Focus 580; Legal Status of Enemy Combatants

Good morning and welcome to focus 580. This is our morning talk program. My name is David Inge. Glad to have you with us earlier this summer the United States Supreme Court ruled that enemy combatants being held by the government in military prisons or at Guantanamo Bay were entitled to challenge their detention in federal court. Writing for the majority in one of these cases Justice Sandra Day O'Connor declared that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens. This morning in this part of focus 580 will be talking about the court's rulings. And our guest for the show is Doug Cassel. He's a professor of law at Northwestern University director of the Center for International Human Rights at the Northwestern University Law School and he's joining us this morning by telephone as we talk as always questions from people who are listening are welcome the only thing we ask is that callers are brief so that we can accommodate as many as possible and. Keep the program moving but anybody is welcome in to the show. Here in Champaign Urbana if you'd like to call the number is 3 3 3 9 4 5 5 4 you do also have a

toll free line and that one would be good if it would be a long distance call for you. So if you're listening in around Illinois and Indiana or in fact if you might happen to be listening on the internet as long as you're in the United States you may use the toll free line and that's 800 to 2 2 9 4 5 5 3 3 3 WRAL and toll free 800 to 2 to WY. Professor Castle Hello. Good morning. Thanks very much for talking with us today. Pleasure we certainly appreciate it. You are a professor of law there are you know I'm a clinical professor of law yes. OK. I don't want to make sure I had I had that correct. Well what I thought we could do is at the beginning here just talk a little bit about the cases. And there are there were three. The B the first one I guess in no particular order the first one concerns those people who were being held at Guantanamo Bay. Actually initially there were two cases and they became consolidated there are something like 600 foreign

nationals now being held there. And the question of the court was considering was do foreign nationals being held outside of the United States because going to obey is indeed outside the United States. Do they have a right to a hearing in U.S. court. The government argued that because they were outside of the United States they had no rights who access to courts in the United States. And in this particular case the court ruled 6 to 3 that they do have a right to the U.S. court even if they're not citizens and even if they're being held outside of the United States. Well that's right Dave at the risk of jumping the gun I think it's useful to look at the three cases as a sort of a package because they have important points in common and important distinctions. What they have in common is that in or three cases the Bush administration was this asserting the right on the basis of secret intelligence information known only to military and executive officials to label someone

as an unlawful enemy combatant. And then to put that person in prison with no charges with no access to a lawyer with no access to a court with no due process of law and to keep that person there for as long as the president of the United States on the basis of secret information chooses to do so. And indeed they assert the authority to keep people locked up until the end of the war on terrorism which is a war that obviously could go on for a lifetime. So in essence the administration was under the cover of claiming that this is a war against terrorism asserting the right to impose up to and including a life sentence in prison on individuals based solely on executive determination with no congressional authorization with no judicial review and with no due process. And that's that's what's in common among the three cases. What is different among the three cases is the particular circumstances of the people who

were thus labeled in the Guantanamo case as you mentioned. We're talking about foreign citizens not U.S. citizens most of whom were picked up somewhere in the vicinity of Afghanistan or Pakistan. But a fair number of them were picked up in places like Bosnia and Africa far away from any battlefield in care in Afghanistan far away from any. Known headquarters of al Qaeda and treated in the same way it has people picked up on or near the battlefield. So that was that was one case the foreign citizens and you're correct that in that case the court said contrary to the position of the U.S. government that those people do have access to U.S. courts because even though Guantanamo is outside our sovereign territory it is a territory which we have effectively controlled for over a century. We have exclusive control there. It's within our jurisdiction. And if they don't have access to

American courts then they don't have access to any courts at all. The other two cases involved American citizens both of whom are being held in a Navy brig in South Carolina. So unlike the other case we're talking now about citizens and we're talking about people held within the U.S. and in these two cases the court said in the one involving Mr. Yasser Hamdi who was picked up allegedly by the government picked up in Afghanistan on the battlefield that even he was entitle to minimum of due process that would require. Is having being given notice of the factual basis of the allegations against him and giving him an opportunity to rebut those allegations before a neutral decision maker. Those are the absolute bare minimum of Due Process of Law said the court. Now a poor relative of the court there said that.

