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The Smart Guys analyze the Hamdan decision

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HH: A special welcome to our new audience in New York, Manhattan and the other boroughs of New York on WNYM, 970AM, The Apple. You’re in for a treat. Once a week, or as often as we can, we bring together two of the smartest guys in law, that is Dean John Eastman of Chapman University Law School where he presides over the faculty of which I am a member, and Dean Erwin Chemerinsky, where he is now newly installed at the University of California, Irvine Law School. Erwin is a man of the left, John’s a man of the right, but together, they are two profoundly informed Con Law scholars. And gentlemen, welcome. By the way, by way of background, in studio with me today, Dwight Rabuse, long of the Department of Justice back in the Reagan years, he may have a question for you. Let’s start with what happened in Guantanamo today, the Hamdan case. Erwin, why don’t you give us a summary of what happened, and then we’ll get reactions.

EC: A military jury, as part of a military commission, as authorized by the Military Commission Act of 2006, acquitted Hamdan on the charge of conspiracy to engage in terrorist activities, but convicted Hamdan of the crime of material aiding terrorist activity. I understand the sentencing proceeding has begun, but the last I checked, no sentence has been announced.

HH: John Eastman, were you surprised by the decision? And are you comfortable that justice has been done?

JE: Well, I am comfortable that justice has been done. I think the fact that it’s a split decision, that it wasn’t simply a rubber stamp for the prosecution position, demonstrate that these commissions are willing to give a fair and honest hearing in these cases. And that’s what we expect. This is a criminal proceeding of sorts, but it’s a criminal proceeding under the guise of war. And the charges are not for violating U.S. laws so much as violating the laws of war. And aiding a terrorist organization such as al Qaeda, you know, is contrary to the laws of war. These are combatants who are detained, and they go to this second phase, which is prosecution if they violated the laws of war in the conduct of their combatancy, or their war making.

HH: Erwin Chemerinsky, as I understand it, Hamdan was convicted of aiding terrorism and being a terrorist, but acquitted of conspiring to the events of 9/11 specifically. Is that your understanding?

EC: That’s exactly what happened, and my answer to your question would be the opposite of John’s. I’m not at all satisfied that justice was done here. We’ve got to remember that Hamdan’s lawyers went to federal court in July, and argued that the procedures provided by the Military Commission Act are inconsistent with the Constitution, and also inconsistent with international law. And that’s so in many ways. It was the closure of the proceeding, it was the fact that the prosecutors got to play a role in selecting of who the jurors would be in a way the defense didn’t. It didn’t require a unanimous verdict. We don’t know if there was one. Evidence could be used against him that was gained by coercion. He didn’t have the ability to confront his accuser as required by the Constitution. Judge Robertson said let’s go ahead with the military trial, and then if he’s convicted, he can raise all of these issues on appeal, and ultimately back in federal court. So I think we’re a long way from knowing whether or not justice was done in this case.

HH: John Eastman…go ahead, Dwight, you have a question?

DR: Well, and I’m thinking almost invariably this court percolates back up the United States Supreme Court, which gets another shot at their recent decision. Do you guys see it that way, too?

HH: John Eastman, is it going back to the Supremes?

JE: Yeah, I do, eventually. And I think the Court already signaled that in the earlier decisions. But look, what we’ve got here is uncharted territory for the courts. I mean, whether through prosecutions under the Uniform Code of Military Justice, or as happened in World War II and in the Civil War by military commissions, we have not typically allowed the review to get into the civilian courts as the Supreme Court has now required. So this is going to be back there, trying to deal with very difficult questions about hearsay evidence, when the evidence is out on the battlefield.

HH: Now Erwin, Erwin stuck in there that his Constitutional rights were violated, I think you said because of a failure to confront witnesses against him. Is that what you said, Erwin?

EC: That was one of several grounds, and of course, what he don’t know is the extent to which the Constitution applies here.

HH: That’s what I was getting to. That’s not settled law that he has Constitutional rights to confront his accusers.

EC: We don’t know.

JE: Yeah, nor is it settled what, how large the percentage of the jury verdict ought to be. The Constitution doesn’t require unanimous verdicts. When the Supreme Court applied the jury requirements to the states, it said something less than unanimous is required. And so you know, they’re going to be making this up as they go. And the point of this is, Article I of the Constitution gives the power to Congress to define the rules and the regulations that apply to the Armed Forces. Our Bill of Rights recognizes the exceptions for dealing with the Armed Forces in time of war that don’t apply to other contexts. And how much of the rules of civilian courts are going to apply here is not something that’s spelled out in the text of the Constitution.

HH: Erwin?

EC: Well, what we’ve got to remember is that President Bush created an Executive Order for military commissions, and in June, 2006, in the Hamdan case, the Supreme Court found that those procedures violated the Uniform Code of Military Justice, and also the Geneva Court. The military officials, the current head of the Joint Chiefs of Staff, prior military officials, said to Congress, simply apply the procedures of the Uniform Code of Military Justice and international law. Congress, at the urging of the Bush administration, didn’t do so. They provided weaker procedures in many instances. And the question of whether or not these are Constitutional, or the Court will allow them in light that they’re not complying with international law, is something that’s going to have to be answered. And so I very much agree, I think this is ultimately going to go back to the Supreme Court.

DR: Is it wise, politically, for this administration, given what Hamdan has been convicted of, to avoid this particular Court revisiting the issue, and letting the guy go until you have a better case with a different Court?

HH: John Eastman?

JE: No, I don’t think so. I think they want this case. This is somebody that is very close to bin Laden, and they want this case being the test case. They’ve made that clear, I think, from the very beginning. And you know, you’ve got him on a pretty straight charge. He’s, as driver of bin Laden, he’s transporting arms to a terrorist organization that’s involved in unlawful combatant status against the United States. And so let’s take it up. Erwin keeps referring to violations of international law, but without any specifics. You know, and it is not a requirement of international law or treaties that we’ve signed onto, that you can’t use military commissions to prosecute unlawful combatants.

HH: Now last question. Earlier today, I hear Professor Jonathan Turley, who like you, Dean Chemerinsky, represents some of the unlawful combatants detained at Guantanamo, blast the proceeding as having no credibility in international eyes. Now I’m not particularly concerned what international people think about any particulars, but I just doubt the facts of that. People might pose around the world as critics of American justice, but generally speaking, I think they respect our good faith attempt to give these people a fair day in court, whereas they’d be in prisons in other places, never to be heard of again. What’s your reaction, Erwin?

EC: I think that you’re minimizing the effect to which Guantanamo has become an enormous black eye for the United States throughout the world. I think that the United States has done itself incalculable and unnecessary damage by this. I think it’s great that there’s finally been a proceeding. I wish it was a proceeding that complied with international law and the Constitution, and I fear that ultimately, the Supreme Court’s going to say this conviction isn’t going to stand because it doesn’t meet the most basic requirements of the Constitution and due process.

HH: John Eastman, fifteen seconds, last word?

JE: Yeah, I mean, we keep throwing those out. I don’t understand what it is. This is the most procedurally protected proceeding against combatants that we’ve ever applied in our history. And the notion that that doesn’t comply with our Constitution or international law means we’re moving the ball pretty significantly on what those requirements are.

HH: John Eastman and Erwin Chemerinsky, the Smart Guys, thank you both.

End of interview.


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