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UNIDENTIFIED MALE: We have today filed a lawsuit which tests the power of the federal government and of the president of the United States.
UNIDENTIFIED MALE: What this case is about is to insure that hatred doesn’t overcome human rights.
UNIDENTIFIED MALE: If you believe they did something wrong, start a process. Don’t hold them incommunicado.
JIM CLANCY, CNN ANCHOR (voice-over): A legal challenge to the United States detention of hundreds of suspected al Qaeda or Taliban supporters at Guantanamo, Cuba.
At the center of the international battle, three prisoners, two British and one Australian. Their lawyers say they have been held incommunicado since their arrest in December. The challenge is likely to become a landmark case in the war against terror.
On this edition of Q&A, should the detainees in Cuba be allowed to go home?
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(on camera): Hello, and welcome to Q&A. I’m Jim Clancy.
The war on terror is headed for the courts next. Lawyers have asked the United States to justify the detention of two British men and one Australian being held with hundreds of suspected al Qaeda fighters at Guantanamo Bay, Cuba.
The lawyers saying no charges have been filed against the men, they are not allowed legal counsel, they can’t see their families, and the legal team says charge them or let them go.
One of those lawyers is Michael Ratner, an attorney for the Center for Constitutional Rights. He’s with us from New York.
The logic behind this case?
MICHAEL RATNER, ATTORNEY: The president has two choices, here. He can either treat these people as POWs, which he should be treating them as — it is illegal, as the Red Cross has said, not to.
Once they are not treated as POWs, then they have to be charged with a crime.
What they’ve done here, the United States and the president, is basically indefinitely detain people, no charges, no attorneys, in cases, with detention going on conceivably forever.
It’s not allowed, it can’t be done, it’s un-American and it’s not along civilized laws.
CLANCY: If the United States were to say we’re going to decide this in a matter of a month or so, whether to charge them or release them, would that satisfy you? Or is it a bigger issue?
RATNER: Well, I think the key issue here is the United States can’t hold these people without charging them. It doesn’t have to release them if it charges them. It doesn’t have to release the, if they’re POWs, until the end of the war.
But what it can’t do is on a president’s simple whim, with no evidence coming forward and without telling them, is keep them detained. We wouldn’t stand for that, in the United States. We don’t stand for that in Europe. It shouldn’t be stood for anywhere in the world.
CLANCY: Well, do you have jurisdiction? They’re being held in Cuba?
RATNER: That’s a very good question. I litigated the Haitian refuge cases in Cuba, and in those cases, which weren’t even as egregious as this, the court said that the United States courts did have jurisdiction to enforce certain fundamental due process rights.
The United States, in my view, can’t simply avoid constitutional law and international law by trying to move them to an offshore Devil’s Island equivalent.
I think it’s clear that the courts will say that there is some process that has to be followed. You can’t keep people detained without some legal process.
CLANCY: Well, from Washington now, joining our discussion, Eugene Fidell. He’s president of the National Institute of Military Justice.
The view of your group on these prisoners?
EUGENE FIDELL, NATIONAL INSTITUTE OF MILITARY JUSTICE: Well, we haven’t taken a position on the legality or the policy issues of the detentions, the application of the Geneva conventions and so forth.
The one thing that we have done, which you may, you and your viewers may find of interest, is that we have yesterday communicated to the general counsel of the Defense Department to suggest that the rules, when the rules are issued toward the military commissions, there should be an opportunity for public participation in the usual means, namely notice, and opportunity to comment.
CLANCY: Michael Ratner, the Red Cross has visited some of the people that are being held, at least in Kandahar and in Guantanamo, talking with them. They have reported anything untoward, and they have said that their relationship, their discussions about the care and treatment of these prisoners is satisfactory, that relationship with the United States, and discussing their conditions. Does that satisfy you?
RATNER: Well, the Red Cross, first of all, has to be careful, because it wants to continue to have access. But the Red Cross has been very clear that these people should be treated as prisoners of war, initially, and that people captured on the battlefield should be treated as prisoners of war until a competent tribunal finds otherwise.
Now, that’s a strong statement, because as I just said, the Red Cross tries to work very closely with the government. So I think the Red Cross has taken a position.
With regard to conditions, it certainly has not spoken out strongly on that. But in my view, and I’ve been to Guantanamo, when you put people in open air cages in Guantanamo, I don’t consider that to be humane conditions, and my refugees were kept in better conditions, the ones I represented, than that, and it was still pretty awful, with scorpions and rats, etcetera.
But the key point in our petition here is not really about the conditions they’re being kept in. It’s about the fact that both we and the Red Cross think they should be treated as POWs, and if they’re not they have to be charged with a crime. Otherwise they can’t just be detained indefinitely, which is what our government apparently plans to do.
