1. A few weeks ago, the Bush administration suffered a setback when the only two war-crimes trials against Guantanamo detainees were thrown out because of a technicality about how they were classified. How damaging is this for the government?
Very damaging. The military commission found that the only two prisoners being tried before it had not been properly classified as "unlawful enemy combatants." The commissioners had been widely viewed as likely to be sympathetic to the Administration's legal position; instead, they rejected it as premised on the wrong premise. The ruling was followed just a few days later by the U.S. federal appeals court in Virginia –a court usually sympathetic to the Administration--ordering that Ali Al-Marri, a U.S. resident alien who had been held in a military brig in South Carolina, should be granted a writ of habeas corpus. The court said the defendant could be brought before deportation proceedings, held as a material witness, charged in civilian court, or released, but not held indefinitely, as the Government has sought to do. Taken together, the rulings suggest that even previously sympathetic courts are losing patience with the Administration's legal arguments.
2. Some have argued that the new Military Commissions Act-which governs these war crimes trials-was rushed together after the Supreme Court threw out the previous system, and is therefore less workable. How do you feel about both the old system and the attempt to build a new one?
Both the old and new military commission system have been showed to be deeply flawed. The first system of military commissions, rushed together in the fall of 2001, was the product of a presidential order that apparently was issued without the knowledge or consultation of the Secretary of State, the National Security Adviser or her legal counsel, the General Counsel of the CIA, the Assistant Attorney General for the Criminal Division, or any of the top lawyers in the military's Judge Advocate General (JAG) corps. So it was hardly surprising that when the legality of the system finally got to the Supreme Court, the Court struck it down. In that case, the Court held first that the President's 2001 military commission order was authorized by neither the Constitution nor the statute authorizing the use of military force after September 11; and second, that the procedures of the military commissions violated both the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the 1949 Geneva Conventions. In an effort to have a quick legislative fix before the mid-term elections, the new Military Commissions Act repaired the first problem—legislative authorization—but not the second—legality under the UCMJ and the Geneva Conventions, and it tried to strip away the historic right of habeas corpus as well. No wonder that the courts have already been so resistant to this flawed law.
3. Moving to look at this issue a bit more broadly: why are suspected terrorists tried under a different regime? And what's the difference between a criminal trial and a military trial?
It is not clear why suspected terrorists should be tried under a different regime in the first place. Broadly speaking, in criminal trials, defendants are charged as civilian criminals; in military cases, they are treated as combatants in an armed conflict. In federal criminal cases, they are charged and tried by the Justice Department; in the military cases, they are charged and tried by the Defense Department. We sometimes forget that during the eight years before September 11, the U.S. attorney for the Southern District of New York successfully prosecuted 26 jihad conspirators, in six major trials and some minor ones, with no acquittals. Ali Al-Marri, the citizen of Qatar whose writ of habeas corpus was just ordered by the Virginia federal appeal court, was originally charged with civilian criminal charges before being abruptly moved to military detention. The main point is that holding these military trials undermines our own objectives in a global war against terrorism: not just to bring terrorists to justice, but to give them credible justice in the eyes of the world. Credible justice for international crimes demands tribunals that are fair and impartial both in fact and in appearance,and military commissions, by their nature, fail that test. It seems very unlikely that judgments and sentences issued by these military commissions will ever be perceived as fair by the very Muslim nations whose continuing support the United States needs to maintain its coalition against terrorism.
4. Are you more likely to be found guilty in a military trial?
Broadly speaking, defendants before military commissions have fewer protections and procedural rights than in a civilian trial. Historically, a military commission was neither a court nor a tribunal, but an advisory board of officers, convened for the purpose of informing the conscience of the commanding officer. This means commissioners are not independent judges, but usually military officers who are ultimately answerable to the Secretary of Defense and the president, whose delegates prosecute the cases. In the case of the new Military Commissions law, under some circumstances, it would allow introduction of statements obtained by torture, introduction of hearsay evidence, and permit the government to withhold information from the defense lawyer about how certain evidence was obtained: all major disadvantages to the defendant.
