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Lawyers Oppose Efforts to Free Guantanamo Detainees

Attorney Richard Samp is the chief counsel for the Washington Legal Foundation, an organization that has been urging the U.S. Court of Appeals to dismiss challenges to detentions at Guantanamo. He has said, "Throughout our history, the courts have never allowed nonresident aliens to invoke the Constitution as a basis for challenging their detention by American authorities."


Other segments from the episode on June 22, 2006

Fresh Air with Terry Gross, May 22, 2006: Interview with Joseph Margulies; Interview with Richard Samp.


TIME 12:00 Noon-1:00 PM AUDIENCE N/A

Interview: Civil liberties lawyer Joseph Margulies discusses
Guantanamo and the legal limbo experienced by prisoners there

This is FRESH AIR. I'm Terry Gross.

My guest, Joseph Margulies, is a civil liberties lawyer who has represented
several detainees in Guantanamo. He was the lead lawyer in a case that came
before the Supreme Court called Rasul and others vs. George W. Bush that
challenged the US government's right to hold detainees indefinitely without
counsel and without the right to challenge the claim that they were affiliated
with the Taliban or al-Qaeda. In June 2004, the Supreme Court ruled that the
detainees should have access to the courts to challenge their detention. In
response to that decision, the Defense Department set up combatant-status
review tribunals, and Congress passed a law saying the only role for the
courts is in determining if these tribunals are doing their job. The Supreme
Court is about to rule on a related case which will determine whether the law
Congress passed should apply retroactively to all the detainees in Guantanamo.
Margulies has written a new book called "Guantanamo and the Abuse of
Presidential Power." He's an attorney with the MacArthur Justice Center and a
law professor at Northwestern University Law School in Chicago.

So what kind of recourse did detainees in Guantanamo win as a result of your
Supreme Court decision?

Mr. JOSEPH MARGULIES (Author, "Guantanamo and the Abuse of Presidential
Power"): The right to have a federal judge determine the lawfulness of their
detention. What Rasul stands for is the proposition that the government
must--the executive must come into court and justify the lawfulness of the
detention, that no longer can they be held based only on the president's
self-asserted authority and assertion that they are, as their words, the worst
of the worst.

GROSS: Now after the decision, the Bush administration announced it had
created combatant-status review tribunals...


GROSS: determine whether prisoners in Guantanamo were enemy combatants.
So where does that fit in with the Supreme Court case that you argued?

Mr. MARGULIES: This was their response to the Supreme Court decision in
Rasul. What we have learned is that they have a great reluctance for reasons
that are unfortunate to ever defending the cases in court. I mean, since
9/11, they have yet to call their first witness in any post-9/11 detention
case. That is have a person in court saying, `This is what this person did
and this is why we are holding them.' Any Guantanamo case or Bagram Air Base
in Afghanistan. They've never gone to court and defended it. And what they
did instead after the Supreme Court decision in Rasul was create these
hearings down at the base which lawyers aren't involved in, they rely on
secret evidence that's withheld from the prisoner, the prisoner has to respond
to allegations he can't see. And not surprisingly, the administration
concluded that all but a couple dozen of the prisoners at the base were in
fact enemy combatants based on these combatant-status review tribunals.
They're a sham. They're really an embarrassment.

GROSS: So in practicality, what detainees at Guantanamo won wasn't a right to
a federal judge hearing their case but rather the right to get heard before
one of these military tribunals, one of these combatant-status review

Mr. MARGULIES: That is correct. And none of them have yet had their case
heard in federal court.

GROSS: And they don't have a lawyer at these milit--combatant-status review

Mr. MARGULIES: No. No. In fact, they are explicitly not allowed a lawyer.
If a lawyer had been represen--like my clients, I had been representing them
for years, and--or any of the other lawyers that have since gotten involved,

they might represent them in the attempt to have the federal court hearings
and the habeas cases that are going on in federal district court. And you
would ask the military, `Let us go down and talk to our clients about this
combatant-status review tribunal,' even if you don't let us in the room, let
us just advise him on what it is that's taking place and help investigate to
help prove his innocence and so on. And we have been not allowed.

GROSS: You were in a very unusual position when you were working on Rasul vs.
Bush, the Supreme Court case. You were representing prisoners who you never
even had a chance to meet.


GROSS: Why weren't you allowed to meet them?

