Al Odah v. United States: The Supreme Court's First Big Battle in the War on Terrorism

March 3, 2004

Unedited transcript prepared from a tape recording

8:45 a.m.	Registration
9:00	Introduction:	David Frum, AEI
	Discussion:	Brad Berenson, AEI and Sidley, Austin, Brown & Wood, LLP
		Richard Klingler, AEI and Sidley, Austin, Brown & Wood, LLP
10:30	Adjournment

Proceedings:
MR. FRUM:  Good morning, and welcome.  I am David Frum, and I wanted to thank you all for coming to this event that is, I hope, the beginning of a truly important era in not just our thinking about the war on terror, but in our action in the war on terror.

In one of his earlier speeches after September 11th, President Bush addressed those Americans who were asking the question he heard most often, he said, in his travels which was what can I do, how can I play my part.  And I am honored to be here sitting with two good friends who have taken that invitation to heart in a way that is of importance to everyone in the country.

I knew Brad Berenson when we were in the White House together.  He was one of the President's lawyers who is the counsel to the President, and I was a speech writer.  We would often have lunch together at the big round tables where anyone could sit down, and Brad always had the most fascinating things to say and every once in a while had even more fascinating things clearly that he could not say.

He has now returned to private practice, and he is here today with Richard Klinger.  Both of them are former clerks to Supreme Court justices, Justice Kennedy in Brad's case, Justice O'Connor in Rich's case, and they have two truly powerful legal minds, which they have now applied to the utmost necessities of the country.

The war on terror, as President Bush has said, is a different kind of war.  It is a war that is fought in the shadows.  We have fought this kind of war before back in the early days of the cold war, but since then, we have had a judicial and legal revolution in this country where a lot of issues that would never have occurred to anybody before came under the purview of the courts.

Now there are people who think these issues do come under the purview of the courts.  It may be the spread of legal education in America.  There are so many people who think that lawyers really get to decide everything, and now coming to the Supreme Court are a whole series of cases about the handling of enemy combatants in the war on terror, people who have themselves thrown off the laws of war, disregarded the laws of war, laws which require them to wear uniforms, carry weapons, obey the laws of war, avoid atrocities.  These are people who fight in concealment and whose whole method of war is atrocity.

There are people who argue that American courts should regard these people not just as proper soldiers, but even as proper soldiers entitled to all the rights of American citizens.

Brad and Richard have organized an important new group, Citizens for the Common Defense, to take this argument to the courts and to do their part to say that a crucial element of victory in the war on terrorism is going to be a right understanding of the role of the courts, a right understanding of the place of civil liberties, who is entitled to them, who is entitled to the protections of the American Constitution and who is not entitled to these protections because they are not Americans.

The arguments here are important.  They have reached the very highest concerns in this whole war, and I am here today to present these two men who will speak to you directly, but the brief they are now presenting to the Supreme Court, about the work they are doing, the new organization "Citizens for the Common Defense, with which I am proud to be associated and AEI is proud to be associated because the two of them have been made adjunct scholars here at AEI.

I thank you all, and I open the mics to them.

MR. BERENSON:  Thank you very much, David, and thank you all for coming this morning.

What we are going to try to do this morning is two things.  We are here, obviously, because today is the day on which all of the briefs for respondence, that is, the Government's side, are due in the Guantanamo case, which really is, as the caption to this presentation suggests, the Supreme Court's first battle in the war on terrorism.

There are going to be two others this term involving U.S. citizen enemy combatants, the case of Yasser Handi and Jose Padilla, which I will reference a little bit later, but the question of whether the detainees in Guantanamo, foreign enemy fighters being held outside the United States, get access to the courts inside the United States to challenge their detentions, the legality of their detentions, and to seek a ruling from a U.S. court ordering their release is the first question that the Court is going to be presented with and is a nice first question because, frankly, if this question is resolved in favor of the petitioners, in favor of the detainees, it will constitute a pretty clear sign that the Supreme Court is going to radically rewrite the laws of war as they apply to the U.S. Government in the war on terrorism, which is another way of saying that under existing law, under settled law, this should be a fairly easy case for the Supreme Court and should result in an affirmance of the D.C. Circuit's opinion stating that the Guantanamo detainees, whatever their other rights may be, do not have the right to come to a U.S. Federal court and challenge the President's decision to use force against them in the form of capture and detention.

So we are going to try not only to discuss this case this morning and the arguments that we have made in the brief that you have on your seats, but also some of the more general issues and general background relating to the legal aspects of the war on terror and to Guantanamo.

I assume that there is probably quite a different level of knowledge, understanding, and expertise among you about this case, and so those of you who know more, I hope, will bear with us while we fill in those of you who may know less.

First, I would like to start out by discussing Guantanamo itself, who the people are who are at Guantanamo, how they got there, and what happens to them once they get there, and you will see as we begin to discuss the legal issues in the case, some of this really does make quite a bit of difference.

There are today at Guantanamo approximately 650 detainees who are citizens of many nations, including close allies in the war on terror like England and Australia.

None of the detainees at Guantanamo has any connection to the United States other than having taken up arms against the United States, according to our military and the executive branch.  That is to say, these are not U.S. citizens, there are not lawful permanent residents of the United States, these are not people who have created a meaningful relationship between themselves and our country or our legal system.  They are in every sense of the word "foreigners" to the United States.

They are there being detained in a non-punitive setting, and this is another important thing to understand.  Most wartime detentions are not punitive.  That is to say, they are not intended to be punishments for some violation of the law of war or otherwise.  Rather, it is an incident of capture and the ongoing use of force in a war.  It is a way to take people who have been fighting against you out of the fight and keep them out of the fight as well as get intelligence from them that will assist you in prosecuting the war effort.

The whole idea, of course, of wartime preventive detentions, these non-punitive detentions, is to speed the end of the war, to accelerate the end of the war, and to prevent these folks from returning to the fight and thereby prolonging it and making it bloodier and more dangerous, really, for both sides.

By and large, the people who are down at Guantanamo are Taliban militia men or Al-Qaeda.  They are not, for the most part, simple foot soldiers, lower-level in people in Taliban or Al-Qaeda.

There is an extensive screening process that I will discuss in a moment which is designed--now, it is certainly not perfect.  No process under these circumstances and with an enemy like this ever could, but it is designed to ensure that the only people transferred to Guantanamo are people who are either especially dangerous or especially likely to have intelligence value in the ongoing war on terrorism.

