Prosecuting Terrorists
Civil or Military Courts?

August 8, 2003

Transcript prepared from a tape recording

9:45 a.m.	Registration
10:00	Presenters:	Michael Chertoff, U.S. Court of Appeals for the Third Circuit
		William J. Haynes, Department of Defense
		Morton Halperin, Open Society Institute
		John Yoo, AEI
		Melanie Kirkpatrick, Wall Street Journal
Noon	Adjournment

Proceedings:

MR. YOO: It's 10 o'clock. Why don't we get started? Thank you all for coming.

My name is John Yoo. I'm a visiting scholar here at the American Enterprise Institute this summer. I'm really looking forward to this panel on trying terrorists, civil or military courts, and I think we've put together some of the leading people who have thought and written or acted in this area.

So what I'd like to do is just quickly introduce the panelists and the moderator. Each of the panelists will speak for no more than 10 minutes. Melanie Kirkpatrick will then pose some questions, and there will be time for discussion amongst the panelists in response to one another's points, and then hopefully for at least 30 to 40 minutes, there will be question/answer opportunities with the audience and the panelists.

Sitting three people over to my right is Judge Michael Chertoff. He is currently a Judge for the U.S. Court of Appeals for the third circuit, which is based in Pennsylvania, and also includes New Jersey and Delaware. He until this summer was the Assistant Attorney General for the Criminal Division at the United States Department of Justice and had the primary responsibility for overseeing all the prosecutions and terrorism cases arising out of September 11th. He personally argued the appeal of the Zacarias Moussaoui to the Fourth Circuit. He is a graduate of Harvard College and Harvard Law school, clerked in the Second Circuit and clerked for Justice William J. Brennan. In the first Bush administration he was the U.S. Attorney for New Jersey.

Sitting to my right is Jim Haynes. He's the General Counsel of the Department of Defense. As General Counsel he's the primary legal advisor to the Secretary of Defense, and the top legal officer of the Department of Defense. He's been the primary advisor to the Secretary of Defense on the legal issues arising out of the war on terrorism, particularly including military commissions. He's a graduate of Davison College and Harvard Law School, clerked for Judge James McMillan of North Carolina and has been a partner at Jenner & Block and an Associate General Counsel at General Dynamics.

At the other end of the table is Morton Halperin, who's currently the Director of the Open Society Institute's D.C. offices. He recently served as Director of the Policy Planning Office of the Department of State, the office first held by George Tenet, immediately after the beginning of the Cold War. He's been a senior fellow at the Council of Foreign Relations, head of the ACLU's Washington, D.C. office, has been a professor of Government at Harvard, and is the author of many books and articles on foreign affairs, national security and civil liberties.

I'm happy to have with us as our moderator, Melanie Kirkpatrick, who's the Associate Editor of the Wall Street Journal's editorial page, in charge of editorials and a member of the Wall Street Journal's Editorial Board. She's a graduate of Princeton University in its first class to graduate with women. She is a member of the Board of the Dow Jones Newspaper Fund, and she's received a master's from the University of Toronto. She's held top editorial positions in the Asian Wall Street Journal before coming to the Wall Street Journal in New York, and served as Deputy Op-Ed Editor and then Op-Ed Editor before reaching her current position. She's been again a Newspaper Foundation Fellow in Asian Studies at the University of Hawaii, and co-editor of the Index of Economic Freedom.

Well, thanks all for coming. I'm surprised by the size of the audience. Sometimes it made me think that this is a Governor Schwarzenegger volunteer effort here, but that's the next room down.

[Laughter.]

MR. YOO: But I'm glad you're all here, and let me turn it right over to Melanie.

MS. KIRKPATRICK: Thank you, John.

Good morning, everybody. It's a pleasure to see such a large turnout on a summer day in Washington, especially one when the sun is even shining.

But before we hear from our panelists, John asked me to provide very briefly a little bit of context for our discussion today, and so I thought I would review very quickly some of the dramatis personae and the events of the past couple of years having to do with trying terrorists.

First military commissions shortly after 9/11. As everybody knows, the President issued an executive order establishing military commissions. The order applies to non-citizens only. No one has been tried by a military commission yet, but the President recently designated six people as eligible for trial by military commission. And the prosecution and defense teams have been organized and the rules governing the military commissions have been promulgated. A second group of terrorist suspects are being prosecuted in the regular criminal justice system. Those include John Walker Lindh, who was the California Talib, who pleaded guilty--did a plea bargain, excuse me, last year. Also in this group are the Lackawanna 6. Those are the Yemeni Americans from the Buffalo area, who also pleaded guilty to terror charges. And this week, another terror suspect, Mike Hawash of Oregon, who's one of a cell known as the Portland 7, pleaded guilty to helping the Taliban.

But by far the most famous defendant in this category is Zacarias Moussaoui, the so-called 20th hijacker. His case is now proceeding through the courts. A federal judge has ruled that he should be permitted to question a high-level acknowledged Al-Qaeda official, who was in U.S. custody. The government has refused. This week Moussaoui's lawyers also sought access to more Al-Qaeda officials who are in U.S. custody.

And the third category of accused terrorists that I'll mention are those who have been designated unlawful enemy combatants and are being held without charges in the Navy brig in South Carolina. Those include a man from Qatar, who originally had been charged in federal court in Illinois, and whose trial was supposed to start this summer, but in June the case was--the prosecution was stopped, and he was deemed an enemy combatant and sent to South Carolina.

More controversially, there are two Americans who fall into this category. One is Yaser Esam Hamdi, who was born in Louisiana, but captured on a battlefield in Afghanistan. The second person is Jose Padilla, the so-called dirty bomber, who was picked up at O'Hare Airport more than a year ago, and accused of plotting to set off a dirty bomb in the United States. Hamdi's case is working its way through the Fourth Circuit, and the Fourth Circuit Court of Appeals last month ruled en banc, 8 to 4, that the President has the authority to detain him indefinitely as an enemy combatant.

Padilla's case is in the Second Circuit, and District Court Judge Michael Mukasey has ruled that the administration has the right to designate and detail enemy combatants, including American citizens. The Second Circuit Court of Appeals is scheduled to consider this case in the fall.

Finally, I would just like to remind everybody that this isn't the first time that our country has had this important debate on the proper balance between national security and civil liberties. President Bush isn't the first president who's had to make such decisions. Washington, Lincoln, FDR and other presidents have also had to grapple with these issues.

I look forward to what I know is going to be an energetic discussion this morning.

Judge Chertoff?

JUDGE CHERTOFF: Thank you, Melanie. It's a privilege to be on this panel, although it's a little bit unusual to find myself to the left of Morton Halperin.

[Laughter.]

JUDGE CHERTOFF: I think I'll just dive right in. There are really three types of features on the landscape. One is the traditional Article III Court which is used to prosecute criminal offenses. The second are military tribunals, which although recently set up, based on the President's order in 2001, have a very long history in this country and internationally. And then the third concept which Melanie mentioned is the status of enemy combatant, which really isn't an issue of having a trial. That's just an outgrowth of the customary ability of any government or any country, when it's at war, to apprehend enemy soldiers and incapacitate them so they don't go back out and fight again. And I don't think we're here to really talk about the third category very much, because again, that doesn't constitute an issue of trial.

The question I guess that has been debated since this process of military tribunals was first made public, has been whether there ought to be a preference one way or the other for doing terrorism cases in Article III civil courts or whether we should do them in military tribunals. And let me first make a couple of disclaimers. I am certainly not here talking as a judge and nothing I say should in any way, shape or form suggest what I might do as a judge, nor am I talking as a member of the administration, which I was until a couple of months ago. So I don't represent any views for the administration.

Speaking though, just kind of looking at this as a policy matter, it seems to me that there's a false choice when you say "civil or military courts." I think you need both, because I think the President needs to have the power, based on the facts and circumstances, of individual cases to determine what makes most sense. There's nothing extraordinary about that. We traditionally, for example, in law enforcement, when we have cases--I shouldn't say "we"--but when people in law enforcement have cases that straddle federal and state law, there's a choice to be made whether the case is prosecuted federally or in the state, and that choice is usually made based upon a variety of discretionary circumstances, and since a person is liable to be prosecuted in either, there's no unfairness in choosing one route or the other based on what makes sense on the circumstances of the case. So the principle of making that choice is not unfair.

