You can read the ruling and listen to NPR's previous coverage at our Web site,

Our guests are David Savage, Supreme Court correspondent for the Los Angeles Times, and Neal Katyal, lead counsel for Salim Hamdan. Of course, you're invited to join the conversation. If you have questions about the case or what it means to the administration or to the prisoners at Guantanamo Bay, give us a call: 800-989-8255, again, that's 800-989-8255.

Neal Katyal, as we've got you on the phone now, what does this mean - as you said, this was specific to two cases - what does this mean for the others who the administration proposed to try at Guantanamo Bay? What does it mean for the detainees in general?

Atty. KATYAL: Well, it certainly means that the other eight people that they had named to be tried in this fake court system can't go forward. So it's an overwhelming victory against the military commissioned process. It, of course, means that they should have fair trials, that the Supreme Court said over and over again. And that means a court martial system or a civilian one.

With respect to the other detainees who haven't been charged, it's too early for me to say what the implications of this decision are on that. Let me say one thing, however, and I think this takes issue with something I heard one of the previous guests say.

CONAN: Mm hmm.

Atty. KATYAL: As I read the decision, five justices say that the Geneva Convention, in their minimal guarantees in Common Article Three - significant, but minimal guarantees - apply to the conflict with al-Qaida. And what that means, as a practical matter, is that the treatment of detainees now has to take place in accordance with these fundamental rules of war that are Senate ratified in 1955, and which every nation on earth, save one, has ratified.

The administration, four years ago, broke from longstanding military policy for 50 years, by saying we don't have to abide by that part of the Geneva convention.

CONAN: David Savage, you read that differently.

Mr. DAVID SAVAGE (Supreme Court Correspondent, Los Angeles Times): Well, I did. Neal, the last two paragraphs of Kennedy's opinion says we need not reach the Geneva Convention issue, so I took it that he was not agreeing with what Justice Stevens said about the Geneva Convention. He said we can decide this case and…

Atty. KATYAL: Well, certainly, David, you've had more time to study it than I, but as I understood it, the last two paragraphs are about the - about conspiracy not being a violation. And the one thing which he says about the Geneva Conventions is to say - that's where he breaks from the majority - is with respect with the right to be present and whether or not that is guaranteed by international law in the Geneva Conventions.

But I do believe that pages seven through nine of Justice Kennedy's concurring opinion, say quite clearly that the Geneva Convention, and in particular, Common Article Three, do apply to the conflict with al-Qaida and govern the military commissions. So we might have a difference of opinion and we obviously have lots of time to sort it out, but I think it's…

CONAN: A split decision in our court as well here. So, anyway, let's get another question from a listener before we have to let you go, Neal Katyal. This is Terry(ph), Terry calling from Lake Crystal in Minnesota.

TERRY (Caller): Hi, Neal…


TERRY: …guests, it's an honor to speak to you guys. Please bear with me for a second while I set up my question. I think I heard some of you speak about the Constitution and how it applied to the treatment of these people. And my question for you is - or my - little more - my setup is the way that we so lightly talk about amending the Constitution to relate to gay marriage and things like that. Couldn't we also discuss working with the Constitution, how to treat these folks?

Because, you know, it was written and up until now, I would think, it pertained to soldiers that had a country - that represented their country when they went to combat with each other. And these are people without a state. These are totally different kinds of soldiers that we're speaking about. Thanks for taking my question…

CONAN: All right.

TERRY: …and I'll sign off and listen to you on the air.

CONAN: Well, Neal Katyal, does the - is this a Constitutional question or - I think he's asking about the Geneva Conventions - don't they have provisions that cover people who undertake warfare without the benefit of uniform and other, you know, reflections of the state?

Atty. KATYAL: Yes, certainly the Geneva Conventions contemplate, at least with respect to Common Article Three, the minimal rules that govern all warfare and all conflict for all persons. And so, there is an existing system of justice and one that we have used for 50 years, up until recently, in this administration. And I think it's time, and what the court is saying, it's time to return to that system because it's worked well and it's served us well and served our troops well.