Mr. MARGULIES: Well, I was representing prisoners who didn't even know they
had lawyers. They didn't even know that there was a case going on on their
behalf. And that was deliberate. The administration didn't allow them to
learn that there was litigation on their behalf and wouldn't allow us to
communicate with them or to deliver any papers to them. We represented the
prisoners through their family members, that is the family would say, `We have
learned that our son or husband is imprisoned at the base, and we know he
would want to challenge that imprisonment. Would you represent him for us?'
And so we represented them through their family members, through the auspices
of the family members. But the reason the administration wanted to keep them
in this state of darkness is that's their model for interrogation. To
understand Guantanamo, you have to understand that its objective was to be the
perfect interrogation chamber. And their vision of intelligence gathering
requires that you keep prisoners in this state of isolation and secrecy. So
allowing them any link, any uncontrolled link to the outside world was
anathema to them. And so they restricted that and prevented it as long as
they can. So the prisoners, we won in the Supreme Court, and our clients
didn't even know that the case had been going on. We alerted them when we
finally got to go down there.

GROSS: How did it complicate your case being unable to meet with the people
you were representing?

Mr. MARGULIES: Well, the principal complication is that you can't, and this
has been the struggle the whole time. You can't ascertain what it is that
they supposedly did wrong and demonstrate its falsity. If the government
doesn't make any allegations against the person, if they don't say `This is
what he did on such and such an occasion. He, you know, took such and such
actions against military personnel or their interests.' And then you go talk
to the person and you say, `Look, this is what they say you did. Let us
investigate these.' Well, none of that took place. There wasn't any of that.
In fact, they still haven't made those sort of representations in open court
about what guys did so that there's an occasion for us to say, `All right,
well, call your first witness, and we'll have a hearing on this.'

GROSS: As we said, while you were preparing your case for the Supreme Court,
you were unable to meet your clients, but you were able to meet Mamdouh Habib,
one of your clients, I think on the day before you filed the brief in the
Supreme Court. And you were afraid that if you introduced yourself to him,
that he might suspect you of being in league with the interrogators, that this
was just like another crafty way of getting information out of him. So you
asked his wife to help you figure out a way to approach your client so that
he'd believe that you were really his lawyer.


GROSS: Tell us a little bit what you did to try to achieve that.

Mr. MARGULIES: Sure. First, let me correct one thing. We did not--I did
not meet Mamdouh until after the Supreme Court decision. The Supreme Court
case came down in late June of 2004. I was able finally to meet him shortly
before Thanksgiving of 2004. But you're right. We--I was very concerned. We
knew that interrogators had lied to prisoners. That's not uncommon. That in
itself is not unusual. We knew that interrogators had impersonated other
people, they had impersonated FBI agents, for instance. The FBI had
complained about it. And we had heard that Mamdouh was not doing well
physically and mentally. We had heard that from the Australian government.
And so I had no confidence that he would think that I was anything other than
another interrogator. So I met with his wife, who was living in Sydney at the
time, and we'd actually--the people I was working with on the case, we brought
her to the United States and had met with her over a number of days before I
went down to the base, and I asked her to search her memory for obscure,
innocent interactions between her and her husband that would signal to him
that I had spoken with her but stuff that an interrogator, even the most
assiduous and careful, would not have thought to probe for. So we came up
with three things. She told me where they went on their first date in Sydney,
the first gift that Mamdouh ever gave to her while they were dating and where
they stayed while their son was in the hospital having surgery. And--because
I thought, you know, it was so obscure, and years ago, that no interrogator
would have come up with it. And the first time I met with Mamdouh in these
little boxes that pass for a prison cell down at the base, he's a very small
man, and he was bent over. He was shackled to the ground, bent over with his
back to the door. And I came in and I introduced myself. And gradually
eventually I told him these things. I told him that I'd met with his wife and
she'd told me some things to help you to trust me. And it was a very moving
moment because he started to cry. It was very difficult thing for him. It
was a very difficult thing for both of us, to be honest.

GROSS: What do you know about what the government suspected him of having

Mr. MARGULIES: Oh, they made the most serious allegations against him.
They're some of the most serious allegations of anybody who was at Guantanamo.
They said that he was a member of al-Qaeda's inner circle, that he helped
train the 9/11 hijackers, that at one point, he was going to be one of the
9/11 hijackers, that he trained them in the martial arts, that he participated
in video training of other potential--or video surveillance of other targets,
that he unloaded chemical weapons at some location in Afghanistan. They were
very serious allegations. What we learned in the course of talking to him and
examining the government's documents, and I can say this because it's all
unclassified, is that all of this derived from, quote, "confessions" that he
made after he had been rendered to the Egyptians. He was arrested in October
of 2001 in Pakistan and sent to Egypt where he was tortured for six months.

GROSS: Sent by the US to Egypt?