I think a second principle we ought to recognize is, it's a mistake to look at one system as fundamentally different in terms of the need to have a fair proceeding. To the extent people look at the military tribunal option as a kind of a cheap way to convict people, I think they are making a fundamental error. When I look at the protocols that were drafted and promulgated by the Defense Department, they create a system for fair trials that is very similar to what I think most people in this country and most people internationally would view as kind of fundamental due process. There are obviously some differences, most notably the absence of a jury, a lay jury, but we talk about the basic principles of confrontation and things of that sort. It would certainly be a big mistake to operate a military system as a way of getting convictions in an unfair way, and I don't for a minute think that the individuals who participate in that system are going to do so with anything less than a complete commitment to having a fair trial that would pass any reasonable standard of fairness.

So I don't think there's a substantive difference between the two in terms of the ability to get fairness or the likelihood of conviction.

I do think there are some advantages that each system has, depending on the facts and circumstances. For example, will you have someone who's eligible for both? And I don't think everyone is eligible for both. For example, I think some of the people that are prosecuted in federal criminal court for material support probably would not qualify to be charged as war criminals under a military tribunal. Likewise, there are things one could do that would violate the laws of war that would not necessarily be federal criminal offenses.

But for those who could be prosecuted in either form, there are advantages in each. For example, the military tribunal form has the advantage of necessarily not being in the United States, and there may be security reasons as well as reasons of convenience that make it very strongly preferable to have a case prosecuted outside the continental United States rather than in an American city.

There are certain technical requirements of American law in a civil context that do not necessarily apply in the military context. Not things that affect fundamental fairness, but that are, for whatever reason, ingrained in our civil justice system that are dispensed with, and some of them are technical issues in terms of putting certain types of evidence in. Again, I don't think that affects basic fairness, but practical considerations sometimes may tip in favor of handling a case in a military tribunal for those reasons.

And there are, frankly, issues of secrecy and the ability to engage in stipulations and other kinds of summaries that may be somewhat more available in the military context than in the civil context, although I have to tell you that my experience trying cases over 20 or so years shows that the criminal justice system in the regular courts is very creative in coming up with ways to have stipulations and summaries and alternatives for presenting evidence to a jury. So again, I wouldn't want to overstate that difference.

On the other side, there are times that a civil court is going to be more attractive, as we see, for example, with respect to the British prisoners in Guantanamo. There can be foreign policy issues that arise when you prosecute people in a military tribunal as opposed to a customary Article III Court. When we deal with the issue of extradition, for example, some countries may not extradite terrorists except to have them tried in an Article III court. When we talk about availability of evidence from abroad, some countries may not provide evidence unless it's to be used in an Article III Court. And sometimes there's just a diplomatic reason to bring a case in an Article III Court rather than in a military court, and I think to constrain the President to force him to do one or the other would be to rob him of the flexibility he needs to adjust to the particular circumstances.

The last comment I'd make before I pass on to the next panel member is about the Moussaoui case. I always read in the paper about the difficulties with Moussaoui, but I must say that most of the difficulties are difficulties that are encountered not infrequently in all kinds of criminal cases, including the difficulties when you have pro se cases, and courts have learned to manage those difficulties. I don't think they are insuperable difficulties, so again, we shouldn't make too much of that issue as it arises in Moussaoui, nor do I think, frankly, it's fair to characterize that case as having been a circus, because I think whether one agrees or disagrees with legal positions, I don't think there's been acting out in court, certainly nothing along the lines of what one has seen in some notorious past trials where you had defendants who literally were--

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JUDGE CHERTOFF: [In progress] -- or you disrupted the courtroom, so again, we should be careful not to overstate that issue when we consider this problem.

MS. KIRKPATRICK: Mr. Haynes?

MR. HAYNES: Thank you and thank you for inviting me today. Good morning.

The questions proposed by today's panel topic are challenging ones. They cannot be answered without taking full cognizance of the context in which they arise. Judge Chertoff has done a good job summarizing that, but I think I'd like to elaborate just a bit.

We are in a state of armed conflict, but it is a conflict unlike any other that this country has ever faced. Our enemy is motivated, but it's motivated not be simple patriotism or greed or even--

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The [inaudible] is motivated by a hatred for America, by our way of life, and of our citizens--whether or not our citizens wear uniforms.

Even the form of the warfare is different than any we've ever experienced. It's a war that is extraordinarily asymmetrical. Our enemies, terrorists of global reach, operate through deceit, treachery, and stealth. They prefer to target civilians and other nonmilitary targets. They train and equip their forces in lawless, ungoverned parts of the world. Some of them seek to hide among us. In fact, some of them have lived in our communities, learned from our universities, even worshipped with us. And, as each of us knows all too well, from there--from among us--recently they have waited to launch their attacks while taking full advantage of the freedoms this country has to offer.

Now, how do we combat this foe? Principally we have to do it through foreknowledge, or what we say in the Defense Department and other parts of the government, through intelligence. This has always been important in warfare. But the method of operation employed by our enemy makes the collection and protection of intelligence especially crucial and, ultimately, crucial to winning this war. Intelligence enables us to capture our enemies, to disrupt al Qaeda's network and activities, and to prevent other attacks. The disclosure of what our government knows could expose sources and methods of that intelligence and the way that we gather it. It could deny us the advantages of this foreknowledge and even dry up the flow of vital information.

In past wars, we generally have prosecuted war criminals after our victory, when the need for protecting information was substantially less. In today's war on terrorism, we're prosecuting our enemies even while the battles are still being fought, and our need to obtain actionable intelligence is ever present. It is thus imperative that, however we prosecute members of al Qaeda and other terrorists of global reach, that we protect vital intelligence and our ability to obtain it.

Now, just as we understand the importance of intelligence, so too does al Qaeda. It understands our legal system. Its training manuals teach its members to exploit our system in a way that forces the disclosure of sensitive intelligence. Al Qaeda may well hope that use of our civil courts might force our civil government--force our government to choose between protecting the nation's security and prosecuting members of the organization responsible for one of the worst attacks on our nation's soil. We cannot cede that to them. Our Article III system is the best in the world. It must continue to be available. We cannot let it be abused.

With all that in mind, how do we meet these challenges? In my view, because we are in a state of armed conflict, the use of military commissions is an entirely appropriate option for the president to use. It is just that--an option.

Now, as a starting point, military commissions have long been used to try those who violate the laws and customs of war. For example, the U.S. government has used military commissions from even before the founding of the republic. Commissions much like the ones we seek to use today--in fact, much more skeletal in their form and procedures offered--were used during and immediately after World War II for trying those alleged to have committed violations of laws of war. International military tribunals were used to try individuals at Nuremberg and Tokyo.

But apart from the historical precedent for trying combatants, military commissions allow the president and the United States flexibility necessary to protect intelligence. The commission procedures issued by the security of defense pursuant to the president's order protect national security information. The order offers a number of procedural mechanisms to protect the information and yet ensure that both the prosecution and the defense are able to present their cases.

For example, the presiding officer can close all or a portion of the proceedings. He can also permit the substitution of protected information, or its deletion from documents that will be made available to the defense. If the presiding officer grants a request for access to evidence or witnesses, the prosecution can move for certification of the presiding officer's decision. Should that officer certify it, the appointing authority will then review it. Thus, through the flexibility provided by these rules, intelligence can continue to be protected.

Even so, while the commission procedures protect information, the process must result in a full and fair trial. The president has insisted on that, and that is what we will do. Individuals who stand accused before the commissions will receive many of the protections in civilian trials. They will be able to contest the evidence presented against them in an adversarial hearing. They will be apprised of the charges against them. They will be presumed innocent until proven guilty. They will be provided competent and experienced defense counsel at no expense to themselves. And while there may be portions of the hearing that are closed, the defendant will at all times be represented by his counsel.

Additionally, the defense will be provided access to evidence that tends to exculpate the accused and all evidence that the prosecution intends to produce at trial, regardless of the classification level. Subject to security requirements, the defense will also be able to obtain documents and witnesses for the accused's defense to the extent reasonably necessary and available. And in determining whether to close proceedings or to permit substitutions of information, the presiding officer must make sure that, whatever mechanism is used, the accused can still receive a full and fair trial. Finally, the defense can likewise avail itself of the same review process available to the prosecution, seeking certification of the presiding officer's decision, which may lead to an interlocutory review by the appointing authority.