So, among the people down at Guantanamo are--and the Department of Defense has recently revealed some of this information which it had kept fairly close until just a couple of weeks ago.  There are confirmed terrorists, Al-Qaeda terrorists, close associates of Osama bin Laden, including the two who were recently brought up on charges before military commissions, Al-Qaeda explosive trainers, terrorist financiers, associates of the 9/11 hijackers, spokes who specialized in preparing false documentation and arranging for the smuggling of Al-Qaeda agents into this country and the like.

Most are very, very dangerous people.  They are enemies of the United States, and frankly, because they are unlawful combatants who, as David mentioned earlier, fight in blatant violation of the laws of war, they have always been regarded by the law as the "enemies of all mankind."

Their combatancy is particularly dangerous especially to civilians because of the way they fight, and for that reason, they are entitled to much lower status and many fewer protections under the laws of war than a lawful combatant, an enemy soldier.

It is very important to bear in mind as we get into the discussion of the legal issues the fact that whatever one thinks about the petitioners in this case, all of whom claim to be innocent, claim to have been captured wrongly, simply caught up in the net and really having nothing to do with the Taliban or Al-Qaeda--it is very important to bear in mind that the vast majority of the 650 down at Guantanamo, even if you accept the petitioners' claims that they themselves are blameless in all of this, are dangerous people, terrorists, enemies of the United States.

And the reason it is important to bear that in mind is that whatever rule the Supreme Court adopts in this case is not simply going to apply to people who are blameless or even those who claim to be blameless.  If a procedural right is established to come to court, it is going to apply to every one of these folks.

Question No. 2 about Guantanamo:  How did these folks get to Guantanamo?  According to the Department of Defense, there is initially a field assessment made by military commanders, the same way there is any time someone is captured abroad, trying to take a quick look at how dangerous the individual is based upon how they are captured and what can be learned about them at the time of capture.

That is then followed by a careful review at a central operations area in the theater of combat, wherever that may be, where there is a screening system, a screening team that analyzes each individual case under a set of criteria that the Department of Defense has to try to determine danger, intelligence value, leadership role and the like.

This team includes--and this is significant under the laws of war--it includes officers.  These are not simply enlisted personnel.  It also includes lawyers, experts in military law.

Anyone who that screening team recommends be transferred to Guantanamo then receives a further level of review before the transfer takes place by a general officer of the U.S. military.  Assuming that there is approval by the general officer, the recommendation is then finally forwarded to the Department of Defense in Washington, and Washington signs off before anybody is transferred.

So any person who finds themselves at Guantanamo has been through three or four levels of reasonably careful review in the field that go as high as general officer and civilian leadership in the Department of Defense.

Once they are at Guantanamo, the process of review continues.  First, the United States has, apart from review processes, committed to the humane treatment of all these folks and has, by all accounts, provided it:  food, clothing, shelter, medical care, freedom to worship, reading material, visits from the International Committee of the Red Cross, mail from family.  All of that is permitted.

Now, that is not to say that being confined in Guantanamo or anyplace else is a party or a pleasure or something that any one of us would wish for, but the basic humanitarian treatment required under the laws of war for anybody who comes into the custody of a capturing power is certainly being respected and probably more than respected in the way that the folks at Guantanamo are being handled.

The review process then consists of a specialized team that within 90 days has to review all of the available information about a detainee who comes in, and this is an interdisciplinary team which consists of interrogators.  It consists of lawyers.  It consists of psychologists, intelligence officers.  Their findings go to SouthCOM, the U.S. Southern Command, again, for review at a very high level of the military, and that then is forwarded into an inter-agency process here in Washington where a number of parts of the Federal Government are represented, which ultimately comes up with a recommendation forwarded to the Secretary of Defense for his review and judgment.

So there is careful review at Guantanamo after they are removed from the field of battle and when there is a little more time to take care and ensure that all information is known.

Obviously, during that process, the detainee himself has the opportunity to tell his captors anything he wishes.  There is ongoing interrogation of the detainees, and if a detainee says, "I was just an aid worker in Afghanistan.  I never fought for the Taliban.  I hate those guys," that obviously is an input into this review process and can be considered and is considered.

There are also negotiations with the home countries of these individuals.  Notification is provided to the home governments, and if the home governments have information, favorable or unfavorable about these people, that can be put into the process.

There is a formal reassessment done within a year, a year of a person's arrival at Guantanamo.  This is all re-done to try to make sure that we are not holding people in error, and then the Department of Defense has just announced that every year thereafter, there will be formal annual reviews before a panel of three military officers at which the detainee is entitled to present any evidence or argument he wishes and the home government of the detainee is also invited to participate and provide information.

This process has already resulted in more than 80 releases and repatriations of individuals at Guantanamo.

Interestingly, the Department of Defense has recently disclosed that despite the carefulness of these procedures and despite the fact that everyone assumes or insinuated that the procedures are stacked against the detainees, such that any doubts are resolved against them, four of the individuals whom the Department of Defense has itself chosen to release have returned to the fight against the United States, one in a leadership position.

Those individuals have not yet been recaptured or killed, I understand, but there is apparently solid intelligence that they are back on the battlefield fighting against us once more, another important fact to keep in mind as we go on to discuss the legal arguments, some of which will turn on the relative costs and benefits of judicial review and the risks and costs of error in judicial review.

Finally, individuals against whom there is a case to be made for war crimes can be charged and tried before military commissions, and the first two such individuals have had charges brought against them in recent weeks.  So, far from being a legal black hole, as it has sometimes been described, in addition to the ongoing review, there is the possibility at the end of formal charges being brought and of lawyers being provided, so that those charges can be defended.

I would submit, frankly, that the situation of the average person who is charged and tried is quite a bit worse than those who remain in the supposed black hole; that is, who are just preventively detained as part of the war.  Nonetheless, there is formal legal process at the end of the line here for some of these people, for the worst ones as to whom there is sufficient evidence to prove war crimes.

Now let's turn to the case for a moment.  I am going to talk about some of the domestic law issues, and Richard is then going to talk about some of the international law issues as well as the broader legal context of the war on terror.

The frist and most important principle to understand, which is the initial argument point made in the brief that you all have, is that this is war in every meaningful sense.  We are at war.  Just because we are not at war with any single nation or group of nations does not mean that this isn't real war.

The legal precedence, both internationally and in the U.S., are absolutely clear that war consists of things other than traditional massed armies on a battlefield with tanks, each controlled by a sovereign power, and that war against private bands of organized and violent people like these can constitute war or, in the broader term generally used under international law, "international armed conflict," and that the consequence of their so qualifying is that the laws of war become the laws that govern.

Now, this is a crucial point because a lot of the criticism for what is happening at Guantanamo and a lot of the argumentation, legal and otherwise, against these detentions is based on the false premise that the assumptions we have in the criminal justice system ought to be transported over into the context of war.

