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June 2, 2008 Talk Of The Nation (NPR), 2:00 PM
NEAL CONAN: This is Talk of the Nation. I'm Neal Conan in Washington. Before his capture, Khalid Sheikh Mohammed boasted about his part infamous crimes. He claimed that he proposed the ideas for the attacks on 9/11 to Osama bin Laden, and that he personally beheaded American journalist Daniel Pearl. After years as a prisoner, he and four alleged accomplices will be formally arraigned on Thursday at Guantanamo Bay in Cuba. It'll be the first time the public will get a look at Mohammed since we saw pictures of a sleepy, disheveled man wearing an oversized white T-shirt following his capture in Pakistan more than five years ago.
For some, the proceedings represent a long delayed opportunity to bring some of the men who organized 9/11 to justice. Others see them as a trial of American justice itself. Defense attorneys argue their clients were tortured, that they've been denied the opportunity to mount a meaningful defense, and that the military tribunals are stacked against them. NPR's Jackie Northam heads to Guantanamo later this week to cover the proceedings and joins us shortly. We'll also be joined by a general at Guantanamo Bay who will defend the way the prisoners there are treated.
We want to hear from lawyers today. If you have questions about the military commissions at Guantanamo Bay, our number is 800-989-8255. Email us, talk@npr.org You can also join the conversation on our blog at npr.org/blogofthenation. Later in the program, the cultural imperialism of boomers is on the Opinion Page this week, and we remember Bo Diddley, who died earlier today. But first military tribunals. We'll hear arguments from both sides in a few minutes.
We begin with Jackie Northam, though, and she joins us here in Studio 3A. Jackie, always good to have you on the program.
JACKIE NORTHAM: Thank you, Neal. Thank you.
CONAN: And who are the defendants beside Khalid Sheikh Mohammed and what are the charges?
NORTHAM: The other one after Khalid Sheikh Mohammed is Ramzi bin al-Shibh, and then there's Walid bin Attash, Ali Aziz Ali and Mustafa al-Hawsawi. All of the men are charged - along with Khalid Sheikh Mohammed, are charged with terrorism. They're charged with murder, in fact, 2,973 counts of murder, and that's one for each person who died in the 9/11 attacks. Most of the men are also charged with hijacking as well. And they face the death penalty if they are prosecuted.
CONAN: Wasn't there a fifth defendant?
NORTHAM: There was. It was a man named Kahtani, and they did not press charges or level charges against him. It was decided at the last not to do it, never explained why, except, you know, when you've been following this a long time, you know, there were very serious charges that he had been tortured and that type of thing, and that he wasn't mentally capable of facing a trial at this point. And so those charges - he was not charged in the end. And always, you're right, they thought that he would be, but he wasn't.
CONAN: He was the so-called 20th hijacker.
NORTHAM: That's right, yes.
CONAN: Now, have the men been tortured? We heard that Khalid Sheikh Mohammed, the CIA admits that he was waterboarded. They say that wasn't torture, but it is in a lot of peoples eyes.
NORTHAM: Right. Um, yes, you know, these men were held for several years in, you know, these secret CIA black prisons that are, you know, spread all over the world, and when it was announced they were going to Guantanamo Bay, they were being sent there in 2006, in fact, it was the president that said it. And he basically admitted that the coercive techniques, interrogation techniques, had been used at these sites.
So they - you know, it wasn't pointed out individually what had happened to each man, but the fact, again, these coercive techniques are used at these sites and that these men were in those sites. If you put two and two together, I mean, you're probably going to - and that's really going to be a big part of these trials that's coming up here, Neal, is, you know, whether this evidence can be introduced if it was gained through coercive techniques - dot, dot, dot - torture.
CONAN: Mm-hm. and that's been a controversy. Some of the prosecutors, in fact, have resigned over this.
NORTHAM: Well right. In fact the chief prosecutor, Colonel Morris Davis, resigned over it. And oddly enough, he appeared at a trial for one of the detainees. Now, he was a man - and he still does, he believes in the system. He did not believe in, what was happening, when one of our guests that's going to be coming up in a few minutes, Brigadier General...
CONAN: Hartmann.
NORTHAM: Tom Hartmann, thank you. He - Colonel Davis, when he was testifying at Hamdan's trial said, look, we - before, we didn't want to use any evidence that we knew had been gained through, you know, one of these coercive techniques, these - during interrogation. He said that Colonel - pardon me, General Hartmann - you need a flow chart for this, don't you? - that General Hartman had decided, no, in fact, that evidence could be used.
So, you're right. I mean, it's - even within the prosecution itself, there's a huge debate whether this stuff should be admitted. I talked with General Hartmann the other day, and he said, really, it's the rules of evidence for these military commissions that course - that any evidence that has been gained through coercion can be admitted.
CONAN: Can be admitted.
NORTHAM: Can be admitted, but there is a difference between that and torture in their minds.
CONAN: Will there be secret evidence presented?
NORTHAM: Oh, yeah. Yes, definitely. In fact, that's going to be a real problem for us journalists. You know, at this moment, (unintelligible), I talked with the lawyer for Ramzi bin al-Shibh, and he says anything that comes out of his client's mouth is considered classified, top secret. So how this is going to be presented into the court, beyond the court, you know, for anybody trying to listen in, like the journalists, it's going to be a real challenge. We'll see how that unfolds.
CONAN: Are you going to be able to see these proceedings? Are they going to be on TV?
NORTHAM: No, not - they - well, there'll be closed-circuit TV. So journalists down there will be allowed to - having said that, they were doing these trial runs for the trials, and the power kept going out. You know, the whole system failed, but hopefully - and you know, Neal, you were talking about the last time anybody has seen any of these people, it's just been these grainy photographs of, you know, Khalid Sheikh Mohammed, moments after he's awoken, and that type of thing.
It really is going to be historic, I mean, because these are the big fish. Everybody up until now that they've tried, the dozen or so, you know, there's like a driver for bin Laden maybe, or somebody who, you know, trained at a camp in Afghanistan and that. But these guys were key. These guys helped plan and organize the 9/11 attacks. These guys are important, and there's a real question is, why them? Why are they doing it now, just months before the election, just weeks before Supreme Court decision about habeas? That type of thing, that's come into it.
CONAN: A lot of questions about that, and...
NORTHAM: Yeah.
CONAN: Why has it taken so long?
NORTHAM: To get these fellows...?
CONAN: Yes.
NORTHAM: On board? Well, actually, these guys have been fast-tracked. They've only showed up at Guantanamo about a year and a half ago. Let's not forget, others have sat there for, what? Six years and still haven't been charged, hundreds of people. So, you know, they had to get them out of the CIA sites, but really, that's one of the questions. Why are these guys moving along so fast? Rather than - why isn't it taking so long?
CONAN: And one question before we get to General Hartmann, and that is, an arraignment, what part of the proceeding is that?