Subject to that procedural quiet requirement the government could hold Mr Hamdi as an enemy combatant if it could prove its case. The other case before the court involved Mr. Jose by the an American citizen who was originally picked up at O'Hare Airport in Chicago and later treated as and as an unlawful enemy combatant. And there the holding of the court the ruling of the court went off on a venue issue of a city in New York where the case was litigated was not the proper court it should have been. In South Carolina and so that case is now being refiled but in the course of that is nonbinding statements. Who are members of the court in the case so that the government simply had no authority whatsoever to hold a United States citizen captured on U.S. territory as a so-called enemy combatant. And when you add that together with the votes of some of the five members in the majority who ruled on the venue issue

if you have those four dissenters together with the votes of some of those five in the Hamdi case what you come up with is a majority of the court albeit in dict which is saying that the president simply cannot grab an American citizen on American territory and lock him up as an enemy combatant. The president has only two choices with respect to an American citizen in America namely either let him go or if you want to accuse him of something. Charge him with a crime and prosecute him. So the the case is Jose Padilla and Yasser Hamdi. Enough alike so that it sounds as if you're saying that if the attorneys for Mr. Badia had filed their case in South Carolina where he was being held instead of New York you think it likely that the court would have ruled as it did in the case of Yasser Hamdi. It would have gone even further. It would have said that the government simply has no authority to hold Mr but the as an enemy combatant because unlike Hamdi but the year was not picked up

on a foreign battlefield allegedly but rather picked up in the U.S. So in Hamdi if the government gives him due process of law they can hold him as an enemy combatant according to a plurality of the court. But in Pythia they cannot hold him as an enemy combatant. The only way they can hold him because he's a U.S. citizen picked up in the U.S. would be if they have some crime with which to charge him and they bring a criminal prosecution against him and indeed there have been news reports since that decision that the government now doesn't tend to bring criminal charges against Mr. Pugh the a to my knowledge they haven't done it yet. But there are press reports that that's what they're now planning to do. In the case of Yasser Hamdi. I'm I don't know if this is getting overly technical but it is my understanding and having read all the stories about this that the only real dissenter in this case was Justice Thomas and so I guess I'm wondering why it is that that was considered to be a 2:54 decision rather than an eight to one

decision. Well this is one of those musical sure decisions where there are several different issues. In the case and the vote totals on the different issues are different. I think you're correct that the vote was 8 to 1 against the government's claims of authority to hold Mr. Hamdi without anything more than a minimal due process. The government wanted to hold Mr. Hamdi on the basis of a two page affidavit from a consultant to the Defense Department without giving him any opportunity to present his own evidence and without letting him meet with his lawyer and on on the issue of the process that he was due. Six judges said that's not enough. The only one who said it was enough was Clarence Thomas. There were two others who didn't speak at all on that question. But the votes for split because of the eight justices who did not buy the government's argument. Two of them one from the right and one from the left namely Justice Scalia

and Justice Stevens regarded perhaps as the most conservative and the most liberal judge on the court agreed that the president simply cannot detain an American citizen as an enemy combatant. In other words they took the same position in Hamdi that the four dissenters took in. But the that if it's an American citizen this enemy combatant label is not a sufficient basis to detain someone and that either you have to charge him with a crime or let him go. Except in the very rare circumstance where under the Constitution Congress chooses to suspend the writ of habeas corpus which Congress has not done since 9 1 1. So you had two justices who took the position that this whole the firy of enemy combatant detention just can never be applied to a U.S. citizen at all. Then you had two more Justices Souter and Ginsburg who took the position that because of a

statute that Congress passed 30 years ago it says that no American citizen can ever be detained without express authorization by Congress that that was sufficient reason not to allow the detention of Mr. Hamdi as an enemy combatant. So they reached the same result as as Scalia and Stevens but they did so on the basis of a statute rather than on the basis of the Constitution. And then you had four justices in an opinion written by Justice O'Connor who took the view well in this case Congress passed after nine one one a resolution authorizing authorizing the president to use force against Al Qaida and other terrorists. Implicitly includes the power to detain enemy combatants and therefore they said the president had authority from Congress to detain American citizens as enemy combatants. But they added if he's going to exercise that authority he has to give due process of law which means a meaningful hearing