And through millennia of human history, that is not true.  It has never been the case.  There is a completely distinct set of rights and obligations that a state has when it is making war, as when it is enforcing its own domestic laws against miscreancy in its own population.  So it is essential to understand that this is war, and if any of you have doubts that it is, factually or legally, I certainly invite you to share those when we have a question-and-answer session because this is a proposition that I think is close to incontestable.  So, if you have doubts about it, we should discuss it.

In thinking about the rights and wrongs of what is happening in Guantanamo, you should put out of your mind the model of Timothy McVeigh, the domestic terrorist part of a white supremacist group here in the United States who kills a lot of people by planting a bomb here in the U.S. and is then arrested by the FBI and charged with crimes.

The model you should have in your mind is the prisoner of war, the typical POW, the individual who is captured whether on a true battlefield like those we had in Iraq or Afghanistan where there are soldiers bearing arms, shooting at one another, or less traditional battlefields which the new shape of this war has forced us to reluctantly acknowledge as such.

Now, some of the confusion arises because some of those new battlefields have generally not been regarded as battlefields before, a U.A. airport being a typical example and one that is very much at issue in the Padilla case that the Supreme Court will be hearing in April and deciding in June.

So the POW model is the one to have in mind, although it is also important to understand that the people at Guantanamo are not POWs.  That doesn't make the model any less applicable because the truth is that the people at Guantanamo are something substantially less than POWs.  That is, whatever rights POWs have in war, these folks have fewer and may lawfully be treated worse for a variety of very legitimate reasons.

They do not have the privileges of belligerency.  Al-Qaeda has no right, in other words, under international law to wage war against the United States, especially in the way that it has chosen to wage it.

The administration has made a formal determination under the Geneva conventions that these are not POWs with POW rights.  They don't meet the requirements of POW status under the Geneva conventions, and I frankly have never seen a serious argument to the contrary, and in understanding the logic of that, it is important to bear in mind what the consequences of a contrary determination would be.

If these folks were POWs, they would actually be entitled under the law of war to mount the kinds of attacks they have mounted.  They would have been entitled.  They need fear no consequence, no legal consequence from ramming an airplane into the Pentagon or attacking the Pentagon in other ways or things like the attack on the USS Cole.

Now, the World Trade Center attacks themselves would have been unlawful under any scenario, but they would have the privileges of combatancy if they were POWs and be entitled to attack our military assets any way they wished.

In addition, within Guantanamo, they would be allowed such rights as the right to congregate in a group privately, the right to retain cutlery for preparing food, the kinds of rights that obviously would make the security situation and the protection of the guards down in Guantanamo completely untenable when you consider one of these guys imprisoned in connection with the first World Trade Center bombing over a period of weeks sharpened a plastic comb into a weapon and drove it through a prison guard's eye and into his brain in an unsuccessful effort to escape.

Now, the law of war, which applies to these people, has always been considered under international law, "lex specialis"; that is, a distinct body of law that applies to a distinct situation, and it is another serious misconception to believe or argue, as petitioners do, that a lot of rights under the U.S. Constitution apply to enemy combatants.  This is just a matter of black-letter law.

The text of the various amendments to the Constitution, Fourth, Fifth, Sixth, as well as judicial decisions interpreting those provisions of the Constitution, make very clear that not only do they not apply to enemy fighters, but they don't follow the flag.  They don't have extraterritorial application to people who, like these people, have no meaningful connection to the United States other than a demonstrated propensity to commit violence against it.

Bottom line in this case is that the rights for which the petitioners are contending here are absolutely unprecedented.  You simply cannot find throughout human history a situation in which a government at war has furnished lawyers and provided access to its courts to those fighting against it and invited them to come in and sue the commander in chief.

That is, in effect, what the petitioners are saying:  "Even though the President and the military have determined that we are enemy fighters and that we are dangerous and that the courts have absolutely no competence to second-guess such a determination.  Even though we are enemy fighters after we are captured and reduced to submission and confined, we have the right to open a legal offensive against the government with which we are at war," absolutely unprecedented.

Indeed, alien enemies, alien enemy civilians in a traditional war, in a declared war don't even have the right to come into U.S. court and sue on a simple commercial contract.  So that if we were at war with the government of Afghanistan rather than a militia like Taliban, Afghan citizens who were not even fighting against us could not come into court.  This is clear black-letter law, could not come into U.S. court and say, "Pay me the money you owe me."

Obviously, if they can't do that, enemy fighters can't come into court, sue the President and the Secretary of Defense, and say, "Release me."

There were 418,000 Germans and Italians taken prisoner during World War II who were actually brought to the continental United States to be held during the duration of World War II, and remember that at the time most of these people were captured, nobody had any idea how or when World War II would end.

None of those people got habeas corpus review of their confinement, and you can imagine the chaos that would have ensued if they had.

They also included among them many captured Russians and Poles who claimed, much like the petitioners here:  "I either wasn't fighting at all or I was fighting against my will.  I was part of a forced labor squad that the Germans had put together.  My sympathies are totally with you, United States, not with the Germans who were forcing me to fight.  Please let me go."

The courts are simple closed to those claims.  Those are military determinations that the executive branch of our Government has to make, rightly or wrongly, subject only to political constraints.  They are accountable, of course, always to the public, the United States public, and to international diplomatic constraints.  They are state-to-state dealings with other countries around the world.

Consider the practical policy problems that would be posed by allowing habeas corpus review for folks like the Guantanamo detainees; first, the diversion of military resources from the battlefield abroad to the legal battlefield at home.  Evidence would need to be provided.  Military lawyers on both sides would need to be provided.  Evidence-gathering would need to take place, and scarce resources that might be devoted to prosecuting the war and winning it would then have to be diverted to fighting defensively lawsuits here at home.

It would also alter conditions on the battlefield.  It would provide a forum for harassment, propaganda, embarrassment, false allegations.  You don't need to look much farther than the case that is in the courts involving Zacharias Musawi, to see what each of these cases could involve, and here again, it is very important to remind yourselves that whatever one thinks of the petitioners, guilty, innocent, or somewhere in between, most of the people who would be bringing these claims assuredly are not blameless and really are terrorists and enemies of the United States.  And providing them a judicial forum to air out their grievances would have serious negative consequences for the war.

Probably most importantly, doing this would preclude gathering effective interrogation from these folks.  If these folks have a right of access to the courts, they are going to have a right to meet with lawyers.  The lawyers are going to tell them not to talk to their interrogators.

In addition, knowing that they have a court case that might result in their freedom will reduce all of the incentives they have to cooperate, and psychologically, they will be in a very different position.