CLANCY: Well, the United States secretary of defense said about three weeks ago that they were going to make an announcement on this. They were going to tell the world how they were going to deal with these prisoners.
Let’s cross over now, for a moment, gentlemen, to CNN’s Barbara Starr. She’s at the Pentagon — Barbara.
BARBARA STARR, CNN CORRESPONDENT: Hi, Jim.
Well, that’s right. This is an issue that’s been hanging over Secretary of Defense Don Rumsfeld for weeks now. And several weeks ago they told us they were very close.
Today, the Pentagon is saying, we’re close, but not just yet, in terms of a final decision about the procedures for how these detainees will be handled by the United States justice system.
Now, what we do know is that they are looking at a process that will closely parallel the Uniform Code of Military Justice. The DOD general counsel, the top military lawyer, putting the finishing touches on a plan. It could come out, it could be made public, perhaps by the end of this week. No one is entirely sure.
There is no definite word, but it does appear that the detainees will have some of the same legal rights as military people do under the Uniform Code of Military Justice. In other words: innocent until proven guilty, unanimous votes in terms of a death penalty issue, a right to confront their accusers, that sort of thing.
But we are told that there will be some other things that will be quite different. That perhaps a certain amount of heresy will be allowed into these commission proceedings.
So it all remains really to be sorted out and made public on how the Pentagon is going to proceed in dealing with these people — Jim.
CLANCY: All right — Barbara Starr reporting to us there from the Pentagon.
She’s been asking the questions about this.
And I want to go back to Eugene Fidell and just ask — you heard, there is some things would be laid out in terms of the Uniform Code of Military Justice. Is that perhaps the only way that the Justice Department — that the United States government can go ahead here?
FIDELL: Well, no. There are a number of options that are available.
For one thing, to the extent that wars of law may have been violated, in other words war crimes may have been committed, United States law provides for the use of a proper general court martial as a means for prosecuting people, as an alternative to military commissions.
And indeed, there may be additional people among those who are detained, who may find themselves being prosecuted in the United States District Court, like Mr. Moussaoui, and the shoe bomber, alleged-shoe bomber, as well as Mr. Walker Lindh.
But I did want to say this, with regard to a point that was made before. In terms of a screening process, deciding who does and who does not qualify for treatment as a POW, the administration’s position on this, and I hasten to add, I don’t speak for the administration, but as I understand the administration’s position, it is that the issues presented, with respect to the Taliban and al Qaeda detainees at Guantanamo Bay, are generic rather than individualized, and that the screening process, the so- called competent tribunals that are provided for under Article V of the third Geneva convention, really are intended to deal with individual issues, such as people who have been deserters from the enemy force who people who have simply lost their identity cards.
That’s the, I think, the basis on which the administration has structured at least part of its analysis.
RATNER: Eugene is right on that, on the analysis that the administration is giving. But the organization that administers the Geneva conventions, the Red Cross, has basically taken a different position. They have said very clearly, you have to have individualized hearings. If there is any doubt, you have to have such a hearing, and that you can’t do a generic hearing, as the administration wants to do.
And you have to remember, not only does the Red Cross administer the Geneva conventions, they have been I Guantanamo, and so they know of what they speak. And so it really is not up to, I don’t think, the United States, to just make an opposition decision as to what the Geneva convention means and as to what the ICRC says.
CLANCY: Michael, have you met with anybody — any of your clients — I mean, you’re representing some men, three men, the centers involved at least in their cases. Has anybody met with them?
RATNER: Well, we’ve made many requests to meet with them. We’ve asked for access to them. The United States government has refused to give us any access to our clients.
As far as we know, our people were not involved in any actions against the United States on September 11th. It does seem to me from the facts that I know that these people had a right to be treated as prisoners of war, and with regard to that and with regard to the question even of military tribunals, I want to say that once you are a prisoner of war, you can no longer be tried by a military tribunal, which is one reason why the United States is not treating these people as prisoners of war.
Prisoners of war have to be tried under the same courts that United States soldiers would be tried, which would be, as Eugene said, court martials or similar kinds of court. So I think that is what is going on here, actually.
CLANCY: I want to go out to Los Angeles. Ira Mehlman is the media director for the Federation for American Immigration Reform.
Ira, when you look at all of this, I mean, we have heard from some of the relatives — these guys were in Afghanistan, they were humanitarian aid workers.
IRA MEHLMAN, FEDERATION FOR AMERICAN IMMIGRATION REFORM: Well, we don’t know what the status of those people were.
From our organization’s point of view, what we are most concerned about is a repeat of the sort of situation that we saw with the (UNINTELLIGIBLE) people, who were determined not to be eligible to enter the United States, but once we brought them to the United States and they were here, they remained. And now the courts are saying they have to be released.