Mr. MARGULIES: That's right. He was bundled onto a US military plane at an
airfield in Islamabad, put in black goggles, and they cut his clothes off of
him and they basically put a diaper on him and put him in a track suit and
strapped him to a plane--to the interior of a plane and flew him to Cairo. He
was held at a prison outside of Cairo, a state security facility, where he was

tortured for six months. And he confessed to all manner of crimes. And
that's what they were basing his detention on.

GROSS: If you confess only because you've been tortured and you confess to
things that aren't true, is there any way of taking back the confession?

Mr. MARGULIES: You know, one of my other clients, Shafiq Rasul--the answer
to your question is no. He confessed. It's a fascinating story. They had a
video of Osama bin Laden in Afghanistan giving a talk exhorting his followers.
And they had circled--they took a still, a picture from the video, and they
had circled several faces. And they showed it to Shafiq Rasul and Asif Iqbal,
two other clients, and they said, `See this? This is you. This proves that
you were in Afghanistan.' And Shafiq kept saying, `No. That's not me. When
was this taken? `You know, in 2000.' `No, in 2000, I was living in England.
I was working at a place called Curry's, a little fish place. I was going to
school. No. It wasn't me.' And they thought he was lying and they put him in
solitary confinement. They subjected him to something called stress and
duress techniques which are you're shackled in this squatting position for
hours at a time, you can't stand, you can't lie down, loud cacophonous noises
played, air conditioning turned way up, then back into solitary confinement
for weeks. He later said he thought he was going out of his mind, and they'd
bring him back, and they'd show him the photo again and said, `That's you. We
know that that's you.' Finally, he confesses. He says, `OK. Yes, it's me.'
Turns out British intelligence later confirmed because there was videotape of
it, showed that Shafiq was in fact in England at the time that he said that he
was and he showed up--as you know there's video cameras all over London, all
over a lot of England. And he just happened to be walking down the street on
video and British intelligence gave that--as were my other clients--gave those
videos to the United States. And Shafiq Rasul and Asif Iqbal have since been
released. And they're home, free men today. But if it weren't for the
fortuitous and really random intervention of British intelligence, they'd be
down at the base as, quote, "confessed" terrorists.

GROSS: My guest is Joseph Margulies, author of "Guantanamo and the Abuse of
Presidential Power."

More after a break. This is FRESH AIR.


GROSS: If you're just joining us, my guest is civil liberties lawyer Joseph
Margulies. He represented several detainees in Guantanamo, and he took their
case to the Supreme Court arguing that they had a right to a legal process and
he won in the Supreme Court. He's written a book called "Guantanamo and the
Abuse of Presidential Power."

One of your clients, I think it was Mamdouh Habib, had fake menstrual blood
smeared on him...


GROSS: part of the interrogation process.


GROSS: I suppose as a way to humiliate him and break him to get him to talk.
Would you tell us what he told you about that?

Mr. MARGULIES: According to a reporting in The Washington Post, the Pentagon
has confirmed, quote, "numerous instances" of occasions when
interrogators--female interrogators devised a plan to secret packets of dye
inside their pants which during interrogations of Muslim men, they would reach
into and wipe their hands with it and then either flick or wipe this fake
menstrual blood on prisoners, and the ostensible purpose was, as you say, to
make them feel unclean. And then they would feel abandoned by their God and
could not take comfort in any other outside source and would learn--begin to
learn that their only source of comfort in the world was cooperating with
their interrogators. That's the ostensible purpose. In fact, after the
interrogations, they'd send them back to their cells, and they would have
turned the water off in their cells so they couldn't even wash. And Mamdouh
described basically that having happened. In his case, he said it was flicked
on his face. And I remember the first time I heard that, thinking `What do
they think they're gaining?' It's ostensible link to established interrogation

There's something called "pride and ego down." There's a military
interrogation technique called pride and ego down where you do things to try
to diminish a prisoner's ego and pride in order to make them feel helpless.
But nothing that the military had ever been authorized to do would sanction
this sort of behavior, this sort of cultural assault. I was just mystified,
just bewildered if they think that this is going to lead them to reliable

GROSS: When your client Mamdouh Habib was released from Guantanamo, and he'd
been tortured in Egypt before this, he'd been detained for a long time and
subjected to a lot of things in Guantanamo, nothing--no charges against him
were officially ever made, when he was released after you won in the Supreme
Court, you accompanied him home to Australia.


GROSS: Tell us a little bit about what that trip was like.