NORTHAM: It's the very first part of it. Really, what it is is the charges will be read out. They'll be asked if they are happy with their representation and that type of thing. And what's interesting about this is the detainees at Guantanamo who do go to trial, the very few, they have to go to their arraignment. They have to go to their arraignment. Last week, there was a detainee that came through, and he was literally dragged into courtroom kicking and screaming. He did not want to - now, Ramzi bin al-Shibh, he has not appeared for any of his other little hearings that they have to determine whether or not...
CONAN: Procedural hearings.
NORTHAM: Right, exactly. It will be interesting to see what happens with these guys.
CONAN: Well joining us now by phone from Guantanamo Bay, Cuba, is U.S. Air Force Brigadier General Thomas Hartmann, legal advisor to the convening authority at the Department of Defense, Office of Military Commissions, and General Hartmann, it's very good of you to be with us today.
Brigadier General THOMAS HARTMANN (Legal Adviser, Convening Authority, Office of Military Commissions, U.S. Department of Defense): Good afternoon, Neal.
CONAN: Good afternoon. Tell us - I know that you've been involved in this. A lot of people, with respect, believe these proceedings can't possibly be fair. Why do you feel the opposite?
Brig. Gen. HARTMANN: These proceedings will be extraordinarily fair. They are literally unprecedented in the history of warfare. The types of protections we're making available to these accused, in so many ways, mirror the very rights we provide to our soldiers, sailors, airmen and Marines, Coast Guard. It's just tremendous. If you compare these rights and protections that we provide to these people, they outdistance the International Criminal Tribunals. They far outdistance what we had in Nuremburg, and as I said, they virtually mirror what we have in the military justice system. It's quite extraordinary.
There's some differences, of course, because of the nature of the global War on Terror. But the rights and protections we provide, in terms of attorney rights, support, right to remain silent in the courtroom, right to see every piece of evidence that goes to the finder of facts, right to call witnesses, right to confront witnesses, right to make motions, right to challenge judges and the jury, those are the same basic rights that you would find in the United States. Those are the same basic rights that you would find in any Article Three court, in any military court, and you're finding those in the military commissions. So it's a tremendous reflection on the American people. It's a tremendous reflection on the American justice system.
CONAN: People on the other side, as you know, the defense attorneys say they've been denied access to their clients, that their motions for discovery have been denied, that they are - that they can't - they feel that they don't have the very basis of presenting a meaningful defense.
Brig. Gen. HARTMANN: Well, the access to their clients is run by Joint Taskforce Guantanamo, which controls the detention facilities here. But the information that I've received is that they have given - they have been given access to their clients on a fairly consistent basis. There have been, I believe, something like 200 visits last year by commissions counsel during the entire year, and this year it has doubled. And there are also counsel for habeas protection and things like that.
So, it's just as you would have in any normal detention facility. There are controls that are designed for the safety of the detention population and for the prison guards, and so forth. So that's a fairly regulated procedure in order to insure the safe and humane treatment of the accused in these cases, and that's paramount with regard to their treatment. So, in terms of giving access to the defense counsel, that goes through an established procedure that the defense counsel know. So there's been no denial, as far as I'm concerned, and as far as I know.
And in terms of discovery, the discovery rights, Neal, are guided, as they are in any trial, by the rules that apply to that court system. These are very similar to military discovery rules, military court-martial discovery rules, and the defense makes a request. If they are unhappy with the results of that discovery, they go to the judge, which is a trial system that makes sure - that makes absolutely sure that the system is fair, because you have a seasoned military judge. All these judges have a great deal of experience to make sure that fairness applies.
CONAN: And another question that many people will have, is presenting evidence of confessions that were extracted what the defense attorneys, indeed, the defendants, will say was torture?
Brig. Gen. HARTMANN: And the president of the United States has confirmed and reconfirmed that the United States does not engage in torture. Any statements obtained by torture are simply inadmissible in these tribunals. It's clear as can be. It's spelled out in black and white. To the extent that there is an issue with regard to the method by which evidence was obtained, and that's a matter of evidence admissibility, Neal, the court will decide that.
The defense will make their arguments. The prosecution will make their arguments in open court. They will argue before the judge on the facts, the law, the evidence, and the judge will decide whether that evidence fits within the rules that are prescribed by this proceeding. And he will either admit it or exclude it.
CONAN: And the...
Brig. Gen. HARTMANN: That, by the way, is what we call a trial. And that's the fairness of this system. Because a trial in America, a trial in any place, is a clash of ideas, a clash of fact, a clash of law, a clash of view, and we allow that clash to occur with every ounce of both side's energy, and enthusiasm, and intensity, and out of that comes what we think is the best result.
CONAN: General Hartmann, stay on the line, if you would. We have to take a short break. We'll hear more from him in just a moment on the prosecution's case. Plus, in a few minutes, we'll be hearing from the other side, and Jackie Northam is still with us here in the studio. If you'd like to join the conversation about the upcoming trials of five men accused of the crimes of 9/11, give us a call, 800-989-8255. Email us, talk@npr.org I'm Neal Conan. It's Talk of the Nation from NPR News.
(Soundbite of music)
CONAN: This is Talk of the Nation. I'm Neal Conan in Washington. On Thursday, five men charged with organizing the attacks of 9/11 will be formally arranged - arraigned, excuse me - at Guantanamo Bay in Cuba. They include Khalid Sheikh Mohammed, the alleged mastermind. Some see as an opportunity for justice. Defense attorneys argue there will be no opportunity for justice in the military tribunal system.
Our guests are NPR national security correspondent, Jackie Northam, also with us, Brigadier General Thomas Hartmann. In a moment, we'll hear from the other side. If you have questions about the military commissions at Guantanamo Bay, give us a call. Our number is 800-989-8255, email is talk@npr.org, and you can read what other listeners have to say on our blog at npr.org/blogofthenation. And let's see if we can get a caller on the line, and this is Evan, and Evan's with us from Pinedale in Wyoming.
EVAN (Caller): Hi there.
CONAN: Hi.
EVAN: Thank you for taking the call.
CONAN: Yes, go ahead.
EVAN: I guess, really, my point is, and I'm an attorney, that I think we're putting a lot of apples before the cart. The basic fundamental structure of a legal system is the credibility that it has with the people. And we have to remember that this tribunal involves international suspects, and it involves all the citizens of those countries. And right now, I think all these very technical arguments about procedural rules are really lost on all of these folks.
What they're looking at is really the history of the conduct of this administration in the pursuit of this war. And so, I really have to - and I really can't speak for these people, because I'm an American, but my impression is that this result may not sit too well, or at least how it's going about, with a lot of folks in these countries. And that's a very - that's basically the fundamental guarantee of law is that this is a credible process.
CONAN: Yeah, not merely justice, but that it be perceived as justice. General Hartmann?
