The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer, back now from my book and station travels. On the NewsHour tonight, our News Summary; then full coverage and analysis of the day's two top stories; the early transfer of power in Iraq to the Iraqis; and the U.S. Supreme Court's judgments on how to treat terrorism detainees.

NEWS SUMMARY

JIM LEHRER: The U.S.-led coalition in Iraq transferred sovereignty to the Iraqis today, two days ahead of schedule. The surprise ceremony in Baghdad was moved up partly to head off new violence by insurgents. The interim prime minister said it was a new beginning for his country.

IYAD ALLAWI: This is an historical day with the transfer of sovereignty to the Iraqi government and the Iraqi people. We have been working very hard with Ambassador Bremer and with the coalition and Ambassador Richmond to achieve the transfer of sovereignty as quickly as possible.

JIM LEHRER: U.S. Administrator Paul Bremer left Iraq after the handoff. Hours later, the new U.S. Ambassador, John Negroponte, arrived in Baghdad. The transition came as President Bush was attending the NATO summit in Istanbul, Turkey. He said the return of sovereignty was a tribute to Iraqi courage.

PRESIDENT GEORGE W. BUSH: After decades of brutal rule by a terror regime, the Iraqi people have their country back. This is a day of great hope for Iraqis and a day that terrorist enemies hoped never to see.

JIM LEHRER: Earlier, at the summit, NATO leaders offered "full cooperation" to the new Iraqi government. They agreed to help train Iraqi security forces, but France and Germany said it should take place outside Iraq. And Arab countries generally praised the handover as a first step. The head of the Arab league said, "all we want is that the Iraqi government is able to exercise its sovereignty in a way that will bring it legitimacy." We'll have much more on today's transfer of power, right after the News Summary. Former Iraqi leader Saddam Hussein will go before an Iraqi judge in the "next few days." U.S. and Iraqi officials made that announcement today. An Iraqi tribunal will prosecute Saddam on charges related to his 23 years in power. In the meantime, U.S. Army Brigadier General Mark Kimmitt said he remains in the hands of American forces.

BRIG. GEN. MARK KIMMITT: We have agreed that there will be a process by which the legal custody of Saddam Hussein will return to the people of Iraq. We maintain the physical custody because there is no facility so the prime minister has asked us to retain physical custody but he will be in the legal custody of the people of Iraq.

JIM LEHRER: Iraqi officials will also assume legal authority over 11 other senior members of Saddam's regime. The father of a U.S. Marine held hostage in Iraq pleaded today for his release. A videotape released Sunday showed Corporal Wassef Ali Hassoun blindfolded. His captors threatened to behead him unless all Iraqi prisoners are freed. Hassoun is a Muslim born in Lebanon. The U.S. Military said he failed to report for duty eight days ago. The U.S. Supreme Court today issued major decisions on terrorism detainees. The court ruled foreign suspects held at Guantanamo Bay, Cuba, must have access to American courts. It upheld the government's power to hold American-born Yaser Esam Hamdi as an enemy combatant. But the court said he, too, deserves access to the legal system. In a third case, the justices ruled another American suspect, Jose Padilla, must refile his suit in a lower court. Also today, the Supreme Court ruled police may not try to get around reading suspects their rights. The case involved a man who was questioned twice, the first time without being told of his legal protections. We'll have more on the detainee decisions later in the program. At that NATO summit in Turkey today, alliance members pledged several thousand more troops for Afghanistan to improve security for the September elections. NATO currently has about 6,500 troops there. The summit opened in Istanbul amid violent protests against NATO. We have a report narrated by Vera Frankl of Associated Press Television News.

VERA FRANKL: Turkish riot police used batons and tear gas in a bid to disperse the demonstrators. The protesters clashed with security forces about three kilometers from a barricaded zone in the center of Istanbul, where the NATO leaders are meeting to discuss Iraq. Police detonated several suspicious parcels left by the protesters. The police say 26 officers and about 20 civilians have been injured in the clashes. Militant Kurdish, Islamic, and leftist groups are active in Turkey, and security in Istanbul has been of special concern since November, when four suicide truck bombings blamed on al-Qaida killed more than 60 people.

JIM LEHRER: More than 40 people were detained in the protests. The NATO summit will conclude tomorrow. The U.S. resumed direct diplomatic relations with Libya today after a 24-year suspension. The move came after Libyan leader Moammar Gadhafi pledged last year to give up his weapons programs. A top U.S. diplomat made the announcement today. United Airlines' request for a $1.1 billion federal loan guarantee was rejected again today. It was United's third and final attempt to secure the action aimed at helping it emerge from bankruptcy. A federal panel said the nation's second-largest airline does not need government help. United said today it will step up its search for private backing. The U.S. economy got a boost from shoppers in May. The Commerce Department reported today that consumer spending rose 1%, the most since October of 2001. Consumer spending accounts for two-thirds of U.S. economic activity. On Wall Street today, the Dow Jones Industrial Average lost more than 14 points to close at 10,375. The NASDAQ fell more than five points to close under 2020. That's it for the News Summary tonight. Now, to more on the two major developments of this day, the handover in Iraq and the Supreme Court's terrorism decisions.