Mr. MARGULIES: You know, that was very interesting. I consider myself
extremely fortunate. I'm the only lawyer who's been allowed to accompany a
client home. I'm not quite sure why they extended that courtesy to me. I
think it was as a favor to the Australian government. But when they made the
decision to release Habib, and it was announced first on Australian press, and
this is early January of 2005. I got a call from the Australian government
advising me that he was going to go home. And they asked me at first to keep
it under my hat, not tell anybody because there were other negotiations that
they were working out, and they didn't tell me what. But they asked me not to
tell anyone. And then about 10 days later, a week later, I got another call
from the government, and I said--and they asked me whether I would be willing
to fly home with him when the time came. And, of course, I'd be happy to.
And again they said, `Keep it under your hat. Don't tell anybody. We don't
want this to get out. But we need you on, you know, some day late in January
of '05 to meet us at midnight in the Miami International Airport at, you know,
such and such gate near the hotel. And, you know, we'll explain more when you
get there.' So I did. And there were representatives of the Australian
government, somebody from their Attorney General's Office and several other
security members. And we took a taxi to the private charter terminal and
boarded a Gulfstream jet which flew from Miami to Guantanamo in the early
morning hours. We picked up Mamdouh. I had not been able to communicate with
him and tell him that this was happening, and he'd been told earlier that day
by an interrogator or by a guard rather that they were sending him to Egypt.
And they took him out of the truck, and it was dark and there was a guard
there that was videotaping the whole affair and shed a spotlight on it and
Mamdouh was squinting into the light, and then he looked up and he saw me at
the plane. US government wouldn't let me off the plane so I was just at the
window of the plane. And he walked over to me, and he said the first time he
convinced himself that he was actually going home was when he saw me. And he
walked up the steps of the plane, and I said, `Mamdouh, we're going to Sydney.
You want to come?'

GROSS: So in retrospect now, what do you think is the reason that Mamdouh
Habib was detained in the first place? Do you think--I mean, I don't know if
you have an opinion, and I don't know whether you feel it's appropriate for
you to give your opinion. But do you think that he was an innocent who was
mistakenly detained and sent to Egypt and then Guantanamo? Do you think he
was guilty of anything?

Mr. MARGULIES: All I can say is that if there were an atom's weight to the
allegations that were made against him, he never would have been sent home.
And it's not as though they would need to hold him in Guantanamo. It's not
that Guantanamo is this thing where you either let them go or you hold them in
these current conditions. With the allegations they made against Mamdouh,
they could have brought him back here and tried him in a federal court in a
heart beat, if those allegations were true. And they would have. As I said,
they were extremely inflammatory allegations. And for him to be released and
under no restrictions at all in Australia, he's not in custody there,
indicates to me that they did not believe the allegations that they were
making. If there were other evidence to indicate he is anything other than a
person who was in Pakistan looking for a job and looking to move there, he
wanted to move from Australia to Pakistan to be in a more religious
environment, if there were anything that he was anything other than that, the
United States government has not shown it to me.

GROSS: Do you think he was a sympathizer with the Taliban or al-Qaeda?

Mr. MARGULIES: I don't know. I don't have any reason to believe that. He
is a strict Muslim, but that establishes nothing. I think it's very important
and the administration agrees with this, that if we're going to say that this
is a war on terror, and not a war on Islam, that there is no crime in being a
strict and observant Muslim.

GROSS: Joseph Margulies is the author of the new book, "Guantanamo and the
Abuse of Presidential Power." He'll be back in the second half of the show.

I'm Terry Gross, and this is FRESH AIR.


(Soundbite of music)

GROSS: Coming up, the debate over the rights of detainees in Guantanamo.
We'll continue our conversation with civil liberties lawyer Joseph Margulies,
who has represented detainees, and we'll talk with Richard Samp, the chief
counsel of the Washington Legal Foundation, which has filed Supreme Court
briefs in support of the government position on Guantanamo.


GROSS: This is FRESH AIR. I'm Terry Gross back with civil liberties lawyer
Joseph Margulies. He's represented several Guantanamo detainees and was the
lead lawyer in a case that came before the Supreme Court, Rasul vs. Bush,
that challenged the government's right to hold detainees indefinitely without
counsel and without the right to challenge the claim that they were affiliated
with al-Qaeda or the Taliban. The court ruled the detainees should have
access to courts to challenge their detention. Margulies has written a new
book called "Guantanamo and the Abuse of Presidential Power."

Let's look at some of the legal arguments that you made in the Supreme Court
case. The Bush administration was arguing that Guantanamo is outside of US
jurisdiction because it's officially under Cuban sovereignty so that the US
court system doesn't apply there. How did you challenge that aspect of the
Bush administration argument?