This is a life-or-death matter, a life-or-death consequence.  The Department of Defense has recently disclosed that a lot of the intelligence it has received from the detainees at Guantanamo is extremely valuable to the war effort.  It has exposed a lot of information about Al-Qaeda's network, about its financing, its training techniques, its weapons techniques, explosives, the status of its efforts to obtain weapons of mass destruction.

The methods by which Al-Qaeda snuck its agents into the United States through Latin America was revealed through interrogations with the folks at Guantanamo, and countermeasures were then taken to shut those avenues of smuggling terrorists into the country down.  This is very important stuff.  Every time we interrogate one of these people, what is at stake potentially is another 9/11 or worse, and if we do anything that prevents effective interrogation which is absolutely allowed under the international laws of armed conflict, we place the lives of millions of American citizens at great risk.

The other important thing to bear in mind is that if the Supreme Court were to rule in favor of the petitioners here, it is very likely that its ruling could not be limited in any meaningful way to these particular detainees in this particular location.  If there is a right of access for foreign enemy fighters held abroad to the U.S. courts, it will be very difficult, at least absent a lot of additional litigation over this, to explain why everyone being held at Bagrum Air Force Base in Afghanistan is not entitled to find a lawyer here and come sue the President, why everyone being held at Diego Garcia is not entitled to do the same, why everyone being held at the prison in Baghdad at Abu Ghraib not entitled to have a lawyer and come sue.  We could see thousands of suits by the enemies of the United States against the President and the Secretary of Defense.

The last general point I will make before turning it over to Richard for some discussion of the international dimensions and the broader legal context is the question that I think to some extent drives a lot of the skepticism and a lot of the adverse comment which is what if these petitioners are, in fact, as they claim not enemy fighters.  How do we know that they are not telling us the truth?  Don't we need judicial process to try to get to the bottom of that, the same way we get to the bottom of a lot of other questions, through an adversary proceeding, cross-examination, presentation of evidence, et cetera?

Well, that is probably the set of questions that most revealingly portrays the misunderstanding and confusion between the law of war and the law applicable to domestic law enforcement that I think infects a lot of the thinking on this issue by the critics of what our Government is doing.

First, in the context of a war, there is actually very little reason to suppose that courts could make more accurate determinations about the status of these people than the process I just described being run by the military.  The military is going to have vastly superior access to sensitive sources of intelligence coming from foreign intelligence services, signals intelligence, human intelligence from other people being detained and interrogated.

The military is also much, much better able to evaluate the context in which folks were captured and their attitudes while in prison, and very importantly, the military is able to engage directly with foreign governments in the way that a court simply isn't.  So that if there are doubts about a person, the military can negotiate with that person's home country for a repatriation under conditions that will assure that that person does not return to the fight, that adequate additional investigation takes place before any determination is made by the home country to release.

So it is actually, I would argue, a false premise that there is much to be gained in terms of accuracy by adding judicial review onto executive review.

True, judicial review can probably be relied upon to be somewhat more impartial, but that is about the only benefit.  In substance, the way review would take place and the way these proceedings would go forward, I would argue probably less geared to producing an accurate result than the procedures now in place.

Second and perhaps most importantly, even if there were a marginal benefit to the accuracy of these determinations by layering on court review, that would not justify doing it.  It is very important to remember that in wartime, there are all kinds of risks to the lives and liberties of innocence that we would never tolerate in peacetime or in any context outside of war, and these are risks that we willingly, gladly accept, every nation in the world accepts and has accepted throughout all of human history because of the stakes in war.

When self-preservation is at stake, we understand that you cannot interpose judges and courts between our military and our enemies.

Will innocence be hurt as a result of not having judicial review?  Well, maybe.  It is possible.  Every time a soldier fires a gun, every time one of our pilots drops a bomb, there is some risk that would be utterly intolerable in peacetime that an innocent person on the wrong end of the bullet or bomb is going to lose his life or lose a limb.  Yet, there is no judicial review, and the possible risks to innocent liberties that occur through the capture and detention of enemy combatants on the battlefield are really no different in kind.  If anything, they are less dramatic than those sorts of risks.

There is a long line of precedent which establishes, for example, that when property is destroyed by the U.S. military abroad as it is fighting, not just the U.S. military, but any military that is engaged in combat, when property is destroyed, there is no judicial review of that destruction and there is no remedy.

If a bomb goes astray and lands on your house and you are living in a war zone, you cannot go to court in the country that dropped the bomb and seek compensation for your house.

Sometimes compensation is provided through the voluntary actions of the power that made the mistake or through state-to-state negotiations, but it is not a matter for the courts.  Likewise, our own servicemen have no access to the courts for injuries they sustain in combat.

Then, it is, of course, important to remember, too, the risks associated with layering on judicial review, and I alluded to these earlier.  These are the risks that the guilty will be erroneously released, and those risks are very substantial.  The costs associated with taking those risks can be very, very high and they have to be weighed against the risks that some innocents might be detained erroneously.

With that, I will turn it over to Richard, and then we will take your questions.

MR. KLINGER:  Thanks, Brad.  That is great.

I would like to delve into the background and the arguments in the case itself a little bit and pull out particularly some of the international law, divergences that both sides are presenting, and would like to leave you with a couple of basic thoughts.

One is that the Court is confronting a highly political set of arguments, and that is not wrong.  It is not even that unusual, but the degree of politicization of this case and the arguments does distinguish it from 98 percent of other Supreme Court cases.

A second point is that there is a tremendous divergence in the conceptions of international law that should be relevant for a U.S. judicial decision, and we will go through some of the common law versions of international law versus the more traditional, binding, customary international law concepts at issue.

Then the third at issue is the role of the courts not only in wartime, but in issues that are traditionally committed to either Congress or the executive or both.  So it raises broader separation-of-powers considerations that, again, are in a highly contested, highly politicized context.

One place to start is just to look at why this case was taken and how the arguments have developed.  Usually, for Supreme Court cases, there are two steps to the case that eventually gets argued.

The first is deciding to take the case, and that is the under-reported and non-glamorous part of a decision, but that is most of what the Court's work is.  7,000-plus requests to take a case.  The Court narrows it down to 80 or so.

Usually, that is done on a fairly accepted basis, there is divergence amongst the lower courts, the lower court has strayed from Supreme Court precedent, there is a sharply split panel, but none of those factors were present here.

You had a very distinguished panel from the D.C. Circuit here in town, unanimous, no divergence in the Courts of Appeals at that time, and they purported to and I think plausibly read, were just applying black-letter Supreme Court decisions in reaching their decision that denied relief to the Guantanamo detainees.