Brig. Gen. HARTMANN: I fully agree with you, Evan. The fundamental guarantee of this process is that it is not simply a theoretical guarantee of justice, but it's a real guarantee of justice and fairness. And perhaps some of the cases have fallen below the radar screen, but the Hamdan case is another case that is ongoing. The 9/11 case will go into the arraignments later this week.
But the Hamdan case, for example, as a case that has been going on for some time, and if you walked into the courtroom during the Hamdan case, you would see five counsel at Mr. Hamden's table, detailed military counsel, a Department of Defense civilian, and three civilian lawyers, two from a distinguished law firm on the West Coast, and Mr. Swift, who will be with you on the rest of the program.
The - and that's what you see in the courtroom, and you see the accused being able to speak to the judge, and you see the accused being able to exercise his rights, and you see the accused being able to call witnesses, and the debate...
EVAN: Five years later, sir, (unintelligible).
Brig. Gen. HARTMANN: I certainly wouldn't argue that the process should have moved faster. I'm a big proponent for moving the process as rapidly as it possible can, under the fundamental precept, of course, that you have to be fair, just...
EVAN: You arrested him. That fact is very largely - and really this tribunal process seems to ignore those realities. I'd also add that...
Brig. Gen. HARTMANN: (Unintelligible).
CONAN: Well, let's...
EVAN: Internationally speaking, if the Supreme Court is shooting down a lot of the so-called procedures that we've been hearing for the last five years, that also weighs very heavily. And these are, you know, this is a basic point about lawyers. We're not very popular in this country, and I suspect we might be less popular in the rest of the world. So, I'm not really sure that, you know, piling up a bunch of attorneys really means anything to these folks and the rest of the world.
CONAN: All right. Evan, thanks very much for the phone call. Appreciate it.
EVAN: Thank you, sir.
CONAN: General Hartmann, what happens after the arraignment? How long are these trials expected to last?
Brig. Gen. HARTMANN: Evan, I mean, Neal, you can never predict how long a trial is going to last. The arraignments occur within 30 days of the service of the charges on various people. Mr. Hamdan, for example, was - I believe his charges were referred in May of 2007, and now he is being - his trial is set for July of 2008. So, they take time. They're very complicated.
The 9/11 involves five accused who are jointly to be tried in capital cases. So I expect it to be complex. The stakes are high. The parties are very much engaged. There are a total of, I think, 18 counsel on the case, two military counsel per accused, and eight of the civilian counsel, and there are five military counsel on - or five prosecution counsel. So, it's going to be what a trial should be, a very intense, focused, driven, process to achieve the truth, to achieve fairness, to achieve justice. And we'll do that as transparently as humanly possible.
NORTHAM: If I could just interject a little bit, Neal...?
CONAN: This is Jackie Northam, General. Go ahead, Jackie.
NORTHAM: General, hi, you know, I think the caller has made a valid point, because anywhere in the world, Guantanamo is really seen as this - sort of this injustice, American injustice, rather than justice, and actually, General Hartmann and I discussed this the other day, is that it doesn't matter, even if this thing was the epitome of pure justice, the perception now is so tainted that how, you know, how will this be viewed throughout the world. The other thing, though, when you were talking about how long a trial will take, what is coming up is a Supreme Court decision on whether these men down in Guantanamo are entitled to challenge their detention in the U.S. courts. If they come down...
CONAN: In federal courts.
NORTHAM: In federal courts, U.S. courts, yes, federal courts. And it depends on what that decision is, because we could see things change dramatically if, in fact, you know, it comes down in favor of being able to do that.
CONAN: We have this email question from Parker. What would happen if any defendants found not guilty? Does it mean that they would be released?
Brig. Gen. HARTMANN: There are two systems at Guantanamo Bay. One is the detention system. There are about 270 people here at Guantanamo who are being detained because they are enemy combatants who pose a danger to our soldiers, sailors, airman and Marines on the battlefield. It's not exactly like a POW status, but it's that concept, that you just remove those people from the battlefield to prevent them from harming our soldiers.
The second sub-setup of that is these commission trials that - my expectation is - what I've been advised is that they will try about 80 of these accused, and within that sub-set - so that's 80 of the 270. If there's an acquittal in any of the cases, the accused remains a detainee under the system down here. So to the extent that others determine that he remains a danger to our soldiers on the battlefield, he could still be detained. But that's separate from the commission process.
CONAN: And that could be indefinitely?
Brig. Gen. HARTMANN: Well, it depends upon the nature of the hostilities. You would detain someone, presumably, during the duration of the hostilities, and that's something that our national leaders have to determine, as to whether we are continuing in the global War on Terror at any given point.
CONAN: General Hartmann, thank you very much for your time today. We appreciate it.
Brig. Gen. HARTMANN: Thank you, Neal. Thank you, Jackie.
NORTHAM: Thank you, General.
CONAN: That's Brigadier General Thomas Hartmann, the legal advisor to the convening authority at the Department of Defense, and he joined us by phone from Guantanamo Bay. Joining us now from the studios of Georgia Public Radio in Atlanta is Lieutenant Commander Charlie Swift, a retired Naval Officer, visiting associate professor at Emory University, also the attorney for Salid Ahmed Hamdan, the man in custody at Guantanamo Bay. You heard General Hartmann refer to him earlier. Lieutenant Commander, nice to have you on the program today.
Lieutenant Commander CHARLIE SWIFT (Retired, U.S. Navy; Counsel, Salid Ahmed Hamdan): Nice to be with you, Neal.
CONAN: And let me ask you about some of the proceedings. You don't represent any of the five men being arraigned on Thursday, but your case is a little bit more advanced. Have you had access to your client? Have you had discovery motions respected? Have you been able to mount a meaningful defense?
Lt. Cmdr. SWIFT: I think, in Hamdam's case, we have had access to our client fairly consistently. I understand that that same level of access has not been provided to the attorneys in the high-value detainee cases. Whether that changes after the proceeding get going or not we'll have to see. We have filed for discovery. We haven't received all of it. And what was really curious to me about what General Hartmann said regarding coerced statements was that the government has not permitted us access to the high-value detainees. That was something we particularly wanted to go, because, as was pointed out, KSM is considered a founding member of al-Qaeda...
CONAN: That's Khalid Sheikh Mohammed, yes.
Lt. Cmdr. SWIFT: That's right, someone who would know what Mr. Hamdan's role was in the process. And so we wanted to talk to Khalid Sheikh Mohammed about what Mr. Hamdan did in relationship to 9/11 or any other al-Qaeda activities. The government absolutely opposed that. They said even for us to talk to him about pre-9/11 conduct would pose a risk to the national security. Basically, exactly what Jackie said, that anything KSM says is so highly classified you can't listen in on it. Now, that asks a real question, as to whether this is going to be an open trial or not. It may be an open trial, for when the government speaks, but when the defense speaks, or Khalid Sheikh Mohammed speaks, they'll classify that information.