Now, in addition to being full and fair, the military commissions are transparent. Anyone around the world with access to the Internet can review and retrieve the procedures that are to be used in the commissions, because the procedures have been published on the Department of Defense website.

The hearings will be open to the public, to the maximum extent practicable. To be sure, though portions of the proceedings might be closed to protect information--including to those who lack an adequate security clearance--as I said earlier, the defense counsel will at all times be present. And there is nothing hidden about the way in which we will conduct these proceedings.

I believe that the commission process is representative of the larger commitment that this administration has to America and its core values. Indeed, the way that we are proceeding with setting up these commissions, in a very deliberate and open process, should be a good example of that. As Melanie said, there have been no commission proceedings yet. The process by which we have developed, articulated, and reviewed these procedures is unprecedented. While these procedures are founded on precedent and tradition, they are by far the most detailed, the most generous, and the most open procedures ever devised for such a commission.

In closing, I believe that commissions do offer the president a good alternative to prosecuting crimes in this war on terror. I look forward to hearing the rest of the panel members' discussions.

MS. KIRKPATRICK: Thank you. Mr. Halperin?

MR. HALPERIN: Well, I find myself in the interesting position of agreeing with, I think, almost everything that the first two speakers have said--which I think means we need to go one level down from what they said. It is clear we are in an unprecedented situation. And I believe that the United States does need to have the option of civilian trials in the criminal courts, or military tribunals, and of the ability to hold unlawful or even lawful combatants during the period of the war.

The question is the process by which we determine those rules, and how we do it. And I think I'm in fact in the right place on this panel, because I think I'm the most conservative member of the panel; that is, that I believe that this can be done consistent with the Constitution and the procedures that need to be followed under the Constitution and the rule of law.

And that, for me, starts with the simple fact of requiring congressional authorization. Even though the administration went to the Congress for the so-called Patriot Act, it has not sought--and in my view, should seek--congressional authorization both for the military tribunals, which in the past have been authorized by the Congress, and for the procedures to hold enemy combatants, whether lawful or unlawful.

Second, I think there are some important limits to the due process that's been accorded in these cases.

And finally, I think the procedures must provide for judicial review by Article III courts of two critical questions: First, is the procedure constitutional? Whether the president's acting alone or with the authority of the Congress, is the procedure set up one that is consistent with the rights of the Constitution? That is a matter for the courts, and the administration, in a variety of ways, has sought to keep that issue away from the courts both in the case of the military tribunals and in the case of people being held as unlawful combatants.

And the second question is, is a person being detained a person who fits within the category established either for the military tribunals or for the holding of a person as an unlawful or lawful combattant? And here again the administration has, to a large degree, resisted the notion that there is access to Article III judges to determine the simple question of, yes, if you can hold people in this category, is the person being held in fact within the category.

Let me look at how those procedures, I think, have not been met in these various cases.

Let me say a word about criminal trials. I think it is true, as has been suggested, that there is an enormous amount of flexibility. The Classified Information Procedures Act was designed precisely to do this and does provide an enormous amount of flexibility. My own view is that--and even in the case of Moussaoui--if a narrow indictment was drawn, one that stuck to facts that are not contested, he could in fact be convicted and sentenced to a prison sentence that would go for a long-enough time that he could then later be charged for the September 11th crimes at a time when it would probably be easier to provide that confrontation. And it appears to be the case that the government is unwilling to bring any indictment here where it cannot seek the death penalty, and that's why it has reached for charges which have raised these difficult issues.

As far as military tribunals are concerned, again, I would start with the notion that the administration should go to the Congress and seek specific authority for the military tribunals. Nothing that Congress has done since September 11th suggests that it would not authorize those tribunals. Indeed, I think everybody would be supportive of the Congress authorizing those tribunals. And that would mean that we would have the kind of process we ought to have under our Constitution of determining the process and procedures.

I agree that the Defense Department--following the president's directive, which had very little due process in it--has done an extraordinary job of providing a great deal of what we all think of as due process. There are a number of specific ways in which people think it has failed, but the most important one is what was suggested when we were told that there could be appeal to the appointing authority. That is not the way we conduct trials in the United States. The appeal needs to be to independent judges. And again, I would argue they need to be Article III judges.

So I would say that we should have legislation. The legislation might in fact establish procedures very close to the ones that the Defense Department has now promulgated, with the important exception that any person to be brought before the military tribunal would have a right to go into an Article III court, A) to challenge the statute--although I believe the courts would find it constitutional; but second, more important, to challenge whether the person fits within the category created in the statute, or now by the president's designation, so that the person is in fact properly to be tried in a military tribunal. That is not a decision that I believe can be made by the people who will carry out the prosecution.

And second, at the end of the trial, the question of whether the trial was fair, whether the person was properly convicted, again, ought to be subject to--and in my view, under the Constitution, needs to be subject to--the right of appeal, not to the appointing authority, the secretary of defense or the president, but to an independent judiciary and ultimately to the Supreme Court of the United States.

Now, I think the same is true of unlawful combatants. We are in a very different kind of war, and I believe that we have the right to hold people who are enemy combatants, whether they are unlawful combatants or lawful combatants, either as prisoners of war or interned as the equivalent of enemy aliens. But I believe, again, that we ought to do that by statute, that the Congress would be willing to do it and should be asked to pass a statute.

Now, in fact, Congress was asked in the Patriot Act to establish procedures to hold aliens for some period of time. It was not asked to establish the category of unlawful combatants and to authorize the procedures that the administration is using. I believe, again, if we are going to hold people in the United States or under the jurisdiction of the United States, that we ought to do so pursuant to a statute enacted by the Congress.

Second, I think those people must be entitled to judicial review both of the lawfulness of the process and of whether they fit the category or not. And again, the government has resisted that. The courts have insisted on some kind of judicial review, but up until now, a critical element of that has been lacking; that is, the lawyers representing the people who are being detained are not allowed to talk to their clients. Now, it is very difficult to understand how a lawyer can properly represent his client's interest when he is not allowed to talk to his client, doesn't know what his client's position is.

I think there are factual questions for the three people being held, and particularly the two Americans, about whether they fit the category. They're also, in my view, for American citizens questions of whether it is constitutional to do this, certainly whether it is constitutional without a statute, and certainly in the face of the fact that there is an explicit statute saying that American citizens cannot be detained unless explicitly authorized by law. And there is no law authorizing this particular category.

Again, I think the Congress would authorize statutes. I think the statutes would have procedures not very different from the ones that are in the regulations, but it would be done in a public debate in which we could all participate in the process and which Congress would actually vote, and which then would be subjected to judicial review in the courts. We have pressed throughout the world for other countries to use procedures like that. And our leadership in those issues has now been severely undercut by the fact that we have not followed those procedures in the United States.

But more importantly, I think, is the fundamental issue for us: Does the Constitution really permit the president of the United States to decide by himself that one of us is what he considers to be an unlawful enemy combattant and to put that person in a military prison and not allow that person to speak to his lawyer and to seek to prevent the federal courts from engaging in a meaningful judicial review of that? I do not believe that the Constitution gives that authority to the president, nor do I see any compelling reason why that kind of incarceration cannot be carried out according to the procedures of the Constitution--with congressional authorization and with full judicial review.

Thank you.

MS. KIRKPATRICK: Thank you. John, would you like to give us your response to [inaudible]?

MR. YOO: Thanks. I was just going to make some observations and comments raised by excellent presentations.

I think the first question worth asking is whether civilian courts really are capable of handling terrorism trials in the war on terrorism right now. And the reason--I think as Mr. Haynes said--why [inaudible] a different situation in the past is that we are attempting to try members of the enemy while military operations are still ongoing and while intelligence is still being produced by some of the people who might be relevant for a trial.

And so, as it has been reported in the press, the fundamental conflict of clash of values that is occurring in the Moussaoui case is precisely that. In a normal criminal trial, you would, as a defendant, under the Constitution, have a right to access to witnesses who might tend to exonerate you. You certainly would also have access to the witnesses that the prosecution might use. The problem is that those witnesses are currently, you know, being held abroad and are being interrogated by United States military intelligence agencies. And fulfilling Mr. Moussaoui's constitutional rights might require taking those folks out of wherever they're being interrogated and bringing them into the United States, where they can be questioned by their fellow co-conspirator, a member of al Qaeda. That would disrupt not just the interrogation process, but it would potentially allow the methods by which the person was caught, the kind of questions we're asking, what we're looking into, to be divulged in a public proceeding.