It takes four votes of the nine justices to grant a cert petition to decide to hear a case, and I think part of the reason they did emerges as you look at what the friends of the Court or friends of the petitioner who are asking the Court to hear the case were arguing.  It was a very unusual set of amici, as they would be called, for making an argument to the COUrt at this stage just to take the case.

Usually, there would be established litigants, the States, associations of defense attorneys, the ACLU, but in this case, it was very ad hoc that one of the foremost briefs was on behalf of Fred Korematsu, whose name is attached to a prior Supreme Court decisions that declined to grant relief for the Japanese internees during World War II and which is fairly, under conventional view, viewed as a low point during the Court's jurisprudence.

Another brief was filed on behalf of former POWs who basically said, "The law may favor, the law may not, but we are worried about what the lower court's decision means for American POWs captured abroad and the treatment that they receive."

An other brief was for former diplomats who again said, "We are not really speaking to you as lawyers, but we want to just remind you of how much disrepute this Guantanamo situation has brought the United States into and how much diplomatic difficulty it is causing for our friends who are currently in government."

Then there was a group of commonwealth lawyers from Canada, U.K, and other commonwealth countries who essentially said, "This isn't the conduct of a civilized nation.  We represent the civilized nations, or at least the lawyers of the civilized nations, and you should hear this case to join us again," and the Court did, in fact, grant and has set the case for argument.  Now all of those same amici have appeared again and made those same arguments, and they have been joined by an additional 10 or so amici.  I think there are 17 or 18 briefs in support of petitioners.

Again, the degree of politicization of the case and the emphasis on political context rather than pure legal argument is fairly striking.  There is, of course, a law to legal argument, but you have, for example--I think my favorite--175 members of the House of Lords and Commons weighing in, in their individual capacity--they are all listed--essentially again saying, "We know what civilization is.  This isn't civilized.  Pay attention to the legal sources that we use to reach our civilized decisions."

Then there are former U.S. Government officials, mostly Clinton administration officials, who are pointing to, in some cases, the legal consequences, but more again, the political diplomatic consequences.

If I could just give you a flavor of the types of arguments that are being put in this context, this comes from the brief of former diplomats, U.S. diplomats who are arguing that this is from our foreign policy experience a case of vast public import.  Indeed, it has already become notorious abroad.  The world is taking due note of the fact that the United States has incarcerated these petitioners in Guantanamo.  There have been no efforts to charge, try, or judge them under law.  This has generated international concern.

The Inter-American Commission on Human Rights has undertaken precautionary measures.  The U.N. High Commissioner for Human Rights has spoken out.  The International Committee of the Red Cross has gone on record.  The British Court of Appeal has expressed its displeasure.  The Human Rights Chamber of Bosnia/Herzegovina, a court the United States has helped to create, has issued its own protest, and the recipient of the most recent Nobel Peace Prize referred specifically to Guantanamo in her acceptance remarks as an affront to universal human rights.

MR.          :  Oh, so that wasn't Yasser Arafat?

MR. KLINGER:  The most recent.

I dwell on that in some length because a principal portion of the arguments and the advocacy at issue is this appeal to opinion and reputation to the Court's standing, the need for the Court to perform a traditional role, to the Nation's standing in the eyes of other countries and the great and the good broadly within those countries, various jurists and whether various jurists would approve of the Supreme Court finding in favor of the Government and as I mentioned diplomatic harm or harm to POWs that might result.

The other types of arguments are somewhat or considerably more legal.  The somewhat more legal argument is related.  It points to international norms as the basis for finding in favor of the detainees, and again, though, this emphasizes a type of international norm that wouldn't traditionally be considered binding on the United States, General Assembly resolutions, European court decisions, Inter-American Commission decisions, and the writings of law professors and international exports.

They argue at base that there is a common law or a global common law right that has been recognized in these sources to a judicial review of persons who are detained.

More traditional legal arguments arise from the law of war.  Brad has canvassed some of those.

Then the most classically legal arguments that you would usually find in front of the Supreme Court are domestic law ones related to the scope of the write of habeas corpus and the legal status of Guantanamo itself and due process rights that may attach to the detainees there.

Then, in turn, on the other side, the Government's arguments are largely as Brad has canvassed.  They emphasize the commitment to the executive of the conduct of foreign affairs and war powers, the limitations under established precedent of the write of habeas, separation-of-powers concerns, and the traditionally limited role of courts weighing in on foreign affairs or international matters, and the limitations on binding or classically binding customary international law and treaty obligations that have been undertaken.

Now, as I said, there is absolutely nothing improper in arguing political considerations in front of the Supreme Court.  It has been very effective in a number of cases, and certain justices at times seem to respond very directly to those concerns.

What I would like to do is just give you a sketch, sort of a vote-counting sketch if you would of the conventional wisdom as applied to particular justices and how these different arguments may or may not play in relation to them.

We will start on one end of the spectrum with Chief Justice Rehnquist.  He was at one time the head of the Justice Department's Office of Legal Counsel, which is the traditional fount of executive power protection and separation-of-powers jurisprudence.

He has written extensively in cases addressing international affairs, evidencing considerable deference to traditional views of executive powers, and he is probably the best versed in this set of issues of the members of the Court.  He has recently written a book on how the judiciary has performed and made decisions in wartime.

On the other hand, he also controls the assignment power on the Court.  As you think about how this might evolve in a decision, this is often exceptionally important.  If he thinks that his preferred position or an expansive view of executive power in this context might be on the losing side, he has the power, if he is in the majority, to assign the opinion to himself, and what he often does in cases of both unusual import and interest is to do just that and to write a relatively circumscribed opinion.

So, in terms of vote-counting, he is not necessarily going to come out in a particular way, but if he comes out in favor of petitioners, you can almost guarantee that there be a quite narrow and circumscribed decision.

Justice Scalia also--[audio break].

[Side B of audiotape begins.]

MR. KLINGER:  [In progress]--in deference to true executive powers on the Court, and he is also the justice who insists, most vocally at least, on having a clear legal source as the basis for the Court's decisions, and in that case, that would push him or generally incline him not to favor the detainees in this case.

Justice Thomas hasn't written nearly so much, but historically is aligned with Chief Justice Rehnquist and Justice Scalia's broad approach to these issues.

On the other end of the spectrum are Justices Breyer and Ginsburg.  They have been, I think, unusually public in their statements regarding the need for the Court to step in, in this time of national focus on terrorism to ensure that civil liberties remain protected.

Justice Ginsburg particularly comes from a tradition of working for and with very traditional civil rights groups, has participated as an advocate in the courts on their behalf, and she has also shown an openness to drawing upon this broad, kind of international opinion-type source in her legal opinions.