And that goes back to Evan. If what happens down there - we're starting way behind. If what happens down there is a one-sided presentation of the evidence where the detainees have no right to speak where the world can hear - they would be able to speak inside the hearing proceedings, but it's been set up so that anything they say can be immediately deleted so the press can't listen to it. And I understand Jackie's frustration, and I have the same frustration, because in my view, Khalid Sheikh Mohammed may well prove that my client's innocent.
The you know, as that proceeding goes on, if that's how we're having a full, fair and open process, where we only hear one side, the world is not going to buy this. Moreover, the general indicated that, gee, these proceedings were exactly like U.S. proceedings. They were so similar, and they were highly above international proceedings. No international proceeding would ever admit a statement obtained by waterboarding. Courts have actually looked at waterboarding in the United States and they found it to be an abhorrent...
CONAN: Practice, yeah.
Lt. Cmdr. SWIFT: Practice, which fully and absolutely violates the fundamental rights of due process. So, again, when we sit here and say these things, the problem is they haven't proven to be true, and the promises so far haven't lived up to it. Now, in the Hamdan maybe the Hamdan case is also a great example. General Hartmann likes to point to the number of lawyers who are there. One of the interesting things was that same trial disqualified his participation, because they found that he had become a prosecutor. Nice being a neutral authority, which is what his role is, being a neutral authority, to ensure that it's a fair process,
CONAN: Now, Jackie...
Lt. Cmdr. SWIFT: And they disqualified him from that. And so...
CONAN: Jackie...
Lt. Cmdr. SWIFT: Yes, go ahead.
CONAN: I'm just saying Jackie referred to that decision earlier, and I just wanted to give a chance to get a listener in on the conversation. And let's see if we can go now to Michael, and Michael's calling us from Salt Lake City in Utah.
MICHAEL (Caller): Hi, Neal.
CONAN: Hi, Michael.
MICHAEL: Are you there?
CONAN: Yes, go ahead, please.
MICHAEL: Well, I don't know how relevant my comment is to what's being said right now, but my concern is that as the public and even, I believe, the media, we have attempted to apply the rights of United States citizens to these detainees, and they are, in fact, not entitled to those rights. They are not United States citizens. They fall under a different category.
CONAN: How about that, Charlie Swift?
Lt. Cmdr. SWIFT: Well, there are two parts to it. There's one, the Constitution, and I agree in part. The Constitution provides protections both in to individual U.S. citizens, and a long line of Supreme Court cases makes clear that foreign nationals, under certain circumstances, do not have the full panoply of the Bill of Rights. On the other hand, we are a limited government and a government of law. That means that our government is still constrained both by international law and by the articles of the Constitution. And what's been proposed here is a system that not only does not accord all of the constitutional Bill of Rights protections, but also ignores the constraints of the rule of law on the United States.
The reason that this has been called lawless is that the United States recognizes no law but the law that currently that they passed after the fact, and that is particularly troublesome. It's troublesome from the idea of a limited government under the rule of law, and it's troublesome to the international community, where we claim a two-tier system, wherein U.S. citizens have special protections and the rest of the world doesn't. And that is probably the single greatest complaint about the rest of the world from the rest of the world, is that the United States is claiming a two-tiered system and claiming that it's not at all restrained by international law.
CONAN: Thanks very much for the call, Michael.
MICHAEL: Thank you.
CONAN: We're talking about the trials at Guantanamo Bay, military tribunals, they're often called, or military commissions. Our guest is Charlie Swift, a retired lieutenant commander, and he's an associate professor at Emory University and an attorney for Salid Ahmed Hamdan. His case is further along than the case that goes to arraignment on Friday. Jackie Northam is also with us here in the studio. You're listening to Talk of the Nation from NPR News.
NORTHAM: Hi, Charlie. It's Jackie Northam speaking.
Lt. Cmdr. SWIFT: Hi, Jackie.
NORTHAM: Hi. I just wanted to ask you, you know, this decision that's going to come up for your client, Hamdan, by the Supreme Court within a month or something like that, what will happen if they decide that they can - that the detainees can challenge their detention in U.S. federal courts?
Lt. Cmdr. SWIFT: In Mr. Hamdan's case, it may reinvigorate it will reinvigorate his habeas petition challenging the military commissions. Most importantly, is - and the judge has admitted, in Mr. Hamdan's case, he's said on the record, that he struggles mightily with the question of ex post facto law. The government's position has been that they're not limited by the constitutional prohibition against ex post facto. If, in fact, the habeas provision prevails, it stands to all reason that the ex post facto limitation also prevails.
It's in the same article. It would be difficult to see how one would have the right to habeas corpus but the government would not be constrained by an ex post facto problem. That will be the death knell for many of the charges against Mr. Hamdan, because the government has basically admitted that they wrote these after the fact. And the MCA is a clear reaction to the Hamdan decision. And that's, of course, Congress' power to do that, but to go back in time and rewrite the rules and the change for Mr. Hamdan is problematic. Now, there's...
CONAN: Just to get a referral, MCA, which you're referring to, is the Military Commissions Act?
Lt. Cmdr. SWIFT: The Military Commissions Act, that's right.
CONAN: Which was passed by Congress after the original procedures were overthrown by the Supreme Court.
Lt. Cmdr. SWIFT: That's right.
NORTHAM: And there were so many permutations of this whole commission thing, hasn't it? Charlie, I hate to sound flippant, but sometimes it reminds me of playing cards with my niece. If she's losing, we are changing the rules, it's as simple as that, you know, and I think...
Lt. Cmdr. SWIFT: You know, that's the problem.
NORTHAM: Yeah.
Lt. Cmdr. SWIFT: That's absolutely the problem. The losing and the changing the rules is what the government has probably alienated the rest of the world even more on, is that the rules seem to be set up so the detainee loses no matter what. And again, General Hartmann referred to, well, the two-tiered system, et cetera, the short answer to that question - the very relevant email question, what happens if you win?
In Mr. Hamdan's case, he goes back to the same cell. There is no winning or losing inside the commission system for Mr. Hamdan. The only thing that a conviction can possibly obtain is political justification for the government. It doesn't change where he's staying or how he's staying. So we have the trials being fundamentally undermined by our positions. It's just a mistake.
CONAN: Thanks very much for being with us. That was Charlie Swift, who is an attorney for Salid Ahmed Hamdan, a man currently in custody at Guantanamo Bay, who's currently experiencing one of the military tribunals underway. As we mentioned, this Thursday, five men accused of organizing the 9/11 attacks will be arraigned, and we spoke earlier with Brigadier General Thomas Hartmann, the legal adviser to the convening authority for the Department of Defense. NPR's Jackie Northam heads to Guantanamo, what, Wednesday?
NORTHAM: Wednesday, yes.
CONAN: Have a great trip.
NORTHAM: Yeah, thank you very much.
CONAN: And we'll be hearing your reports from Guantanamo Bay. I just learned she gets to sleep in a tent while...
NORTHAM: On a cot.
(Soundbite of laughter)
CONAN: On a cot. Thanks very much for being with us.
