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Bush vs Civil Liberties Pt. 2: Court Backs Rights of Guantanamo Prisoners

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A San Francisco Federal Appeals court ruled the government’s treatment of some 660 foreign detainees at Guantanamo Bay was unconstitutional and a violation of international law. We host a debate and speak with lawyer Stephen Kenny who recently visited Australian prisoner David Hicks in Guantanamo. [includes transcript]

A federal appeals court in San Francisco ruled 2-1 that the administration’s policy of imprisoning about 660 non-citizens on a naval base in Guantanamo Bay, Cuba, without access to U.S. legal protections was unconstitutional as well as a violation of international law.

The ruling is essentially symbolic since the Supreme Court already agreed last month to review a case that upheld the Bush policy, which denies court access to the prisoners at the base.

Australian prisoner David Hicks was the first in Guantanamo to be allowed a visit from an independent lawyer. Hicks was captured in northern Afghanistan as a suspected Taliban fighter in 2001. His attorney Stephen Kenny recently returned from Guantanamo.

  • Barbara Olshansky, Assistant Legal Director of the Center for Constitutional Rights. The Center submitted a brief to the court criticizing the government for holding enemy combatants. She is the author of the book “Secret Trials and Executions: Military Tribunals and the Threat to Democracy” (Seven Stories).
  • Richard Samp, chief counsel of the Washington Legal Foundation. The Foundation submitted a brief to the court backing the government on its enemy combatant policy on behalf of three Republican members of Congress, Walter Jones of North Carolina, Lamar Smith of Texas and John Sweeney of New York.
  • Stephen Kenny, Australian lawyer who recently became the first attorney to visit a detainee being held at Guantanamo Bay.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Our guests, Barbara Olshansky is the assistant legal director for the Center for Constitutional Rights. Her book is called “Secret Trials and Executions.” Richard Samp is on the line with us from Washington, chief counsel of the Washington Legal Foundation. Juan.

JUAN GONZALES: Yes. I’d like to continue the debate here, and Richard Samp, on the issue, you raised the Richmond case, which was actually, I think, the D.C. Circuit that ruled in Hamdi’s case that he was — that the president had the powers to declare him an enemy combatant.

RICHARD SAMP: Actually that was the U.S. court of appeals for the Fourth Circuit in Richmond. The case that was from the D.C. Circuit was the one in Guantanamo Bay.

JUAN GONZALES: Oh, okay. In that case, though, the Richmond court specifically said, as I understand it, that a section of their decision, they were pointing that they were not dealing with the Padilla case. In fact, they said we have no occasion, for example, to address the designation of an enemy combatant — of an American citizen captured on American soil, or the role that counsel might play in such a proceeding. So they seemed to be specifically, even that rather conservative court, was seeming to say, hey, we’re not going to have Hamdi, our decision of Hamdi, applied to Padilla itself. They even apparently had some concern about the extent in this case of actually arresting an American citizen on American soil.

RICHARD SAMP: : I think you’re at least partially right there. They did make a point of distinguishing the two cases factually. What the court ruled in that case, though, was as a preliminary ruling, they said there is no question that the president has the authority to detain American citizens. And they did that not only on the basis of a different understanding of the constitution than was indicated yesterday by the second circuit, but they also did it on the basis that they looked at the joint resolution that was adopted by congress following 9/11. And they looked at the legislative history of that act, and said there was no question in their minds that congress intended to give the authority to the president to detain people in connection with the fight against Al-Quaida. And all the prior detention laws had said was you need to get authority from congress. What the fourth circuit said was they did get that authority. I think yes, there are significant factual differences between the two cases, but there are — on that one point of law, they are precisely the same. And that’s what leads me to suspect very strongly that the U.S. Supreme Court will review yesterday’s decision in order to resolve that conflict.

AMY GOODMAN: So, right now, Jose Padilla— they have 30 days, and he either has to be released or brought into a civilian court, is that right?

BARBARA OLSHANSKY: : That’s right.

AMY GOODMAN: What exactly do you think will happen within this 30 days?