before a neutral decision maker. Let me just take a moment here to reintroduce the guest for this hour of focus 580 Doug Cassel. He's director of the Center for International Human Rights at Northwestern University School of Law. And we're talking about the rulings from earlier this summer by the Supreme Court having to do with those people deemed by the administration to be enemy combatants being held. Some of them being held at Guantanamo Bay in Cuba others being held the other two being held at a Navy Prison in Charleston South Carolina. Questions are welcome 3 3 3 9 4 5 5 toll free 800 2 2 2 9 4 5 5 in the Guantanamo Bay case. The dissenters were those justices who are known to be the most conservative. Thomas Rehnquist and Scalia agreeing with the position of the government that the. These people being held outside the United States have no access to to the US court. These foreign citizen these non-citizens being held outside the United States have had no access to him should not have access

to this to the court. However in the case of Hunty Mr Justice Justice Rehnquist Mr. Scalia went against the argument of the government as someone who is a watcher of the Supreme Court and is interested in how would his decisions break down and what you can tell about the the attitudes of individual justices and the court collectively by how it is the court decides things. Does is there anything in the way that this broke down or in how various justices came down on this did in these decisions that were as it is at all interesting or surprising. Well it was first of all astonishing to see an opinion in which Justice Scalia and Justice Stevens joined to see the most conservative in the most liberal member of the court by some measures joined in a single opinion. I haven't gone back to check but I certainly can't remember any previous occasion like that. And then when you look at what the opinion says which is essentially

telling the president your whole theory of locking up American citizens during the war on the so-called war on terrorism violates the Constitution and you have no authority to do that. Taking such an extreme position from both ends of the spectrum on the court. That was that was stunning. I don't know of any observer of the court who would have ever predicted an opinion like that. I think what accounts for the fact that Rehnquist and Scalia were it went against the administration on the cases involving on the case involving a US citizen Hamdi but stuck with the administration in the case involving foreign nationals at Guantanamo is evidently that they have a much higher view of the rights of Americans than they do of the rights of foreigners. Or to put it another way they have a much higher regard for the constitutional rights granted to Americans by the Constitution than they do to the human rights granted all

human beings. By international human rights law and by the Geneva Conventions there's no logical reason why it should be OK to lock up a foreign citizen and throw away the key because the president says he's an enemy combatant and to do that with no hearing and no lawyer and no process and on the other hand to say that American citizens are somehow immune from that sort of treatment. In fact the six justice majority in the Guantanamo case relied very heavily on that discrimination has a reason to rule in favor of the prisoners at Guantanamo they noted that the government's lawyer the solicitor general Mr. Olson and his oral argument before the court had conceded that if there were an American citizen in Guantanamo Well of course he would have access to American courts. And the six justice majority said well we don't see any reason why if an American citizen in Guantanamo has access to the courts but a foreign citizen of Guantanamo accused of the very same

offense or being a member of the very same terrorist group should not equally have access to the courts and that was one of the reasons why six justices ruled against the government. But it's one of the reasons why Rehnquist and Scalia apparently flipped over in that case and went with the government. People who like you work in the area. Human rights rights of the accused and so forth I think regarded this as being a great victory victory for the for the Constitution. But the administration in people who speaking for the administration made it sound as if And perhaps this is just spin that they thought that it was at least a partial victory for them in the sense that the administration says the court affirmed the authority of the president to detain people as enemy combatants as long as the government can present evidence to some sort of neutral party like

a judge that the person in question really is an enemy fighter and in that case if they can persuade this this neutral party that that is the case then that person can indeed be held without trial or without charges as long as the war on terror lasts which makes it sound as if the the administration still thinks that they can they can work this the way they want to work at and that in that they consider it to be something of a partial victory so you have to question. Who wins by this decision who does win. Well the American people win and the cause of liberty in the world wins the government's technically right that the government that the court allows in some circumstances the use of the sentiment combatant theory for detention provided the person who is being detained has and has access to the courts and to Due Process of Law the government's statement that you just paraphrased However overlooks the fact as I mentioned