FOCUS - TRANSFER OF POWER

JIM LEHRER: The transfer of power in Iraq: We start with a report on this morning's events, narrated by Kwame Holman.

KWAME HOLMAN: The unexpected handover ceremony came at mid- morning Baghdad time, the middle of the night in the U.S. The event was convened hastily and secretly inside Baghdad's heavily guarded green zone. Outgoing U.S. Administrator Paul Bremer read the handover order.

L. PAUL BREMER: As recognized in the U.N. Security Council Resolution 1546, the coalition provisional authority will cease to exist on June 28, at which point the occupation will end and the Iraqi interim government will assume and exercise full sovereign authority on behalf of the Iraqi people. We welcome Iraq's steps to take its rightful place with equality and honor among the free nations of the world. Sincerely, Paul Bremer, ex- administrator of the coalition provisional authority. ( Applause )

KWAME HOLMAN: Two hours after the ceremony, Bremer and his top aides left Iraq on a military plane, their 14-month job at an end. Afterward, Iraq's new president and prime minister were sworn in to their respective offices. President Ghazi Al-Yawer welcomed the day.

PRESIDENT GHAZI AL-YAWER (Translated): I am happy today, this glorious day to be here in front of you to congratulate you for return of sovereignty. We have a great mission in front of us. And we are asking Allah to give us patience and guidance and blessing to push forward this country.

KWAME HOLMAN: And Prime Minister Iyad Allawi pledged a democratic Iraq.

IYAD ALLAWI ( Translated ): Iraq will be for Iraqis, regardless of their religion, ethnicity. All Iraqis will enjoy a full citizenship in a country that enjoys justice.

KWAME HOLMAN: And he warned the road ahead would not be easy.

IYAD ALLAWI (Translated): This is a complex mission because great changes in societies takes years and lots of months. If we have the patience and faith in the future. And faith also in the prosperity and democracy and peace. Democracy is our next step. I don't want to give you false promises. I don't want to give you a dark image, but I want to give you the facts as they are so that we can, all of us, work together through a free will.

KWAME HOLMAN: On the streets of Baghdad, much of the reaction to the news was hopeful and happy.

MAN ON STREET: We have hanging a lot of belief that Iraq is looking forward to more better prosperity, looking forward to a better future. That's all Iraq is waiting for.

MAN ON STREET (Translated): We congratulate the Iraqi people on this day, and we hope that the new government will provide us with security and put affairs on the right path.

KWAME HOLMAN: Iraqi security forces as well as U.S. troops stepped up street patrols in anticipation of significant terrorist attacks, akin to those last week that left more than 100 people dead.

JIM LEHRER: More from Baghdad now, as reported by Jeffrey Gettleman of the New York Times. Terence Smith spoke with him earlier this evening.

TERENCE SMITH: Jeffrey Gettleman, welcome. Tell me, were the Iraqis as surprised as anyone else when this turnover ceremony and swearing-in was moved up 48 hours?

JEFFREY GETTLEMAN: I think they were. I think a lot of people today were really surprised. Everybody had been anticipating June 30 as the big date. The date that this dramatic change would happen on the political scene and the date that there could be enormous violence as a result of that. So today, this morning, when we all woke up around 8:00 or 9:00 A.M. and heard the news that the handover had already happened, we went outside and we began talking to people. And there was this sense of surprise, but also relief that the handover had already been accomplished without the resulting violence that a lot of people had predicted.

TERENCE SMITH: And the Iraqis you talked to, did they think that was a smart idea, or did they see it as some sort of testimony to the fragility of the situation?

JEFFREY GETTLEMAN: I think more of the latter. I think a lot of people realized that the demons that have sort of haunted this occupation starting from the beginning, last April and May, continue to be the same demons that are controlling things right now. I mean, the Americans have not gotten a hold of the insurgency. They have not quashed the insurgency. That was one reason why today they had to have this very important ceremony be held in secret and to be held by surprise. So I think a lot of Iraqis were sort of cynical by the fact that this was going on behind closed doors. But what we've seen over the last few months is that the Iraqi people are much more engaged in the practical issues that affect them, which shouldn't be much of a surprise. Things like job, security, electricity, sewage: That's what's on people's minds. This whole idea of a political transformation is somewhat abstract, especially since a lot of American troops are going to remain in Iraq, 140,000. They're not going anywhere after June 30. So it's not quite clear to people what exactly is going to change.

TERENCE SMITH: When you went out today after hearing the news and Iraqis hearing the news, what was their reaction to what had happened to the turnover itself? I understand they're concerned with practical matters, but it's a different regime now. What was their comment on that?

JEFFREY GETTLEMAN: Well, I think a lot of people are patient here. I mean, that's one thing that they learned under Saddam was how to be patient. The society was very dysfunctional. People were treated really badly, and that just sort of lowers the expectations everybody has about life in general. So I think when this transformation happened today, people thought let's not jump to conclusions, let's give this new government a chance. Let's try to figure out what exactly is going to happen over the next few days. A lot of people were optimistic that things will get better. On the security front there were some interesting points. Some people felt that the Iraqis will have a better shot at crushing the insurgency because they speak the language, they know the culture. They know the country. And that was one thing that the Americans have continued... continually struggled with was sort of cracking the code here. The Iraqis know that, so I think a lot of people have faced that the Iraqi security forces will be able to accomplish as much or more as the Americans.

