The Supreme Court and the Military Detention of U.S. Citizen Enemy Combatants: The Hamdi and Padilla Cases

April 26, 2004

Unedited transcript prepared from a tape recording.

Proceedings:
MR. FRUM:  [In progress] --and it's my pleasure and honor to introduce the second presentation by a new and emerging group, Citizens for the Common Defence, a group of lawyers and legally minded people who have taken it on themselves as citizens to speak up about the principles that they see as undergirding a strong legal approach to the issues of homeland security.

We are hurtling now toward a series of very important legal challenges to some of the actions that the Bush administration has taken since 9/11 to cope with the problem of international terrorism on American soil and against Americans all over the world.  Some of you will recall that we had a meeting here just a couple of months ago, where the first in a series of legal briefs was introduced to a waiting world.  Since then, Citizens for the Common Defence has attracted considerable attention and publicity in the general media, and as these cases come forward, we are going to be hearing more and more from and about Citizens for the Common Defence.

Richard Klingler and Brad Berenson, who were introduced last time, are the group's founders.  I'm happy to introduce as well today Adam Charnes, who is formerly a deputy assistant attorney general in the Office of Legal Policy, who has been very involved with the crafting of this latest brief that is on your seats today.

And I will allow them to take the show, beginning with Brad, then Richard, and then finally Adam.

MR. BERENSON:  Thanks, David.

Welcome to all of you.  This morning we're here to discuss the next iteration in the Supreme Court's consideration of the enemy combatant issues arising out of the war on terror.  The last time, we discussed the Guantanamo case, which involves the detention of alien enemies being held abroad by our military.  The two cases we're here to discuss this morning, Hamdi v. Rumsfeld and Rumsfeld v. Padilla, which are going to be argued at the Supreme Court tomorrow, raise the question of the extent to which our government has the power to seize and hold U.S. citizens here on U.S. soil pursuant to the president's war powers.

We filed a brief, Citizens for the Common Defence filed a brief in the Hamdi case, but included a lengthy footnote in that brief which you have in front of you--I think it's footnote 2--indicating that the arguments we made in the Hamdi case apply equally to the Padilla case.  And so we'll discuss both of those cases here this morning.  For the most part, they raise issues entirely in common.

The game plan for this morning is that I will provide an introduction to these cases to make sure that everybody has a common foundation for understanding them.  I'll describe the facts of each case and something about the procedural history of each case and a quick overview of the arguments that the parties are making.  And then Richard and Adam will explain in greater depth the legal basis for the administration's position and for the position that Citizens for the Common Defence has taken and supported in the Supreme Court.

First, let's discuss the facts of the Hamdi case.  Now, for each of these two cases, I'm going to begin by giving you a conceptual paradigm or hypothetical to think about in understanding what these cases really are.  And the hypothetical, the paradigm for the Hamdi case that I would invite you all to keep in mind as you think about the legal issues is a soldier in the Civil War fighting for the Confederacy, captured during the course of battle, and then imprisoned by the Union.  This is, of course, not a fanciful or farfetched hypothetical.  The Union during the Civil War imprisoned more than 200,000 American citizens in rebellion against the United States.  None of them was regarded as a foreign citizen.  The Union throughout the war regarded them as rebellious U.S. citizens.  And the president, pursuant to his war powers, treated them as he would any other enemy of the United States fighting against our government, and imprisoned them.  They were not charged, they were not given lawyers, for the most part.  They were simply held until the end of the conflict the way you would hold any enemy combatant during the course of war.

That is essentially the case of Yaser Esam Hamdi.  Hamdi is a U.S. citizen essentially by accident of birth.  He lived in Louisiana for the first couple of years of his life because his father was working oil services business down there, but, apart from having been born here, essentially had no meaningful ties to the U.S.  He is in fact a Saudi national.  He was captured in Afghanistan, carrying a Kalashnikov rifle, with a Taliban unit.  He was captured by the Northern Alliance on an active battlefield, turned over to the United States, and then held by us as an enemy combatant.

The classification process, the process by which it was determined that Hamdi was an enemy combatant and then ultimately was sent to Guantanamo as one of the more high-value or significant enemy combatants that we detained, was essentially the same process that we described during the last briefing by which all of the Guantanamo detainees got to Guantanamo.  There was a field assessment by the soldiers who captured him.  There was then a screening team at a Central Operations area in Afghanistan, composed of officers and lawyers attempting to determine what kind of a threat he posed and what kind of intelligence value he had.  A general officer of the United States military had to sign off on the recommendation that he be sent to Guantanamo.  And in addition, there was review here in Washington at the Department of Defense.

Hamdi was, through this process, classified as an individual of potentially high value to us as an enemy combatant, particularly for intelligence purposes.  Even though he essentially appeared to us as an ordinary footsoldier fighting for the Taliban militia, I think probably the fact of his Saudi citizenship marked him as a foreign-born jihadi and someone who may well know much more about the militant Islamist groups operating in Saudi Arabia and elsewhere that were providing fighters to support the Taliban and to fight against us.  So in April of 2002, pursuant to this process, Hamdi was transferred to the Charleston naval brig.

Padilla's case is quite different.  Unlike Hamdi, who is essentially a traditional battlefield detainee-- oh, actually, I should point out that Hamdi was transferred from Guantanamo to the Charleston naval brig in April 2002 because, at that time, the United States discovered the fact of his U.S. citizenship.  That's what prompted his transfer into military custody here in the continental United States.

Unlike Hamdi, who was a traditional battlefield detainee, Padilla is really the individual that most clearly crystallizes and focuses for us the issues that look or feel somewhat different or somewhat new in this war.  Padilla is essentially an al Qaeda terrorist who was traveling clandestinely to the United States for the purposes of planning and carrying out a mass casualty attack here in the United States.  He was arrested in Chicago O'Hare Airport as he got off an airplane from Switzerland.

The facts of his life, in brief, are these:  As a juvenile, he was convicted of participation in a murder and spent several years in prison.  In 1991, after getting out of prison, he moved to Florida.  He ended up in jail again after firing a gun in the context of a traffic dispute and then assaulting a prison guard in the course of his confinement.  After getting out of prison at that point, he converted to Islam in 1994, and, over the ensuring years, became progressively more interested and progressively more devout, and sojourned to the Middle East in 1998, leaving an American wife behind.  He lived in Egypt for a number of years, and between 1998 and the time of his capture in 2002, traveled extensively in Yemen, Saudi Arabia, Pakistan, and Afghanistan as well.

During the years 2001 and 2002, he became closely associated with al Qaeda, met some of al Qaeda's senior leadership, and discussed with them specifically certain types of attacks that he might help plan and carry out against the United States.  It is safe to assume, although I'm not certain that we know this or that this has become public, that his access to the top leadership of al Qaeda--including Abu Zubaida, who was their operational leader, one of the men most responsible for planning al Qaeda's most spectacular attacks--was made available to him largely because of his American citizenship.  For obvious reasons, an American citizen, even before the Supreme Court tackles the questions before it this week, is of considerable value to al Qaeda because of freedom of movement, freedom of travel in the United States, less likely to raise an eyebrow or suspicion or additional scrutiny.