Mr. MARGULIES: Yeah, the administration's argument was that really we
weren't sovereign at Guantanamo despite all appearances to the contrary,
really Cuba was sovereign, and therefore the courts have no role. And I used
to call that argument `the Guantanamo fiction' because everybody accepts that
Guantanamo is ours. It is US territory, and there's a Starbucks, there's a
McDonald's, there's a movie theater, there's a Boy Scout troop, there's a
Baskin-Robbins. It's larger than the island of Manhattan. It's more than
half the size of the District of Columbia. There's no other law that applies
there. And it is in all respects a small American city. And the question was
whether this legal fiction of sovereignty is going to displace American law.
And the Supreme Court said, `No, we're going to look to the reality of events,
and the reality is this place is, in all respects, within the territory of the
United States, and therefore the law will reach those prisoners.'

GROSS: The Bush administration made the argument that the detainees in
Guantanamo are enemy combatants, not prisoners of war, therefore the Geneva
Conventions don't apply to them. What was your argument?

Mr. MARGULIES: Well, in Rasul, the position was that the federal courts
reached them, whatever you call them, the government has to demonstrate the
lawfulness of their detention. That argument isn't made more important and
more urgent if the government also says, `Not only do we not have to justify
why they're there, we can treat them any way we want.' And our position is
that whatever you call them, you don't have the right to torture them. You
don't have a right to use cruel and degrading and inhuman and humiliating
interrogation techniques. You can call them anything you like. You can make
up any name. And the label enemy combatant is not on the Geneva Convention.
It's not in US military lexicon. It's just a name they came up with. We
don't want to get stuck on the tyranny of titles. The fact is they're
prisoners in an armed conflict, and you can't mistreat them.

GROSS: You point out in your book that there's actually four different Geneva
Conventions. One applies to POWs, one applies to civilians.


GROSS: You point out that there's one article that exists in each of the four
Geneva Conventions so that no matter who you are, no matter what your status
is, you at least get the protections of this Article 3 which is in each of the
four conventions.

Mr. MARGULIES: That's right.

GROSS: What does Article 3 say?

Mr. MARGULIES: Common Article 3 is the baseline minimum that says no matter
who you are and no matter how we've captured you, no matter what we think
you've done, there are certain things that will make sure that law--that
war--despite its inevitable horrors, war will not become this descent into
anarchy. We will not mistreat prisoners in our care. And maybe you don't
want to call them prisoners because that sounds like prisoners of war, you
want to call them something else. The fact is Common Article 3 is the
baseline. And that's the position recognized by the US military and has
always been recognized. It's the position to this day pressed by the US
military. And the administration refuses to accept that the people picked up
on the war on terror are entitled to those baseline protections. They refuse
to give them the protections of Common Article 3. It's really an astounding
lapse that the rest of the world just shakes their head over, and the US

GROSS: Now prisoners of war don't get trials. Now I know the detainees in
Guantanamo have not been categorized as prisoners of war, but still prisoners
of war don't get trials. Why should the detainees in Guantanamo get trials?

Mr. MARGULIES: Well, when you say trial, we've never--the positions we've
said is not that they have to have regular criminal trials in a federal court
with the jury and all that. Our position has always been you have the right
to hold them, you simply can't hold them lawlessly. You have the right to
detain prisoners, you simply cannot abuse that right. So the idea in Rasul
is, look, if you're not going to give them the benefit of the Geneva
Conventions, if you're not going to give them some process by which we
determine whether you got the wrong guy so that we can separate the wheat from
the chaff, you've got to provide some other process in court so that there is
some restraint on executive authority. And that's been the problem with the
administration. They take all the power that comes from war, saying `We can
hold them forever, for as long as the conflict lasts and do everything we want
with them,' but they accept none of the restraints on the use of that power.
And Rasul was about restoring that balance between power asserted and power

GROSS: Now President Bush very recently said he would like to close
Guantanamo because it's outside the American justice system. A UN panel
monitoring compliance with the Convention Against Torture has called for
shutting down Guantanamo. Many other people have called for shutting it down
as well. What do you think the odds are that it will be shut down?

Mr. MARGULIES: Well, it's clearly going to be shut down eventually. The
question is how long and what more disasters befall us in the meantime. I
have to say, they've been saying for months, really years now, that they're
going to shut it down any day or that they're going to make major changes any
day. Last August, August of '05 for instance, they said, `We're going to
release 70 percent of the prisoners and the great majority of those who remain
will be moved to this new camp, Camp Six,' which is modeled after--which
complies with the Geneva Conventions and is much more humane and so on. Well,
meanwhile, nobody talks about that anymore, and they haven't built Camp Six,
and they're still roughly the same number of prisoners there. And it
continues to be a domestic and international disaster.