TERENCE SMITH: Now this took place, of course, while there are still some five or at least five foreigners being held as hostage under varying kinds of threats including a U.S. Marine. Anything new on the situation on any of them?

JEFFREY GETTLEMAN: There's been a few tidbits that we got out of the marines today. One is that this marine, Corporal Hassoun, had been missing since, I think, July... or, I'm sorry, since June 19. Originally they had said he had been missing June 21, but it looks like he's been missing for more than a week. Kidnapping has become a real problem in Iraq the last month or two. People believe the kidnappings are organized by the terrorist Abu Musab al Zarqawi, who is a Jordanian fugitive who is thought to be operating in Iraq. Over the past few weeks, several people have been kidnapped. Right now, we have the marine who is in captivity and who his captors have threatened to behead him. We have three Turkish workers who are also threatened to be beheaded. And then last night there was another video that was released that showed a Pakistani man in captivity, again being threatened with beheading. So it's a pretty scary situation for any foreigner here right now, because we're all told that the terrorists are looking for soft targets or hard targets like a soldier to use as sort of bargaining chips to free some of their fellow insurgent comrades or just create to sort of an atmosphere of terror.

TERENCE SMITH: Jeffrey, just as we were beginning this conversation we could hear explosions behind you. What are they?

JEFFREY GETTLEMAN: I'm not sure. I was going to say that today had been one of the most peaceful quiet days in Baghdad since I've been here. There were very few sounds of gun fire today. No page or mortar attacks or car bombs. About five minutes ago we heard a battery of very loud explosions near the green zone which is often the target of mortar attacks. We're not quite sure what this is. American officials had been bracing everybody here for what they call a Baghdad offensive, a large-scale terrorist uprising that would hit Baghdad starting today through the transition of June 30. One reason why they pushed up the date to today was to try to sort of foil any plans the terrorists have. But a lot of people are worried that today's quiet may just mean that it's going to get worse and worse over the next few days.

TERENCE SMITH: Jeffrey Gettleman, thanks very much.

JEFFREY GETTLEMAN: Thank you.

FOCUS - THE CHALLENGE AHEAD

JIM LEHRER: Next, what President Bush and British Prime Minister Tony Blair said about the handover. Once again, to Kwame Holman.

KWAME HOLMAN: At a NATO summit in Turkey, President Bush looked at his watch the moment power was handed over in Baghdad, then shared a congratulatory handshake with British Prime Minister Tony Blair. Later, the two principal allies in the invasion and occupation of Iraq met with reporters. They were asked about the likelihood the new Iraqi government would need to impose martial law to deal with terrorism.

PRESIDENT GEORGE W. BUSH: You know, Prime Minister Allawi has fought tyranny. He's a guy that stood up to Saddam Hussein. He's a patriot. And every conversation I've had with him has been one that recognizes, you know, human liberty, human rights. I mean, he's a man who is willing to risk his life for a democratic future for Iraq. And our job is to help the Iraqis stand up to forces that are able to deal with these thugs. I mean, it's tough. There's no question about it. They can't whip our militaries. They can't whip our militaries. What they can do is get on your TV screens and stand in front of your TV cameras and cut somebody's head off in order to try to cause us to cringe and retreat. That's their strongest weapon, and we just... Prime Minister Allawi has said publicly many times, you know, he will not cower in the face of such brutal murder, and neither will we; neither will we.

TONY BLAIR: What we've got is a very simple problem to describe and a complicated problem to overcome. We have groups of terrorists and insurgents who will use suicide bombs, who do not care in the least about killing innocent people, who'll do whatever it takes to stop the country from functioning properly. Now in those circumstances, I don't blame at all the Iraqi ministers. Any of us would be doing this, as politicians, in the same situation, of wanting to get after those people and hunt them down. But they're not getting after them, hunting them down in defiance of basic freedoms, but in order to help basic freedom.

KWAME HOLMAN: A British reporter then suggested the early transition created the impression that Iraq was being handed over while still in shambles.

PRESIDENT GEORGE W. BUSH: We have been making a transfer of sovereignty all along. And the... actually, we've been contemplating this move for a while, but the final decision was by Prime Minister Allawi, and he thought it would strengthen his hand, and so that's why the handover took place today as opposed to 48 hours later. And so, not only is there full sovereignty in the hands of the government, all the ministries have been transferred and they're up and running.

TONY BLAIR: It's a healthier, better relationship now that there's this transfer of sovereignty there, and where they really want the responsibility of running their own country but they know the practical fact is, for the moment, until their own security forces are built up properly, they need our support, and they have our support.

PRESIDENT GEORGE W. BUSH: Thank you all very much.

KWAME HOLMAN: Both leaders also indicated their NATO allies, while opposed to the invasion of Iraq, had expressed hope the new government would be successful.