Justices Stevens and Souter are a little harder to predict under the conventional view.  They generally are aligned with Justices Breyer and Ginsburg.  They are generally skeptical of strong separation-of-powers arguments, at least a strong form of deference to the executive, but on the other hand, Justice Souter is without an extensive body of writing on the issue.

Justice Stevens, I think may be the only justice with a military background and can be idiosyncratic, but, again, statistically they align quite frequently with Justices Breyer and Ginsburg on this kind of politicized issue.

Justices Kennedy and O'Connor, I think conventional wisdom would hold at least that they are probably the swing votes in this decision, as they are in many cases.  They are generally viewed as generally concerned with the Court's reputation, on the one hand, that would be responsive to the general arguments about the Court calling itself into disrepute and breaking with the western tradition.

On the other hand, the Court's reputation is also bound up in paying attention to the precedent for them, and as Brad outlined, there is fairly clear precedent that would favor the Government in this case.

Of the justices, those two probably have the greatest ties to the diplomatic and international communities in their extracurricular activities and in their speech-giving and other non-traditional activities, and they have both shown an openness to drawing on these broad international sources as sorts of guidance in their opinions, most recently in Lawrence v. Texas in Justice Kennedy's case, which was last term's gay rights case.

Justice O'Connor particularly is known for divergent views on a range of issues, and to the extent you look at her writings in this area, it shows just that.  She wrote an interesting article a few years ago that tried to analogize the role of international law for the United States to the role of Federal law for a state.

On the one hand, she said, "Generally, issues of international law are political questions beyond the Court's expertise.  On the other, international law can be a quite nice source of guidance and is sometimes compelled, but on the other, other hand, it is only a source of international law where the United States has actually found itself in some way to the tribunal issuing the decision."  So, for those two, it is very difficult to say how they might emerge in terms of the reaction to this case and to the types of politicized arguments that I was outlining.

I would like to just leave you with three of the broader international law issues that I averted to that are surrounding this case.  Because the case concerns jurisdiction and the writ of habeas, the Court may not reach them at all, but they are certainly being pressed very hard by the supporters of the detainees and in response by amici such as ourselves.

One concern, as we canvassed just the scope of international law, there is a conception of this broad global common law as relevant to a Supreme Court and other Article 3 Court determinations based on U.N. resolutions, the positions of non-government organizations, law professor commentary and so on, and on the other, it is a more traditional classic view of binding international law where the U.S. conventions regarding what binding international law govern the incorporation of international law, those that are confined to treaty obligations that the U.S. has undertaken.

To the extent they are enforceable in court, they are generally either required that it be self-executing or that Congress has implemented legislation to that effect, and a fairly narrowly realm of binding customary international law that is reflected in the pervasive practice of states who undertake such a practice because they believe they are legally obliged to.

A second broad issue is when U.S. law incorporates whatever the binding international norms are in a Federal court, in an Article 3 court in the United States, on the one hand, the petitioners and their amici are generally arguing that U.S. law should be interpreted at least where there is some ambiguity to conform to or be brought into harmony with these broad global international norms, that that is a higher source of law that the U.S. should aspire to and that judges are authorized to meld U.S. law to achieve.

The other, again, the more traditional narrower view is that U.S. law should be interpreted so that it doesn't violate an international obligation that binds the United States under the narrower conception that we outlined, and this is that the courts should not unnecessarily bring themselves and bring the country into conflict with positions of the executive and the Congress either are presumed to have taken or actually have taken.  So it is the limited role of the court of deauthorizing principle.

The third is this underlying separation-of-powers notion.  The extent to which the Court is willing to and asserts authority to essentially, on the one hand, preserve its ability to protect asserted rights in this context or, from the other side, exercise power in relation to what is a core executive power.

It is a debate over the spheres of competence, and the traditional view, again, is that at the core of the executive power lies the power to undertaken the foreign affairs and conduct war, and courts are not only rarely, if ever, competent to address those issues, but they are particularly disabled from doing so where, as in the case of the war on terror, Congress has strongly supported the executive's power to conduct activities in that sphere.

So I think we are a bit over time.  I will leave it there.

MR. FRUM:  That is excellent.  We will take some questions.

Let me just maybe do a quick summary of some points that I think are going to be of interest to the people attending here.

The arguments you have laid out will be found in quotable form in the green-covered brief that represents your views and those of the new groups, Citizens with a Common Defense, and I hope everyone will have a chance to take a look at it.  It is there to be quoted from, if you like, if you will be intervening in the future case, the future cases that will follow this line of reasoning.

Let me take the moderator's prerogative of the first question and ask you both.  Comment a little bit more and elaborate.  If the case goes the way you think is wrong, what happens?  What does that mean to the effect of prosecution of the war?  What does that mean for future cases?  What does that mean for executive power and judicial power in this country?

MR. BERENSON:  What it means in practical terms is that the Federal courts are open to hearing the claims of the detainees at Guantanamo and very probably the claims of people being held and detained by the U.S. military in a variety of other locations across the globe.  So the first practical consequence is a likely flood tide of litigation being brought on behalf of enemy fighters who have been captured and are being held by the U.S. military abroad.

In terms of the ongoing war on terror, I think it would have terrible consequences.  It requires the second-guessing of judgments made by our forces in the field, the examination of the circumstances of capture and facts about the detainees.

I think it would impair, as I alluded to earlier, our ability to gather intelligence.  It would reduce the military resources available to prosecute the war, and it would create a very uncomfortable situation where the U.S. Government was speaking with two voices to the world, and the President's word in foreign national security military affairs was no longer regarded, at least in this context, by the rest of the world as final.  That could be very, very damaging, indeed.

In terms of the institutional relationships, I will defer to Richard.

MR. KLINGER:  If the Court were to rest its adverse decision on some of these international law grounds, I think there would be two broad consequences.

The first is the one Brad just finished with, and that is the Nation in its diplomatic and foreign affairs would be speaking with multiple voices; that the conduct and determination regarding the Nation's interest in the foreign affairs realm would be conflicted and muddied.

The second is, in my view, even more serious, and that is that the Court would have somewhat aligned itself and a portion of the Nation with a set of arguments that are used--and this is quite blunt--by our enemies and our erstwhile allies to constrain U.S. sovereignty and constrain the exercise of powers that are committed to the President and the Nation by our Constitution.

You would have seen in the run-up to the Iraq war of what I think as the greatest split between our western allies and ourselves over a range of issues regarding the role of international institutions, the importance or not of multilateralism, the binding constraint of international norms, and I would think that it would be unfortunate for the President's conduct of the contrary position or the contrary assertion of U.S. interests if, in fact, the Court is, in some way, paying credence or even embracing that multilateral conception of constraint of [inaudible] power.