In particular, what Padilla was planning with Abu Zubaida was a dirty bomb attack on a major American city.  He expressed his interest in 2001 to Abu Zubaida, and Zubaida resolved to get him the necessary training to help carry out that kind of attack on an American city.  So in 2002, he received explosives training from al Qaeda at a safe house in Lahore, Pakistan.  He then returned to the United States in May 2002 via a circuitous route through Switzerland for the purpose of scouting out potential targets for a dirty bomb attack or other kinds of bombings in the United States.

On the plane with him from Switzerland to Chicago O'Hare were federal agents, and there was considerable debate about whether he should be arrested as soon as he landed on U.S. soil or whether they should attempt to follow him, and he was considered so dangerous that even a slight risk of losing him after he arrived on U.S. soil was deemed by the administration unacceptable and he was arrested essentially upon landing at Chicago O'Hare Airport.

Now, the process by which he was classified as an enemy combatant is actually quite different from Hamdi because, again, unlike Hamdi he was not a traditional battlefield detainee.  There was a very, very careful process inside the government using lawyers and teams of specialists in several different parts of the executive branch.  The president issued an order--this process, which I'll describe in a little more detail in just a second, culminated in an order by the president in June of 2002, about a month after he'd been arrested, classifying him as an enemy combatant, ordering him transferred into military custody, and the findings made by the president, in writing, bear reading quickly.

He found that Padilla was closely associated with al Qaeda, an international terrorist organization with which the United States is at war; that he has engaged in conduct that constituted hostile and warlike acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States.  In addition, the president found that he possesses intelligence, including intelligence about personnel and activities of al Qaeda that, if communicated to the U.S., would aid U.S. efforts to prevent further attacks by al Qaeda.  And the president specifically found that Mr. Padilla represents a continuing, present, and grave danger to the national security of the United States and that his detention as an enemy combatant is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or our citizens.  Those are all specific written findings made by the president in the order transferring Padilla to military custody.

Well, how did the president get there?  A lot of the administration's critics would have you believe that people like Mr. Padilla are essentially subject to presidential whim--if the president reads an editorial he doesn't like in the Des Moines Register, he can simply decide that the author of that editorial is an enemy of the United States and have him locked up, and this is the specter we all face.  In fact, as the more sensible among us probably recognize, nothing could be further from the truth.  Initially, the Office of Legal Counsel makes a legal determination under a standard articulated by the Supreme Court that the person in question satisfies the applicable legal standard for enemy combatancy.

Another canard being peddled by people who are opposed to what the administration is doing is that the term "enemy combatant" or "enemy belligerent" was simply made up, it has no foundation in law and no content other than what the president wishes to give it.  Again, not true.  I will quote for you from the Supreme Court's decision in Ex parte Quirin.  The decision says:  "Citizens"--note that here they are talking about U.S. citizens--"Citizens who associate themselves with the military arm of the enemy government and with its aid, guidance, and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the law of war."

So the Department of Justice initially evaluates whether these people have affiliated themselves with our enemies and, with the aid, guidance, and direction of our enemies, enter this country with the intent to commit hostile acts.  That is the legal standard.  The Office of Legal Counsel opines on this.  The CIA makes a full assessment of all intelligence it has about this person and forwards a recommendation to the secretary of defense.  The secretary of defense supplements that with the information available through the Defense Intelligence Agency and the defense intelligence establishment.  The secretary of defense then makes an assessment and formulates a recommendation whether this person should be held as an enemy combatant and requests a formal legal opinion from the attorney general of the United States both with respect to the legality of military detention of this citizen and a policy recommendation.

The attorney general then furnishes those with the assistance of the Criminal Division, the Office of Legal Counsel, and the FBI, which adds to the mix everything it knows about this person, and the secretary of defense forwards the package, an extensive package, with his recommendation to the White House for the president's consideration and signature.  The president then reviews all of this with his counsel, makes a decision, and makes a formal written finding--obviously a very elaborate, very careful process.  And to believe that the process is corrupted or arbitrary, you would have to believe that a very wide range of people in a wide range of parts of the government were venal or arbitrary or ignorant.

Let me then give you a quick overview of the legal issues in the case and then turn it over to Richard for a much more in-depth discussion of the position that we believe is the correct one.

Basically, these two cases, Hamdi and Padilla, raise three questions for the Supreme Court's consideration.  The first is the question of the president's constitutional authority to detain U.S. citizens in time of war who he believes are enemy combatants fighting against us, whether the Constitution itself, through Article II and the president's powers as commander in chief, gives the president the authority to order detentions of this kind.

The second question is whether, assuming there is not such inherent constitutional authority in the president as commander in chief, Congress has authorized these detentions in the war in terrorism, based upon a couple of different statutes, which, again, Richard will discuss at greater length.

So presidential authority, statutory authority from Congress, and then the third question is the scope and content of habeas corpus review.  A very important point to understand here is that, from the start, unlike the Guantanamo detainees, who are foreign enemy fighters being held abroad, the administration has acknowledged that there is judicial review for any U.S. citizen who's determined to be an enemy combatant and held by the military as such.  There are, however, difficult and important questions of what that judicial review consists of.

The implication of the first two questions, presidential authority and statutory authority, in practical terms, is whether U.S. citizens are essentially exempt from military detention and can only be treated by the criminal law enforcement system.  If people like Jose Padilla cannot be held by the military, then there is no practical alternative to arresting them, giving them Miranda warnings, right to counsel, and charging them in a criminal court if possible--which, in many cases, it really will not be possible to do because the information about people like Mr. Padilla comes from sensitive intelligence sources that either don't constitute competent evidence in a court of law or that the executive branch can't divulge for fear of jeopardizing the larger national security interests of the United States.

So very important practical implications turn on the question whether it is possible to treat a man like Padilla as an enemy combatant and hold him militarily.  The Fourth Circuit held that there is authority, that the president does have inherent authority to hold U.S. citizens as an enemy combatant.  The Second Circuit disagreed and said, without a statute, the president does not have authority to do this.  And the Second Circuit, up in New York, went on to conclude that the congressional resolution authorizing the use of military force against al Qaeda was not sufficient to confer on the president the power to hold people like Padilla.

The implication of the process question is no less significant.  Even assuming that the Supreme Court finds that there is authority to detain U.S. citizens militarily, they have to decide what the habeas corpus proceedings will consist of.  For those of you who don't know, a habeas corpus proceeding is a proceeding by which someone who is being held in federal custody comes to federal court, a federal judge issues a writ which essentially says habeas corpus--produce the body, the prisoner is brought before the court, and a judge is permitted to pass on the lawfulness of that custody or that detention.  So if you're held by the United States outside the context of war and you're a U.S. citizen, say a criminal, and you've been confined, you have the right to come into court and challenge the lawfulness of your detention.