that if you add together the votes in the DIA and the Hamdi case is what you come up with is a majority of the court who are not willing to allow that theory to be used at all against a United States citizen who is detained in the U.S.. So if if if these if this line up on the court holds and of course there may be changes after the elections but if this line up on the court holds we have a majority of the court saying rejecting altogether the enemy combatant theory for use against U.S. citizens in the U.S. they do uphold it. A majority of them five members. Opposed it for use against US citizens captured on a foreigner allegedly captured on a foreign battlefield like Hamdi and therefore presumably they also would uphold it for foreign citizens captured abroad. But but the reason why I say this is a victory for liberty is that this this series of decisions and these

opinions really take America back to our constitutional foundations. If you listen to what the government's theory was at the outset of this case that was rejected by eight of the nine justices its theory was essentially trust us let the president with the military take over. The whole task of identifying who should be locked up and deciding on the basis of secret evidence. How long to keep them locked up and keep the Congress and keep the courts out of it altogether. Keep lawyers and judges out of it have no judicial review whatsoever. Just trust the executive. Well that's pretty much akin to sort of the King George the Third theory of how to govern a society. Let the king do it trust the king Don't let others get involved that's not what this country has been about from the beginning. We have always been about separation of powers having independent

courts to engage in judicial review especially through the ancient writ of habeas corpus which allows any person detained to challenge the lawfulness of his detention and then requires the government to justify before an impartial magistrate that they have good reason to hold the person. All of these fundamental principles on which this country's constitution was built were at play in this case. If the if the judges had ruled with the administration on this it would have been a roll back in and of itself of some of the basic principles on which this country was founded. And it would have opened the door. Two further assertions of presidential authority under the justification of the so-called war on terrorism to further erode the basic rights of Americans and the basic human rights of all people so this is a in my view notwithstanding some of the limitations and we got into a lot of it technical distinctions in the different opinions earlier. But

notwithstanding all of that if you cut through all of that what these cases basically say is this country stands for the rule of law it doesn't stand for the rule of one man. We have a couple of callers here and we'll bring them into the conversation we'll start with someone listening this morning in Chicago. And this is our toll free line line number four. Hello. Good morning. Breath of the Abu Ghraib scandal there was a report from the BBC that the United UNICEF had said that it had reports of abuse of children by the Polish troops and the Polish government later denied that. And also there seems to be getting the impression and it's hard to say because I feel like there's a news media fog. The There's a lack of clarity in reporting but there appears to be that. Young children let's say adolescents were are imprisoned altogether when they round up the suspects in Iraq and Afghanistan as well. And I'm

wondering is there any either domestic agency or international agency that is trying to monitor the rights of children in this situation. Well that's an excellent question. First of all the prisoners at Guantanamo while there is some question as to whether this is true of a hundred percent of them but the the administration I think has suggested that the that it is 100 percent of the prisoners have been visited since very early on in their detention which is now for hundreds of them gone on for two and a half years have been visited by representatives of the International Committee of the Red Cross the ICRC which under the Geneva Conventions is authorized to visit prisoners of war and other prisoners being held during were time for the purpose of verifying that they are being treated in accordance with the Geneva

Conventions and then making private reports to the government involved in this case the U.S. on the conditions of their detention together with recommendations. So based on that I would assume that the handful of juveniles that we know about at Kuantan a moment some of them there have ever portably been as young as 13 years old when they first got there have been visited by the Red Cross the Red Cross does not have any different or specific mandate for child prisoners as opposed to adult prisoners its mandate is to see for the care of all prisoners. There are international bodies of course UNICEF the United Nations Committee on the rights of the child that have a special portfolio to watch out for kids. The difficulty in the case of the United States is that we are one of only two countries in the world the other being Somalia which has no government. We are one of only two countries in the world that have not joined the United Nations Convention on the rights of the child. And so the