I mean, one of the big issues in the case was a number of military officers, retired generals and admirals who stood with Mr. Hamdan and said, you know, he's right on the Geneva Conventions. And what they were fundamentally worried about is that if we give the president the ability to break from the Geneva Convention, then other countries and dictators will do it when our troops are captured. And that's a terrible result.

CONAN: Neal Katyal, thank you very much for your time today. We know you're busy. And congratulations on your victory.

Atty. KATYAL: Thank you very much, sir.

CONAN: Neal Katyal, lead counsel for Salim Hamdan, professor of law at Georgetown University. And let's bring in another guest now: David Rivkin, a legal and policy advisor during the administrations of Presidents Ronald Reagan and George Bush Senior, currently a partner in the law firm of Baker and Hostetler here in Washington, DC. He's been kind enough to join us in Studio 3A, good to speak with you again.

Attorney DAVID RIVKIN (Former legal and policy advisor, Presidents Ronald Reagan and George Bush, Sr.): Good to be here, Neal.

CONAN: And get your reaction to the court ruling?

Atty. RIVKIN: Well, I don't wan to begrudge Neal his victory because it is indeed a victory at a certain technical level, but I'm frankly amazed. I may have read - different opinion than he did…

CONAN: Mm hmm.

Atty. RIVKIN: …but he said very clearly that the court, the majority of the court has concluded that you have two choices as far as trying individuals held in Guantanamo - and let's call them what they are, unlawful enemy combatants - civilian courts or courts martial. That's just absolutely untrue.

What's remarkable about this is every single justice, including majority opinion by Justice Stevens, has said that military commissions are a part of our law, were a part of our law, remain part of our law, not banned by the U.S. Constitution or Geneva Convention or any other international provision.

The debate, gentlemen, really is about a very narrow, important, but narrow issue: what are the procedures that are appropriate by military commissions? And let me slice it this way, you have at least three justices, including Stevens, who believe that our military commissions, in some epistemological sense survive. The level of due process and procedures are virtually indistinguishable from those and courts martial.

You have three justice, and even (unintelligible) justice, four, really - we know where Roberts is, who believe that there can be fundamental departures from the courts martial level of due process and procedures. Where one justice, Justice Kennedy, who probably would come out, and again, this is being bottom line oriented, there can be substantial differences between military commissions and courts martial, but you really need to go back to Congress and get explicit congressional affirmation.

And then, you know, Justice Breyer, who went to the trouble of sort of adding verbiage which suggests that he also believes there can be differences. So you have at least six Supreme Court justices who believe that military commissions can be very different from courts martial.

Let me just summarize by saying this: at the time, were(ph) for years, the critics overseas in this country, have been railing these military commissions as being aberrational, illegitimate, fundamentally flawed, fundamentally inconsistent with international law and the Constitution. That is quite remarkable pushback. Military commissions are alive and well. It is a matter of tweaking them - important tweaking to be sure - and I'm just amazed. I mean, it's for your viewer - for your listeners to see. That's what they said.

CONAN: So your interpretation of this ruling is, in fact that the military commissions are okay, just not the ones that President Bush outlined in his order?

Atty. RIVKIN: Right. They have to be reconfigured, primarily because of their alleged inconsistency with the Uniform Code of Military Justice. Article 36 - that is, again, that to me is remarkable because we now - between the Hamdan case from two years ago and the Hamdan case now, where the Supreme Court upheld, decisively, the basic parameters of administration's legal architecture for dealing with the war on terror.

And the critics would make you believe that this is not a victory. If this is not a victory, I don't know what victory is. Even though Mr. Hamdan now doesn't get to go before this particular version of military commission.

CONAN: David Savage, is that your reading of this? That under this decision today, if Congress came up with - or the president came up with new rules that were acceptable, this would be okay?