JIM LEHRER: Now, to two analysts who have been with us since the Iraq war began: Zbigniew Brzezinski, former national security advisor to President Carter, now a counselor at the Center for Strategic and International Studies; and Walter Russell Mead, a columnist and senior fellow at the Council on Foreign Relations. Dr. Brzezinski, how would you characterize the significance of what happened today?

ZBIGNIEW BRZEZINSKI: I think it's a good step in the right direction. But I would avoid using Orwellian language in describing it. This is not a transfer of power, a handover to a sovereign government. We are transferring limited authority to a satellite government, a satellite government that is still to establish its legitimacy and the longer we stay, the more difficult it will be for it to gain legitimacy. That is my basic view.

JIM LEHRER: But this is a good thing, a good step toward that, do you think?

ZBIGNIEW BRZEZINSKI: Well, it's a good step in the sense that hopefully it's the beginning of a disengagement but what worries me is that our disengagement right now is still being defined in very indefinite terminology. And that intensifies Iraqi suspicions that we're there to stay. That strengthens the opposition, the hostility, the insurgency and then that then weakens the satellite government that we hope at some point will take over.

JIM LEHRER: Dr. Mead, how would you summarize this handover or whatever word you would like to use to describe it?

WALTER RUSSELL MEAD: Well, I agree with dr. Brzezinski that we don't want to be Orwellian about this but I think maybe satellite, which was used to describe the puppet governments of the Soviet Union and Eastern Europe may be a little too extreme. This is a transition is the way I describe it. What we have here is an infant regime that we hope will grow. The plan is really for a transition. That is to say this is an interim government. The elections should be held by no later than Jan. 31, and the task is to try to improve stability and security while coming closer to the freest elections in the history of the Arab world, we hope.

JIM LEHRER: What do you... how do you read the prospects for that happening?

WALTER RUSSELL MEAD: Well, you know, I can't claim to be Nostradamus and have a crystal ball that's infallible here. But I think that it's going to depend on the skills of the Iraqi politicians who have taken over, how canny are they, how in touch are they with the Iraqi culture and the mood of the people? And it also depends on the continued willingness of the Americans and the British and other people in the coalition to support the government.

JIM LEHRER: Would you use the same word that Dr. Brzezinski just used, that he was hopeful? Is that as far as you'll go as well?

WALTER RUSSELL MEAD: I'm hopeful. I would also say that there are signs that progress has been made. Again, let's see where this insurgency goes. It's interesting, for example, that all five of the hostages discussed earlier on the program are Muslims. Four of them are from Muslim countries: Pakistan and Turkey. There's a lot of hostility apparently building in Iraq toward the idea that foreign fanatics are trying to use Iraq as a staging ground for their own reasons and that with a government in Baghdad that starts to look more and more like an authentic Iraqi government, it's possible that nationalist feeling in Iraq will start siding with the government and not with the insurgents. And if that happens, things will go much better.

JIM LEHRER: Do you agree with that, Dr. Brzezinski, that that is a possibility now?

ZBIGNIEW BRZEZINSKI: It is a possibility, but in my view it's not a probability. I rather fear that there is a kind of a fusion developing between Iraqi nationalism and fundamentalism and that it is occurring in a context in the region as a whole, which is becoming more and more anti-American. This is why I'm rather fearful that our policy, alas, has been setting the region on fire. And I don't think we'll be able to get hold of this context of this dynamic situation unless we do two basic things in my view: One is define in clear terms to the Iraqis when we intend to leave, thereby spurring the Iraqi government to be more energetic because otherwise popular opposition to us will intensify and the Iraqi politicians will compete eventually in telling us to get out, which means we lose control over the calendar. And, after all, if we set a date and if the Iraqi government is not delivering, it can then ask us to stay longer, which then makes us stay by invitation rather than by compulsion. And the other thing we need to do I think is activate and really seriously activate the Israeli-Palestinian peace process because to the Arabs in the region, these two issues are now conflated and they are viewed essentially as an example of western imperialism, of American imperialism. I think that in the long run is very dangerous to our interests.

JIM LEHRER: Walter Mead, do you agree with Dr. Brzezinski's two points?

WALTER RUSSELL MEAD: Well, I suppose yes and no. I think it may be helpful at some time to give a date for our withdrawal from Iraq but I'm afraid that at the moment it's not quite time.

JIM LEHRER: What would be the time?

WALTER RUSSELL MEAD: Well, I think you might start or you might find that you were losing control over events there and that people would say the transition government will never be able to solidify. And in any case I certainly think we have an obligation to stay there through elections. I would put it a little differently that when there's an elected government in Iraq and it asks us to leave, we leave. We should make a very, very firm commitment that the elected government of Iraq determines the future of that country, not the United States of America. I think if we did that, we'd get a lot of the benefits that dr. Brzezinski would like to see. At the same time on the Israeli-Palestinian front, so to speak, I agree that we have got to find a way to get this started. Again, the collapse of the peace process in the last weeks of the Clinton administration was a strategic defeat of the first magnitude for the United States. That was a peace process that we had spent a bipartisan process developed over 30 years and when we basically bet the farm on getting a complete solution in the dying weeks of the Clinton administration, we were left with a worst case scenario. It is not easy to put Humpty-Dumpty together again but Dr. Brzezinski is right, we've got to try. My own thought is rather than - you know, we've had enough road maps and other things that haven't gotten us very far. I think the United States needs to take a much closer look at the aspects of a two- state solution that would benefit Palestinians: Compensation, making sure that every Palestinian at the end of the day has a passport and a right to live as a citizen of a state, basically giving people a basis for hope that a compromise peace will lead to a better life for individual Palestinians, and giving people in the Arab world the impression based on facts that the United States does care about the future of Palestinians and is concerned about their human situation. I think that's very important.