As noted, the Bush administration has acknowledged that all U.S. citizens have this right even in the context of war, but the administration takes the position that these habeas corpus proceedings are not full-blown trial-type proceedings where the detainee himself comes into court and, with the assistance of a lawyer, challenges the U.S. government's evidence, cross-examines, does all of the things that are familiar to people when you're thinking about a criminal trial.  Instead, what the administration says is habeas corpus proceedings in this context are simply a check on executive arbitrariness.  The executive has an obligation to come in and show a federal judge what evidence it used to make the enemy combatant determination so the judge can satisfy him- or herself that the detention was not arbitrary and that the government had evidence on which a reasonable person could base this determination.  The judge is not, in the government's view, making a de novo determination, a new determination of whether the person is or is not an enemy combatant.  Consistent with the separation of powers, he is just saying whether or not the government, with due deference to its primacy in matters of military and international and national security affairs, could have made that determination.

What hinges on this is essentially our ability to gather intelligence from our adversaries in this war.  Because if a person who is detained must be outfitted with a lawyer and allowed to conduct an adversary habeas corpus proceeding, in addition to the practical burdens that would be imposed on the military in trying to bring evidence into court for cross-examination to justify the detention, you would have the detainee shutting down all interrogation.  Because the minute a person has access to a lawyer and knows that there's a court proceeding on his behalf, the odds of his continuing to divulge useful intelligence reduce almost to the vanishing point.  And given how vital intelligence is to our war effort, that is indeed a very, very high price to pay for fuller habeas corpus proceedings of the kind that the detainees are seeking.

It is important to note that the habeas corpus proceedings that have been conducted in Hamdi and Padilla, where the administration has proceeded according to the ground rules it acknowledges are proper, have involved the submission of sworn written evidence by senior officials of the executive branch laying out the facts about Hamdi and Padilla as I related them to you at the beginning of this presentation.  So this is not a case where an appropriate rejoinder is, well, you say that about Padilla, but how do we know?  Well, we know because there's sworn testimony submitted under penalty of perjury by an executive branch official laying out the facts.

And with that, I'll turn it over to Richard to explain a little more fully the legal back-and-forth and the argument that the administration and we make in these cases.

MR. KLINGLER:  Thanks, Brad.

I do think initially it's useful to distinguish two issues.  One is the first cluster of issues that Brad addressed about the executive's power to detain at all in the context of addressing people the executive believes to be enemy combatants in a war context, and distinguish that from what I think is actually a harder issue, which Adam will address--and that's why Adam's addressing it--that in fact there needs to be a set of process and standards of proof, and what standards and process are applicable once that detention is challenged in court--as, as Brad has emphasized, the U.S. concedes is appropriate for U.S. citizens.

In some ways the detention issue, the first issue is one that has generated a lot of the heat in this dispute.  It's the one that shocks the conscience, to a certain extent; or certainly it shocks the conscience of the parties who have weighed in on the side of the detainees.  And I think that that can be explained in large part as a vast collision between two cultures in this.  One is a culture of law enforcement and the checks and balances on executive power that attend law enforcement issues, and the other is the absence of those checks and balances in the conduct of war.  And depending on where you start, you might well end up in different positions.

I think it's at least useful to go through the criminal enforcement outlook and to acknowledge that it's there as the backdrop to the discussion about the military powers.  I think that outlook is animated by very powerful and legitimate concerns and images.  You know, it harks back to the internment of U.S. citizens of Japanese descent in World War II, some of the actual and perceived abuses by the CIA that were canvassed by the Church Report, the ongoing acknowledgement that the judiciary often is a bulwark against abuses by the executive, and the importance over literally centuries of the writ of habeas corpus in serving to discharge that function.

I think that view is captured in part by one of the Supreme Court justices' comments in an opinion that executive power to detain is the hallmark of an authoritarian state.  And the imagery of authoritarian action is what generates the desire to have an executive action through a criminal enforcement process.

I would highlight for you one brief that was filed that exemplifies that point of view.  That was an amicus brief filed on behalf of former Attorney General Janet Reno and two of her then deputies.  Those of you who were following the controversy surrounding Jamie Gorelik's role, those two deputies were her predecessor and her successor.  They argue that, really, the Bush administration's position goes way over the line, that there are ample opportunities to arrest, prosecute, investigate within the normal contours of the FBI's and, to a certain extent, the CIA's power, but that that's essentially a criminal model.

Now, I think the short answer to that outlook is that nobody believes it.  Absolutely nobody.  As you go through the briefs on the other side, each and every brief acknowledges that in some circumstances the executive does have power to detain.  Some of the briefs limit it to a zone of combat, others to a formally declared and prosecuted war.  And even those briefs would acknowledge that Afghanistan largely meets those circumstances.

So the debate is when rather than whether.  If we could go through some of the arguments that the government is pressing, I think that the extent of those, again, will show where the criminal law enforcement process ends and an outlook that views this as an actual war conducted against belligerents who are at war with us, even if they happen to be U.S. citizens, that the war model and the executive powers attending that are the appropriate ones.

That view starts with the role of the commander in chief in prosecuting the war powers to discharge the constitutional obligation to protect and defend the United States.  And that is not just to respond to an attack, but it's to preempt an attack as well.  In the traditional war context of battleships and armed airplanes, that has always been understood.  The ability to take vigorous action against enemy combatants is something that's inherent in the war power.  Someone who takes up arms or causes through arms harm against the United States and its citizens is something that, until this set of cases, had been an undisputed part of the president's ability to wage war against an enemy.  And the president had, until this set of cases, been viewed as having the discretion to determine what means are available to prosecute war, and that discretion was to be largely executed without judicial oversight and second-guessing.

The tension incident to that prosecution of the war power is something also that had been viewed actually as incident to the president's ability and the military's ability to conduct war.  It would be an odd and perverse result if the military is enabled to shoot Hamdi in the battlefield, but would be prohibited from declining to shoot him but instead to capture and detain him.  In fact, the incentives that that would create would be unfortunate for the Hamdis of the world as well as for the United States.

The issue in terms of enemy combatants comes down in part to the relevance of citizens as enemy combatants.  If the president can, as the president, conduct war against enemy belligerents, does the fact that those enemy belligerents have a status as U.S. citizens make a difference?  And as Brad took you through some of the Civil War precedent and elsewhere, for the power to detain, the answer's been no.  The answer was no in the civil war.  And the leading case in the area addresses a U.S. citizen who was essentially a German spy operating for the Germans.  Landed in the U.S. to undertake activities against the United States here.  And the Supreme Court upheld the treatment by the president of both the non-citizens and the citizens of the United States on equal basis in Ex parte Quirin.

Now, against that, going back to the criminal enforcement mode, once you step outside of enemy combatants, people who are at war either directly or through their association with organizations at war with the United States, when you just take it out of that context, then there are precedents--and Ex parte McMillan is the leading one that the detainees' counsel relies on--that indicate that generally, when the courts are open in the United States, that U.S. citizens do have access to courts.  And later cases have distinguished that as not applying to those persons who are directly associated with or active members of those parties waging war on the United States.

One point of conflict between the two sides is when the zone of combat ends.  As I said, even the supporters of the detainees admit that in the zone of combat, the executive has unfettered discretion to fight against and -- detain enemy combatants.  But one of the arguments that is used against the government is that surely these cases don't involve the zone of combat--or at least, once Hamdi was removed from a zone of combat in Afghanistan, the presidential power ceased.