NORTHAM: Thank you.
June 2, 2008 Talk Of The Nation (NPR), 2:00 PM
NEAL CONAN: This is Talk of the Nation. I'm Neal Conan in Washington. Before his capture, Khalid Sheikh Mohammed boasted about his part infamous crimes. He claimed that he proposed the ideas for the attacks on 9/11 to Osama bin Laden, and that he personally beheaded American journalist Daniel Pearl. After years as a prisoner, he and four alleged accomplices will be formally arraigned on Thursday at Guantanamo Bay in Cuba. It'll be the first time the public will get a look at Mohammed since we saw pictures of a sleepy, disheveled man wearing an oversized white T-shirt following his capture in Pakistan more than five years ago.
For some, the proceedings represent a long delayed opportunity to bring some of the men who organized 9/11 to justice. Others see them as a trial of American justice itself. Defense attorneys argue their clients were tortured, that they've been denied the opportunity to mount a meaningful defense, and that the military tribunals are stacked against them. NPR's Jackie Northam heads to Guantanamo later this week to cover the proceedings and joins us shortly. We'll also be joined by a general at Guantanamo Bay who will defend the way the prisoners there are treated.
We want to hear from lawyers today. If you have questions about the military commissions at Guantanamo Bay, our number is 800-989-8255. Email us, talk@npr.org You can also join the conversation on our blog at npr.org/blogofthenation. Later in the program, the cultural imperialism of boomers is on the Opinion Page this week, and we remember Bo Diddley, who died earlier today. But first military tribunals. We'll hear arguments from both sides in a few minutes.
We begin with Jackie Northam, though, and she joins us here in Studio 3A. Jackie, always good to have you on the program.
JACKIE NORTHAM: Thank you, Neal. Thank you.
CONAN: And who are the defendants beside Khalid Sheikh Mohammed and what are the charges?
NORTHAM: The other one after Khalid Sheikh Mohammed is Ramzi bin al-Shibh, and then there's Walid bin Attash, Ali Aziz Ali and Mustafa al-Hawsawi. All of the men are charged - along with Khalid Sheikh Mohammed, are charged with terrorism. They're charged with murder, in fact, 2,973 counts of murder, and that's one for each person who died in the 9/11 attacks. Most of the men are also charged with hijacking as well. And they face the death penalty if they are prosecuted.
CONAN: Wasn't there a fifth defendant?
NORTHAM: There was. It was a man named Kahtani, and they did not press charges or level charges against him. It was decided at the last not to do it, never explained why, except, you know, when you've been following this a long time, you know, there were very serious charges that he had been tortured and that type of thing, and that he wasn't mentally capable of facing a trial at this point. And so those charges - he was not charged in the end. And always, you're right, they thought that he would be, but he wasn't.
CONAN: He was the so-called 20th hijacker.
NORTHAM: That's right, yes.
CONAN: Now, have the men been tortured? We heard that Khalid Sheikh Mohammed, the CIA admits that he was waterboarded. They say that wasn't torture, but it is in a lot of peoples eyes.
NORTHAM: Right. Um, yes, you know, these men were held for several years in, you know, these secret CIA black prisons that are, you know, spread all over the world, and when it was announced they were going to Guantanamo Bay, they were being sent there in 2006, in fact, it was the president that said it. And he basically admitted that the coercive techniques, interrogation techniques, had been used at these sites.
So they - you know, it wasn't pointed out individually what had happened to each man, but the fact, again, these coercive techniques are used at these sites and that these men were in those sites. If you put two and two together, I mean, you're probably going to - and that's really going to be a big part of these trials that's coming up here, Neal, is, you know, whether this evidence can be introduced if it was gained through coercive techniques - dot, dot, dot - torture.
CONAN: Mm-hm. and that's been a controversy. Some of the prosecutors, in fact, have resigned over this.
NORTHAM: Well right. In fact the chief prosecutor, Colonel Morris Davis, resigned over it. And oddly enough, he appeared at a trial for one of the detainees. Now, he was a man - and he still does, he believes in the system. He did not believe in, what was happening, when one of our guests that's going to be coming up in a few minutes, Brigadier General...
CONAN: Hartmann.
NORTHAM: Tom Hartmann, thank you. He - Colonel Davis, when he was testifying at Hamdan's trial said, look, we - before, we didn't want to use any evidence that we knew had been gained through, you know, one of these coercive techniques, these - during interrogation. He said that Colonel - pardon me, General Hartmann - you need a flow chart for this, don't you? - that General Hartman had decided, no, in fact, that evidence could be used.
So, you're right. I mean, it's - even within the prosecution itself, there's a huge debate whether this stuff should be admitted. I talked with General Hartmann the other day, and he said, really, it's the rules of evidence for these military commissions that course - that any evidence that has been gained through coercion can be admitted.
CONAN: Can be admitted.
NORTHAM: Can be admitted, but there is a difference between that and torture in their minds.
CONAN: Will there be secret evidence presented?
NORTHAM: Oh, yeah. Yes, definitely. In fact, that's going to be a real problem for us journalists. You know, at this moment, (unintelligible), I talked with the lawyer for Ramzi bin al-Shibh, and he says anything that comes out of his client's mouth is considered classified, top secret. So how this is going to be presented into the court, beyond the court, you know, for anybody trying to listen in, like the journalists, it's going to be a real challenge. We'll see how that unfolds.
CONAN: Are you going to be able to see these proceedings? Are they going to be on TV?
NORTHAM: No, not - they - well, there'll be closed-circuit TV. So journalists down there will be allowed to - having said that, they were doing these trial runs for the trials, and the power kept going out. You know, the whole system failed, but hopefully - and you know, Neal, you were talking about the last time anybody has seen any of these people, it's just been these grainy photographs of, you know, Khalid Sheikh Mohammed, moments after he's awoken, and that type of thing.
It really is going to be historic, I mean, because these are the big fish. Everybody up until now that they've tried, the dozen or so, you know, there's like a driver for bin Laden maybe, or somebody who, you know, trained at a camp in Afghanistan and that. But these guys were key. These guys helped plan and organize the 9/11 attacks. These guys are important, and there's a real question is, why them? Why are they doing it now, just months before the election, just weeks before Supreme Court decision about habeas? That type of thing, that's come into it.
CONAN: A lot of questions about that, and...
NORTHAM: Yeah.
CONAN: Why has it taken so long?
NORTHAM: To get these fellows...?
CONAN: Yes.
NORTHAM: On board? Well, actually, these guys have been fast-tracked. They've only showed up at Guantanamo about a year and a half ago. Let's not forget, others have sat there for, what? Six years and still haven't been charged, hundreds of people. So, you know, they had to get them out of the CIA sites, but really, that's one of the questions. Why are these guys moving along so fast? Rather than - why isn't it taking so long?
CONAN: And one question before we get to General Hartmann, and that is, an arraignment, what part of the proceeding is that?