GROSS: Are you concerned that if Guantanamo is shut down, it's possible that
a new facility will be built that will have the same problems?

Mr. MARGULIES: Oh, it's already been built. One of the things that people
don't know is since the decision in Rasul, which was the end of June of '04,
there's been only one plane load of prisoners that have come to the base.
There were 10 additional prisoners who came in the end of September of '04.
Meanwhile, the prison at Bagram Air Base has ballooned from 100 prisoners to
600 prisoners. It's become the new Guantanamo.

GROSS: This is in Afghanistan.

Mr. MARGULIES: That's right. That's right. Bagram Air Base in Afghanistan.
The conditions in Bagram are apparently even more primitive than at
Guantanamo. But no reporter has ever seen it, there are no photographs of it.
My information on it is based on a story by Tim Golden of The New York Times a
few months ago. So you put your finger on the ball of mercury that is
Guantanamo, and it squirts off somewhere else. And now it's at Bagram.

GROSS: My guest is civil liberties lawyer Joseph Margulies, author of
"Guantanamo and the Abuse of Presidential Power."

We'll talk more after a break. This is FRESH AIR.


GROSS: If you're just joining us, my guest is Joseph Margulies. He's the
author of the new book, "Guantanamo and the Abuse of Presidential Power." He's
a civil liberties lawyer who represented several detainees in Guantanamo in a
Supreme Court case arguing that they and other detainees had a right to a
legal process. His legal team won the case.

There were recently three suicides in Guantanamo. Do you have any
interpretation of those suicides?

Mr. MARGULIES: I don't think it's coincidental that they were all discovered
at the same time. They were all on the same cell block. They were in Camp
One. Camp One is not the highest security facility. It is not for the
most--what the prison perceives as the worst discipline problems. But no one
should be surprised by it. The last year that they released data on this was
2003, and there were something like 350 what they call self-harm gestures at
Guantanamo and 120, quote, "hanging gestures." They don't really explain what
that is. But they had been warned by the Red Cross and by various other human
rights groups of the risk of suicide for years. The most precious commodity
in any prison, it's not a slightly larger cell, it's not a change of clothes,
it's not sunlight, it's hope. And unless you allow a prisoner to hope that
there will be release, that he will go home and be reunited with his family,
he will be overcome gradually by despair. And when a prisoner is overcome
with despair, he will kill himself. And that's why the prison fully
expects--the military fully expects there will be more attempts because the
war on terror makes hope impossible.

GROSS: There's another Supreme Court decision regarding Guantanamo that's
expected to come down I believe sometime this month. Would you talk about the
decision and what you think is at stake in it.

Mr. MARGULIES: Well, the case is called Hamdan vs. Rumsfeld, and it has to
do with the military commissions. And it's two--really raises two questions.
One is whether and to what extent the courts have a role in continuing to
police the events down in Guantanamo, whether that has been displaced by
legislation that was passed at the end of last year, and assuming they have a
role, whether the military commissions are constitutional. And it's going to
be decided in a couple days. No one knows how that's going to come out, but
we expect that the court will say that the courts do continue to have a role.
And so what we are hoping is that it will finally break the logjam and we will
be able to vindicate the right that was established in Rasul, and courts will
now start to measure the government's justification for these detentions. In
other words, we'll finally have hearings. That's what we're hoping for.

GROSS: So you're hoping that there will be hearings as opposed to the
military tribunals that are operating now?

Mr. MARGULIES: Our position is that these cases should be in a federal
courtroom, that the military commissions should be pursuant to establish
military rules like the rules governing court-martials. And that the
nonmilitary commissions--again, the military commissions, there's only 10 guys
charged. The other 450 who are at the base are charged with nothing--that
those would be handled in a federal court. That the government can--and I'm
not talking about a full-blown trial--the government can come into court, have
a hearing, show what it is that they've done. They can either convince a

judge that this guy should be held or they can't. They can't convince a
judge, you let him go. If they had had those hearings after Rasul, they would
have been done with them in, you know, September of 2004. We could have
finished them all in 90 days. And they've yet to have the first one.

GROSS: Explain for us why you think the detainees at Guantanamo should have
court hearings as opposed to having what they have now which is combatant
status review tribunals run by the military.