JIM LEHRER: Let's leave further discussion on the Israeli-Palestinian thing to another -- and let's go back to the specifics of Iraq, Dr. Brzezinski. You heard what Jeffrey Gettleman of the New York Times said that he picked up on the street today at least, a feeling among Iraqis that the Iraqis may have a better chance of stopping the violence, the threatened and real beheadings and all of those steps because they speak the language. It's their people that they're talking about and to. Do you agree with that?

ZBIGNIEW BRZEZINSKI: You know, paradoxically that's one of the reasons why I think we should set a date for departure sometimes next year, in fact, because the situation is clearly very mixed one. But what we see on television is essentially those elements of violence that can be televised. We don't see much of the country that is not being beset by violence. And my judgment is that if we were to capitalize on this mixed picture and gave the Iraqi authority the opportunity to assert itself while making it very clear that we're leaving will increase its probability of succeeding. But if we remain indefinite and at the same time become engaged and remain engaged in suppressing resistance, that resistance will intensify because the correspondent we heard actually also stressed the fact that resistance is growing, resentment is growing, and look, even the ceremony had to be held in secret, which shows in some respects how insecure we are ourselves. I may also add that I have recently had the opportunity to talk to some of our top policy makers who deal with Iraq. And what struck me -- and this is really not kind of a backhanded criticism of them-- how little we know. I was struck how little we know. Our intelligence is very poor. We don't have a good sense of what the resistance really is, who is in the resistance, and how widespread it is. I don't think that's going to improve if we simply keep proclaiming we're going to stay there until there is security because that really helps that resistance to become a national resistance.

JIM LEHRER: What about that, Dr. Mead, that just staying there for an indefinite period also welcomes the resistance to stay as well?

WALTER RUSSELL MEAD: Well, again, I think what we say is that our commitment is indefinite, as I think in fact it has to be; but that we are prepared not to control the timing, that when asked by an elected government we will go. I think down the road and perhaps not that many months away if things go at all well, we could even become more definite and more toward Dr. Brzezinski's position. But again I think we should not overlook the fact that the kind of fusion of fanaticism and nationalism really to the extent that it's taking place remains rather limited among the Sunnis, and the most danger... and that's a minority of the population -- that the violence even in the last week or two where it's been very... been a lot of deaths, a lot of murders, has tended to be limited more or less within the Sunni Triangle, that rather than spreading out into the majority what we've been seeing is that the Sadr militias have reached a political accommodation and he's now talking even about participating in the political process. So I don't want us to lose track of the mixed picture that does exist or to suggest that we're sort of on the verge of an unstoppable national wave of resentment and repudiation. We need to be heading out. More than anything we need to be giving control and ceding control over the future of Iraq to Iraqis. I don't think the time has come yet to set a date.

JIM LEHRER: How do you read the decision to do it 48 hours earlier? Dr. Mead?

WALTER RUSSELL MEAD: Well, I think it was intended again to sort of deprive the insurrection of an opportunity and a timetable to throw things off. I agree with Dr. Brzezinski that having to have it in this sort of super guarded secret location was not a sign of confidence and really is very much an indictment of our failure to establish security in Iraq. And there's no way to get around that. It was also, I think, though a sense to again to try to accelerate a sense of American transfer. It shows that there's a good working relationship between the government and the Americans. It shows that the Americans are deferring to the political judgments of the Iraqis. That I think is very, very important.

JIM LEHRER: Do you agree with that, Dr. Brzezinski, that with all your reservations that at least something has been ceded to the Iraqis now? They are in charge of a lot more than they were as of this morning.

ZBIGNIEW BRZEZINSKI: Let's not pump it up and let's not distort it. We have had too much Orwellian language in our discussion of Iraq altogether. The Orwellian language was invented by communists but it's being adapted in our political discourse by the neocons. We talk about liberation when it's an occupation. We talk about peace when it's war. We talk about sovereignty when it's limited authority. Let's be realistic in our assessments and then I think we'll be in a better position to conduct a serious national debate over what needs to be done and what is being done. I think that this is a step in the right direction but the pitfalls are enormous. Unless we recognize that we have to change course rather significantly, I am afraid we may dig ourselves in and be stuck in the Middle East the way the Israelis have been stuck in the West Bank. They have been there for 37 years. I don't want American occupation forces to be stuck in the Middle East for years.

JIM LEHRER: Okay. Doctors Brzezinski and Mead, thank you both very much.

WALTER RUSSELL MEAD: Thank you.