NORTHAM: It's the very first part of it. Really, what it is is the charges will be read out. They'll be asked if they are happy with their representation and that type of thing. And what's interesting about this is the detainees at Guantanamo who do go to trial, the very few, they have to go to their arraignment. They have to go to their arraignment. Last week, there was a detainee that came through, and he was literally dragged into courtroom kicking and screaming. He did not want to - now, Ramzi bin al-Shibh, he has not appeared for any of his other little hearings that they have to determine whether or not...
CONAN: Procedural hearings.
NORTHAM: Right, exactly. It will be interesting to see what happens with these guys.
CONAN: Well joining us now by phone from Guantanamo Bay, Cuba, is U.S. Air Force Brigadier General Thomas Hartmann, legal advisor to the convening authority at the Department of Defense, Office of Military Commissions, and General Hartmann, it's very good of you to be with us today.
Brigadier General THOMAS HARTMANN (Legal Adviser, Convening Authority, Office of Military Commissions, U.S. Department of Defense): Good afternoon, Neal.
CONAN: Good afternoon. Tell us - I know that you've been involved in this. A lot of people, with respect, believe these proceedings can't possibly be fair. Why do you feel the opposite?
Brig. Gen. HARTMANN: These proceedings will be extraordinarily fair. They are literally unprecedented in the history of warfare. The types of protections we're making available to these accused, in so many ways, mirror the very rights we provide to our soldiers, sailors, airmen and Marines, Coast Guard. It's just tremendous. If you compare these rights and protections that we provide to these people, they outdistance the International Criminal Tribunals. They far outdistance what we had in Nuremburg, and as I said, they virtually mirror what we have in the military justice system. It's quite extraordinary.
There's some differences, of course, because of the nature of the global War on Terror. But the rights and protections we provide, in terms of attorney rights, support, right to remain silent in the courtroom, right to see every piece of evidence that goes to the finder of facts, right to call witnesses, right to confront witnesses, right to make motions, right to challenge judges and the jury, those are the same basic rights that you would find in the United States. Those are the same basic rights that you would find in any Article Three court, in any military court, and you're finding those in the military commissions. So it's a tremendous reflection on the American people. It's a tremendous reflection on the American justice system.
CONAN: People on the other side, as you know, the defense attorneys say they've been denied access to their clients, that their motions for discovery have been denied, that they are - that they can't - they feel that they don't have the very basis of presenting a meaningful defense.
Brig. Gen. HARTMANN: Well, the access to their clients is run by Joint Taskforce Guantanamo, which controls the detention facilities here. But the information that I've received is that they have given - they have been given access to their clients on a fairly consistent basis. There have been, I believe, something like 200 visits last year by commissions counsel during the entire year, and this year it has doubled. And there are also counsel for habeas protection and things like that.
So, it's just as you would have in any normal detention facility. There are controls that are designed for the safety of the detention population and for the prison guards, and so forth. So that's a fairly regulated procedure in order to insure the safe and humane treatment of the accused in these cases, and that's paramount with regard to their treatment. So, in terms of giving access to the defense counsel, that goes through an established procedure that the defense counsel know. So there's been no denial, as far as I'm concerned, and as far as I know.
And in terms of discovery, the discovery rights, Neal, are guided, as they are in any trial, by the rules that apply to that court system. These are very similar to military discovery rules, military court-martial discovery rules, and the defense makes a request. If they are unhappy with the results of that discovery, they go to the judge, which is a trial system that makes sure - that makes absolutely sure that the system is fair, because you have a seasoned military judge. All these judges have a great deal of experience to make sure that fairness applies.
CONAN: And another question that many people will have, is presenting evidence of confessions that were extracted what the defense attorneys, indeed, the defendants, will say was torture?
Brig. Gen. HARTMANN: And the president of the United States has confirmed and reconfirmed that the United States does not engage in torture. Any statements obtained by torture are simply inadmissible in these tribunals. It's clear as can be. It's spelled out in black and white. To the extent that there is an issue with regard to the method by which evidence was obtained, and that's a matter of evidence admissibility, Neal, the court will decide that.
The defense will make their arguments. The prosecution will make their arguments in open court. They will argue before the judge on the facts, the law, the evidence, and the judge will decide whether that evidence fits within the rules that are prescribed by this proceeding. And he will either admit it or exclude it.
CONAN: And the...
Brig. Gen. HARTMANN: That, by the way, is what we call a trial. And that's the fairness of this system. Because a trial in America, a trial in any place, is a clash of ideas, a clash of fact, a clash of law, a clash of view, and we allow that clash to occur with every ounce of both side's energy, and enthusiasm, and intensity, and out of that comes what we think is the best result.
CONAN: General Hartmann, stay on the line, if you would. We have to take a short break. We'll hear more from him in just a moment on the prosecution's case. Plus, in a few minutes, we'll be hearing from the other side, and Jackie Northam is still with us here in the studio. If you'd like to join the conversation about the upcoming trials of five men accused of the crimes of 9/11, give us a call, 800-989-8255. Email us, talk@npr.org I'm Neal Conan. It's Talk of the Nation from NPR News.
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CONAN: This is Talk of the Nation. I'm Neal Conan in Washington. On Thursday, five men charged with organizing the attacks of 9/11 will be formally arranged - arraigned, excuse me - at Guantanamo Bay in Cuba. They include Khalid Sheikh Mohammed, the alleged mastermind. Some see as an opportunity for justice. Defense attorneys argue there will be no opportunity for justice in the military tribunal system.
Our guests are NPR national security correspondent, Jackie Northam, also with us, Brigadier General Thomas Hartmann. In a moment, we'll hear from the other side. If you have questions about the military commissions at Guantanamo Bay, give us a call. Our number is 800-989-8255, email is talk@npr.org, and you can read what other listeners have to say on our blog at npr.org/blogofthenation. And let's see if we can get a caller on the line, and this is Evan, and Evan's with us from Pinedale in Wyoming.
EVAN (Caller): Hi there.
CONAN: Hi.
EVAN: Thank you for taking the call.
CONAN: Yes, go ahead.
EVAN: I guess, really, my point is, and I'm an attorney, that I think we're putting a lot of apples before the cart. The basic fundamental structure of a legal system is the credibility that it has with the people. And we have to remember that this tribunal involves international suspects, and it involves all the citizens of those countries. And right now, I think all these very technical arguments about procedural rules are really lost on all of these folks.
What they're looking at is really the history of the conduct of this administration in the pursuit of this war. And so, I really have to - and I really can't speak for these people, because I'm an American, but my impression is that this result may not sit too well, or at least how it's going about, with a lot of folks in these countries. And that's a very - that's basically the fundamental guarantee of law is that this is a credible process.
CONAN: Yeah, not merely justice, but that it be perceived as justice. General Hartmann?