UN committee on the rights of the child that is created by that treaty has no jurisdiction over the US. So in the case of our prisoners Unfortunately we have to rely on what the Red Cross is able to do. Just the follow up question What was the justification. We decided not to sign that treaty. Well actually the Clinton administration did sign the treaty but this. Signature by the executive is only the first step in joining a treaty. You then have to get consent of two thirds of the Senate to ratify and so the blockage was not at the executive level the blockage was at the Senate that was a time when Senator Jesse Helms was chairman of the Senate Foreign Relations Committee that has jurisdiction over treaties. There were all kinds of conservative objections made in my judgment inaccurately and unfairly to the convention on the rights of the child suggesting that it would give kids the right to tell their parents what to do and to sue their parents and to do all

kinds of things that would upset the traditional family structure in most countries. Now obviously every other country in the world doesn't see a problem with the treaty doesn't think it leads to all those extreme consequences but. A number of right wing advocates in the United States supported by a then very right wing chairman of the Senate Foreign Relations Committee blocked ratification in the Senate. So all the current administration could do was sign it but they couldn't join it because they couldn't get the Senate even to schedule hearings on it. Or how could we move the Senate at this point Kate. And I mean what's the next step to bring it back on their agenda. Well I think as a practical matter at this point obviously nothing is going to happen before the November election. So I think what we need to do is to see who's And which party is in control of the Senate after the November elections. Who is the eve of the continuing current year or the new chair of the

Senate Foreign Relations Committee and then take a look at the political possibilities of trying to persuade. It's not an easy thing to do because it's not enough to get 51 you've got to get 67 votes in the Senate if they're all there on the day of the vote. You need two thirds. See if there's a way to line up two thirds of the vote at the moment. There is an awful lot of support in the Senate to ratify another human rights treaty which is the treaty on the rights of women. And so as a practical political matter I think the first human rights treaty that is likely to come up if we have a Democratic Senate or if there is even a change in the in the current Republican leadership of that committee. The first treaty that's likely to come up. The one that has a better chance frankly of getting through is the women's convention. If we succeed in that then I think we can try to move on to the children's convention. OK thank you. Thank you. Let me ask a basic question. And that is

in in previous wars prisoners of war were taken and at least I'm thinking about for example World War Two United States captures German troops and Japanese troops no one made the argument that they were somehow entitled to have a lawyer or to challenge their imprisonment. The assumption was that it was appropriate for them to be held there were some rules about what you could and couldn't do. But the assumption was that when the war ended then they would be let go. Why is it that this case we're talking about now today that the war on terror is any different from any other war and that the rules about how combatants captured combatants are treated should be different. Well first of all it's not entirely true that in past wars there's been no argument that anybody is entitle to a hearing. You're right that that was the case in the in World War Two but in one thousand forty nine The Geneva Conventions were adopted and the Geneva Convention on prisoners of war provides that if someone is captured in wartime and there

is any doubt as to the status of that prisoner the prisoner is intitled to a hearing before a competent tribunal which is usually a military tribunal to determine the person's status. And in fact the United States not only joined that Geneva Convention but that the U.S. military has also adopted a series of regulations putting that rule into effect. So during the Vietnam War and during the first Gulf War. There were in the case of Vietnam there were well over a thousand hearings I think over 2000 such hearings and in the case of the Gulf War I don't remember the numbers but it was close to a thousand such hearings were held. And in each case a very significant percentage of the people who went before these competent tribunals were found to be mistakes were found to be people who should have been locked up in the first place and they were let go. And that was understandable especially

in the Vietnam War where it was very hard to tell civilians from combatants. And this so the recent war in Afghanistan is the first time since the forty nine Geneva Conventions were adopted by the U.S. in 1055 it's the first time where the United States has engaged in a major war and has refused to give hearings to people who claim that they are not who we think they are or haven't done what we think they've done. And the United States has claimed that on the authority of President Bush. So this is in fact a radical departure from our own past practice in past wars and that's one of the reasons why the in the cases before the Supreme Court. Friend of the court briefs were filed in support of the prisoners by the former judge advocates general of the United States Navy and the United States Marine Corps. This is unheard of for

sea for retired senior military officers to file friend of the court briefs against the United States government on a military issue before the United States Supreme Court. And yet they did so because they said this is just going the administration has gone off the rails. They have abandoned what we have built over the last half century under the Geneva Conventions. Now having said that if you do go before a competent tribunal for a hearing and it determines you're an enemy combatant then in a conventional war the government does have the right to hold you until the war is over. So what is different about the war on terrorism. Well there are a couple of major differences between the war on terrorism and a conventional war for this purpose in a conventional war. You usually have a pretty good idea of who the enemy soldiers are. In World War 2 it's the German army it's the Japanese army. They almost always wear uniforms. They almost always have German or Japanese citizenship