And one of the things that we are most concerned about is that these people remain in Guantanamo, so that after it has been determined what to do with them and there is no country that is willing to take them back, because in many cases these people are from countries that don’t want them back, that they don’t wind up here in the United States, don’t wind up released out onto the streets here.
And I think the American public has a real concern about this, and that is why it is very essential that they remain in Guantanamo, and whatever procedures need to be taken are taken there.
RATNER (?): I don’t think we’re talking about the issue of where they remain. To me, the issue is what basic rights human beings should have in any situation. Should you have a situation where courts are completely disregarded, where the government does whatever it wants to people? I think not.
I don’t think that’s the system we were raised under. I think Guantanamo has to be dealt with as if it is in the United States in terms of getting those people at least the fundamental basic rights, to be charged before they’re held in cages.
CLANCY: Eugene Fidell, is there a risk here that the United States sets a precedent about the way that it’s own military personnel could be treated in similar circumstances?
FIDELL: Right. On that, there are, as usual, at least two opposing positions.
There is a school of thought that this is extremely hazardous, and people think back to circumstances that arose in the Vietnam War — there’s a little history, if I have a second.
Early in the Vietnam War, we refused to treat Vietcong whom we’d captured as POWs. We turned them over to the South Vietnamese Army, which in turn prosecuted them and I believe executed several of them.
The Vietcong responded by seizing a number of our people and committing very brutal murders, in the case of an officer named Rocky Versace and a sergeant named Roraback.
This led us to rethink our position on whether we were going to extend Geneva convention protections to VC that we captured.
Now, obviously, that tape is playing in the back of some people’s minds. There is also a tape playing in the back of other people’s minds that things have changed, even since the 1960’s, and that the world we live in, there is going to be precious little respect for the Geneva conventions by our adversaries, and therefore it is sort of pointless to be concerned about what might happen down the road, because these are not going to be people that are going to respect the rule of law anyway.
I will say, If you go back over the course of history, since after World War II, that is to say the Korean War and the Vietnam War, the record of our adversaries complying with the Geneva conventions is extremely poor.
There were tremendous fatality rates, for example, among United States GI’s who were captured in the Korean War.
So there are people on both sides of that issue.
CLANCY: All right. We’ve got to take a short break here, but there is a lot more to discuss. The question is, how long can you hold someone if they’re only suspected of perhaps going to be committing a crime that they yet haven’t done?
We’ll have more, including a chat with someone from Amnesty International in London when we come back.
Stay with us.
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UNIDENTIFIED MALE: I think in this country we’re supposed to presume people innocent, and before someone comes in and says we’re not going to give you a trial, we’re going to give you a military tribunal and shoot you, I think that we believe that we have a right to a little protest. And there has been no evidence thus far shown that either of my clients from Great Britain fired one shot in anger against any American.
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CLANCY: Welcome back to Q&A.
Tonight, we’re looking at the detainees in Guantanamo Bay.
With us, lawyer Michael Ratner. He’s an attorney with the Center for Constitutional Rights. He’s joining us from New York.
From Washington, we’re joined by Eugene Fidell. He is the president of the National Institute of Military Justice.
And from London, we’re joined by Claudio Cordone. He is spokesman and director of research at Amnesty International.
Out in Los Angeles, Ira Mehlman. He’s media director for the Federation for American Immigration Reform.
Claudio Cordone, I want to ask you; there are many countries, Saudi Arabia among them, that want to see their nationals that are being held there returned to their countries where there might face military, they might face civilian justice, they might be prosecuted for their crimes or something else. We don’t know. What is the view of Amnesty International about what should be done with these prisoners?
CLAUDIO CORDONE, AMNESTY INTERNATIONAL: Well, we’ll stand by the principle that if these people are indeed suspected of any crimes, they should be brought to justice. If found guilty, they should be punished. But in doing so, they should be tried fairly.
Now, the issue is where — it doesn’t matter where they are going to be tried. And one interesting thing is that the Geneva conventions, in fact, allow any country in the world, in fact oblige the countries in the world who may have committed war crimes, for example, and bring them to justice in their own courts, even if they are foreigners.
So in a sense, if these people have committed war crimes, they could be tried in the United States.
Now, as I said, it doesn’t matter where they’re tried, as long as they get a fair trial, they’re not tortured, and in our perspective, they’re not sentenced to death.
Now, if countries cannot insure that these principles are respected, then we would oppose their being sent back to that country, even if that may be their own country.
CLANCY: Michael Ratner, when you filed this case, obviously you had been working on it for some time, considering the legal ramifications, if may well become one of the defining elements, if you will, in how a broad range of people in the coming months, even years, are treated in this war on terror.
RATNER: Yeah, it is a critical case.