Mr. MARGULIES: The essence of the role of the court is to ensure the
integrity and reliability of the process. That's what judges do. So, for
instance, one thing that you can't do in a regular courtroom is use evidence
secured by torture. Well, the combatant status review tribunal doesn't have
that prohibition. And you can hold a person in custody based on statements
that he made or that other people made about him under the most extreme
interrogation techniques, witness Mamdouh Habib who was held based on what
they did to him in Egypt. Well, you could never do that if you had to present
this evidence in a court of law, right? Because the law turns its back on
that sort of evidence. In addition, you have a neutral arbiter. You have a
federal judge who is not beholden to the military. That's what due process
means. What it means is a fair and impartial hearing with notice and an
opportunity to be heard. That's what makes the United States' judicial system
the envy of the world. That's what will quell the outcry about Guantanamo.
And that's what they have refused to do.

GROSS: One argument I've heard made against what you're proposing is that it
would tie up the federal court system. We don't have enough judges.

Mr. MARGULIES: There's 450 guys there. We could finish these hearings in
five months. That's preposterous. That's just preposterous.

GROSS: Just one more thing. You've done all kinds of civil liberties prison
cases, you know, over the years, but nothing quite like Guantanamo. I mean,
there hasn't been anything quite like Guantanamo. So just looking back on
your experiences, it must have been an incredible learning process for you.
Just tell us how you think it's kind of changed you as a lawyer or as a person
to have had this experience.

Mr. MARGULIES: I consider myself very fortunate to have been involved in
this. I consider myself honored to have been given the opportunity to
accompany my client home. I would be lying, however, if I didn't tell you
that I found being at the prison very disturbing. I've been at prisons all
over the country. I've been on death row in, I think, half a dozen states.
And the prison at Guantanamo was--being there was the most disturbing place
I'd ever seen. I consider myself fortunate. But it was deeply unsettling.

GROSS: Thank you so much for talking with us.

Mr. MARGULIES: Thank you.

GROSS: Joseph Margulies is the author of the new book, "Guantanamo and the
Abuse of Presidential Power."

Coming up, Richard Samp, the chief counsel of the Washington Legal Foundation,
which has filed Supreme Court briefs in support of the Bush administration
position on Guantanamo.

This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Richard Samp of Washington Legal Foundation discusses
the Bush administration's positions on Guantanamo and the rights
of the detainees there

We just heard from Joseph Margulies who represented several Guantanamo
detainees in the Supreme Court case Rasul vs. Bush. The court ruled that
detainees should have access to the courts to challenge their detention.

My guest Richard Samp is the chief counsel of the Washington Legal Foundation,
which filed briefs in support of the Bush administration in Rasul and in a
related case that the Supreme Court is expected to rule on this month. I
asked him to explain his position on Rasul.

Mr. RICHARD SAMP (Chief Counsel, Washington Legal Foundation): The United
States government has the right to detain enemy combatants who have fought
against us in wars until the conclusion of that war. And it doesn't make any
difference whether these people are charged with any crimes. They can be held
without trials for the duration of hostilities. Many of the people at
Guantanamo Bay fought against us in Afghanistan. That fighting is continuing.
As so long as that fighting is continuing, there is nothing wrong with holding
people for the duration of the conflict.

GROSS: But even America's leaders have said this conflict's going to go on
for a long time. This isn't likely to be a year, two, three, four or five
years. This can go on for a very, very long time. So it's not like there's
going to be an end in sight. If you're using the end of the war as the
occasion for somebody's release or for a trial, they might die long before

Mr. SAMP: Two things are going on at Guantanamo. First of all, everybody is
given a hearing to determine whether or not they really are an enemy
combatant, and certain number of people have been released after it's been
found that they're not enemy combatants. Moreover, on an annual basis, the
United States government makes a determination as to whether or not the people
being held still present a danger to the United States. If they don't present
a danger, they are released. And so to say that they are being held
indefinitely simply is not true. Moreover, how you define what is a war can
be either broad or narrow. And one of the narrow definitions of a war is the
war that we have been fighting against the Taliban in Afghanistan. That war
probably will not be going on indefinitely. And one can be reasonably assured
that one way or the other, that war is going to be over in two, three or four

GROSS: Do you think that the combatant status review tribunals have been fair
to the detainees in Guantanamo? I ask that because the critics of those
tribunals say that the detainees aren't allowed to have lawyers for those
trials. They're not given the charges against them or the evidence against
them, information that was coerced through torture is admissible. And so, you
know, a lot of critics say, `This is just a sham, it's not fair.'