BARBARA OLSHANSKY: : Well, I think it’s clear from what Scott McClellan said that the government is going to seek a stay and then appeal the decision. So, I think the court should deny that stay. I think if he’s in criminal detention, then, you know, he is of no danger to anyone to the extent they think there’s a danger. But it’s difficult to say whether the court will say that he has to retain the stay in military detention while they decide the case en banc.

AMY GOODMAN: Now, a federal appeals court in San Francisco, in a second blow to the administration, ruled 2-1 that the administration’s policy of imprisoning about 660 non-citizens on a naval base in Guantanamo Bay, Cuba, without access to illegal protections, quote, “raises the gravest concerns under both American and international law.” The ruling is essentially symbolic since the Supreme Court already agreed last month to review a case that upheld the Bush policy which denies court access to the prisoners at the base. Can you talk about the significance of this ruling? Let’s start with Richard Samp.

RICHARD SAMP: : Well, I agree with what you said, that it is largely symbolic, because the Supreme Court will already be looking at the issue in terms of how much weight it will be given by the Supreme Court. I think the answer probably is not much. It was written by Stephen Reinhart, who was considered among the most liberal and most frequently reversed of the Ninth Circuit judges. Also, I want to point out that the issue really was not on the merits of the detention. What it had to do with was whether the United States courts have jurisdiction at all to hear claims by overseas aliens who are not within the United States. The D.C. Circuit said no Jurisdiction. The Ninth Circuit said there was jurisdiction. So Reinhart, while he had some language expressing concerns about the policy was not ruling at all on the merits of the policy.

JUAN GONZALEZ: : But didn’t most of the decision revolve about — around the question of whether Guantanamo Bay was a U.S. territory?

RICHARD SAMP: : Yes, it did. If Guantanamo Bay, in fact, should be considered the same as U.S. territory, then these people are within the United States, and, therefore, are entitled to access to the American courts. That is a jurisdictional issue, not to the merits of whether or not it’s okay to be holding them.

AMY GOODMAN: We’re also joined on the telephone by Steven Kenny He is an Australian lawyer who became the first attorney to visit a detainee on Guantanamo Bay. He has just returned. Australian prisoner, David Hicks, is his client. You can go to, our website, and review the interview we had with his father, who came to protest David Hicks’ imprisonment on Guantanamo. Hicks was captured in northern Afghanistan as a suspected Taliban fighter in 2001. We are joined by Steven Kenny.

STEVEN KENNY: Good morning.

AMY GOODMAN: Can you talk about what you saw on Guantanamo, how is your client, David Hicks, and your reaction to the ruling of the court?

STEVEN KENNY: I can’t really talk about a lot of what I saw on Guantanamo Bay. That’s quite restricted. Generally, it’s a naval base, but on which a large prison camp has been erected. I cannot talk about the conditions on which David is being held except to say that David had previously written to his family saying that he is now held in isolation and all he sees is MP’s. As for how he is, he is not bad considering the circumstances. He has been in some fairly difficult circumstances. The camps themselves have been fairly difficult. I’m not sure that I personally would have survived as well as what he has. You know, there are some concerns, but I think he has, in the circumstances, within the limitations, survived reasonably well.

JUAN GONZALEZ: And how is it that he ended up being captured by U.S. forces and brought there?

STEVEN KENNY: I cannot talk about that, except the things that are, again, publicly known that he was picked up by the Northern Alliance in northern Afghanistan on the 9th of December. The Northern Alliance handed him over to the American authorities and he was brought out to Guantanamo Bay. You know, I should say that the Australians were in Afghanistan at that time, and presumably he could have been handed over to the Australian authorities, but he wasn’t.

AMY GOODMAN: And can you talk about how you became the first lawyer to visit a prisoner there?

STEVEN KENNY: I’m not sure exactly how I became first lawyer. No one said we picked you because of anything. I have been working on this case for two years, and with the assistance of the Center for Constitutional Rights in New York, we had issued court proceeds challenging the president’s order and David Hicks’ detention as you previously said, that matter has now worked its way up to the Supreme Court where the court will determine whether or not U.S. courts have jurisdiction over the detainees in Guantanamo Bay. And I think that’s a significant factor.