MR. FRUM:  Very quickly and in concrete terms, one for each of you.

Richard, does this mean that the U.S. Supreme Court would, in effect, be saying that the writings of some international law professors who live in other countries are more binding than actual acts of Congress appointed by--passed by the elected representatives of the American people?

And, Brad, does this mean that if I am detained, if this were to go the wrong way, I am a Guantanamo detainee and I want to cross-examine, I think I have important evidence that can be gained by cross-examining the officer who took me, who is now in Afghanistan, can I haul him back to Washington to put him on the stand?

MR. BERENSON:  I will go first.  Yes.  Probably, yes.

MR. KLINGER:  I would say yes, if an opinion were written in probably the most extreme form that could be anticipated.

MR. FRUM:  Okay.  Gentlemen, to you.

Andrew Kelly here will pass the microphone around.

MR.          :  I am Chuck McCutcheon [ph] with Newhouse Newspapers.

Can you elaborate again on the implications of the decision in this case, particularly for the Hamdi and Padilla cases?  I mean, it does seem like an apples-and-oranges thing in some respects, but how would the Court's decision necessarily relate to what they might find in those later two cases?

MR. BERENSON:  As a technical matter, a ruling in this case should not have much bearing on Hamdi or Padilla.

The issues in Hamdi and Padilla are quite different because the U.S. Government concedes that for a U.S. citizen captured and detained as an enemy, there is a right of access to the courts, to habeas corpus, the fight is over, what shape that access should take, the details of those habeas proceedings, whether they get access to counsel, whether this is a trial-type proceeding or simply a review of the basis for the executive's determination.

Now, in Hamdi and Padilla, there are also issues about whether the President has any inherent authority at all to capture and detain a U.S. citizen as an enemy combatant, but, again, that is a question completely distinct from the questions in this case.

However, as a practical matter, if this decision were to go petitioners' way, it is almost a foregone conclusion that the Supreme Court would rule in favor of Hamdi and Padilla.  This is much the easiest of the three cases, and if the Court were to go in the pro-detainee direction here, you can't ever be absolutely certain, but I would wager a lot that they would go in favor of the detainees in Hamdi and Padilla.

If, on the other hand, they stick with the law, reject the detainees' claim in the Guantanamo case, that won't tell you much of anything about what will happen in Hamdi and Padilla.

MR.          :  Frank Davies [ph], Miami Herald.

Let me ask you about a slightly narrower issue that is sort of contained here.  On the amicus briefs on the other side, several retired officers, including a couple of JAG corps or retired Navy officers, have argued that at some point--not now, but at some point down the road, some detainees at Guantanamo should have access to Federal courts after they are charged, after there is a legal machinery that has begun, as two of them have been charged recently and probably more.

Their argument is much more narrow saying--and perhaps would agree with you that right now, hundreds of detainees shouldn't have access to Federal courts, but once the military legal machinery begins, that means that at some point down the road, they should have access, some sort of judicial oversight at that point, and I would like to get your reaction to that.

MR. BERENSON:  Well, that argument identifies what is one of the truly difficult questions in this area.

People who are charged, people who are at Guantanamo who are eventually charged, will be tried before military commissions.  That is, in fact, the accepted way and really the preferred way of trying people charged with violations of the laws of war.

The military commission system as it currently has been set up includes appellate review only within the executive branch, and there are arguments, credible arguments in this case, that I can't tell you for sure what the right answer to is, one way or another, at this point because I haven't studied them carefully enough, but there are at least credible arguments that some form of civilian judicial review may be required, whether by way of habeas corpus following a final conviction to test certain fundamental issues about the fairness of the proceedings or as part of the appellate process in the civilian court system.  So I think that is the argument you are alluding to.  That is a difficult argument, and I can't tell you what--can't offer a confident opinion right now about what the right answer is to that.

MR. KLINGER:  The only thing that I would add to that is that one of the briefs that was filed at the same time of the petitioners' brief was on behalf of some of the military officers defending the--well, [inaudible] defense counsel in the military commission proceedings, and they sided with neither party and simply asked the Court that they not address that set of issues because it raises, in their view, distinct and important issues.

I think that nothing that we are presenting necessarily would lead to a conclusion, one way or the other, for that because, as Brad said, it does raise some issues of domestic U.S. law regarding the coordinated operations of our civilian and military powers.

MS.          :  Good morning.  It is Joan Kulgen [ph] from Australian Broadcasting Corporation.

Can you explain for me or distinguish for me between the Taliban prisoners and detainees at Guantanamo and the Al-Qaeda detainees and whether or not both should be treated equally in circumstance?

For example, the Taliban, even though they weren't wearing uniforms as per the Geneva conventions, they certainly did belong to a defense force for the government of the day.

We saw in Iraq that Iraqi soldiers, prisoners, were released at the end of the conflict.  Some have been detained for the war on terror purposes, but why should the Taliban detainee [inaudible]?

MR. BERENSON:  There actually is no distinction, legally speaking, between the Taliban militia and the Al-Qaeda terrorists.  Both are clearly unlawful combatants and not POWs.

Part of the premise of your question is that the Taliban was the recognized government of Afghanistan at the time of the conflict.  That is actually not the case.  There were only two countries in the world that recognized the Taliban as the legitimate government of Afghanistan, and both promptly withdrew their recognition after 9/11.

All of the other countries around the world, to the extent they recognized a government in Afghanistan at all, recognized the Northern Alliance whose leader, Masud, was assassinated by Al-Qaeda just, I think, a day or two prior to 9/11.

The other factors, the other requirements that you have to satisfy for POW status clearly were not satisfied by the Taliban who did often attempt to blend into the civilian population, did not bear arms openly, wear insignia, et cetera.

So, while they are closer to legitimate combatants entitled to the privileges of belligerency, they don't get there, and so, legally speaking, they are in the same bucket as the Al-Qaeda folks.

MR.          :  Hi.  My name is Eric.  I am a student at American University, and I am going to actually read my question, just so I get it right.

It is in terms of I am going to try to work in the Saddam Hussein trial with the ideas here, and I say because the United States has decided upon an Iraqi tribunal as opposed to an international tribunal for Saddam Hussein, which in my view was a highly political decision endeavoring to spare the United States some embarrassment, I wanted to know your thoughts about--because the Court, at least today, it is very much believed to be politically motivated in some of its decisions at least, is there any way you believe the Court will decide in favor of the Guantanamo detainees because, conceivably, Saddam would then have access to U.S. courts and, thus, the potential to bring to public conscious the historically hypocritical stance of the United States in Middle Eastern politics, going all the way back to the first George Bush term?