Mr. SAVAGE: Yes, I'd be surprised, David, if you think that it would be considered a victory for the administration. I think it's fair to say it's not a total loss that, as you say, they can sort of come up with new rules and sort of tinker with the rules. The court is not saying military commissions are out or you can't have them. I think we agree they're just saying there has to be sort of tweaking of the rules. But I think that's sort of a, more a defeat than a victory. Because the administration basically said all along, the president's commander-in-chief, these are captives in a war. He gets to set the rules, and these are rules and that's what will be followed. And the courts basically rejected that.

CONAN: Could there be a military tribunal. In other words, where the final appeal is the president of the United States, the head of the executive branch, as opposed to an appeal through a judicial process?

Mr. RIVKIN: That is issue has not been definitively resolved. But let me, I mean David makes a good point. What is victory? What is defeat? And maybe I spend too much time arguing those issues with overseas audience. But I can tell you, it is amazing to what extent people in Europe, some of our best allies, do not buy into the basic proposition that this war, and therefore, do not buy into the notion that the laws of war appear obviously at all applicable appropriate. In that context, the differences between Justice Stephens and the administration, me - important and formidable as they are - are insignificant compared with people who believe that these are basically ordinary criminals/terrorists who should be tried in federal district or state courts. This is a remarkable success. We have three branches of our federal government, two political branches and now the courts have spoken in affirmation of a basic propriety of the laws of war paradigm. And that, to me, trumps any details about the rules and whether we need another congressional statute authorizing military commissions or you look at UCMJ and say it's already there.

CONAN: Alright. Let's see if we could get another caller in. This is Les. Les is calling us from Kansas City, Missouri.

LES (Caller): Hi. Thank you for letting me be on the air.

CONAN: Sure.

LES: I have a question, and maybe it's my naiveté, but how is that the prisoners of Guantanamo Bay have basically received or are prisoners of this war, basically received rights that are under the U.S. Constitution, specifically like you said federal, state. How can they be given the same rights to be tried in those courts as U.S. citizens since they are definitely not U.S. citizens and fighting the U.S.? And I'll take my answer off the air.

CONAN: Alright, Les, thanks very much. And David Rivkin, as I understand the administration's first position was they didn't have any rights because they weren't on U.S. soil, they were in Guantanamo Bay?

Mr. RIVKIN: Well to be fair, the administration's position was that federal courts had no jurisdiction over Guantanamo. The administration never claimed those people dwelled in a law-free zone. But to answer the question is very simple. What rights you have very much depends on who you are. If you have a dispute about you know, your entitlement to a pension, you have on set of rights. If it's a process involving criminal justice, criminal trial, you have a higher set of rights. The rights that you receive as an enemy combatant in the court, this court, not the 1942 Korin case, but this court said this in Hamdi. You have a right to a modicum of due process in challenging the government's decision to classify him as an enemy combatant.

And Justice O'Connor, God knows, not a right wing justice, basically said that is roughly comparable to what you would get under something called Article 5 proceedings under the Geneva Convention. That's a very differential standard. You don't have to prove anything beyond a reasonable doubt. It's not a penal process. It's a little bit of due process. The administration never denied that type of a process to these detainees.

CONAN: And obviously they don't get the same kind of rights as U.S. citizens get?

Mr. RIVKIN: Well of all, no, it's not true. It's the question of your citizenship. An enemy combatant or U.S. citizen processed through a military justice system, depending on lawful and unlawful military commission courts marshal will get the exactly the same right as a noncitizen. It's who you are. Not what your citizenship is.

CONAN: We're talking with David Rivkin, who is now a partner in the law office of Baker and Hostetler and with David Savage, Supreme Court correspondent for the Los Angeles Times. You're listening to special coverage from NPR News.

And let's get, David.

Mr. SAVAGE: I was curious, David. Do you have a few on the Geneva Convention issue. We were talking about whether Justice Kennedy does or does not think Geneva applies here because that's an issue that may go beyond this case. I sort of read him as saying, I agree with most of this but I don't think I need to reach the Geneva issue. Neal Katyal I guess thinks it does Geneva, they are saying Geneva does apply across the board.