The other factor was President Bush was recently in Australia, and I had asked the Prime Minister of Australia, Mr. Howe, to raise the issue with Mr. Bush, particularly requesting that the Australian citizen be allowed the same standard of rights that Mr. Walker Lindh, the American citizen, got. Unfortunately, Mr. Howe didn’t do that, and simply asked Mr. Bush whether he would hurry the matter up. I think that may have had something to do with the fact that I got to Guantanamo Bay.

JUAN GONZALES: I’d like to get back to Richard Samp and ask him about the Guantanamo situation. Clearly, the Ninth Circuit Court was raising the issue of international law as well as domestic U.S. law that apparently — well, either these are prisoners of war, in which case they have certain rights under the international law, or they are criminals, or alleged criminals, that the United States now has in a territory that is where the United States’ flag certainly flies in Guantanamo where U.S. sovereignty is being exercised. Your response to the question of the international dimensions of holding these people for so long?

RICHARD SAMP: First of all, much of what was sighted by Judge Reinhart in his decision as so-called international law is not something that has ever been accepted by the United States. Many of these are treaties that we have never ratified for precisely the reason we don’t want to make them enforceable in our courts. I do agree that there is much to be said for the United States acting in a way that gives us the good opinion of the rest of the world. It doesn’t do us any good to make enemies out of Australia and Great Britain by mistreating citizens of those countries at Guantanamo Bay. Therefore it’s in our interests to make sure that — that we treat them well. On the other hand, that doesn’t mean that the answer for someone like Mr. Hicks is to go into American courts. Rather, the answer is for citizens of Australia, and the Australian government to put diplomatic pressure on the United States. And that, I understand, is going on and the result is the access that Mr. Hicks has to an attorney, plus the fact that, I understand, that there has been a guarantee that Mr. Hicks would not be given the death penalty even if convicted by a military tribunal.

AMY GOODMAN: Barbara Olshansky.

BARBARA OLSHANSKY: Well, I think I have to disagree with Mr. Samp on a number of points. The first of which is that what we have in Guantanamo is both a legal and a moral black hole. The position of the administration has been that neither domestic American law applies there, nor even military law. So, what we have is sort of a third universe where the government feels fit and free to pick and choose what it wants to apply. And I think that’s very disturbing for a country that is premised on the rule of law.

Second, you know, this notion that there are no international covenants or treaties that apply is just really incorrect. The 1949 Geneva Conventions were signed and ratified by the United States. And you know, the one, article 5, of the third Geneva convention makes really clear that people are entitled to a determination by a neutral tribunal as to whether or not they’re a prisoner of war. And Juan is right, if you are a prisoner of war, the conventions require that you be treated to the same justice system as American soldiers. That means going through the uniform code of military justice, and if you have committed a crime, a war crime, being tried in front of a court-martial. If that doesn’t apply then you are a civilian and must go into the criminal court system. And so, either Mr. Hicks is a prisoner of war because he fought for an army of a recognized nation- state. Whether we like that country or not, the Taliban was the government. If he was fighting for the Taliban, then is he a prisoner of war. And if he wasn’t, and we think he did something else wrong, he must be put into American criminal courts. The fact is that some law has to apply there, and that not only is it morally wrong for to us say there isn’t any law, but what are the ramifications for our own people all over the world. If we set this bad example here, and our soldiers are captured elsewhere? Is this what we want to say, that you can create your own justice system for whatever you want to try our soldiers? I don’t think so.

AMY GOODMAN: Richard Samp.

RICHARD SAMP: Well, it is correct that the Geneva Convention of 1949 does apply, and what it says is that if the government has significant doubts as to what the person’s status should be, it should hold a tribunal to make that determination. The government has said it’s very clear that none of the Taliban soldiers were a regular army. They were not wearing uniforms and openly bearing arms, therefore, they are not prisoners of war. But even if they were considered prisoners of war, holding them in Guantanamo Bay would be a hundred percent correct. They are not entitled to any sort of criminal proceeding. They are entitled to be held and detained at a prisoner of war camp for the duration of hostility.

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Bush vs Civil Liberties Pt. 3: Justice Department Report Details Abuse of 9/11 Detainees

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