MR. BERENSON:  You are correct that theoretically at least, a decision in favor of the detainees here could produce a case captioned "Hussein vs. Bush," I suppose to go along with "Bush vs. Gore."

Although once there is a hand-over of power in Iraq, the situation could become more complex in terms of whatever rights Hussein would have under a decision rendered in favor of the detainees, but the core of your question, which assumes that the Court is a nakedly political institution, which I certainly don't agree with, there are times when political considerations move, one or another justice can affect an outcome, et cetera, but on the whole, the nine are always trying to get the right answer under the law.

They are human beings.  They are certainly subject to some of these other pressures, but I would not subscribe to the notion that the Court is political in the sense that you describe.

Is there a way they would rule in favor of the detainees?  Yes.  I certainly think that would be the wrong answer under the law, certainly a wrong answer as a practical matter for the country, but I don't think there is anything here that would make it impossible for them as a matter of politics or sympathy to rule in favor of the detainees.

On the other hand, I think the vast majority of the pressure being applied to the Court and being applied to the justices themselves is coming from the detainees' side of this case, the things that Richard was reading and alluding to.

MR. KLINGER:  If I understood the question correctly, it was assuming that the Court is political, would they rule in favor of the detainees in order to give Saddam a platform to criticize the U.S., and if I understood that correctly, the answer is, categorically, no.  I can't imagine any justice motivated in that way.

MS.          :  I was just curious.  This is pretty much geared toward Mr. Berenson.  You so clearly stated that we are in a war, but since it is not the conventional war, like there aren't any territorial boundaries, there doesn't seem to be any time limits, like it doesn't seem like the war on terror, like when is that over, like will there forever be people--hopefully not forever, but you know what I mean.

MR. BERENSON:  Yes.

MS.          :  So, depending on the Court's decision, if they rule in the favor--or the way you wish they would rule, it just seems that it would greatly expand the power of the President for decades, it would seem.  It conceivably could be.

MR. BERENSON:  Yes.  Well, you are right and you are wrong.

You are right in the sense that there are some differences between this conflict and what we traditionally think of as war in the sense that we are not fighting a state party on the other side, we are not fighting for control over a particular territory or governmental institutions.

You are wrong in the sense that the current conflict is not wholly unprecedented.  We fought the Barbary Pirates in the early 1800's, quite an analogous organization to the terrorists that we are fighting now.

A lot of the wars on the western frontier against armed bands of Indians who, under classical international law, were not sovereigns or not nation states and were not in control of particular territory, were also conducted under the rules that I have laid out.  So none is a precise match to the current conflict, but there are instances throughout our history that get a lot closer and which have always been understood to trigger the application of the laws of war.

The other part of your question, when does this end, is obviously a question that is in a lot of people's minds because the rules under the laws of war are that you can hold the people you capture until the end of the conflict.

The short answer to your question is the war is at an end when the President says it is at an end.  If John Kerry were to be elected, for example, I think it is not impossible that the war would be declared at an end within a matter of months of his election, and he would revert to a law enforcement model for dealing with this problem.

The decision when a war begins and ends has always been committed--and the law recognizes this--to the President as commander and chief.  Sometimes it is clear to all the rest of us when a war ends, when you sign instruments of surrender on the deck of a battleship.  Other times, it is far less clear, but it is worth bearing in mind that there is probably no war that we have ever been in where a year or two into it, we could see the end and predict exactly how it would come and when it would come.  It is just an executive determination that has to be made under the facts and circumstances as they develop.

MR. FRUM:  I think we have time for either two short questions or one long one.  There are two hands up.

MS.          :  Hi.  Christina Lowery, Washington Media Associates.

I am wondering if you can go back to the issue of international law/norms and clarify for me where you think our responsibility ends, which laws do we have to follow under international law, and when we start bleeding into "norms" or perhaps "customary international law" that you think we, in fact, are not responsible to uphold.

MR. KLINGER:  Obviously, from my comments, we argued for more of what we view as the traditional classic conception of that, which I would draw the line and that line is drawn on obligations that the U.S. undertakes that bind the United States on a state-to-state basis as a sovereign.  That would be a binding norm, but then a subset of that would be those binding norms that apply or are enforceable in court, and that would require either a self-executing treaty obligation or implementing legislation from Congress.

The second source of binding law would be what I describe as the classic form of customary international law where there would be a consistent practice of states, that they undertake those practices as a reflection of their acknowledgement that they are under a legal obligation to do so, and then, again, that would bind the U.S. as a sovereign, and then further implementing legislation to make that set of rights enforceable in court.

Generally, at least under the traditional view, very, very few of those rights are enforceable in court as a matter of both practice and expressed reservations from treaties or other indicia of customary international law.

It is not just the United States that makes those reservations.  That is a practice of nations because, for some of the reasons that we canvassed, very few states want to say that they need to open their domestic courts to a range of claimants who aren't their citizens or captured and detained in a range of wartime circumstances.

MR. BERENSON:  Just to underscore one point Richard made, there are really two levels of analysis in trying to decide what sources of international law really govern here and that the Supreme Court has to take notice of.  It is what are the binding obligations of the United States under international law, and those are, in essence, treaties that we have signed and these customary international law precepts that Richard alluded to, but then for purposes of this case, you have to do the second level of analysis which is which of those binding norms are enforceable through lawsuits in our courts, which is even a smaller set of norms, because most international obligations just bind states and the states themselves determine how they are to comply with those obligations.

MR. FRUM:  I think that ended up being a long question.  It is 10:30.  Sir, if your question is very short, we can slip it in under the wire.

MR.          :  [Inaudible], Catholic University Law School.

I am following up on your distinction between lawful and unlawful combatant.  Would, say, the French and Polish resistance like in World War II be unlawful combatants or because they were connected with an underground government which had some relation with the allied belligerence which would battle given them some at least theoretical protection under international law?  The Germans are not noted for their respect for international law.

MR. BERENSON:  Yes.  Obviously, as you know, a difficult question under international law; that is, when does a non-state party become legitimate enough to attain the privileges of combatancy?

The short answer in terms of the practice of states, which is what customary international law is derived from, is generally people who become part of a guerilla movement or an underground resistance movement are not accorded lawful combatant status and are often treated very, very badly, very, very summarily, far worse than anything that is being done to the detainees at Guantanamo, but there is a lot of argumentation that I am sure you are familiar with back and forth over that precise question, which is if Al-Qaeda wanted to become a lawful combatant organization, how could it become so, but they are a million miles away right now.

MR. FRUM:  Thank you all.  Thank you for coming.  Thank you, Brad.  Thank you, Richard.

[End of conference.]