I suppose that that line of argument shows that there is a bit of line-drawing that is at issue for the parties who are arguing against the government.  The government, in contrast, has, I think, an argument that cuts across fine distinctions like that.  Their argument isn't a line-drawing.  They say that the nature of this conflict, the nature of the war that we're engaged against, isn't a traditional one denominated by battlefield zones and traditional battlefield arrays.  There's no zone of combat that stops and ends in a war on terrorism.  And in fact, if you look at the United States, to the extent that petitioners say that that's not the zone of combat, that surely New York or the D.C. area can't be part of a zone of combat, that the images of September 11th provide, I think, a profound rejoinder to that.  And as even the briefs in support of a criminal enforcement model demonstrate, and in fact demonstrate at considerable length, there have been plots against a whole range of cities in the United States that have neared fruition but have been stopped by the government.  They're not limited even to some of the national landmarks or major cities on the East Coast.

The other issue that petitioners raise, apart from a zone of combat constraint on inherent executive power, is the relevance of congressional action.  And here, as Brad outlined, there are two steps.  One is, if Congress hadn't spoken at all, what would the executive's power be?  And to the extent that the detention power would be incident to a war-making power and the president has undoubted power to respond to attack and preempt imminent attack absent congressional authorization, the government's position is both coherent and largely unanswered by petitioners.  The question is largely then a matter of degree--when and in what circumstances.  The broadest position is that once you're removed from that absolute zone of combat, then congressional authorization is necessary.

But here it's unlikely that the Court will reach the issue in the abstract, because there has been in fact legislation passed.  And there's legislation that each side can point to.  The congressional authorization of force in the wake of September 11th is the principal congressional action that the government relies upon.  Though remember, the government has a two-step theory.  They don't believe that congressional authorization is required, but to the extent it is, Congress's direction to the executive to take all necessary and appropriate force against those responsible for the attacks of September 11th and like actions, and their associates, and to prevent future acts of terrorism, to the government's reading and in their arguments is as clear as would be necessary for the government to take all actions necessary, including the usual one of detaining enemy combatants, interrogating them, and ensuring that they remain in detention rather than to return to the field of battle during a war, however that field might be defined.

The other side points to a statute that followed from the Church Commission proceedings whereby Congress amended a portion of the criminal code which is directed to civilian authorities, and that provides in quite broad terms that no citizen shall be imprisoned or otherwise detained except pursuant to an act of Congress.  The government, in turn, has several ways of interpreting, and the courts that have upheld the government's power address this in several ways.

One is to say that this is, as I said, a criminal code that applies to civilian authorities.  Congress didn't intend and, in the context of its passage, couldn't have intended this to apply to traditional military action.  A second is that there's no indication that Congress was overruling the cases that had addressed military action and upheld the executive's determinations that enemy combatants should be detained and interrogated and prevented from returning to the field of combat.  And even the detainee lawyers admit that the legislative authority they're relying on wouldn't extend to the zone of combat.

I suppose the government's last argument in this respect is that there would be a quite profound separation-of-powers concern if in fact the Congress purported to impede or second-guess the traditional exercise of war powers.  And the Court's response when that specter is raised is that where there's ambiguity, generally statutes are construed not to force the Congress and the executive into an artificial conflict where there's a ready resolution of an apparent conflict in the midst of ambiguity.  And here, the government argues with some force, and we argue, that in fact there's an easy way to understand the statute that was passed by Congress:  it is subject to any other carve-out or any other authorization that is provided by Congress and--going back to the original point--the authorization of force in some related spending measures that authorized the military to treat prisoners of war and others as they would in a military context provide exactly the act-of-Congress authorization that even the limiting statute contemplates.

And I suppose, at the end of the day, there is no legal compulsion for either one of these arguments.  And if I could go back to the two outlooks, that if you are reasoning, if one is reasoning, the judge is reasoning purely within a criminal enforcement mode, there are ways that you could, with some justice, distinguish the cases in the military context and rely upon cases that arise in the criminal enforcement context, and reach a particular result.  Someone who reaches those results isn't necessarily acting in bad faith or contrary to the law, and the same should be admitted, and I hope that the petitioners' counsel, or the counsel for the detainees, would admit that for the government's side, too, that if in fact you believe that what's at issue is the conduct of war and war powers of the president, there are exceptionally strong precedents and strong congressional action backing that, that support the outcome that the government's advocating and support the treatment of both Hamdi and Padilla in the current cases.

And that's why, at the end of the day, once you accept that, the harder issue, which Adam will address, is if the government can detain in the context of war an enemy combatant even if they're a U.S. citizen, what then of the risk of error, and what types of proof are necessary to ensure that the government has acted correctly and that the detention properly continues?

With that, I'll turn to Adam.

MR. CHARNES:  Thanks, Richard.

As Richard says, if the Court agrees with the government that the military has the power to detain Hamdi and Padilla, it must address the procedures that are required by the due process clause.  In other words, what opportunities do the detainees have to challenge their detention and what are the boundaries of those procedures?  In this regard it's important to define exactly what the detainees would have the right to try and prove in court.  Their briefs are notably relatively silent on the question of procedures.  Both briefs, but in particular Hamdi's brief, spend almost all of their time talking about the government's authority to detain and very little on the scope and form of the procedures that would follow.

As Richard and Brad talked about, in order to get to this question, the Court must have concluded that the Constitution permits the detention.  And the laws of war also permit the detention.  It of course contemplates that the Geneva Conventions allow a prisoner of war or other enemy soldier to be detained at least until the end of the war.  And the key linchpin to both of these sources of law is that the person was in fact an enemy belligerent or an enemy combatant or an enemy soldier, or whatever term you want to use.

So in essence, if Hamdi and Padilla actually got a more fulsome hearing in court, the purpose of that hearing would be to prove that they were not a belligerent.  That's important, because neither one, of course, has been charged with a crime.  At one point, Hamdi's brief talks about the ability to prove that he's innocent.  But that just reflects a fundamental misunderstanding of what the procedures would be.  The government has no burden to prove that he's guilty of a crime, and he has no opportunity to prove that he's innocent of such.  The key issue will be whether he was an enemy belligerent under the laws of war.

Due process, which is the essential test the Court would apply, is, in a long string of dozens or hundreds of Supreme Court cases over the last few decades, been established as a flexible test in which the Court applies essentially a balancing test, considering several different factors to determine, in any given situation, what procedures a citizen is required to be provided before the government can deprive him of life, liberty, or property.  Among other things, the Court has held that the courts will review the interests of the claimant, the interests of the government, the risks of erroneous government decision making, how additional procedures in court will minimize, if at all, error by the government, and any negative effects of additional government procedures.  So in a situation where judicial review or extensive judicial review has only a marginal impact on reducing government error, it imposes a great burden on the government, the Court has held that only minimal procedures are required.

To take a couple of related examples, before the government can jail you in prison for a crime that you've committed, you're entitled to extensive procedures.  You're entitled to a full trial on the merits in court, under appropriate rules of evidence and with access to a lawyer.  In fact, under other constitutional provisions, you're entitled to a lawyer to be appointed for you if you can't afford it, and so forth.  On the other hand, in order for the government to jail you pending trial and deny you bail, many fewer procedures are required.  You're not entitled to a full trial on whether you're guilty of the ultimate crime, or an evidentiary hearing, before you're denied bail.