Brig. Gen. HARTMANN: I fully agree with you, Evan. The fundamental guarantee of this process is that it is not simply a theoretical guarantee of justice, but it's a real guarantee of justice and fairness. And perhaps some of the cases have fallen below the radar screen, but the Hamdan case is another case that is ongoing. The 9/11 case will go into the arraignments later this week.
But the Hamdan case, for example, as a case that has been going on for some time, and if you walked into the courtroom during the Hamdan case, you would see five counsel at Mr. Hamden's table, detailed military counsel, a Department of Defense civilian, and three civilian lawyers, two from a distinguished law firm on the West Coast, and Mr. Swift, who will be with you on the rest of the program.
The - and that's what you see in the courtroom, and you see the accused being able to speak to the judge, and you see the accused being able to exercise his rights, and you see the accused being able to call witnesses, and the debate...
EVAN: Five years later, sir, (unintelligible).
Brig. Gen. HARTMANN: I certainly wouldn't argue that the process should have moved faster. I'm a big proponent for moving the process as rapidly as it possible can, under the fundamental precept, of course, that you have to be fair, just...
EVAN: You arrested him. That fact is very largely - and really this tribunal process seems to ignore those realities. I'd also add that...
Brig. Gen. HARTMANN: (Unintelligible).
CONAN: Well, let's...
EVAN: Internationally speaking, if the Supreme Court is shooting down a lot of the so-called procedures that we've been hearing for the last five years, that also weighs very heavily. And these are, you know, this is a basic point about lawyers. We're not very popular in this country, and I suspect we might be less popular in the rest of the world. So, I'm not really sure that, you know, piling up a bunch of attorneys really means anything to these folks and the rest of the world.
CONAN: All right. Evan, thanks very much for the phone call. Appreciate it.
EVAN: Thank you, sir.
CONAN: General Hartmann, what happens after the arraignment? How long are these trials expected to last?
Brig. Gen. HARTMANN: Evan, I mean, Neal, you can never predict how long a trial is going to last. The arraignments occur within 30 days of the service of the charges on various people. Mr. Hamdan, for example, was - I believe his charges were referred in May of 2007, and now he is being - his trial is set for July of 2008. So, they take time. They're very complicated.
The 9/11 involves five accused who are jointly to be tried in capital cases. So I expect it to be complex. The stakes are high. The parties are very much engaged. There are a total of, I think, 18 counsel on the case, two military counsel per accused, and eight of the civilian counsel, and there are five military counsel on - or five prosecution counsel. So, it's going to be what a trial should be, a very intense, focused, driven, process to achieve the truth, to achieve fairness, to achieve justice. And we'll do that as transparently as humanly possible.
NORTHAM: If I could just interject a little bit, Neal...?
CONAN: This is Jackie Northam, General. Go ahead, Jackie.
NORTHAM: General, hi, you know, I think the caller has made a valid point, because anywhere in the world, Guantanamo is really seen as this - sort of this injustice, American injustice, rather than justice, and actually, General Hartmann and I discussed this the other day, is that it doesn't matter, even if this thing was the epitome of pure justice, the perception now is so tainted that how, you know, how will this be viewed throughout the world. The other thing, though, when you were talking about how long a trial will take, what is coming up is a Supreme Court decision on whether these men down in Guantanamo are entitled to challenge their detention in the U.S. courts. If they come down...
CONAN: In federal courts.
NORTHAM: In federal courts, U.S. courts, yes, federal courts. And it depends on what that decision is, because we could see things change dramatically if, in fact, you know, it comes down in favor of being able to do that.
CONAN: We have this email question from Parker. What would happen if any defendants found not guilty? Does it mean that they would be released?
Brig. Gen. HARTMANN: There are two systems at Guantanamo Bay. One is the detention system. There are about 270 people here at Guantanamo who are being detained because they are enemy combatants who pose a danger to our soldiers, sailors, airman and Marines on the battlefield. It's not exactly like a POW status, but it's that concept, that you just remove those people from the battlefield to prevent them from harming our soldiers.
The second sub-setup of that is these commission trials that - my expectation is - what I've been advised is that they will try about 80 of these accused, and within that sub-set - so that's 80 of the 270. If there's an acquittal in any of the cases, the accused remains a detainee under the system down here. So to the extent that others determine that he remains a danger to our soldiers on the battlefield, he could still be detained. But that's separate from the commission process.
CONAN: And that could be indefinitely?
Brig. Gen. HARTMANN: Well, it depends upon the nature of the hostilities. You would detain someone, presumably, during the duration of the hostilities, and that's something that our national leaders have to determine, as to whether we are continuing in the global War on Terror at any given point.
CONAN: General Hartmann, thank you very much for your time today. We appreciate it.
Brig. Gen. HARTMANN: Thank you, Neal. Thank you, Jackie.
NORTHAM: Thank you, General.
CONAN: That's Brigadier General Thomas Hartmann, the legal advisor to the convening authority at the Department of Defense, and he joined us by phone from Guantanamo Bay. Joining us now from the studios of Georgia Public Radio in Atlanta is Lieutenant Commander Charlie Swift, a retired Naval Officer, visiting associate professor at Emory University, also the attorney for Salid Ahmed Hamdan, the man in custody at Guantanamo Bay. You heard General Hartmann refer to him earlier. Lieutenant Commander, nice to have you on the program today.
Lieutenant Commander CHARLIE SWIFT (Retired, U.S. Navy; Counsel, Salid Ahmed Hamdan): Nice to be with you, Neal.
CONAN: And let me ask you about some of the proceedings. You don't represent any of the five men being arraigned on Thursday, but your case is a little bit more advanced. Have you had access to your client? Have you had discovery motions respected? Have you been able to mount a meaningful defense?
Lt. Cmdr. SWIFT: I think, in Hamdam's case, we have had access to our client fairly consistently. I understand that that same level of access has not been provided to the attorneys in the high-value detainee cases. Whether that changes after the proceeding get going or not we'll have to see. We have filed for discovery. We haven't received all of it. And what was really curious to me about what General Hartmann said regarding coerced statements was that the government has not permitted us access to the high-value detainees. That was something we particularly wanted to go, because, as was pointed out, KSM is considered a founding member of al-Qaeda...
CONAN: That's Khalid Sheikh Mohammed, yes.
Lt. Cmdr. SWIFT: That's right, someone who would know what Mr. Hamdan's role was in the process. And so we wanted to talk to Khalid Sheikh Mohammed about what Mr. Hamdan did in relationship to 9/11 or any other al-Qaeda activities. The government absolutely opposed that. They said even for us to talk to him about pre-9/11 conduct would pose a risk to the national security. Basically, exactly what Jackie said, that anything KSM says is so highly classified you can't listen in on it. Now, that asks a real question, as to whether this is going to be an open trial or not. It may be an open trial, for when the government speaks, but when the defense speaks, or Khalid Sheikh Mohammed speaks, they'll classify that information.