Mr. SAMP: Under the rules of war, there is supposed to be some kind of
hearing to determine whether the person really was an enemy combatant. Most
of those hearings are conducted on the battlefield. They don't usually take
place--they don't take more than about 20 or 30 minutes to hold. By those
standards, the hearings that are going on at Guantanamo Bay are highly
elaborate and give people who are being held far more rights than the typical
enemy combatant or prisoner of war would get. Are these hearings the same as
a full-fledged trial? No. But there has never been a requirement that people
being held as prisoners of war have a right to a full-fledged hearing before
they can be held. For example, in World War II, when we were holding several
million people as enemy combatants at the end of the war, it would have been
administratively impossible to give the kind of hearings that people are
asking for here.

GROSS: Do you think Guantanamo should be closed down?

Mr. SAMP: I find it bewildering that people are asking for it to be closed
down. Right now, we have one facility in the world, at Guantanamo, that is
relatively open to the press, it is open for lawyers of each of the people
being detained, and they are all being given the right to go into federal
court to assert their rights. We have regular visits from the Red Cross. We
have the review tribunals that we've been talking about before. And we have
fairly good accountability for what's going on. If you close down the
facility there, the alternative is that you continue to hold people in secret
locations around the world and in Afghanistan where the rights being afforded
to people being held as enemy combatants are far worse. So it seems to me
what people are really asking for is let's do all of this in secret so that
perhaps the world can't see what we are doing. I think it's far better to
have an open facility where people can see what's going on and can see that in
those very few cases where there have been instances of prisoner abuse that
those responsible are being held accountable.

GROSS: You say that Guantanamo has been open to the press. The press access
to Guantanamo has been very limited, and just a few days ago, three reporters
were actually asked to leave.

Mr. SAMP: By the standards of prisons, I would say that you would find that
Guantanamo is quite open. I don't see how you can compare Guantanamo to
undisclosed locations where people don't even know where the prisons are and
therefore can't possibly have access.

GROSS: But if Guantanamo is closed, would the only alternative be undisclosed
locations in other countries or Afghanistan, or would the alternative be build
a better facility and...

Mr. SAMP: Well, I don't know what people are asking for. If what they mean
is let's close Guantanamo because the only people we should be holding are
those people who have gone through a full-fledged federal court criminal
trial, that's absurd. I think all you have to do is look at the examples of
people like Zacarias Moussaoui to see how unworkable that is. So that if
that's the alternative they're asking for, then it would be absurd to close
down Guantanamo Bay. If what they're saying is there's something particularly
bad about Guantanamo Bay so that should be the facility that is closed and
instead we should rely on other existing facilities, I'm not sure that that
makes a whole lot of sense given that Guantanamo is by far the most open of
all of the facilities that are out there.

GROSS: Well, the Supreme Court is expected to rule very soon on a case called
Hamdan vs. Rumsfeld, and I know in this case you've filed a brief on behalf
of the Bush administration. Would you give us a short summary of this case
and tell us your position on it.

Mr. SAMP: Mr. Hamdan is a detainee at Guantanamo, and he is one of a
handful of those detainees who the federal government is planning to bring
criminal charges against, meaning that, unlike all the other detainees who
will be released at the end of hostilities, if he is convicted, he could get a
lengthy prison sentence, up to life in prison. He has been charged with
conspiracy to murder Americans. He worked, admittedly, for a number of years
as an aide and personal chauffeur to Osama bin Laden. His claim is, first of
all, that Congress has never authorized the types of military tribunals that
the military is planning to use to conduct these trials, and, secondly, he
argues, even if these military tribunals are authorized, the types of rules
that they are planning to employ don't comply with either the military code of
justice of the United States or they don't comply with the Geneva Convention.

GROSS: And what is your position?

Mr. SAMP: Our position is, first of all, the Supreme Court should not be
hearing this case, that at the very least, the federal courts ought to stay
their hand until after these trials have taken place. And then if there is a
conviction, they can appeal under the normal appeals process that's available
to any other criminal. And, for example, Congress passed a law last year
specifically authorizing federal court review of any conviction of somebody
like Mr. Hamdan. Secondly, it's our position that because Mr. Hamdan does
not qualify as a prisoner of war, he is not entitled to the protections of the
Geneva Convention, and those protections by the way would require that any
trial be in the form of a court-martial similar to court-martials afforded to
United States soldiers and that, secondly, the military code of justice of the
United States does not prohibit what the government is planning to do.

GROSS: Well, Richard Samp, thank you very much for talking with us.

Mr. SAMP: Well, I appreciate it. Thank you very much for having me.

GROSS: Richard Samp is the chief counsel of the Washington Legal Foundation.
Earlier we heard from civil liberties lawyer, Joseph Margulies.

(Soundbite of music)


GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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