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The Smart Guys continue to debate what to do with Guantanamo detainees

Friday, May 22, 2009
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HH: It’s time for the Smart Guys, John Eastman, Dean of Chapman University Law School, Erwin Chemerinsky, Dean of the University of California, Irvine Law School, welcome, gentlemen. Erwin, let me start with you. Can we at least agree that the Supreme Court has soundly rejected the proposition that late term abortion is covered by the right to privacy?

EC: No, that’s not what the Supreme Court said. I think we would agree that in Roe V. Wade, and Planned Parenthood V. Casey, the Supreme Court said that states may prohibit abortions after viability except when necessary to protect the woman’s life or health.

HH: But they have soundly rejected in the Carhart decision that the federal government is barred from regulating late term abortion.

EC: Oh no, the Supreme Court said that the government can regulate not only late but any term abortion by prohibiting the procedure known as partial birth abortion for the mechanism of the federal law. What I thought you were saying is the Supreme Court had rejected any right to abortion after viability, and that’s not correct.

HH: No.

EC: There is a right to abortion after viability when a woman’s life or health is at issue.

HH: I’m saying it’s soundly settled, it’s done when it comes to late term abortion.

EC: I’m sorry, I may be slow here, but it depends on what “it” means. There is a right of women to late term abortions where their life or health is in danger. The government may prohibit the means of abortion known as the partial birth abortion through a narrowly drafted law like the federal partial birth abortion ban.

HH: And that there’s no, and what I’m getting at, there’s no sense in revisiting that, because that’s decided.

EC: Everything I said is decided, and I think all three of us would agree that I’ve correctly stated the law.

HH: John Eastman?

JE: Yes, and here’s the problem with the way Erwin states the law, and I agree with the correct interpretation of what the law as been handed down by the Supreme Court, or interpreted by the Supreme Court. Life of the mother is one thing. Health of the mother is a euphemism. When you look at what the lower courts and legislative records mean by health of the mother, it means economic health, it means psychological health, it means all sorts of things that we normally don’t think of when we talk about life and health of the mother in kind of generic layman’s terms. We think about some serious injury. But when you add all those other things in, that means the restrictions on abortion would normally fall to an abortion on demand regime. And it’s that view of it that the Supreme Court rejected in its most recent decision.

HH: But what I’m getting at is, is this a superprecedent, Erwin? Carhart? It’s one of those things about which a Supreme Court nominee could be questioned closely, and we could insist because it has been soundly rejected that there is a Constitutional flaw in the ban on partial birth abortion that we ought to be able to get that commitment from a justice.

EC: Well, I think we would agree that we never ask justices for commitments in how they’ll rule for cases that come before them. Stenberg V. Carhart in the Year 2000, 5-4, struck down a pan on partial birth abortion. Gonzalez V. Carhart in April, 2007, upheld a ban on partial birth abortions. No nominee, Republican or Democrat, is going to give you a promise what they’ll do when the issue comes before them. Now I personally believe that both Republican and Democratic nominees should share with others their views on key issues like abortion, but my prediction is the Democratic nominee will do the same thing that John Roberts and Samuel Alito did, and refuse to answer questions about their views on controversial issues.

HH: But this has been decided, hasn’t it? This is over. This is done. It’s soundly rejected the attack on the statute.

EC: Antonin Scalia refused to answer questions about Marbury V. Madison in his confirmation hearings. The trend every since 1987 has been even more so, that they’re not going to give views saying they can’t talk about issues that will likely come before them.

HH: Well, they might not, but I’m asking you specifically as a Con Law professor, it’s settled, they ought to…

EC: You know, the only question is what you mean settled. I think you’re giving a lot of weight to that word. It was a 5-4 decision that reversed a 5-4 case, effectively, from seven years earlier. Is that settled? I don’t think settled can be used in that context. I think the most you can do is ask what are you views on the issue of abortion. I doubt they’ll tell you that, and they’re sure not going to tell you their views on how they’ll vote on partial birth abortion.

HH: Oh, Erwin, I got you. Let’s listen to the President earlier today.

BHO: Part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law, a proposition that the Supreme Court soundly rejected.