And that goes back to Evan. If what happens down there - we're starting way behind. If what happens down there is a one-sided presentation of the evidence where the detainees have no right to speak where the world can hear - they would be able to speak inside the hearing proceedings, but it's been set up so that anything they say can be immediately deleted so the press can't listen to it. And I understand Jackie's frustration, and I have the same frustration, because in my view, Khalid Sheikh Mohammed may well prove that my client's innocent.
The you know, as that proceeding goes on, if that's how we're having a full, fair and open process, where we only hear one side, the world is not going to buy this. Moreover, the general indicated that, gee, these proceedings were exactly like U.S. proceedings. They were so similar, and they were highly above international proceedings. No international proceeding would ever admit a statement obtained by waterboarding. Courts have actually looked at waterboarding in the United States and they found it to be an abhorrent...
CONAN: Practice, yeah.
Lt. Cmdr. SWIFT: Practice, which fully and absolutely violates the fundamental rights of due process. So, again, when we sit here and say these things, the problem is they haven't proven to be true, and the promises so far haven't lived up to it. Now, in the Hamdan maybe the Hamdan case is also a great example. General Hartmann likes to point to the number of lawyers who are there. One of the interesting things was that same trial disqualified his participation, because they found that he had become a prosecutor. Nice being a neutral authority, which is what his role is, being a neutral authority, to ensure that it's a fair process,
CONAN: Now, Jackie...
Lt. Cmdr. SWIFT: And they disqualified him from that. And so...
CONAN: Jackie...
Lt. Cmdr. SWIFT: Yes, go ahead.
CONAN: I'm just saying Jackie referred to that decision earlier, and I just wanted to give a chance to get a listener in on the conversation. And let's see if we can go now to Michael, and Michael's calling us from Salt Lake City in Utah.
MICHAEL (Caller): Hi, Neal.
CONAN: Hi, Michael.
MICHAEL: Are you there?
CONAN: Yes, go ahead, please.
MICHAEL: Well, I don't know how relevant my comment is to what's being said right now, but my concern is that as the public and even, I believe, the media, we have attempted to apply the rights of United States citizens to these detainees, and they are, in fact, not entitled to those rights. They are not United States citizens. They fall under a different category.
CONAN: How about that, Charlie Swift?
Lt. Cmdr. SWIFT: Well, there are two parts to it. There's one, the Constitution, and I agree in part. The Constitution provides protections both in to individual U.S. citizens, and a long line of Supreme Court cases makes clear that foreign nationals, under certain circumstances, do not have the full panoply of the Bill of Rights. On the other hand, we are a limited government and a government of law. That means that our government is still constrained both by international law and by the articles of the Constitution. And what's been proposed here is a system that not only does not accord all of the constitutional Bill of Rights protections, but also ignores the constraints of the rule of law on the United States.
The reason that this has been called lawless is that the United States recognizes no law but the law that currently that they passed after the fact, and that is particularly troublesome. It's troublesome from the idea of a limited government under the rule of law, and it's troublesome to the international community, where we claim a two-tier system, wherein U.S. citizens have special protections and the rest of the world doesn't. And that is probably the single greatest complaint about the rest of the world from the rest of the world, is that the United States is claiming a two-tiered system and claiming that it's not at all restrained by international law.
CONAN: Thanks very much for the call, Michael.
MICHAEL: Thank you.
CONAN: We're talking about the trials at Guantanamo Bay, military tribunals, they're often called, or military commissions. Our guest is Charlie Swift, a retired lieutenant commander, and he's an associate professor at Emory University and an attorney for Salid Ahmed Hamdan. His case is further along than the case that goes to arraignment on Friday. Jackie Northam is also with us here in the studio. You're listening to Talk of the Nation from NPR News.
NORTHAM: Hi, Charlie. It's Jackie Northam speaking.
Lt. Cmdr. SWIFT: Hi, Jackie.
NORTHAM: Hi. I just wanted to ask you, you know, this decision that's going to come up for your client, Hamdan, by the Supreme Court within a month or something like that, what will happen if they decide that they can - that the detainees can challenge their detention in U.S. federal courts?
Lt. Cmdr. SWIFT: In Mr. Hamdan's case, it may reinvigorate it will reinvigorate his habeas petition challenging the military commissions. Most importantly, is - and the judge has admitted, in Mr. Hamdan's case, he's said on the record, that he struggles mightily with the question of ex post facto law. The government's position has been that they're not limited by the constitutional prohibition against ex post facto. If, in fact, the habeas provision prevails, it stands to all reason that the ex post facto limitation also prevails.
It's in the same article. It would be difficult to see how one would have the right to habeas corpus but the government would not be constrained by an ex post facto problem. That will be the death knell for many of the charges against Mr. Hamdan, because the government has basically admitted that they wrote these after the fact. And the MCA is a clear reaction to the Hamdan decision. And that's, of course, Congress' power to do that, but to go back in time and rewrite the rules and the change for Mr. Hamdan is problematic. Now, there's...
CONAN: Just to get a referral, MCA, which you're referring to, is the Military Commissions Act?
Lt. Cmdr. SWIFT: The Military Commissions Act, that's right.
CONAN: Which was passed by Congress after the original procedures were overthrown by the Supreme Court.
Lt. Cmdr. SWIFT: That's right.
NORTHAM: And there were so many permutations of this whole commission thing, hasn't it? Charlie, I hate to sound flippant, but sometimes it reminds me of playing cards with my niece. If she's losing, we are changing the rules, it's as simple as that, you know, and I think...
Lt. Cmdr. SWIFT: You know, that's the problem.
NORTHAM: Yeah.
Lt. Cmdr. SWIFT: That's absolutely the problem. The losing and the changing the rules is what the government has probably alienated the rest of the world even more on, is that the rules seem to be set up so the detainee loses no matter what. And again, General Hartmann referred to, well, the two-tiered system, et cetera, the short answer to that question - the very relevant email question, what happens if you win?
In Mr. Hamdan's case, he goes back to the same cell. There is no winning or losing inside the commission system for Mr. Hamdan. The only thing that a conviction can possibly obtain is political justification for the government. It doesn't change where he's staying or how he's staying. So we have the trials being fundamentally undermined by our positions. It's just a mistake.
CONAN: Thanks very much for being with us. That was Charlie Swift, who is an attorney for Salid Ahmed Hamdan, a man currently in custody at Guantanamo Bay, who's currently experiencing one of the military tribunals underway. As we mentioned, this Thursday, five men accused of organizing the 9/11 attacks will be arraigned, and we spoke earlier with Brigadier General Thomas Hartmann, the legal adviser to the convening authority for the Department of Defense. NPR's Jackie Northam heads to Guantanamo, what, Wednesday?
NORTHAM: Wednesday, yes.
CONAN: Have a great trip.
NORTHAM: Yeah, thank you very much.
CONAN: And we'll be hearing your reports from Guantanamo Bay. I just learned she gets to sleep in a tent while...
NORTHAM: On a cot.
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CONAN: On a cot. Thanks very much for being with us.
NORTHAM: Thank you.