or at least long term residency. It's pretty clear who the enemy is number one and number two the ruler has a defined beginning at a defined end. So it makes sense to say that as long as the fighting is going on as it did in the case of the U.S. involvement in World War Two for a period of little less than four years. That one side can hold the other sides captured soldiers until the war is over so that those soldiers don't go back to the battlefield to fight against us while the war is going on. The problem with the war on terrorism is that we have no idea when it's going to end and we have no idea how we're going to know it's going to happen. This is something which could go on literally for decades. And that means that instead of holding people for a defined term of a period of years as happened in World War Two. If you say the president can hold people until the so-called war on terrorism is over you're essentially saying number one that he can hold them for decades in prison. And number

two there is no way to know at what point he's got to let them go. Other than his own say so that he decides at some point in time the war is over. So the claim of the president to use the Geneva Convention Authority to hold is in the context of what he rhetorically labels as the war against terrorism which doesn't fit the definition of wars in the Geneva Conventions is one which raises very different questions for liberty and that's why. Eight justices of the Supreme Court simply would not buy that. In the case of American citizens and why six justices in the case of foreign citizens insisted that at least there be judicial review. We are approaching our last 20 minutes here in this part of focus. Let me just very quickly again introduce our guest Doug Cassel is director of the Center for International Human Rights at Northwestern University School of Law. Questions are welcome 3

3 3 9 4 5 5 toll free 800 2 2 2 9 4 5 5. We have some other callers here. Next we go over to Bloomington Indiana. Line 1. Hello. Hi. About the U.N. treaty on the rights of the child. It's been a long time since I heard about that treaty but if my memory serves if my memory is accurate that treaty would not only be an assault on our United States sovereignty but it also assumes that children the United States are oppressed. And I don't know if it would turn over the authority of our children to the United Nations so that it assumes that the United Nations is a competent organization. I mean this is this is the this is the same organization that allowed Saddam Hussein to ignore their mandates it allowed the genocide in Uganda. We're going to turn our children over to them. I mean it is true that a couple of weeks ago there was a

proposal that went through the House of Representatives last that said that the United Nations should monitor American elections it should monitor our elections. I mean come on. Well it is understandable that the caller would think that the Convention on the rights of the child. Would assault American sovereignty in turn over our children to the UN. And it's certainly true that the UN has a mixed record when it comes to being competent in any field of endeavor. But having said that the fact is that the Convention on the rights of the child would not turn over our children to the United Nations if that were the case. Do do do we really think that Britain and France and Germany and Italy and Canada and Australia and all the other democracies of the world would have happily handed over their children to the United Nations of course not what the treaty provides is that the country which ratifies it

undertakes certain obligations in concert with other countries in agreement with other countries to give children a minimum level of fair treatment and so that means for example that in any decision affecting the welfare of the child the way the treaty is written the welfare of the child must be an upper most concern. But all of that would be enforced domestically inside the United States just as it is in force now domestically in the other countries that have that have ratified the treaty. There would be the role of the United Nations is that the United States like every other country that's joined the treaty simply would need to publicly report to the UN on how we are complying with the treaty and the Committee on the rights of the child would review those reports would review other information submitted to it by for example child advocacy organizations even in the United

States and would issue a public report indicating those areas where it believes the US is in compliance and those areas where it believes the United States has more work to do. And the committee on the rights of the child has already been doing that for hundreds of other countries around the world. So it's understandable that the caller might fear because this is some of the propaganda frankly that's come from the critics of the treaty that we're going to be having to send all of our kids to U.N. headquarters in New York or Geneva or someplace but that's simply not what the treaty does. And if that were what the treaty did that there's not a country in the world that would have joined it. Well what you have described seems to be quite clearly an implication that we oppress our children and it and it also is quite clearly an implication that we are some type of. Something that is something that the United Nations could exercise some authority over the United States. Well number one there is no country in the world whose record in regard to the treatment of its children or any other of its citizens is perfect. To say