What we have argued is that the procedures already provided to Hamdi and Padilla are sufficient to meet the due process requirements.  With respect to Hamdi, what we've argued is that the declaration that the government has submitted--it's referred to in the brief as the Mobb's declaration, for the name of the Defense Department official who executed it--a declaration is essentially the same as an affidavit, a document under oath--what we have argued is that when a detainee is captured on a foreign battlefield, that the government satisfies due process by submitting a sworn statement to the court explaining in detail the circumstances of the detainee's capture and the basis for the military's professional judgment that he was an enemy belligerent.  Essentially, the circumstances of the capture almost prove the reasonableness of the military's decision.  The fact that the person was captured with a rifle in a military unit of our enemy's on a foreign battlefield is enough assurance against government arbitrariness or error, that further judicial review is unnecessary.

With respect to Padilla, the situation is a little bit different, and our brief argues in Footnote 2 that because he was captured within the continental United States, he was not holding a military weapon in a military formation, that the government is required to provide somewhat greater information and evidence with respect to his nefarious conduct.  And in fact, if you compare the Mobb's declaration submitted in Padilla with that in Hamdi, the Padilla declaration is much more detailed, and the procedures of review provided--internal within the executive branch provided in Padilla's case were much more extensive than with Hamdi.

And it's the government's view, and our brief argues and agrees with this, that these standards provide the appropriate level of judicial review to prevent arbitrary government action while allowing the military to prosecute the war and defend the country without undue judicial interference.

In actually applying the due process standard, which I'll run through briefly, it's important to note that this is the military context.  That's different from the other contexts where the court applies due process.  What the Padilla and the Hamdi briefs argue, and their amici argue, is they rely essentially on cases arising in the criminal justice context in this country and in similar contexts, for example, when the government takes someone's property.  The reason those cases don't really speak very well to this context is that destruction of the property of innocents and, unfortunately, the killing and injuring of innocent people is inherent in war.  We all know that when the government bombs and enemy city, even if it doesn't intend to kill innocents and damage their property, it's inevitable that it will.

And that's quite different than a domestic context.  The government does not intend to lock up innocent people, it does not intend to seize the property, for example, a criminal forfeiture, of innocent people, or innocent property.  But in war, that's inevitable.  And application of the domestic civil or criminal precedents to wartime simply is nonsensical.  I mean, you can imagine, for example, if the due process clause applied to a bomber pilot's decision to drop a bomb, and if he or she was subject in any way to normal domestic due process constraints with respect to the destruction of property or the injuring or death of innocent people.

We argue, essentially, that precedent and history is inconsistent with a full trial-type hearing in federal court, with access to counsel, and that the practical consequences of providing a full-trial hearing and counsel mandate that the court not provide that.  And just to run through those factors briefly:

With respect to a precedent in history, no court has ever held that a citizen detained as an enemy combatant is entitled to a judicial hearing to decide whether he was in fact a belligerent or was just an innocent aid worker--in the case of Hamdi's allegations--or an innocent citizen mistakenly in the wrong place at the wrong time on a foreign or domestic battlefield.  There are no cases, for example, arising from the Civil War in which Confederate soldiers sued in court to say, hey, I wasn't a solider, I was just walking through my cotton field and was picked up by Union soldiers.

In fact, there are only a few cases dealing with U.S. citizens detained as enemy combatants.  In one of them, a Tenth Circuit case from 1956, the Tenth Circuit Court of Appeals explicitly held, in a case of an American citizen who was convicted in a military commission for spying for Germany during World War II, the question of whether he was a belligerent or not was not within the court's review.

Second, and importantly, the laws of war provide no forum, no forum for somebody captured by the enemy to challenge the enemy's decision that he is a belligerent.  Now, a lot of the briefs talk about the right under the Third Geneva Convention, Article 5, for someone captured to have a competent tribunal to determine whether he is entitled to prisoner of war status.  But Article 5 really has no role in this case, because whether someone is entitled to POW status--and there's been a lot of talk about whether the Guantanamo Bay detainees, for example, should be treated as POWs--whether they're a POW or not, the laws of war in the Geneva Conventions entitle you to be held.  The POW status goes to the conditions of your confinement, not whether you should be held.  And interestingly, Article 5 [change tape]-- easier for somebody to claim [inaudible] hearing in which they can litigate -- before the opposing military whether they are a belligerent.  Whether somebody is an enemy belligerent is essentially delegated to the capturing military in an unreviewable fashion.

It's important to note that the Geneva Conventions were enacted, written in 1948, just a few years, a very few years after World War II, after, obviously, an experience where literally millions of enemy soldiers were held as prisoners of war, sometimes year after year after year, and the governments that wrote and enacted the Geneva Conventions were very familiar, therefore, with all the permutations of issues that could arise.  And after that considered judgment, they decided that there should be no forum for someone to challenge whether or not they were a belligerent.

Third, we also argue that separation of powers principles require the courts essentially to step back and defer in a significant way to the military.  And this is consistent with Supreme Court precedent in the -- [loss of sound] -- courts martial to determine whether the military court "dealt fairly and accurately" with the defendant's claim.  It's an extremely deferential review.

Similarly, a number of cases principally arising from World War II and controlling thereafter, when we had a draft, dealing with military induction orders.  And what the court held, in a series of cases, is that a civilian court reviewing the case on habeas corpus can only order a U.S. citizen inducted into the military--can only review that induction order and order the person released from military service if there was no evidence at all supporting the military's decision that the person was subject to the draft and was properly drafted.

In both of the contexts the Court adopted a very deferential standard notwithstanding the fact that what the military did to these people was a severe deprivation of their liberty.  In one case, in the courts martial case, jailing them in the military induction case, holding them as a servicemember for at least several years and in fact essentially putting them at risk for loss of life or limb.

We also argue that the Court should not permit a full trial-type hearing for the additional reason that it would severely interfere with national security, for a couple of related reasons.  First, courts are simply ill-equipped to review the military's battlefield decision that somebody is an enemy belligerents or the intelligence service's, essentially an intelligence decision that someone was engaged in international terrorism, in the case of Padilla.

Take Hamdi as an example.  In Hamdi's case, all the witnesses and all the evidence are thousands of miles away on a foreign battlefield.  If the Court really were going to have a trial-type hearing in federal court, literally, soldiers would have to be taken off a foreign battlefield, flown thousands of miles to the United States to testify in federal court.  And that even understates the problem, because in Hamdi's case, as Brad said, Hamdi was actually captured by our allies in the Northern Alliance.  It is unlikely, to say the least, that soldiers of the Northern Alliance or within the subpoena power of a federal court or even could be compelled by the United States military to fly back to the United States to testify.

Just as importantly, unlike neighborhood police officers, who are trained in the rules of evidence--they're trained to preserve evidence, to preserve witness statements in a way that they can be introduced a year or two later in a court--soldiers don't have that training.  You know, they're literally on a battlefield with bullets flying by, and they don't have the same ability to maintain records and information in a way it could be introduced in court under the Federal Rules of Evidence.  And if they were required prospectively to do so, it would severely hamper military effectiveness.