FOCUS - DETAINEE DECISIONS

JIM LEHRER: Now, the other major story of the day, the Supreme Court rulings on terrorism detainees, and to Ray Suarez.

RAY SUAREZ: There were three cases before the court, and three separate rulings. Here to help us sort through the decisions is Marcia Coyle of the National Law Journal. Let's start, Marcia, with the attempt by detainees in Guantanamo Bay, in the prison camp there, to have their day in court. What were they asking for in their pleadings before the court and what was the decision?

MARCIA COYLE: Well, as you know, there are about 600 detainees at Guantanamo Bay as a result of our hostilities in Afghanistan. This case involved two Australian nationals and 12 Kuwaiti nationals who basically were asking whether the federal courthouses were open to their petitions. It's known as a petition for a writ of habeas corpus that would allow the federal courts to review the legality of their detentions. Those detentions have gone on for more than two years now.

RAY SUAREZ: And the U.S. Government had maintained that, in fact, there was no court open to these men at the moment.

MARCIA COYLE: That's correct. The government had made basically two arguments to the court. One, that a World War II era Supreme Court decision applied here, and in that decision the Supreme Court had said there was no federal jurisdiction to review the convictions or the challenges to the convictions of six German citizens who had been charged and convicted of war crimes during World War II. They were convicted by a military tribunal in China and then later imprisoned in Germany. The government had also argued that our federal court jurisdiction under the habeas corpus statute did not extend beyond the territory of the United States. Guantanamo Bay, the Bush administration said, belongs to Cuba. Cuba is sovereign, hence, federal jurisdiction does not apply to these detainees.

RAY SUAREZ: And in today's decision, what did court announce?

MARCIA COYLE: Well, the court issued a 6-3 ruling, and it rejected the government's arguments. Justice John Paul Stevens wrote for the majority. First he looked at that World War II era decision. He said basically this is not that case. These detainees are not citizens of nations at war with the United States. These detainees have not been convicted, much less charged, with anything. He also said that Guantanamo Bay, even though it's leased by the United States from Cuba, is really U.S. territory because the United States exercises complete control over the Guantanamo Bay naval station and can continue to do so forever if it chooses. Justice Stevens said that the government had conceded in oral arguments that if an American citizen were held in Guantanamo Bay, that American citizen could file a petition for habeas corpus in our federal courts. The habeas statute makes no... doesn't distinguish between aliens and citizens. So he found and five other justices joined him that these detainees could go forward with a petition in our federal courts.

RAY SUAREZ: So they will be heard one way or another about their continued incarceration?

MARCIA COYLE: Yes, they can petition and they can be heard.

RAY SUAREZ: What does that mean to the hundreds of other detainees there?

MARCIA COYLE: Well, we'll have to wait and see how this plays out. I mean, technically the 600 could file petitions for habeas corpus. It may be that a class action, which is a grouping of their claims, could be brought in our federal courts. Justice Scalia wrote in dissent in this case, and he felt that the court was overturning 50 years of settled law that the military had relied upon here, and that now the military is going to be drawn into the domestic court situation. Our courts are going to be interfering with military law and he thought there would be a great deal of damage done by the decision. I think we just have to wait and see what happens as the decisions are filed.

RAY SUAREZ: Yaser Hamdi also went to the federal courts for relief, asking that he be given a hearing as well.

MARCIA COYLE: Yes. Hamdi was designated an enemy combatant and what distinguished him from the Guantanamo Bay case is that he's an American citizen. He has dual citizenship - the United States and Saudi citizenship. He was picked up on the battlefield in Afghanistan by the Northern Alliance, our allies. He was allegedly part of a Taliban unit, transferred to U.S. military custody, sent to Guantanamo Bay; after the military discovery he was an American citizen, he was sent to the United States and he's been in a Navy brig in Charleston, South Carolina, without counsel until recently, and he's been detained for more than two yeas. The question before the court in his case was almost two fold: first he challenged whether the president had authority to detain an American citizen as an enemy combatant, and secondly, once he's in federal court challenging that, how much process is he due? The court today had a rather splintered ruling. There were many separate decisions, but the bottom line is that the court by eight justices rejected the government's position on how much process he's due. Four justices ruled that his detention is authorized by a resolution that congress passed shortly after 9/11. It's called the authorization of military force. And those four justices were led by Justice Sandra Day O'Connor. She said that resolution did cover citizen enemy combatants. She limited the enemy combatant though to the person who is engaged in armed conflict in Afghanistan.

RAY SUAREZ: Now they let stand the idea that such a thing exists as an enemy combatant and the president has the power to say so.

MARCIA COYLE: Yes.

RAY SUAREZ: Very briefly get to Jose Padilla's case which I guess they decided not to decide.

MARCIA COYLE: They did. It was a jurisdictional question. The court five/four said that he had filed his petition in the wrong jurisdiction. He can now turn around and file his petition in the district of South Carolina where he's held in the same navy brig as Hamdi. It's a very similar case. The question for him will be what kind of process is he due once he's in federal court? I think he emerges stronger as a result of the Hamdi decision. The Supreme Court did lay out that these citizen enemy combatants have a right to bring forward evidence to challenge the government's claim that they're enemy combatants and to have it done before a neutral decision-maker.