that we all ought to join these international treaties so that we can improve their performances doesn't doesn't mean that we're repressing our children it just means that our performance is not perfect and there may be areas in which it can be improved just as that's true of each of the other democracies that I mentioned earlier. And in terms of turning over sovereignty what ever reviewing function the United Nations gets his nonbinding it's voluntarily given to it by each country which agrees to allow it. At the end of the day if the United Nations committee says you know United States you really ought to take a look at your procedures for representation of children in juvenile delinquency cases and maybe maybe you could improve those a bit. That's a recommendation. There is no obligation whatsoever on the part of the United States to comply with that recommendation but it does serve the useful function of having an outside group of experts who represent the rest of the world and who are

looking at not just us but every other country to say you know you guys really ought to take a look at this maybe you can do better. And we're perfectly entitled after they say that to say well OK we've looked at it we like the way we're going to do it. We like the way we've been doing it and that's the way we're going to keep doing it so this is this is not the sort of bug bear that has been suggested by some of the opponents This is a very reasonable deal and that's why the entire world except for the United States and Somalia has already signed on to this deal. Let's go on to another caller this next line the bridge. To the callers in Urbana Illinois. Yeah hi and thanks for taking my call. I'd like to make two comments. Although before that in response to the previous caller you know I've seen a recall that Paul Wolfowitz a year or so ago was actually labeling a nine year old boy in Chicago as a super predator. A 9 year old boy who was getting involved in some kind of a crime and this is a government official attempting to

brand a young young child as a as a super ultra criminal. So I don't know I'm just you know how do how do our other children in our country treated. But anyway first of all you know in in the 1950s we began a war against North Korea. And we cut we did not call it a war we called it instead a police action because it was not legitimate considered legitimate for us to start a war. And that gave us kind of a little bit of a fig leaf. But in reality we had our army was fighting their army on the battlefield and so it was a war. And then in this supposed war on terrorism what we have is basically the exact opposite. We do not have a except for Iraq which is a completely separate issue in the in the actual war on terrorism what we have is we do

not have an army we do not have an enemy army and we do not have a battlefield. What we really have is something that much more resembles a police action we have a bunch of crim a bunch of international despicable international criminals who really need to be dealt with through police and intelligence operations. And you know we call it a war because. For whatever whatever politically expedient reasons happen happened to be there for the you know for the administration. Well first of all on the on the comment about Wolfowitz and the child in Chicago I don't recall that one where the other so I'm not going to say anything about that on the Korean War. The United States did have authorization from the United Nations Security Council the United Nations Security Council authorized the use of forces including U.S. forces to maintain international peace and security in Korea. So that was a recognized war. Rhetorically it may have been called a police action but it was authorized as an international enforcement action

for peace and security by the United Nations. So that was by any measure under international law a lawful war and one which was governed by the laws of war in terms of the war on terrorism. It is true that international terrorists are criminals they're criminals under international law they're criminals under domestic law. Practically everything they do constitutes a crime and can be prosecuted wherever you can catch them. And it's also true that most democracies in the world have responded to threats of international terrorism. And domestic terrorism by treating them as police matters and intelligence matters. In the past and up to the present. On the other hand I think it's not quite fair to say that calling this a war on terrorism is only a politically convenient label or a matter of rhetoric. The scale of the

attack on the United States on 9 1 1 resulting as we all know in a horrendous loss of nearly 3000 lives in a single day is arguably very different from most of the criminal terrorist actions that are committed it's different in the very practical sense that it may well be that the only way to respond to that kind of an attack is by use not only of the police and the prosecutors but by use of the armed forces. And I think there is broad international recognition of that in that. During the days and weeks following 9 1 1 the United Nations Security Council passed unanimous resolutions recognizing explicitly recognizing the right of the United States to engage in self-defense against such an attack. Now the term self-defense in international law is not a police term it's a military term and it means in effect that we have been attacked by an armed force which

albeit not a country not a state not a traditional military is nonetheless on a scale of danger and of threat of civilian casualties the equivalent of an armed attack bringing into play the right of the United States to respond in self-defense and similar resolutions were passed by NATO by the Organization of American States. There was a recognition that this was not really the same as traditional terrorism. So I think there is a basis for suggesting that at least some aspects of the rhetorical war on terrorism actually fit. The kind of war that is covered by the laws of war and specifically the war in Afghanistan was a war between two states the United States and Afghanistan that was triggered by the al-Qaida attack and justified by the fact that the Taliban government of Afghanistan was harboring al-Qaida and allowing it to launch its attacks against us from their from their base in