In the case of Padilla, the government would be required in a full trial-type hearing to produce highly sensitive classified information, which I think they would not do, and they'd be put, therefore, in the Hobson's choice of risking revealing sources and methods of intelligence that could damage national security, or letting a very dangerous international terrorist go free.

A lot of the heat generated from these cases has to do with the access to counsel.  As you probably know, both detainees have now been provided access to counsel, and in fact, notably, despite the fact that they were provided counsel several months ago, no new information has come to light.  There have been no submissions in any court by their counsel of new information justifying their legal argument that they should be set free, as they weren't belligerents.

The reason that counsel cannot be provided is really twofold.  First of all, no person detained as an enemy belligerent in war has ever been provided counsel.  The Geneva Conventions do not permit that.  The only time you're entitled under the laws of war to be provided counsel is when you're charged with a war crime.  That's why the detainees in the Quirin case and a bunch of other cases--the Yamashita case coming out of World War II--were provided counsel, because they were charged with war crimes.  In fact, President Bush's order for military commissions with respect to non-citizens provides that, once they're charged with violations of the laws of war, they are provided with counsel, and in fact several Guantanamo Bay detainees who have been--the government has indicated there will be military commissions, they have been provided counsel.

It doesn't take a far-fetched hypothetical to think about how providing counsel could interfere with national security and battlefield actions.  It goes without saying that the first piece of advice a lawyer would give upon seeing Hamdi or Padilla is don't talk to the government.  Interrogation, however, is essential to national security.  In fact, the Geneva Conventions explicitly contemplate that detained enemy fighters will be interrogated.  Interrogation of prisoners of war and other detainees is commonplace in war, it happened in both World War I and World War II extensively.  In fact, a number of commentators on World War II have said that intelligence gathered from captured enemy soldiers was critical to the war effort and a disruption of that interrogation process that counsel would cause would be intolerable.

As would the results on the battlefield.  The fact of the matter is there's no doubt that when Hamdi was initially captured, nobody knew that he was a U.S. citizen.  He looked and appeared indistinguishable from the mass of other detainees.  There's also a risk that if counsel were required to be provided to U.S. citizens on a foreign battlefield, that our enemy--which is very sophisticated, reads the Internet, would no doubt know about the Supreme Court decision--our enemy would actually advise their soldiers to incorrectly claim U.S. citizenship upon detention.  That would entitle them, perhaps, to receive Miranda warnings on a foreign battlefield in Iraq or in Afghanistan; it would require the military to maintain records sufficient to be introduced in federal court under the rules of evidence; and it would really divert our overseas military efforts from fighting the war and saving lives to something else.

In sum, we and the government do not dispute that U.S. citizens detained as enemy combatants or enemy belligerents are entitled to some procedures in federal court.  The Constitution clearly requires that, constitutional history requires that, and efforts, important efforts to make sure the government doesn't act arbitrarily and doesn't oppress the American people requires some access to federal court.  But that access does not require a full trial-type hearing when a trial-type hearing is unnecessary to guarantee that there is no arbitrariness and would severely impact national security, as we and the government argue it would in this case.

MR. FRUM:  Thank you, Adam.

There is time for questions, and I hope you will all avail yourselves of that.  Please introduce yourself by name and affiliation when you rise.  Andrew Kelly here will pass around microphones.   Go ahead, sir.

QUESTION:  Hi, I'm Tom Curry.  I'm with MSNBC.

It seems to me, if you look at the Quirin case, it's kind of a lucky break for the Bush administration in this instance that two of those Nazi saboteurs were U.S. citizens, because that makes the case apply to this case.  And I'm wondering, if the Court looks at the Quirin case and looks at the due process that was provided to the people in that case, and they were provided with much more due process than Padilla or Hamdi have been so far.  There was a tribunal, there was something like a trial.  Their lawyers defended them very capably, fought it all the way to the Supreme Court.  And, I mean, Padilla could say, look, you've held me--and he is saying, you've held me for two years.  The Nazi saboteurs landed on June the 13th, the tribunal began on July 8th, and they were convicted on August 8th or something like that.  So there was speedy trial, there was due process, and there was a full hearing with very competent counsel who could challenge some of the government's assertions about these people.

The other thing I wanted to ask about, in Padilla's case--in the Nazi case, a box of explosives found and two of them confessed and gave away the whole conspiracy.  In Padilla's case, do we have a box of explosives or any tangible evidence?

MR. BERENSON:  Why don't I take the second part of the question first.  The government filed a Mobb's declaration in the Padilla case which laid out under oath the nature of the evidence that it had, which was as I described.  The actual sources of that evidence are not revealed version of the Mobb's declaration.  There is also a classified version of the declaration which was filed with the court and was available for examination by the judges.  Presumably, that classified declaration will identify with greater specificity how we know what we know.  Certainly, as Padilla came into O'Hare Airport, he did not have a box of explosives with him or any other visible weapon, at least so far as I know.  But I do believe that top-level al Qaeda leaders that we have captured and interrogated and have in custody elsewhere have identified Padilla as the individual with whom they had these discussions and with whom they planned these attacks, and I suspect there's more detail even in the classified version of the declaration.

With respect to your first point, it is certainly true that you can distinguish Quirin on its facts because it took place after there had been a trial before a military commission.  But legally speaking, the key point of Quirin, and the reason that the government relies on it, is that Quirin validated the general proposition that you could treat a U.S. citizen under military law.  Under military law, you have a couple of options.  You certainly can charge a citizen with a war crime, as happened in Quirin, but you don't have to.  You can also hold a person under the laws simply as a detainee, as a combatant, as happens with most ordinary POWs--hold them, interrogate them, keep them out of the fight until the end of the war.

There does seem to be this pervasive assumption that somehow these detainees would be much better off if the government charged them with war crimes and gave them "an opportunity" to prove their innocence.  And in that regard, I would note that within three months of being captured, most of the Quirin saboteurs were dead.  They had been executed and punished for their war crimes.

So generally it is not thought that a person is better off by virtue of being charged with a crime and having the government seek to punish him.  You're generally better off being held as a normal enemy combatant, which then obliges the government to release you at the end of the conflict.

QUESTION:  I'm Bob Feinberg, a consultant who's been wallowing in the Patriot Act.  First, I want to say to David that we're fortunate that Padilla didn't decide to fly to Canada instead of obliging us by going directly to O'Hare.  He would have had a lot of options if he had gone to Canada.

I think the main issue in Padilla--I think the Hamdi case is just much easier than Padilla.  The main issue in Padilla is a competence issue.  And I think even the government realized this, because they were wise to keep Padilla, because they would have lost him if they hadn't.

The question I have is whether you discuss the Patriot Act at all as an option, where maybe it could be used by the other side to say that the entire Congress was involved in this process of enacting the Patriot Act, and if you didn't get any authority out of that, then they could argue that there's insufficient statutory authority.  And then a follow-up question on that is whether, supposedly there's a Patriot Act II in the works to be considered maybe in the next Congress, whether it would make sense to go for authority as part of Patriot Act II.