RAY SUAREZ: This was the case that got the most attention and was thought to be the biggest of the three. Yet the justices decided not to proceed on a technical question, which district he filed in. Is that unusual?

MARCIA COYLE: No, they take these things jurisdictions standings very seriously. However, it was a five/four decision. Justice Stevens wrote in dissent that in effect the court was elevating formalism above substance. That there had been exceptions to this filing rule. But here there were very serious interests at stake. Justice Stevens said the essence of liberty is here. You have an American citizen held in detention. He was actually arrested on American soil. That's why many thought the government would have a more difficult time with this case than with Hamdi who was picked up on the battlefield.

RAY SUAREZ: Very quickly, the Padilla case starts from the beginning again.

MARCIA COYLE: It does.

RAY SUAREZ: Will that be expedited and be able to quickly move or will it have to percolate through the system like it did originally?

MARCIA COYLE: It will have to go through the regular process of filing the petition, but as a result of Hamdi, his claim should be heard now more quickly because the Supreme Court has basically resolved the fact that Padilla can come forward with evidence and challenge the government's designation of him as an enemy combatant.

RAY SUAREZ: Marcia Coyle, thanks a lot.

MARCIA COYLE: You're welcome.

JIM LEHRER: Margaret Warner takes it from there.

MARGARET WARNER: Now, a broader look at today's decisions. We get that from Deborah Pearlstein, the director of the U.S. Law and Security Program at Human Rights First, formerly known as the Lawyers Committee for Human Rights; and Douglas Kmiec, professor of constitutional law at Pepperdine University Law School. They each filed an amicus brief on opposing sides in the Hamdi case. Welcome to you both.

Deborah Pearlstein if you look at all these cases today together on balance do you see it as primarily a defeat or setback for the Bush administration policies, or is there in some significant way also an affirmation?

DEBORAH PEARLSTEIN: I think it's primarily defeat for the Bush administration policies. I see this as a fairly significant repudiation of the administration's arguments in each of these cases that because we are at war, the regular laws and the regular rights that individuals have don't apply. Instead by a fairly sweeping majority in Hamdi in particular by an eight to one ruling the court said, yes, Hamdi and any U.S. citizen held in U.S. custody, whether it's war time or not, are entitled to a certain basic minimum set of due process protections. So in that sense I think it's a huge victory.

MARGARET WARNER: Doug Kmiec, do you see it that way as a pretty huge victory for the opposing side, that is a defeat for the administration's basic tenets here?

DOUGLAS KMIEC: I disagree, Margaret. I think it's a victory for constitutional principle. I think the Hamdi case in particular was well reasoned and well presented. But as Justice O'Connor articulated, there were serious and substantial interests on both sides of the litigation scales. Yes, there were important interests of individual liberty and civil liberty that had to be attended to, but the court was also acknowledging the role of the president and the Congress in the conduct of the war, which is one of the reasons why they acknowledged that it was appropriate to detain Mr. Hamdi even as he has a limited due process right to challenge that detention.

MARGARET WARNER: Deborah Pearlstein, the court, I mean even the O'Connor majority did recognize, did it not that's correct the president had the right to designate certain individuals as enemy combatants? Do you find that significant?

DEBORAH PEARLSTEIN: The court was very careful. Justice O'Connor writing for four justices was particularly careful to make clear that she wasn't accepting the administration's argument that the president had inherent authority under the Constitution simply by virtue of his power as commander in chief to declare people enemy combatants and to thereby detain them indefinitely. Instead Justice O'Connor and all of the other members of the court looked to the congressional authorization for the use of military force And in that congressional language found the authorization. I think that's a significant distinction because the administration had been relying on the president's power of his own authority. Here the court seems to be saying, look, the president doesn't have unlimited power under the Constitution to do whatever he wants in wartime. Instead, we look to Congress as the principal source and the principal authority for the authorization of detentions like this.

MARGARET WARNER: That's the case, is it not, Doug Kmiec, that when you read O'Connor's decision she's saying I'm not even going to approach the question of what the administration's asserting here, which is that the president has that right, but rather that she rests it on the fact that Congress passed this post 9/11 resolution?

DOUGLAS KMIEC: Although I think it's fair, Margaret, when you look at the briefing that the solicitor general filed, that others of us filed in the Hamdi case on behalf of the president, we didn't just rely upon the president's commander in chief responsibility. We very explicitly relied upon the congressional authorization of the use of force as well. I think it's entirely appropriate for Justice O'Connor not to speak to the inherent authority alone but to speak to the broadest grant of authority which is that which comes when the president and the Congress act together. But the significant thing that I find in this opinion is that this is not a court that is chastising the president or chastising the administration. It's basically admitting these are tough cases. And to understand what due process rights and enemy combatant is entitled to is a somewhat novel question. And the way Justice O'Connor works that out is indeed quite generous to the administration providing for hearsay evidence, providing for presumption in favor of the government's position, and in essence allowing the government to justify itself in the context of the wartime conditions that we confront.