HH: Erwin Chemerinsky, has the Supreme Court soundly rejected that proposition?

EC: Well, I think the Supreme Court soundly rejected the view that the Constitution and habeas corpus don’t apply in Guantanamo Bay, Cuba, yes.

HH: Wasn’t that a 5-4 decision?

EC: Well, again, it’s in the context in what you’re asking me. Should a nominee say that he or she is going to vote a particular way when the issue comes before the Court? No, I don’t think that the nominee will any more take a position on that than they will on partial birth abortion. Do I think that you have a 5-4 decision of the Court that holds that way? Sure, just like you did with regard to the partial birth abortion cases.

HH: But John Eastman, what I’m driving at is the President profoundly misrepresented today the decision of the Supreme Court when he said it soundly rejected the idea that Guantanamo Bay was beyond the ordinary jurisdiction of American courts. Do you agree or disagree with that?

JE: Well, yeah, I think he overstated. This is a very closely contested question. Most of the terrorism cases before the Court have involved multiple opinions and lots of nuanced readings. And in fact, 90% of them, of the rulings during the course of those decisions, actually upheld Bush administration policy. Much of that gets overlooked in the bottom line on the one or two things of Bush administration policy the Court took issue with. And then those opinions are read kind of in hindsight as striking down everything in the Bush policy. Many of these things are much more nuanced than that, the Supreme Court’s decisions, for example, about habeas corpus, includes caveats about the full due process rights that could be conveyed by a properly constituted military or war crimes tribunal. And Congress and the executive working together are creating those kind of rules, and which would undercut some of the claims of walking into civilian court. So I think this is very much in flux, and the Supreme Court itself did not define what kind of rules it would expect to see in these tribunals, and that remains to be worked out in many instances as well.

HH: Now the key question that arose today, and I want both of your thoughtful opinions on this, is does it matter, does it change anything to move these prisoners from Guantanamo to the continental United States? Could it in any way effect how their cases are heard, the rights that they are given, and the procedures to which they are entitled, Erwin Chemerinsky?

EC: No. The Supreme Court in Rasul V. Bush, 6-3, in Boumediene V. Bush, 5-4, said that the Constitution applies in Guantanamo. There’s no indication the Court’s going to change that. The Constitution also applies in the United States. One of the main differences is symbolic. Guantanamo is an enormous embarrassment to the United States throughout the world.

HH: But that’s policy, Erwin. Let’s stick to law. You’re saying there’s, nothing could be different between their adjudication in Guantanamo and if they are brought here?

EC: I think they can be tried in a military tribunal in Guantanamo, or a military tribunal in the United States, though I hope there wouldn’t be. I hope if they’re here, they’ll be brought into a civilian tribunal.

HH: John Eastman, do you agree that there’s no difference?

JE: I agree under the Supreme Court’s decisions, which I continue to believe were wrongly decided. I think the earlier ruling out of the 11th Circuit some decades ago that talked about the difference in territorial application of the Constitution, and non-territorial application of the Constitution, is a critically important one, because I don’t, quite frankly, see the difference under the Court’s rulings in Hamden and Boumediene between what we do in Guantanamo and what we do at Bagram Air Force Base in Iraq or…

HH: That’s where I’m going. When we come back from break, my next question is okay, if it makes no difference whether they’re in Gitmo or they’re somewhere in the continental United States, does it make any difference if they’re in Bagram or if they’re in the continental United States?

– – – –

HH: Erwin, the Bagram prisoners, are they, do they have the same legal status as the Gitmo detainees?

EC: The Supreme Court hasn’t yet decided. There’s one federal district court judge in D.C. who said they do, and it’s on appeal to the D.C. Circuit, but I think the three of us again could agree, this is an unresolved question.

HH: John Eastman?

JE: Yeah, I agree it’s unresolved, but I don’t know how the logic of the Guantanamo Bay decisions would lead them to any other result than Bagram has to be covered as well. And what…that represents such a radically different way of thinking about our overseas operations in time of war than has ever occurred in our nation’s history, that I think it calls into question the Guantanamo Bay decisions, as I noted earlier.