MR. KLINGLER:  I suppose I would fight the assumption underlying that.  The government does have a very strong case that there is authority that's been granted in the aftermath of September 11th, the authorization for the use of force directly to the president to undertake military action.  And implicit in that are the military--

QUESTION:  [Off microphone, inaudible.]

MR. KLINGLER:  Well, but that is the dispute.  That's why I'm fighting the assumption.  To accept that--two things that would have to be accepted.  One is that any congressional authorization is necessary at all.  And I think the government has a quite strong case that, incident to the exercise of military power, particularly in circumstances that are suggested by terrorism, where there isn't advance warning, there's not a declaration of war, there's not a foreshadowing of what kind of actions will be taken, and the president has quite broad powers to strike in advance in specific cases or in broader cases as well.  And only if the government's argument in that respect is rejected and that some authorization is necessary, then, as you say, there's dispute over the standard--whether there needs to be specific authorization to detain specifically.  And why Congress would need to say that when they've already granted a broader power that has been understood to encompass detention in the course of a battlefield exercise or conduct of war effort is, from the government's point of view, rather beside the point.

But you're right.  If both of those points are then conceded and the Court finds that a specific authorization is necessary, then I think that there would be a sharp political issue presented by Patriot II about who's willing to vote for and against that authorization.  And I would--you know, if it were forced to that, I would love to see the outcome of that vote, because I think that implicit in the Constitution and in the popular understanding of what the president should be doing is what the president has already done.  And I'd be shocked if Congress, if pressed to vote, actually voted against that.

QUESTION:  I'm Eugene Kontorovich, George Mason University School of Law.

The zone of combat argument, which the other side has raised in its briefs, seems to have the perversity of--to keep detainees in the zone of combat would require United States forces to stay there and give them security, which I think would be more dangerous for the United States forces to provide in the zone of combat, thus endangering the United States forces.  But more importantly, as I think we just saw in the prison in Baghdad, to stay in the zone of combat might be more dangerous for the detainees, who--the zone of combat is not a safe place.  They would probably prefer every legal incentive for the government to have to remove them promptly from the zone of combat.

I believe in World War II there were many German and Italian POWs who were actually brought to POW camps in the United States.  My factual query is do we know if--and I assume there's a non-negligible chance, given the nature of our citizenship laws--if any of those POWs--regular POWs are not saboteurs like Quirin, which was a lucky break for the government--whether any of them were United States citizens.

MR. BERENSON:  I personally do not know whether any of the Germans or Italians who were brought here had U.S. citizenship or claimed it.  There were 418,000, I believe, who were held here, so it certainly stands to reason there must have been some.  But I'm not aware of specific cases.

There were, however, among them many who claimed not to be enemy combatants.  There were Poles and Slavs and Russians who said that they were in forced-labor battalions, they had essentially been dragooned by the Nazis and forced to come along and perform labor for the German war machine and were--you know, hated the Germans and loved us and had no intention of ever fighting against us.  And to the best of my knowledge, none of those people was provided a lawyer or given access to the courts.  They were simply held along with the rest because the exigencies of war simply don't permit fine distinctions like that.

The other thing I would say in response to your comment is there is another very perverse implication of the zone of combat argument.  If you imagine the morning of September 11, 2001, apprehending one of the 19 hijackers before he boarded his airplane, the implication of the zone of combat argument is that there would be no authority to detain and interrogate that person militarily in an effort to disrupt the plot and prevent those airplanes from taking off with the other terrorists aboard and doing what they eventually did.  You would have to treat that individual presumptively as a criminal suspect, mirandize him, give him access to a lawyer, and not learn in real time whatever it was he had to tell you about the plot of which he was a part.

Jose Padilla is essentially identically situated to someone like that.  Now, we know now he wasn't right on the cusp that morning of carrying out an attack, but he could well have been.  And to accept the detainees' arguments in these cases would put you in a position where you would be very much disabled from trying to disrupt and prevent an attack like that in the circumstances of a capture like that I described.

MR. CHARNES:  A couple of quick responses.  There was at least one U.S. citizen, a man named [inaudible].  He filed a habeas petition, decided by the Ninth Circuit, and it was rejected by the Ninth Circuit.  He was an Italian of U.S.--born in the United States, who alleged he was a U.S. citizen and could therefore not be held as a prisoner of war.  The Ninth Circuit rejected that claim and, following Quirin, said that U.S. citizens who fight for the enemy you can treat under the laws of war, and he was held as a prisoner of war, I think in California.

On your early point, in fact, the Geneva Convention explicitly requires that prisoners of war and other captured enemy soldiers be evacuated from the combat zone.  So it violates the Geneva Convention to leave them within the combat zone.  In addition to the reasons that you describe, that wouldn't make a lot of sense.

QUESTION:  I'm missing the argument that, hold somebody to interrogate them, get the information [inaudible] having a lawyer there or passing on national secrets to the lawyer is a bit more difficult to understand that one because any of their conversations are recorded and there's military officials there.  But overall, for the general public, isn't there this question of perception of justice being done.  And we are, I guess, at a time of war.  It's undeclared, but we still all agree that there is a war on terrorism going on.  But do we run the risk of losing the public sense of what America stands for, and that's, really, everybody is guaranteed their due process?

MR. BERENSON:  Well, you know, the use of the term "perception of justice" I think points out some of the difficulties that the administration confronts.  Clearly the risk you identify is real and does exist, but it exists largely because, I think, as a nation we have forgotten what it means to be at war, really at war, fighting an existential struggle against a very, very threatening force.  I don't think we would have heard during World War II a lot of talk about the need to do justice to the Nazis or to the other fascists against whom we were fighting.  Traditionally in war that's not what you're there to do.  You're not there to dispense justice to your adversaries; you're there to kill them or capture them, defeat them utterly.  And, you know, the due process traditions that apply during wartime are traditions where you try to do the worst things imaginable to your enemy with as little notice as possible.

And we really, sort of, lost sight of that.  The legal culture now and the broader culture have imbibed so many assumptions from the due process revolution in the 1960s and also the events of the 1970s, which produced much greater suspicion of the executive branch, that part of the challenge the administration faces here, I think, is reminding the public of what a difficult, messy business war is and how tough you have to be to fight it successfully.

QUESTION:  May I follow up with a follow-up question that maybe clarifies this:  If Jose Padilla, instead of joining al Qaeda, had accepted a commission in the Royal Norwegian Air Force, would he not have forfeited his U.S. citizenship?

MR. CHARNES:  The answer is "not necessarily."  There's a federal statute that deals with expatriation, which means losing your U.S. citizenship.  And if I recall correctly, service in a foreign army doesn't necessarily do that, particularly in circumstances where there's not a conflict between the two nations.  It's also actually fairly cumbersome to take citizenship from somebody.  There's a formal procedure that the State Department must go through, including notice to that person and an opportunity for a hearing before he can strip the citizenship.  And until that's stripped, the person is a citizen.  So it's actually difficult.