MARGARET WARNER: Well, Deborah Pearlstein let's go to the practical effect. What is the practical effect? All are all these Gitmo detainees suddenly... Justice Scalia in his dissent said they can go forum shop in any one of the federal districts in the U.S. Is that the case? What about the Hamdi case? I mean, is he entitled to a full blown trial or something less as Doug Kmiec suggested?

DEBORAH PEARLSTEIN: Well, let's take them each in turn. In the Hamdi case I think the result is narrow and fairly clear. Hamdi is entitled to a right to a lawyer. He's entitled to present evidence in a court. And he's entitled to challenge the factual basis of his detention. He's allowed to come back against the government. They've asserted that he was picked up on a field of combat abroad. He wants the right simply to challenge the factual basis of that assertion. And he's won that right today - back to the district court --

MARGARET WARNER: But it's not necessarily a null blown trial. People should not be expecting something like the Moussaoui case for example.

DEBORAH PEARLSTEIN: That's right. This is simply a habeas corpus hearing where he'll have the chance really for the first time to assert his innocence in a court in the United States.

MARGARET WARNER: Let me go to Doug Kmiec first for what his comment on what it may even in the Gitmo -- Guantanamo Bay detainees cases.

DOUGLAS KMIEC: Well, Margaret, the Guantanamo cases the more mysterious of the cases that we had today, as Marcia Coyle very eloquently put it, the court interpreted a statute -- the statute that grants the right of habeas corpus. Even though the Congress in all likelihood never contemplated when they wrote the statute that they were extendingit to both citizen and alien, the court said, well, Congress didn't specifically say aliens were left out of the statute so we include them. Even though Congress wrote the statute in a way that said you have to file the petition for writ of habeas corpus in a district court that has jurisdiction and of course there are no district courts for Cuba, the court nevertheless found that it could assert jurisdiction and that the mystery is what does it mean?

MARGARET WARNER: That's what I'm asking you.

DOUGLAS KMIEC: These 600 detainees... well, Justice Stevens didn't tell us. He basically said we're now going to leave it up to the district court to work it out on a case-by-case basis. And that could mean anything and everything. It's especially troublesome because even though they avoided forum shopping in the Padilla case, as Justice Scalia pointed out, the detainees could go into any one of the 94 district courts in all likelihood. That means a great many judges are going to come up with different measures by which to test the factual assertions that the government alleges, and that's going to produce a great deal of litigation, a great deal of confusion, and in this context that could well hinder the war effort.

MARGARET WARNER: Deborah Pearlstein, do you anticipate the same flood of litigation and confusion?

DEBORAH PEARLSTEIN: I think it's easy to overstate the likely practical consequences that come out of these decisions. First, the decisions were not narrow. In the sense that, you know, eight Justices voted on the detainee's side in the Hamdi case, six in the Guantanamo Bay cases so it's not like they just squeaked by. You have a broad swath of the court from Justice Stevens to Justice O'Connor to Justice Scalia saying there is some right to judicial process here. As a practical matter for the detainees at Guantanamo Bay only a small handful of them actually have lawyers. Their families have the means and the ability to hire lawyers. For the rest of them, most of them their identities still aren't in fact known. And practically speaking it's going to be very difficult for them I think to figure out how to actually make good on the right that the court has recognized today, that is a right just to get a hearing of their claims in the U.S. courts.

MARGARET WARNER: Let me ask you both briefly because we only have about a minute left beginning with you Doug Kmiec, in the broader issue here which was the balance between civil liberties and national security in a time of war, how significant do you think these cases are and will prove to be?

DOUGLAS KMIEC: Well, I think it's very significant that the courts struck a good balance in the Hamdi case, the case dealing with American citizens and laid out a structure by which an American citizen who is being held in detention can challenge that detention but without being overly intrusive into the powers assigned to Congress and the president. I think the court did a much more incomplete job with regard to Guantanamo and since it's a large number of detainees, that is a very problematic case and it's going to have to play out in the days ahead.

MARGARET WARNER: Deborah Pearlstein, how do you see the significant of these cases in that broader issue?

DEBORAH PEARLSTEIN: I think the court has really drawn a line in the sand. The administration has taken a position for the last almost three years now that because we're in a war against terrorism which is unlike any war we fought before, all bets are off and the normal rules don't apply anymore. I think the court today has really stood up for the rule of law and said, look, just like war time throughout U.S. History, there are laws here and there are rules. And even the president has to follow them. And the courts have a role in checking his authority.

MARGARET WARNER: Deborah Pearlstein and Doug Kmiec, thank you both.

DEBORAH PEARLSTEIN: Thank you.

DOUGLAS KMIEC: Good to be with you.

RECAP

JIM LEHRER: Again, the other major story of the day: The U.S.-led coalition in Iraq transferred sovereignty to the Iraqis, two days ahead of schedule. U.S. and Iraqi officials said Iraq will gain legal custody of Saddam Hussein within days. But he'll remain in a U.S. Military jail. Late today al Jazeera television aired video of Iraqi militants shooting and killing a hostage. The militants claimed it was a U.S. Army soldier Keith Maupin captured in April. We'll see you online and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.

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The NewsHour with Jim Lehrer Monday, June 28, 2004