So I think that's, you know, one question. I think Mike, who argued the Moussaoui case, made the case for why the civilian system could perhaps adapt to that. But that's the fundamental problem, and I think it's still an open question whether the civilian courts can handle that.

And that's why we have the military commission process, but then I think another problem there is that the military commission rules don't extend to American citizens. American citizens cannot be tried in a military commission. So what do you do with people like Padilla, like Mr. Hamdi, like people who have been tried--you know, John Walker Lindh, people who are prosecuted in New York, Oregon, Seattle--they're all American citizens. There is no alternate process right now. And so, is there actually a breakdown in our civilian justice system that would prevent those folks from being tried at all--because they're not covered by the commissions and because they might, watching the Moussaoui trial, start asking to see all the same witnesses that Mr. Moussaoui is asking to see and which is breaking down the proceedings there.

The second point I'd make is the separation of powers point--exactly what are the proper roles of Congress and the courts in overseeing this process? The one point I would make is that I think Congress has authorized what the president is doing. Right after September 11th, the Congress enacted a resolution which authorized the president to use all necessary means to use force against those responsible for the September 11th attacks. A traditional part of the president's war power has been understood to include the use of military commissions. So in that respect, Congress has already authorized the president to use all necessary means to defeat the al Qaeda terrorist organization, and he has decided one aspect of that--as presidents in the past have--to use military commissions. President Lincoln used military commissions in the Civil War. They were not authorized specifically by Congress either. And I think in this case, in some ways President Bush might be in a superior constitutional position to President Lincoln in the Civil War.

The last point, I think the tricky point is, I think as Morton identified, is the role of the judiciary--how much scope of judicial review we're going to have. And that is really the question in an enemy combatants case. There is judicial review of a kind--the federal courts in the Hamdi and Padilla cases have heard the cases. The real question which the courts have yet to finally figure out and which I think we have to identify and struggle with is exactly how intrusive is that judicial review going to be. And in many ways, it raises some of the same questions that exist in the Moussaoui case, because how much evidence, the production of which may interfere with ongoing military operations and intelligence operations, does a court need to see in order to determine whether Mr. Padilla or Mr. Hamdi actually is an enemy combattant or not? How much should the judiciary defer to the needs of the executive branch to conduct the operations as they're going right now?

So Melanie, back to you.

MS. KIRKPATRICK: Thank you very much.

Let's first talk a little bit about this issue of congressional oversight. And Mr. Halperin, I wondered if you could respond to John Yoo's point about Congress already authorizing this and also the history of military commissions in our country, suggesting the president does have the authority to set these up.

MR. HALPERIN: I mean, I think that one can argue this both at a constitutional level and a policy level. At a policy level, it seems to me, if we are going to create a new procedure to detain and try people, that we ought to do it based on specific congressional authorization. There happens to be a statute passed precisely by Congress to prevent this kind of activity, which says that at least American citizens cannot be detained unless Congress has specifically authorized it.

To argue that the congressional resolution passed after 9/11 was meant to authority either military commissions or the detaining of American citizens by the president, I think, is an enormous stretch. No member of Congress thought they were authorizing actions relating to American citizens. They were authorizing the president to take actions abroad to deal with the terrorist threat, as shown by the fact that the president then went to the Congress in the Patriot Act and specifically asked for, and got not as much as he asked for, but most of what he asked for in terms of extraordinary procedures to hold people suspected of begin terrorists for additional periods of time.

If the executive branch thought that the general congressional resolution to use all necessary means to fight terrorism was sufficient to detain people in the United States, both Americans and non-Americans, it would not have asked for the specific authority in the congressional resolution. And the congressional debate about how much authority to give the president would have been, as it turned out to be, absolutely meaningless because the president has now proceeded, based on either his inherent authority or by this vague resolution, to say he has all the authority he needs.

It seems to me, when we're doing something like this, which sets an example for the rest of the world and for ourselves for the future, that we ought not to be debating whether one could stretch this resolution to have authorized it. We ought to be going to the Congress not only to authorize it in a general sense, but to authorize the specifics of the process in a way that ensures that it is a process consistent with due process.

MS. KIRKPATRICK: Would any panelist like to respond to the issue of why Congress should not get involved?

MR. HAYNES: Well, I don't want to argue that. The Congress has got an important role in how we all do our jobs and how the country is governed. I mean, that's an understatement, to say the least.

But I think, with all respect, Mr. Halperin, I think you're conflating a couple of things. Detention and trial are two separate issues. Detention of enemy combatants in a conflict has never been disputed as authorized in either statutory or customary international law. That is one of the most fundamental principles of protecting a nation in conflict. So to confuse the two, I think, or to cross over, I think, is --

MR. HALPERIN: Can I just respond to that? I mean, I think that's absolutely clear on the battlefield. Nobody's suggesting that you do not have the right to detain anybody you caught on the battlefield, including American citizens, in the period of combat. But when you want to argue that arresting somebody at O'Hare Airport in Chicago is the same thing as arresting them on the battlefield, my view is maybe we need that authority. But that is a sufficient leap, that I think it is one that ought to be specifically debated and authorized by the Congress, and not to take the position that because the war is now everywhere, the right that you have on the battlefield can then be transferred to O'Hare Airport.

MS. KIRKPATRICK: John?

MR. YOO: Just to respond to that point. I think the Supreme Court has already addressed that case. It's called Ex Parte Quirin, where there was a battle abroad being fought between the United States and the Axis powers. Germany sent some people to infiltrate in the United States, including two American citizens, who were caught by the FBI within the United States. There was no battlefield within the United States in any formal sense. And the Supreme Court upheld the constitutionality of the president's authority to detain those individuals and subject them to military commission trial, without any specific congressional authorization. It was just a declaration of war by Congress.

So it seems to me, in terms of a constitutional legal point, that is--I think it's very difficult to distinguish the Quirin holding from the detention of Mr. Padilla and Mr. Hamdi here. And in a way, you would be advantaging terrorists by allowing them to escape the same treatment we would have given to those German Nazi saboteurs, because they fight in the most illegal fashion possible.

MR. HALPERIN: Can I just respond? First of all, there was a statute in Quirin. The Congress had authorized military tribunals. Second of all, they did have access to the courts, which the government did not contest. The Supreme Court heard their case, it said in its opinion that these people concede that they are sent by Nazi Germany to engage in illegal acts, they were spies, and therefore entitled to the military courts.

So again, I think a lawyer can make the argument that that covers it. I think it is sufficiently different that it stretches the point to say that that case settles how we should proceed and how the courts will decide whether we proceed. Because I think, again, there are important differences between somebody sent over in an enemy submarine that lands on our coast and an American citizen who arrives in a commercial airplane in an airport in Chicago.

MS. KIRKPATRICK: Mr. Hayes?

MR. HAYNES: Mr. Halperin's correct that there was a statute discussed in the Quirin that was a congressional acknowledgement of the power of the president to use military commissions. It is also true that the exact same statute is still on the books, under a different section number, 10 U.S.C. Section 821. So the Congress has spoken in that statute as well as some others about the president's power to use military commissions.

MS. KIRKPATRICK: Mr. Hayes, could you also talk a little bit about the decision to establish military commissions instead of relying on the very well-established system of military justice that we already have? Why do we need them when we have a very fair and honorable system of military justice already in place?

MR. HAYNES: I think, simply put, it is to allow the president an additional option for a unique circumstance and an untraditional foe. What I tried to describe in my opening remarks, the type of enemy we face is predisposed, and indeed designs its activities, to exploit the rules that we hold so dear. So consistent with those rules and consistent with our tradition, we tried to create an additional option for the president to use. Now, so far, we have not used that option. We think nevertheless it is a valuable option to have, particularly in light of the kind of enemy we face.

MS. KIRKPATRICK: Speaking of that, I wanted to ask Judge Chertoff whether the use--the threat of military commissions has been useful in prosecuting some accused terrorists through the civil justice system; that is, they're more willing to accept a plea bargain, knowing that if they don't they might end up in a military commission.