On the interrogation point, I don't think the government's argument is principally that the lawyer will pass secrets out, national security secrets--although I point to the Lynne Stewart case in New York, where a lawyer in New York has been charged with the crime of material support of terrorism for passing secrets from the so-called blind sheikh--

QUESTION:  [Off microphone, inaudible.]

MR. CHARNES:  No, the court threw out some of them, the government reindicted her.  In fact, the district court just upheld that indictment against her motion to dismiss.

But the principal argument that the government makes, and there are some affidavits that have been submitted by the head of the National Security Agency--

MR. FRUM:  Defense Intelligence Agency, Admiral Lowell Jacobi.

MR. CHARNES:  --Defense Intelligence Agency [inaudible] why access to counsel would interfere with interrogation, and essentially the argument is the whole theory of interrogation is that the interrogator controls the entire life and circumstances of the detainee.  And introduction of any extraneous force interferes with that dependency and that control over the environment and destroys the--essentially destroys the ability to get helpful intelligence out of the person during the interrogation.  So it's not necessarily the fear of passing information as opposed to just disrupting the intelligence environment.

MR. KLINGLER:  I wonder if I could briefly--I think your phrasing of the notions of who we are is a very good one.  And it's essentially a political question that, oddly enough, is getting litigated.  And it's an odd forum to resolve who we are.  But the gist of the organization and the gist of the arguments we've put are in part trying to go to that question, that who we are is in large part, or what we would like it to be, is a people who can defend ourselves, a people who have knowledge that when they're attacked by people who mean to do them harm will take action against that to stop it, to retaliate against it, to ensure that it doesn't happen again.

And I think that one of the interesting political dynamics surrounding the September 11th Commission is that that is a very deeply felt impulse, and it's a highly charged political one as well.  And one of the odd consequences of defining who we are from a traditional criminal due process perspective translated into this war on terrorism context actually threatens who we are in the traditional criminal context.  You see the briefs on the side of the detainees trying to translate the criminal law in a way that loosens all of our traditional criminal law protections.  They say, well, you really can use material witness warrants and you really can use the grand jury aggressively and you really can use a lot of eavesdropping and investigation, and we just don't want to call it military action.  We want to call it war on terrorism.  And I think one of the risks that that perspective brings with it is that the who-we-are in the traditional criminal protections will be that, when we are charged with a crime, we find ourselves without the traditional protections and with very watered-down safeguards against what would be just a standard domestic abuse of power.

MR. FRUM:  I thought that last is a very, very important point and one that deserves great consideration.

QUESTION:  I'm Vic Ratner from ABC.  If I could ask--a couple of brief answers to a couple of brief questions.  If the president says the war on terror will last a generation, do you then believe that he has the right to detain these people for a generation?  And second, the John Walker Lindh case would seem to fly in the face of a number of the points you've raised.  The government did get the information, the prosecution was successful under existing laws, it was timely, et cetera.  Can I get a couple of brief answers to both of those?

MR. BERENSON:  The answer to your first question is that under very well established Supreme Court law, it is in the unreviewable discretion of the executive branch, in particular the president, to define when we are in a state of international armed conflict; that is, when that state begins and when that state ends.  And if it turns out that the war on terrorism lasts a generation, then it would certainly be, within all traditional understandings of the president's powers as commander in chief under both domestic and international law, for him to hold and detain our enemies for a generation.

Now, he could obviously as a matter of grace release them sooner than that.  We have seen many releases and repatriations even out of Guantanamo.  I think the number's somewhere north of 100 now, making suitable arrangements with host governments, the governments to whom these people are being repatriated, to ensure that they do not rejoin the fight against us.  But it's never possible at the beginning of a war to determine when or how it's going to end, and the power to detain is coextensive with the state of war.

On John Walker Lindh, you're certainly correct.  That's an example of a successful criminal prosecution--there have been others--for terrorism.  I don't think any of us is contending that you have to take an exclusively military approach to all of these folks.  You want to have all the tools available to you in your arsenal.  And where you can make a criminal cases, there are sometimes reasons you would choose to go that route.  But the president's not confronted with an either/or choice.  He has both tools at his disposal.  And there are other examples, perhaps the Moussawi case, in which the effort to use the criminal law in a terrorism context has been conspicuously less successful.

MR. KLINGLER:  My version of the short answers would be, on the first:  Yes.  But the president is subject to a very aggressive political process, and to the extent that the assertions didn't match the facts there would be political hell to pay, and that the political rather than judicial process would [inaudible] to that.

And on the second, I'd say that you're hard-pressed to find anyone on either side of the Lindh prosecution, the prosecutor or the defendants, who thought that was a satisfactory process.

MR. CHARNES:  Just a couple of quick points.  The Supreme Court in the context of a civil war said explicitly the government has unreviewable discretion to choose whether to act as a belligerent or as a sovereign with respect to U.S. citizens who take up arms.  And that was with respect to the Confederates.  And in fact rejected the argument that just because Confederate soldiers committed treason, that they were not enemy belligerents.

And I think the counterpart to Lindh, even if you accept it as a success story, is Moussawi, and how that prosecution [inaudible].

MR. FRUM:  I think we have time for one question.  Keep it short, and keep the answer short.

QUESTION:  I'm Brigitte Oederlin from the International Committee of the Red Cross.

Just a short comment.  I think the definition of conflict and war is really at stake here.  And I think the laws of war [inaudible] not really established for this kind of war, I guess.  It was established for other types of conflict.  This is why terrorism, which has for a long time been considered as a law enforcement issue, does not really fit in this definition of conflict and obviously would eventually require the adaptation of either the laws of war or domestic law.

But my question to you is that, even though there is a [inaudible] process by the administration to choose which case will be considered as an enemy combatant and which is not, what is the difference between Mr. Hamdi and Padilla being considered as enemy combatants and the Lackawanna case, which was decided in Detroit, I think, which was also dealing with U.S. citizen and also dealing with terrorism cases?

MR. BERENSON:  To some extent that question springs from the same place as the last one, which is to point out there are inconsistencies in the way the administration has treated similarly situated people, whether Taliban fighters--John Walker Lindh versus Hamdi--or whether terrorists--the Lackawanna 6 versus Padilla.  And that's a perfectly fair point, but I don't think it undermines the legal arguments that are made.  The government has both of these tools available to it.  It can try each one out in different contexts to try to develop over time a sensible policy for sorting the folks and determining how to deal with them.

QUESTION:  Yes, but how do you put that in the context of arbitrariness?  I mean, some people are entitled to a true process, criminal process, and others are just let to wait for many years in detention places.

MR. BERENSON:  Well, the arbitrariness doesn't consist of treating similarly situated people differently.  As Adam pointed out, the Supreme Court's made clear that you can do that in time of war.  You can choose to treat some people under the criminal justice system and some people under the military system of detention.  The arbitrariness that the courts are trying to guard against here is an erroneous detention; that is, detaining someone who is not--a U.S. citizen who is not in fact an enemy combatant.  And that's a very different kind of arbitrariness than looking for kind of horizontal equity, which probably is impossible to achieve.

MR. FRUM:  Thank you.  Thank you to the panel for your very interesting remarks.  Thank you all for your attention.  There will be further events, I'm sure, in the series.