Afghanistan so there there was that element where I think there is a legitimate element of war where where it gets much more difficult to treat the activities against terrorism as a war is when you get away from that very limited context. When you pick up Jose but at O'Hare Airport in Chicago and he was not picked up by the army he was picked up by the Chicago police. And at the time he was picked up he wasn't carrying a bazooka and a submachine gun he was dressed in civilian clothes and unarmed. It's when you carry it that far that clearly you go outside of anything that is a real war governed by the laws of war and you get into something which is pretty clearly a police matter and should be governed by the laws of Criminal Justice and that's what as I said earlier a majority of the Supreme Court said in the case we are getting very short on time. I hope the caller forgive. For jumping in because one thing I want to do before we run out of time is just to try to bring

the the matter of the enemy combatants and their situation up to date is as much as possible because that's what we sort of started out with is my understanding that that some hearings have already been held for those people who are being detained at Guantanamo Bay. Well the Supreme Court decisions came down at the end of June and all through the month of July and continuing up to the day we speak there have been dozens of lawyers filing probably at this point dozens of lawsuits in Washington D.C. demanding First of all that the lawyer be given access to the prisoner at Kuantan tomorrow. And secondly that the prisoner have an opportunity as the Supreme Court said he's entitled to be heard on his claim that he shouldn't be held so far. There have been no rulings by judges in those cases although we may get some in the next couple of days. By the by lower court judges which will probably then be appealed by whichever side loses. And so far none of these

new lawsuits and new lawyers have yet gained access to their client in Guantanamo. So they continue as were the cases that were brought before the Supreme Court to be brought by close family members of the prisoners and lawyers that they retain. It remains to be seen the government is digging in his heels and is taking the position that the prisoners in Guantanamo do not need to have access to lawyers. And we'll see how the courts rule on that I think we'll get some rulings probably within the next week to 10 days on that question but right now it's up in the air there's a lot of activity going on in the courtrooms in Washington and in I think about. Member right early in the conversation you said that there's some some thinking that Jose Padilla will be actually charged with other inter-related or words to the effect that he will be charged and if he is charged she'll be charged in a federal civilian court.

There are already about a half a dozen give or take a few of the prisoners at Guantanamo who have been charged by the military with various alleged war crimes and conspiracy to commit terrorism and so forth. And the military is now proposing to put them on trial before a so-called military commissions beginning August 23rd. Military commissions which do not even provide even the minimum safeguards for due process that are provided by American courts martial. So it's a subject perhaps for a whole different show we don't have time to get into it today. These sort of short cut trial procedures that the military is proposing for a relatively few of the prisoners at Guantanamo who it is who it is already charged are is going to charge with crimes but the vast majority of those prisoners are never going to be charged with any crime. And the issue is whether the government can continue to hold them even though it's not

charging. It certainly would seem based on the decisions of the court there would be some basis for challenging these military. These military trials that you are talking. Well in fact at least one habeas corpus lawsuit has already been filed in Seattle by one of the US military lawyers defending one of the prisoners in the military commission trials at Guantanamo challenging those military commission procedures as violating due process of law. The judge in that case was due to rule yesterday on whether he should keep the case in Seattle or send it to Washington D.C. with the other cases as of the end of the day yesterday. I had not heard any news that he ruled so we're waiting on his ruling first as to which court will hear the case and then once they decide which court hears it they will move on to consider the challenge that the that the U.S. military lawyer has brought to the fairness of these short cut procedures.

Well we have come to the end of the time for this hour we will have to leave it there with the promise that we may get back to the subject of CASTLE Well thank you very much for giving us some of your time today we appreciate it. My pleasure. Our guest Doug Cassel He is director of the Center for International Human Rights at Northwestern University School of Law.