JUDGE CHERTOFF: When I was at the department, they were--and I assume this is still true--they were very scrupulous about making it clear that the two systems are not linked and that they're not--one is not to be used as leverage on another. So I don't think it has any effect in terms of moving people to plead guilty or not plead guilty. I think those two things are unrelated.

I do think--just coming back to, I guess, the earlier discussion--I guess Mr. Halperin put his finger on perhaps what I think is the hardest set of issues that arise in the enemy combattant issue, and that is the threshold issue. At one pole, you have the issue of someone who's literally caught in the battlefield, and that seems very easy. At the other pole, you have people positing that, you know, you can have the government picking up random citizens and deciding they want to pop them in military commissions based on the say-so of somebody.

But of course when you really unpack these, you see that in a sense every case presents a threshold question. I mean, you could always--in World War II, someone could have said on the battlefield, hey, you know, it's true I'm dressed in a German uniform, I'm carrying a bazooka, and I've got the insignia, but I really happened to be on a picnic and I just, you know, lost my clothes after being in the swimming hold and I picked these clothes up. Now, we would laugh at that, but one thing courts deal with all the time are claims which may appear to be frivolous but have to be taken seriously.

So I think the trick here is to find a way to resolve the threshold question, whether it be people picked up in Afghanistan or people picked up in Chicago, in a way that does give some assurance that we don't have an abuse of the system, but also does not get the courts into the process of starting to interfere with the war-fighting process. And that's what I think you had in the Hamdi case. The court was very--the Fourth Circuit was very concerned about having judges starting to second-guess and interfere with the military process.

MR. HALPERIN: Yeah, I agree with that, but I think, first of all, on the battlefield there is a procedure. It says that if a person says "I'm innocent" in the way you suggest, he is entitled to some kind of process, which can be conducted by a military officer on the spot, to determine whether that's true or not. The Defense Department knows how to do that very well. It did that in the first Iraq war and it did it in the second Iraq war. But for reasons that it's never explained, it has not done it in Afghanistan. Those people who are held in Guantanamo have not been given the same kind of individualized, very quick, very short, very limited right to contest whether or not they fit in the category. And I would be interested to hear an explanation of why what the department does extraordinarily well, and has done well in both Iraq wars, it has declined to in Afghanistan.

Similarly, in the federal courts, if the person is in the United States, whatever due process is, it must allow the lawyer to talk to the client. And the government up to now is refusing to allow that to happen.

MS. KIRKPATRICK: Is that correct, Mr. Haynes, that the detainees in Guantanamo haven't been permitted to offer such explanations? You've let a bunch of them go, so that suggests that in fact they have been successful in explaining to you that they in fact are not enemy combatants.

MR. HAYNES: Well, it's--like many things, it takes a longer answer than a yes or a no.

The fact of the matter is that all the people at Guantanamo Bay have been through an extraordinarily rigorous screening process on multiple occasions. Indeed, it goes on daily. And as you point out, there have been a number, quite a few, who have been released. First, thousands have been released that were initially held in Afghanistan. There have been a much smaller number released who have been in Guantanamo, but that is the result of a rigorous review of the facts under which they were captured and detained, as well as an interrogation process, a threat assessment process, a psychological analysis, a check of background information, a check with law enforcement authorities. I mean, there's just layer upon layer upon layer of scrutiny applied to each one of these individuals and, as circumstances warrant, they have been either released or transferred to their home countries.

I would anticipate that that would continue notwithstanding that we believe that the laws of war and customs of conflict virtually from time immemorial would authorize us to detain people. That is not what we want to do. We are interested, first and foremost, in protecting against people who have been trying to kill Americans and others from going back out onto the battlefield, which is a big place under these circumstances and in this war--from going back on the battlefield and trying to do harm again.

To be sure, the process used is not the identical process used on the battlefield in Iraq. In fact, it is a whole lot more. Indeed, at the outset of the conflict, the deliberations leading to the procedures at Guantanamo went, frankly, all the way to the president.

So there is a lot being done. And it is our objective not to hold anybody longer than we need to.

MS. KIRKPATRICK: Yes?

MR. YOO: I just want to make sort of one observation about the result of having full-blown judicial review with civilian process in the United States, which is that you create this incentive that benefits al Qaeda for the way they fight and for making it into the United States. Because you are quite right, there's a spectrum of possible people--people in Afghanistan we caught on the battlefield, to someone like Mr. Padilla.

If you look at the way the two cases would be handled in this sort of dichotomous system, if you're caught on the battlefield, sure, if you claim you aren't who you appear to be, you might get reviewed by a board of military officers. There's no judicial review of that. There's no federal judicial--no one says there should be federal judicial review. And that can be a five-minute hearing. The same person, member of al Qaeda, sneaks into the United States and is caught, he gets full-blown judicial review, access to judges. He's in a much better position than the person who's caught on the battlefield.

Also in addition, usually in the battlefield situation, the reason these people are given those kind of privileges is because they fight on behalf of a nation state that obeys the Geneva Convention and obeys the laws of war. We're fighting an enemy that, you know, does not fight on behalf of any nation state and defines its objective, killing civilians, as violating one of the most core principles of the laws of war.

And so the incentive the system would create would be to actually say go to the United States, where if you're caught you're going to get much better treatment. Even though you're conducting yourselves in a way that violates the laws of war, you will be treated in a much better way than you would be if you're caught on a battlefield fighting openly in a uniform against the United States. So is that the kind of system we really want to create to fight terrorists?

MR. HALPERIN: Well, let's remember the reason for it. The reason for it is precisely the question of who gets to decide that the person is in the category? And what are the exigencies of the situation? On the battlefield, you cannot ask the military commander to stop and give everybody a hearing, so we don't do that. But when somebody is captured at O'Hare Airport, there's not the same kind of exigency that the person can--you can obviously seize him and hold him and then have a hearing, but it is absolutely, in my view, very clear: If somebody is a member of al Qaeda who comes to the United States to engage in terrorist acts, in my view we should be able to hold him indefinitely until this war is over, because we don't want to send him back out on the battlefield.

I mean, that's not, in my view, the question. The question is I believe Congress should authorize that, but I also believe, because it's inherently ambiguous--that is, it's not like being caught with a gun on the battlefield. You're caught in Chicago or in Buffalo or some other city and you may well say I was just engaged in lawful First Amendment activity or I was doing something else. So the question of who decides that, in my view, the Constitution, the writ of habeas corpus requires that it be a federal judge.

Now, in setting up a procedure to do that on the legislation, I think Congress would be and should be mindful of the problems of this kind of situation and I think could create procedures, like the kind it did in the Classified Information Procedures Act, which would assure that somebody doesn't get to subpoena every terrorist in the world as part of that trial. It's got to be a procedure that's narrow, but it can't be as narrow as it now is, which is you don't get to talk to your lawyer and the government claims the right to submit a generalized affidavit and says that ought to be the end of it. That can't be enough.

MS. KIRKPATRICK: Could we talk a little bit now about the Moussaoui case? And I specifically wanted to ask you, Judge Chertoff, about it. One of the essential parts of our system of criminal justice is that the defendant has right to all information that might help his case. And yet here, the government is arguing that he should not be permitted to interview captured al Qaeda leaders. By making an exception--by asking the court to make an exception to this essential right for an accused terrorist, aren't we running the risk of damaging the criminal justice system itself and, instead, perhaps wouldn't it be better to try him in a military commission?

JUDGE CHERTOFF: Well, I'm going to--as an answer to that, I guess I will recapitulate what I argued when I was in my prior capacity. But let me first address the last point you made.

If you believe, for the sake of argument, that the right to interview a certain witness held overseas is indispensable to fairness--you know, generally speaking, when you do an analysis of constitutional rights, I mean, that's an important question to ask--then your last question presumes that if you move the individual--and I don't want to make it a particular case, because that's a pending case, but that if you moved a particular individual to the military system, that would end the issue. We could say, okay, great, no problem, he won't get to interview anybody. I don't know that it's that easy. The issue would then be presented in the military tribunal. The argument would be made under the rules of the tribunal, which do rule out a right to talk to witnesses, that as a matter of fundamental fairness, you must let this particular defendant in a military tribunal interview those witnesses.