Mr. RIVKIN: The short answer is not clear. I certainly am much more sympathetic to the reading that you're advocating which is that there are only four justices that believe that our Article Three of Geneva Convention applies. And by the way, let me say this. While I think the decision is a victory at the fundamental level, technically, it's appalling because the four justices to get the proposition that Article 3 applies had to jump over so many hoops and they're so wrong, it's not funny. But I don't think Kennedy himself knows. I mean Kennedy has really sort of replaced O'Connor with remarkable velocity and maybe even moved slightly to the left of her. I don't think Kennedy himself knows, but put it this way, he certainly is not clearly indicated deliberately that he agrees with that proposition.

CONAN: Let's get another caller on the line. This is Sandra. Sandra is calling us from Victor, New York.

Ms. SANDRA (Caller): Yes, hello. Thank you for taking my call.

CONAN: Sure.

Ms. SANDRA: I have sort of a very fundamental problem just as a person, not a specialist but just as someone who follows the news and tries to pay attention. One of your previous callers said that the members of al-Qaida obviously were not signatories of the Geneva Convention, therefore, they weren't entitled. Well that could be. Many people question the whole idea of a war on terror and what is it and who is it against. And the problem for many of us who watch the news is that it's whatever our government says it is. And in regard to that, how do we, the American people, know - how would we have any way of knowing if these people are held off our soil, and in private secret places, and sometimes perhaps even rendered to other countries. How do we know that the people who are swept off the streets of whatever countries they were swept off, are in fact members of al-Qaida? Isn't that part of a judiciary process when you are determining whether people are guilty of something -- guilty of a crime?

CONAN: David Savage were there not a set of preliminary hearings?

Mr. SAVAGE: Well hers is a very good question, because it's been the question all along. You remember the administration basically said from the beginning, these are the worst of the worst. These are really bad guys, they're al-Qaida.

Ms. SANDRA: And trust me.

Mr. SAVAGE: And trust me, right. And the court a few years ago said there has to be some minimal hearing, a little bit of evidence and basically they've said most of the people can be held. I think as an outsider, you know, I think its very hard to know exactly who these people were and were they real bad guys? Were they people swept up in a conflict? I don't think we, as an outsider, I can't, I don't think we really know the answer to that question.

Ms. SANDRA: Well and here's another point. The people who are the worst of the worst according to people in whatever administration. It's not just the Bush Administration, but previous ones as well.

CONAN: Hello?

Well Sandra's phone has been cut off. I apologize for that.

And just let me ask you before we have leave, David Rivkin. What do you think is going to happen now? Do you expect Congress to try to come up with a new set of laws?

Mr. RIVKIN: Yes and this is what is going to happen, I very much believe. Senator Graham, Senator Kyle and a number of other people indicated that they will pass, work on passing very quickly a new statute authorizing military commissions and procedures. I believe the administration will work with them. I think within a matter of months, not years, the military commissions proceedings would go forward and this dust would settle. I sort of like to say one thing, I think it will be done on a bipartisan basis. Because I can't imagine even Democrats arguing that you should try people like Mr. Hamden, presumption of innocence aside and everything, in civilian justice system. It's very briefly but it's an important point. The way you deal with different problems of society is not just driven by due process. There's important symbolism in how society treats different types of problems. In treating these people as ordinary criminals is absolutely wrong, symbolism practical implications aside.

CONAN: Thank you very much for being with us. David Rivkin was legal and policy advisor for the first President Bush and for President Reagan. He's currently a partner with the law firm Baker and Hostetler in Washington, D.C. and joined us here in Studio 3A along with our friend, David Savage, the Supreme Court correspondent for the Los Angeles Times. And I'm sure you'll be able to read his more considered thoughts on this case in tomorrow morning's editions of those papers. David as always, thanks very much for being with us.

Mr. SAVAGE: Thanks Neal.

CONAN: When we come back from a short break, Afghanistan's ambassador to the United States joins us to take your calls. 800-989-8255. This is special coverage from NPR News. I'm Neal Conan in Washington.

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