REBECCA ROBERTS, host:
The White House says it disagrees with yesterday's rulings from two military judges at Guantanamo Bay. In separate cases, they dismissed the charges against two prisoners being held there. The government has 72 hours to appeal the decision, and if it does, the military would have to assemble a panel to hear those appeals since there isn't one now. Scott Silliman is a former Air Force judge advocate general and a professor at Duke University Law School.
Professor SCOTT SILLIMAN (Law, Duke University Law School): Each judge said that there was not any kind of a determination made before arraignment that these individuals were unlawful enemy combatants, and that's a requirement that Congress set in law last fall in the Military Commission Act.
ROBERTS: So, these military commissions have been set up. They have designated these men and one other enemy combatants but without that word - unlawful.
Prof. SILLIMAN: That's exactly correct, Rebecca. The government was relying on a system of Combatant Status Review Tribunals that were set up in the summer of 2004, really to determine whether we could continue to detain these people at Guantanamo Bay.
The finding in that tribunal was only that they were enemy combatants whether they'll be lawful or unlawful. Congress said that the only jurisdiction for a military commission is over an unlawful enemy combatant.
ROBERTS: And why does that distinction matter? Is there such a thing as a lawful enemy combatant?
Prof. SILLIMAN: There is a lawful enemy combatant, Rebecca. But under the Geneva Convention, lawful enemy combatants can only be prosecuted by courts martial - the same type of courts we use for our own military servicemen. And again, Congress was the one that set the law and said only alien unlawful enemy combatants can be prosecuted by military commission, which Congress set up.
ROBERTS: And how do you think this happened? That the law Congress passed says unlawful enemy combatants and the tribunals designated just enemy combatants?
Prof. SILLIMAN: Well, the tribunals that were established in 2004 were principally for the purpose of determining whether we could continue to detain these people at Guantanamo Bay. It was not looked at as being the threshold for prosecution by military commission.
When Congress, last October, set that as a requirement that they had to be shown to be alien unlawful enemy combatants, I'm afraid nobody looked at the systems putting them together and recognized that there was a missing piece or a disconnect. So again, this is not something that should be surprising. It is a little unusual that no one caught it before a judge had to make these rulings yesterday.
ROBERTS: And what about politically, how significant a setback do you think this is?
Prof. SILLIMAN: Well, there's no question, Rebecca, that this is one further embarrassment. We've had these people down at Guantanamo Bay for five years or so. And the international community has been pressing the United States to either prosecute those that we believed committed war crimes or let them loose. We have taken a long time to get the military commission system up and running. Now, these two cases, we're going to have to go back and fix the system, once again, obviously, is not what the administration wanted to have happened.
But nonetheless, I think we need to look at these two judges. They were professionals. I think they made good rulings and the fact that these military lawyers are following the law is something that, I think, history will record is a good part of this whole system.
ROBERTS: And in terms of fixing the system, sort of, among the options of Congress going back and revising the law, these two specific cases being appealed within the military commission's framework, or all of these detainees being brought back up in front of these tribunals and being re-designated unlawful enemy combatants, which do you think is most likely to happen or is it sort of all of the above, or some fourth option?
Prof. SILLIMAN: I don't think we're going to see Congress going back and changing the law, Rebecca. I think it's more probable that Secretary of Defense Gates will very quickly adjust the Combatant Status Review Tribunal system for these two individuals. All he's got to do is to change the system. It's already in place. Officers can do that.
And we can have refined our findings that determine them to be unlawful enemy combatants. That should take no more than a couple of weeks. And then, once that determination is made, you can go right back into the arraignment process on these two and any others the government wants to prosecute by military commission.
ROBERTS: Scott Silliman, thanks very much for joining us.
Prof. SILLIMAN: My pleasure, Rebecca.
ROBERTS: Scott Silliman is a former Air Force JAG and executive director of the Duke Law School Center on Law, Ethics and National Security and a professor of law at Duke University.
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