HH: Erwin Chemerinsky, if the Gitmo detainees are disbursed across the United States, as counsel to one of them, and an observer of all of them, do you expect that those cases will be tried in different venues? Or do you expect the consolidation attempt will remain valid?

EC: I don’t know. Last week, President Obama said he wanted to use military tribunals. I very much disagree with this. If there are military tribunals, they could be done throughout the country and likely would be done throughout the country. If they’re going to be in federal court, my guess is they’ll probably also be in different federal courts. Already we’ve seen that Padilla got prosecuted in one, al-Marri’s being prosecuted in another. Yet another prosecution’s going to be in a third federal district court. So my guess is we’re not going to see centralization, no matter what.

HH: John Eastman, this is why I believe moving them from Gitmo greatly enhances the complexity and likelihood of erroneous decision making, is that we’re going to spread them out. And even if there’s a military tribunal, you’re going to have habeas petitions in a dozen different courts if they’re sent to a dozen different places.

JE: Well, you are. And there’s something else going on here, and that is a return, and I’m pleased to say that President Obama has taken steps this week to stop this from happening, but a return to the notion that these are just ordinary criminal matters rather than war matters. And moving people from Guantanamo to Leavenworth, for example, putting them in prison rather than in a detention camp, starts treating them as common criminals rather than combatants. Now they are also unlawful combatants, which means they can be tried under war crimes tribunals, and that’s what these military commissions are. They’re not criminal things, they’re war crimes tribunals. But here’s the real problem. You put them into Leavenworth and start treating them like criminals as if they were trying to rob a bank rather than take out civilians in a war action. What do you do with those that you can’t convict because you don’t have evidence beyond a reasonable doubt, but you know as soon as you release them, they’re going to return to the battlefield? The reason we treat these people like combatants is to keep them away from the battlefield so that they don’t launch other attacks against us. And that’s appropriate. Guantanamo was set up perfectly for that. It’s one of the most elegant detention camp facilities ever created in human history. And the notion that this is somehow an embarrassment on the United States is much too much into the bullet points in the rhetoric, rather than looking at what that place is on the ground.

HH: But again, you’re back into policy, and today, I’m just trying to really focus on the practical consequences of bringing 200 plus terrorist to the United States. I think it unleashes a wave of litigation, and wherever, however many jurisdictions that they are located in, with however many different circuits they are spread across, and it greatly increases the likelihood of chaos in the courts, Erwin Chemerinsky.

HH: I don’t think there’s any basis for that, and I’ve got to respond to what John said. These are not individuals who were apprehended on the battlefield. That’s how we’ve used detention in prior wars. These are individuals who were picked up of being suspected of being tied to al Qaeda. They can’t be held just because someone in the executive branch thinks they’re dangerous. There has to be due process. There has to be a trial. Never in American history have we just picked up people because we suspect them that they might be dangerous, and then held them forever without due process. That’s just never been done.

HH: Actually, I think we did that throughout World War II.

JE: Well, hang on, we’re not holding them forever. We hold them until the end of the war. The decision about the war to end turns on our enemies capitulating and quitting the use of these unlawful tactics in attacking civilian populations. The war could end tomorrow if al Qaeda would renounce violating the laws of war. So it’s not indefinite on our end. It’s indefinite on their end. And the second thing is what you’re proposing is to give greater due process to unlawful terrorist combatants than we give to our own military, and that we’ve ever given to uniformed soldiers who play by the rules of war. And I just don’t think the American people or our Constitution requires greater process for people who have so flagrantly violated the laws of war.

HH: Last question, Erwin. If your client from Gitmo comes to the United States, will you be filing a habeas petition in the jurisdiction in which he is physically located?

EC: Well, he’s already got a habeas petition pending right now in the United States District Court for the District of Columbia before Judge Walton. I think the question would be, in light of Supreme Court precedent, can that continue, or would we have to transfer to the district where he’s held, and there’s complicated issues there. But John is being disingenuous. The President told us the war on terror is going to go beyond our lifetime. John’s arguing for indefinite detention without any due process.

HH: Erwin Chemerinsky, John Eastman, always a pleasure.

End of interview.

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