The judges in the military tribunal would have to decide whether that's true or not. As I said earlier, I think it would be a big mistake to assume that in a military tribunal the judges are going to take a dive and say, hey, whatever the government wants goes. In fact, there might, oddly, be a stronger pressure for the judges in the military tribunal to demonstrate their commitment to fairness.

So I think what I'm saying is that whether you're in the military context or the civil context, you have to answer one question first: As a matter of fundamental fairness, does a particular individual have the right to interview whomever they want if that witness is held in military custody overseas? I don't think you can avoid the issue by shifting it.

So let me address that issue. As the government argued in Moussaoui, you don't have a right to all evidence under the Constitution, and the cases don't say that. There are some cases that give constitutional rights to discovery and some that give constitutional rights of access. But they're not unlimited rights of access.

One classic example is this: Defendants constantly ask in the ordinary Article III system to have witnesses made available to come to testify for alibis for the defendant--with one fly in the ointment, that the witness must be immunized by the government, because if the witness is not immunized, then in order to exculpate the defendant, the witness will incriminate himself and he'll therefore have to take the Fifth Amendment.

In virtually no case, unless there is government bad faith, does the court ever grant that application. And the courts deny those applications because they say the government's interest in being able to prosecute the witness is sufficiently strong that we will not override it simply because the defendant says this witness is valuable to me and has important information.

What I'm saying, and what the government said in Moussaoui, therefore, is you cannot assume there's an unlimited right of access. And that's particularly true in a context where the witness that is being sought is not someone who is within the subpoena power of the court in the United States, but would not be in any way, shape, or form available to anybody but for the fact that in the course of a war the government happened to apprehend the person as part of a military operation overseas.

I don't want to take a lot of time. There are also foreign policy constraints and doctrines that limit the court's power in this area. So that I think that this becomes in fact a very complicated legal issue. I think it is a mistake to assume that the government's position in this has been, yes, there's a clear right to get access and the government simply wants to shut the right down.

MS. KIRKPATRICK: Let's move on to questions from the audience. And could you please identify yourself. Yes, sir?

QUESTION: Hi. Kevin [inaudible] from CNN. I'd like to go to the [inaudible] issue. [Inaudible] Mr. Hamdi. What his and what both people's lawyers argue is that there's no right to contest the issues at hand, to contest what the facts are and say, no, that's not what really happened. How long do you maintain you can hold Mr. Padilla and Mr. Hamdi before there's any kind of independent review of the facts at hand? I guess to Mr. Haynes, because they're in military custody.

MR. HAYNES: Both of those cases are pending before the courts, so I hesitate to say too much about that. But a couple of basic principles. One of them is that the basic ability to detain enemy combatants is available to the government while hostilities continue. Your question, I think, was a little bit more refined, which is to say how long might we detain them without providing counsel.

QUESTION: Or any kind of independent review of the facts at hand.

MR. HAYNES: Well, see, I take issue with that a little bit. And let me just observe one thing. When we discovered that Mr. Hamdi likely is an American citizen, we brought him to the United States knowing that somebody would file a habeas petition. He has been, or people on his behalf have been before the federal courts. The same thing is true of Mr. Padilla. We recognize that these are tough issues. And we are mindful of the implications of all of these issues. But there are many issues at stake, including the ability to--in the case of Mr. Padilla, to be able to talk with him and to get intelligence information critical to the prosecution of the war that we're still engaged in.

Now, there have been submissions in that case, and that's one of the issues that's before the Second Circuit for consideration. And we are not contesting the ability of the court to look at it. But there was a submission. I believe the trial court in that case made a number of determinations that are consistent with the government's position. And I probably should stop talking about individual cases with that.

MS. KIRKPATRICK: Would anybody else on the panel like to say something on this.

MR. YOO: I think there is independent review going on right now. It's called habeas corpus, the writ of habeas corpus before an Article III court. The question is not whether there's going to be review; the question is what's the standard of review. How much information does a court actually want to see before it makes a determination? And right now, the courts are figuring that out. In the Hamdi case, the court found that the submissions that were presented to it were sufficient for it to make its judgment, and that was just upheld I think two or three weeks ago by the entire Fourth Circuit sitting en banc. The Southern District of New York judge, Judge Mukasey, wants to see a little more. That's going to be reviewed by the Second Circuit Court of Appeals.

But, you know, so far, no one's--none of the courts have said that you can't hold these individuals, enemy combatants. They've also said, as the government has admitted, that habeas corpus [inaudible]. So the dispute is much narrower--

[End of tape 2, side A, begin side b.]

-- is being reviewed, it's just a question of how much--what's the minimal amount of information that must be produced to the judge to satisfy him or her that it's lawful to hold this individual. And that's something courts will just have to figure out over the coming years.

MR. HALPERIN: Well, first of all, I've said this three times; I will say it again. These two people have not been allowed to talk to their lawyers. Their lawyers are arguing this case without access to the people being held. In at least one of the cases, the judge ordered the government to provide the lawyer with access to his client, and the government--her client, I guess it is--and the government refused to provide that access. So the government has not uniformly prevailed on this issue.

Second, I believe there is a constitutional question, which ultimately the Supreme Court will decide, of whether the government has the authority to hold an American citizen as an unlawful combattant at least absent an explicit congressional authorization to do that. I believe the answer to that question is no, but the courts will have to decide that.

And then finally there is the question of, assuming there is such a category, who determines what the standard is? How much involvement with an enemy, for example, do you have to have that you become a person that can be held in this way? And again, the way we do those things in this country is for Congress to authorize by statute what is being done. And to simply rely, as the government is here, on the laws of war, which have to do with holding people you capture on an actual battlefield, and to say that therefore the president gets to decide what the criterion is, what the standard is, is, I think, not consistent with our constitutional traditions.

MS. KIRKPATRICK: David Rifkin [ph]?

QUESTION: Just a quick question. We can argue for a long time about access to lawyer, but don't you agree that even the Second--even Judge Mukasey squarely ruled that there is no constitutional entitlement to access to lawyer for a defendant, in the Padilla case? Access to lawyer for him is something that the court needs to fully elucidate the issues. Neither the Fourth Circuit nor the Southern District of New York have taken the position that you're taking. And you certainly know that habeas petitions are done pro se. So I just find it a little surprising that you are almost indignantly stating that you cannot effectuate your right of having a meaningful habeas petition without access to counsel, because that's not how it works in the habeas petitions. They are pro se. You send the thing to the court. The government's only obligation is to forward what you send to the court.

It is only if a court feels that you've carried a burden of production and persuasion that you're really the wrong guy, that you're a guy in the iron mask, then the court would order a more extensive investigation. But you have no access to counsel as a matter of right on the habeas petition.

MR. HALPERIN: But this is the opposite. The government has not allowed either of these people to send a petition to the court. It has blocked them from access to the courts. These petitions have been brought by lawyers, and the government, to some case, contested the right of the lawyers to bring the petitions because they hadn't talked to their clients.

So this--you're right, in the normal habeas case, you're not entitled to a lawyer; you, as the person being held, are entitled to have a document delivered to the court. That is exactly the right that the government is denying here. And I do not believe it can keep the person being held from access to the court, nor do I believe that, if that person has a lawyer, it can keep the lawyer from talking to the person precisely to contest whether they fit within the category that we all agree there is a category of people who the government is entitled to hold.

The question is, how do you decide whether you are such a person? And I don't think any of us in this room want to be in a world in which the president of the United States can say I've decided you're an enemy combattant. Now, you never get to present a piece of paper to anybody, you're just held somewhere where you can't talk to anybody, and the government argues it has to be able to do that for national security reasons. You can't even write out a thing saying I'm being held illegally, I am an innocent person, and get it to an Article III judge, because the president has decided you fit that category. That is not the Constitution, that is not the system of laws under which all of us want to live.

MS. KIRKPATRICK: Judge Chertoff?

JUDGE CHERTOFF: I might be mistaken, but I think in--if I recall correctly, in Hamdi there were submissions in the court to take some submissions with respect to the factual basis for holding Hamdi. And the real issue there was the district judge wanted to get behind those and start to get into discovery and cross-examination and things like that. I think that's where the government resisted and where the court went along with the government in that case.