5. Of the approximately 380 prisoners at Guantanamo, only these two have been acted on. What's going to happen to the others?
We don't know. Apparently, the Administration is trying to find countries that will take them, but as a recent New York Times report about Uighur Muslims held in Guantanamo who were sent to Albania shows, that process is slow, and not necessarily a success even when another country agrees to take them. So the detainees remain in a legal limbo. They are being treated as persons outside the law in a place that is outside the law.
6. Do you believe Guantanamo should be closed? And what's the alternative if it is?
Yes. Guantanamo is a legal disaster and a national disgrace. Apparently, many in the Administration share this view; the new Secretary of Defense Robert Gates asked that Guantanamo be closed and was turned down. The alternative is to close the camp and to deport the detainees, charge them criminally in civilian courts, hold them as material witnesses, or find other countries who will accept them for criminal trial. The real question is why Guantanamo was ever opened as a detention facility in the first place. Hundreds of people were brought there without an "exit strategy," another example of a broader planning problem of our entrie strategy toward the "war on terror."
7. Turning to a different issue: what's your impression of John Roberts as the Chief Justice? Have any recent decisions-like last week's ruling tightening the requirements for workers to charge pay discrimination-told us anything about the philosophy of this new court?
I went to law school with Chief Justice Roberts nearly 30 years ago. He is very bright, a good writer, works very hard, and has proven himself to be both a quick study and an able administrator in his first months as Chief Justice. He worked for the government for many years, and usually takes pro-government positions; and he has not shown particular compassion for the underdog in his early rulings.
8. Is it possible to be-as Justice Roberts said during his confirmation hearings-an objective umpire of the law, free from ideology?
We have to acknowledge that the "umpire" metaphor is itself a bit deceiving. As any baseball fan knows, even umpires exercise quite a lot of discretion when they call a play. Some plate umpires have big strike zones; some have smaller ones. Whether to call an out under the infield fly rule always involves an exercise of discretion. Judges are human beings, not machines calling balls and strikes. People sometimes forget, that the Chief Justice has only been a judge –on both the lower court and the Supreme Court--for a total of four years. He could serve many decades. As was the case with Harry Blackmun, it sometimes takes years before a justice's true judicial philosophy starts to emerge.
9. What is the current state of play on what the Republicans call "the terrorist surveillance program" and what the Democrats call "warrantless wiretapping?"
We still don't know the complete details of the program, as the Bush administration has not testified about it publicly and still maintains that security considerations don't allow its full details to be released to Congress or the courts. Many legal scholars, including myself, have written or testified that the program blatantly violated the 1978 Foreign Intelligence Surveillance Act. Last August, a federal district judge in Michigan held the program unconstitutional in a case brought by the ACLU on behalf of journalists, scholars, and lawyers subjected to the program. That decision is currently on appeal to the U.S. Court of Appeals for the Sixth Circuit. This past January, Attorney General Gonzales sent a letter to the Senate announcing that the program would not be reauthorized by the president, and that any electronic surveillance conducted under the Terrorist Surveillance Program would henceforth be conducted under the oversight of the Foreign Intelligence Surveillance Court.
10. Weird for me to ask you this, but what do you say to people who worry that law schools are churning out so many graduates-at a time when there are already so many lawyers in America?
I would say that we have plenty of lawyers, but too few really good ones. The recent revelation that White House lawyers went to former Attorney General Ashcroft's bedside to ask him to approve an illegal program (widely believed to have been the Terrorist Surveillance Program) shows the problem. Fortunately, there were some principled government lawyers there, lifelong Republicans, who had the intelligence to read the law, and the courage to say "No." Powerful clients usually don't have trouble finding lawyers who will tell them what they want to hear. The problem is finding (and training) good lawyers who will read the law fairly and tell them what the law says, even if that means saying "No" to something the client would really like to do.