First of all, it’s critical as to whether or not the United States can treat people and put them into Guantanamo and try and avoid the United States legal system. That’s why they tried with both the Haitian and Cuban refugees, and that appears to be what they’re trying to do here.
Secondly, it’s going to be a direct test of the president’s military order. That order, and I think it is important to stress, doesn’t require that anyone ever be tried, whether by military tribunal, court martial or otherwise. It allows people to be indefinitely detained, basically forever, by the president’s say so.
So we will also test, this case will test whether the president can simply detain people forever. So two crucial things going down here. One is Guantanamo, can United States courts rule on that. And secondly, can the president detain people without bringing them to trial.
CLANCY: Eugene Fidell, I mean, obviously, people are concerned that some of the prisoners in those bases, whether it is still in Kandahar, near Kandahar, Afghanistan, or down in Guantanamo Cuba, if they were to be released without a thorough examination, this could play out very badly in the future for the United States and for its friends.
FIDELL: It could play out badly in any number of ways. On the question of repatriation, of course, there was a terrible episode at the end of World War II. We liberated a lot of prisoners, Soviet prisoners that the Germans had taken, and they were forced into repatriation, where they were treated very, very, very badly. A lot of people were killed, as I understand it.
So the problem with repatriation is it is itself an issue.
Another one is whether you can have selective repatriation without really opening a terrible can of worms. And again, just to raise the issue, suppose you decided, well, the UK has an admirable legal system, after all it’s our mother country, the mother of democracy. Australia, very much a thriving democracy, robust democracy. If you send people among the detainees back to those countries, does that compel you by the same token to send people back to Saudi Arabia, where shall we say, law and legal institutions are less firmly rooted, at least in the sense that we’re accustomed to.
So you can see how that would be a very, very thorny international political issue for the administration.
CLANCY: Ira Mehlman, you must be sitting out in Los Angeles wondering, as we hear the attorneys, we hear the legal experts arguing about it, these poor guys can’t go home, they’re not guilty of anything. Where are they going to go?
MEHLMAN: Well, I think if they are not guilty of anything, then the first option is always to repatriate them to their home country.
But as several of the other guests have pointed out, there are situations where that becomes impossible, and that’s where the United States needs to develop a policy that deals with the realities of our time.
There are times when people cannot go home, but the other option is to release them onto the streets of the United States, and that puts the American public in peril. And there are going to be situations where we are going to need to detain people for an extended period of time. And we need to begin to work that mechanism into our law so that we can deal with the reality that we are facing.
CLANCY: Michael Ratner, when you look at this case, and as you said, you haven’t met with your clients at all in any of this, are you convinced that they’re innocent?
RATNER: I actually don’t know what my clients have done. From the facts that I have, they certainly haven’t planned any terror against the United States. They may or may not have been members of the Taliban military. The United States has been very, very sparse with giving us any information and allowing us any access.
The one thing I do know and that I feel very strongly is that you can’t just detain people for an indefinite amount of time without charging them. And you can’t ignore the Geneva conventions and not treat them as POWs.
CLANCY: Claudio Cordone…
RATNER: If they’ve done a crime, if they are suspected of a crime, and if the United States thinks they’re so dangerous, then already charge them with a crime, given them an attorney, and let them fight that out in the proper way. Don’t just put them in a cage and let them sit there and rot.
CLANCY: Claudio Cordone, in Amnesty International’s view, obviously this legal case that’s being filed is going to be important in defining the future in these and perhaps other prisoners, but I’m wondering what Amnesty International actively has been doing on behalf of those prisoners.
CORDONE: Well, we’ve been calling for the legal status to be clarified, as has been said before. Our position, like the International Committee of the Red Cross, is that they should be presumed to be prisoners of war. If there is doubt, as there is, it’s a tribunal that should determine that.
But in any case, prisoners of war are not — if these people are suspected of some of the worse crimes as at least they were initially described, then they should be treated as criminal suspects, and that means that they should have the right to have an attorney. They should have the right to remain silent, and the like.
These are not new issues, new principles, especially in the United States. And we would want that to be applied. And also, we would like the presidential order to be revoked. That order introduces discrimination between American citizens and foreigners. Even if the rules of procedure seem to be — at the moment there is a discussion about improving them from what they might have been at the beginning — we’re still faced with military commissions that will be able to sentence people to death without appeal, which is an extremely serious violation of the United States obligations and international law.
And so we would want these people, if there is evidence against them, to be brought to trial and to be tried fairly. And that can’t be before this military commission as presently conceived.
CLANCY: All right, gentlemen, I apologize. We’ve run out of time. But I think one of the key things here has to be, whether because of the crimes they’re accused of, whether they’re getting a different treatment than others are getting.
Thanks to everyone for being with us.
That’s Q&A for this Wednesday. I’m Jim Clancy.
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