To me, the interesting question is this. I mean, Mr. Halperin is prepared to acknowledge that if you get someone on the battlefield, even an American citizen in Afghanistan, that whatever interest is necessary in order to make sure we're making the right threshold decision is satisfied by having a military officer perform some kind of a proceeding. And it would seem to me logically to follow from that, that you would not find an objection to the same process if it were to take place on a battlefield in the United States.

Now, of course, in the United States you get habeas review, and then we get into the question of the scope of review, and you don't get habeas review if you're--although if you're an American citizen in Afghanistan, you might well get habeas review; maybe you do. But it seems to me, then, you would be satisfied, under your model, if the next person picked up at O'Hare Airport gets some kind of a determination--and I'm not in a position to say whether the people previously picked up got any determination--but let's assume we have the next person and he gets some kind of determination, it's written up, end of story. Habeas review court says, okay, there's a determination, we [inaudible], and you're happy.

MS. KIRKPATRICK: Well, actually, I wanted to make a point here. I think that's a very crucial point. It has to do with the definition of the battlefield. And the president, if I understand it correctly, has determined that the battlefield extend to the United States.

MR. HALPERIN: Yeah, but this is a constitutional democracy. The president doesn't get to determine who he can pick up and put in a prison without letting a court see the person. The courts decide that.

The metaphor of the battlefield is what gets us into trouble. The reason we allow that on an actual battlefield is because the exigencies of the situation require that it be done. You cannot ask a person commanding troops in battle every time he comes before somebody with a gun to bring them before a judge. And so you don't require that. You require what is feasible in the situation.

When you arrest somebody at O'Hare Airport, that determination--and we haven't discussed at all how much deference the judge should give to the government's affidavits, how much proof there should have to be. I think those are all very hard questions, precisely the kind of questions, in my view, that should be hammered out in the enacting of legislation.

But certainly, you're not talking about only holding a person if a jury decides beyond a reasonable doubt that they're al Qaeda members. It's something short of that. What that exactly is and how much right of confrontation, I think, are all hard questions. What I'm saying is that that confrontation has to take place, if you're in the United States and the courts are functioning, before an Article III judge, with the person being detained having the right to talk to his lawyer and present at least some evidence.

Again, the question of is he allowed to call witnesses, is he allowed to compel witnesses are all hard questions. And I'm not suggesting the answers to them. I'm suggesting a much more threshold manner, first, that it should be done by legislation, and second, that the person detained has got to be able to talk to his lawyer and present whatever evidence he chooses to present to contest the threshold issue of are you a person who fits the definition on an enemy alien.

JUDGE CHERTOFF: Let me just--lest the audience think that the issue about access to lawyers only implicates the question of, you know, whether someone can participate in a legal process. I mean, I think to understand the policy reason behind why the government doesn't want to have lawyers talk to these people, obviously, as was said, in a battlefield dynamic, one of the critical issues with respect to enemy combatants is intelligence. And obviously there are limits to what you do, but you certainly want to be able to question people who are apprehended about where the next battalion is or, in the case of terrorism, where the next terrorist is. It's also clear that lawyers professionally are obligated to look out for the interests of the client. And introducing a lawyer into the dynamic is not a way to encourage intelligence.

So my question is this, really. Is your argument that as soon as someone is apprehended on the battlefield, at the airport, get him a lawyer even if it shuts down the intelligence, even if it means you can't get information about the next attack? Or would you be prepared to concede that you could at least wait for some considerable period of time while you conduct questioning?

MR. HALPERIN: I would happily concede that. I think there is some period of time you can argue about. And what the Congress actually authorized in the Patriot Act, I think, was 72 hours rather than 48 hours. And maybe you can argue it ought to be two weeks or two months. Again, I think it is clear that the government is entitled, as it is even in a normal criminal--you have, I think--what is it, 24 hours or something before you have to bring the person before a judge. Certainly there's a period of time here that I think is appropriate. Again, I would say that it's something for Congress to determine. And the government's position at the moment, as far as I understand it, is "indefinite." I mean, these people have now been held for eight months.

So--and the government isn't saying give us another three months or give us another four months or give us another two years. It is saying give us until we decide denying that person access to a lawyer is sufficient. And I agree there's a time and, again, if you think the person is involved in something that's about to happen, you certainly don't have to turn him over to a lawyer until you learn what you can about what's about to happen. But there's a reasonable period, and I think that reasonable period should be decided by the Congress.

MS. KIRKPATRICK: Yes?

QUESTION: [Inaudible] the Constitution Project.

Mr. Haynes, you sort of implied that as soon as you found out that Hamdi was an American citizen, you whisked him to the United States and somehow to help him get habeas. The fact is, he was whisked to the United States because as an American citizen, he had habeas even from Guantanamo. And he, alone of the Guantanamo people, could have brought habeas and challenged conditions in Guantanamo.

Which leads to my questions about Moussaoui. If Moussaoui was transferred to a military tribunal, wouldn't he have habeas? And won't the government argue in all other cases, as it has argued in the Guantanamo Bay cases, that none of the other people convicted by the tribunals, including those people sentenced to death, do not have access to habeas in the same way as you're now arguing about the Guantanamo Bay people have no access to habeas?

MR. HAYNES: A number of assumptions I might want to take issue with, or statements of fact. But let me just start with the one that stuck in my mind, about Mr. Moussaoui. Mr. Moussaoui is in the Article III courts, and as far as I'm concerned that's where he'll remain. So I don't want to speculate about what might happen to him. Beyond that, I'm not sure I followed your question. If I could try to restate it--

MR. HAYNES: [Inaudible] habeas corpus for anybody else [inaudible] by a military [inaudible]?

MR. HAYNES: Well, an enemy alien held outside the United States does not have the right to habeas corpus review. And if your question is would we voluntarily offer that to such a person, I mean, we certainly wouldn't suggest that we ought to change the existing legal framework to make that as a matter of right. We have done a number of things that we don't have to do because--precisely because we're Americans and we have certain principles that we like to follow. And it may be that we might choose to bring somebody into the United States after a conviction by a military commission, which would then give them an opportunity to seek review by a federal court, but that's not a decision that has been made.

MR. YOO: The other answer to your point is, regardless of what the administration argues or not, any non-American held outside the United States cannot bring a case in federal court. A federal court would have to dismiss it for lack of jurisdiction even if the Defense Department wanted them to hear it, because the Supreme Court has held in a case called Johnson v. Eisenschreger [ph] at the end of World War II, in a similar situation, people convicted by military commissions outside the United States, who aren't citizens, are outside the constitutional jurisdiction of the federal courts. So you couldn't even get a -- but if you brought them into the United States after conviction, they would have a right to habeas --

MR. HALPERIN: [Inaudible] out of the United States. Johnson doesn't cover Moussaoui.

MR. YOO: No, it doesn't.

MR. HALPERIN: So the reason why the government is never going to put Moussaoui into a military tribunal, and you heard it here first, is because Moussaoui could get habeas immediately. And that's why he has to be either in a civilian court or dumped (?) [inaudible].

MR. YOO: I would disagree slightly with that just because I don't see why the administration necessarily would be afraid of having habeas corpus petition review military commissions, because the Supreme Court in -- Ex Parte Quirin already upheld the constitutionality of military commissions in the United States when they're used on the German saboteurs. So I don't think that's going to be a necessary factor in the administration's thinking.

QUESTION: Hi. Rachel Clark from BBC News.

There were two Britons--Moazzam Begg and Feroz Abbasi--put up for military trial from Guantanamo Bay. The two main concerns of their families are that they've had no civil rights during the 18 months that they've been held. They haven't had access to lawyers and they've not been charged. They're saying that that will prejudice any military trial that comes later; also, these courts are not independent of the government, so how can they get a fair trial.

In a sense it seems to many outside the U.S. that if these military commissions are not good enough for American citizens, what confidence should foreigners have in them?

MS. KIRKPATRICK: Who would like to take that on? I would also notice that, historically, American citizens have fallen under military commissions, but in this case an exception was made for American citizens.

MR. HAYNES: I'll volunteer to answer the question. Melanie's point is right on the mark. And all I can say is that I am confident that--which may be small comfort to you, but--one thing that the military in the United States does very well is take and follow through with lawful orders from superiors. The president has instructed the secretary of defense that if he tries anybody using military commissions, he shall conduct full and fair trials. That's what will be done. These trials have been set up, or at least the structure in which trials will proceed if the president decides to proceed--and he has not decided necessarily to proceed with trial with anyone yet, notwithstanding that he has designated six people potentially subject to the jurisdiction of the military commission--the structure is now populated with military officers. And I can assure you that the military officers who swear to uphold and defend the Constitution of the United States and to follow lawful orders of their superiors, particularly those on the defense side--some of whom might be in the audience--will do a very good job in representing the interests of their clients.

MS. KIRKPATRICK: Could I ask a follow-up question on that for you, Mr. Haynes? Why not hand those two detainees over to the Brits for trial in British courts?

MR. HAYNES: I'd rather not talk about any specific individuals. Let me speak generally. The United States--officials of the United States have made very clear in public statements that--and I can speak about the secretary of defense in particular, who doesn't to want to hold anybody longer than is absolutely necessary. That includes people who remain dangerous, who nevertheless will be properly detained by other proper authorities, including their own home countries. We have, in fact, transferred some individuals to other countries, and it is my expectation that we will do that with additional individuals.

MR. HALPERIN: Can I say something about that? I have no doubt myself that what Mr. Haynes says is correct about the military justice system. It is one that I think we all can be proud of. I have no doubt that the lawyers, including the military appointed defense lawyers, will do what they're supposed to do and that if people are brought before that system, they will get fair trials.

But I think it is important not only that we do justice, but that we be seen to do justice and seen to do justice in the eyes of the rest of the world. We spend a lot of time urging other countries not to have military tribunals when there are civilian courts functioning. We spend a lot of time urging other people that you need independent judiciaries, that trials should not be judged by the people who appoint the tribunals. Those are principles which we normally follow, which we want other countries to follow, and which, in my view, whether you think the Constitution requires it or not, as a matter of policy there is no reason why we should not follow in these cases.

So that we could take steps, including getting Congress to authorize this, which they would do very quickly; including explaining what you're saying--it's a matter of discretion, if anybody is convicted, we intend to permit them to appeal to the Article III courts before the punishment is meted out. We could say that as a matter of policy without conceding the constitutional point, although I think one could argue that Guantanamo is the United States and that therefore it is different.

But we ought to think about the message we're sending to the rest of the world, that it is important not only that justice be done but that it be seen to be done. And many people in the rest of the world who don't understand how the military justice system works just don't believe what you've said and what I fully believe, and we ought to think about how that looks to the rest of the world and to take steps that would not change what we plan to do in any fundamental way. Because the same thing is true of Article III judges. I mean, you're going to have a fair trial. And I think at the end of the day, an Article III judge is going to uphold it. So we're not talking about a system that is going to set people free who are terrorists who are engaged in terrorist acts. And I think we ought to think about whether we do that. I think it's constitutionally required. There's certainly an argument that it's not, but as a matter of policy, as a matter of setting a standard for the rest of the world, I would argue we should do it.

MS. KIRKPATRICK: Okay, the gentleman in--

QUESTION: Yeah, Ed Spanos from Executive Intelligence Review.

I'd like to come back to this question about using commissions and the enemy combattant status to coerce or as leverage to get pleas in the criminal justice system. It's reported that in the case of the Lackawanna Six in Buffalo that the reason that those individuals pled guilty was the fear of being thrown into the status of Padilla--not military commissions, but being declared enemy combatants and thrown into essentially the black hole of detention in a military prison without access to courts or lawyers.

And in that case, it wasn't a question that, and it's also reported that the evidence that they were--there was really no evidence that they were planning acts of terrorism against the United States -- that they had been to these camps in Afghanistan and so forth. But their fear--it wasn't a normal plea bargain case where they feared being convicted so they'd get a better deal by pleading guilty, but that they feared that if they were in trial and winning the trial and the case were going badly for the government, that they could be--the government could stop the trial, declare them enemy combatants, and put them essentially into this black hole. I mean, I've seen a case where the government, when a case was going well, the government did move the case elsewhere.

So what this does seems contrary to what Judge Chertoff said. This does give the government enormous leverage in getting convictions and plea bargains in a case irrespective of the evidence involved. So the question is, I mean, it seems to be a good way of getting convictions, but is it a way of obtaining justice?

MS. KIRKPATRICK: Who would like to respond to that?

JUDGE CHERTOFF: I'll answer that. Where was that reported?

QUESTION: The Washington Post.

JUDGE CHERTOFF: Well, I'm going to tell you, I do not think it is correct to say, nor do I think anybody speaking for the defense ever said, that the reason the defendants pled guilty was because they feared being put in a military tribunal. And if you're familiar with the way the criminal justice system operates, you'll know that in every plea proceeding there's an allocution in which the judge asks whether there's anything undisclosed on the record or any compulsion that was brought against somebody to plead. And you would have seen it in that allocution and the judge would have refused to take the plea.

I will stand by what I said. Doing the period of time I was at the Department of Justice, the department did not use, and it was, quite the contrary, very clear that the possibility of a military tribunal or something like that was not to be used as leverage in any way, shape, or form in order to coerce someone into taking a plea.

The only other observation I would make is this: I do recall reading people saying that in that case there was no direct evidence that people were planning a terrorist act. Part of what the material support statute, which is a criminal statute, is designed to do is to allow the government to prosecute people who are assisting terrorism. You don't have to wait until the fuse is being lit, because let me tell you, if that were the standard, a lot of bombs would go off and a lot of people would lose their lives. So I don't think it's at all inappropriate where the facts support a legal charge of support for terrorism to move before the imminence of damage is facing law enforcement.

MS. KIRKPATRICK: We have time for one more question. You've had your hand up for a long time.

QUESTION: Thank you. John Walstead of Discovery Institute. Two points I'd like to hear a little bit on from the panel. One is, I understand in the first World Trade Center bombing trial that there was a disclosure and testimony in open court that the towers were built to withstand a 707, and that might have tipped al Qaeda to use 767s. So how to handle that problem.

The second one is the possibility of a specialty non-Article III criminal court along the lines, for example, for the foreign intelligence court that oversees wiretaps.

MS. KIRKPATRICK: Who would like to respond to that?

MR. YOO: I'm not aware of the particular example you raise about the airliners. I do think there is--it does point out concern, I think, what did happen in some of the trials is that there was discussion of how we gathered intelligence. And there are people who have written in the newspapers that once intelligence was revealed in court, say like intercepts of telephone calls and things like that, that al Qaeda pretty quickly stopped using that particular technology to communicate. It actually turned out that actually wasn't true, but actually what had happened was that for some reason the White House decided to leak itself that they had the ability to intercept Osama bin Laden's cell phone calls. And I think within like a day or two, Osama bin Laden stopped using his cell phone.

So I think it does point out that--not necessarily the airline example--but it does point out that al Qaeda does carefully monitor, using the Internet and newspapers, our government and what we say in public and how we conduct trials and so on.

MR. HALPERIN: Let me make the record clear. That information, as I understand it, appeared in a news story in the Washington Times. And I don't know how you know that it came from the White House. I don't believe that that's a matter of record. I don't think it's true. We don't know where it came from. But it points to the fact that most of the information that hurts us in terms of disclosures that terrorists or other could use appears in the newspapers from unidentified sources, not in criminal trials and not disclosed formally by the government.

MR. YOO: On the second point, a special court, I think the record of the foreign intelligence surveillance court has been a good one. I know Morton has been critical of it, I think, in the past. I don't know whether you could create a separate, you know, special terrorist court. There is one created for immigration that's never been used. But I think in the intelligence surveillance area, the track record has been a pretty good one. There are Article III judges who do hear warrant applications and intelligence cases. The standards are different than the ones that would be given for normal criminal warrants. The ACLU has filed a lawsuit challenging the constitutionality of these, but they've been upheld by the appellate courts so far. And they have done, so far, a pretty good job of allowing us to surveil potential enemies of the United States without necessarily revealing the sources and methods of intelligence that leads us to think people should be targets in an open court. So there has been a good track record there.

MS. KIRKPATRICK: I'm sorry we didn't get to all of your questions, but I thank you for your attention. This issue that we've been discussing here goes to the heart of what it means to be an American. I would like to thank our panelists for their thoughts. It was a very invigorating discussion.

Thank you.

[End of presentation.]