Salon Radio: ACLU's Jonathan Hafetz on Guantanamo cases

Why is the Bush administration continuing to imprison 17 detainees in Guant

Published October 10, 2008 2:58PM (EDT)

Since 2002 -- for 6 years now -- the U.S. has been detaining 17 human beings in Guantanamo of Chinese Uighur descent who everyone, including even the U.S. Government, acknowledges are not "enemy combatants" and never took up arms against the U.S.  The Pentagon long ago cleared the detainees for release but has nonetheless continued to detain them because no country in the world is willing to accept them due to a fear of alienating the Chinese Government (which persecutes the Uighurs).  

Last week, a federal district court judge -- in a stinging and eloquent ruling delivered orally (.pdf -- beginning on p. 28) -- finally ordered the Bush administration to release these detainees and allow them access to the U.S.  The Bush administration has appealed the ruling and, for the moment, the Court of Appeals has stayed the lower court's order pending appellate review.

Today on Salon Radio, I speak with the ACLU's Jonathan Hafetz about this ruling and the plight of the Uighurs.  We also discuss Hafetz's client, Ali Saleh Kahlah al-Marri, the Qatar citizen who, in 2001, was in the U.S. legally, on a student visa, living in Peoria, Illinois with his wife and five children, when he was arrested, charged with crimes that he vehemently denied, and then -- a month before his trial was to begin -- was declared by George Bush to be an "enemy combatant," had his trial cancelled, and was ordered into military custody, where he has remained -- in a South Carolina brig -- for years with no trial.  I wrote about the al-Marri case here, and the latest ruling, likely to be heard by the U.S. Supreme Court in the next term, here.  That case will determine -- literally -- whether the President has the right to declare U.S. citizens on U.S. soil to be "enemy combatants" and imprisoned with no trial.

Our discussion is roughly 30 minutes long and can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly.

The interview can be heard by clicking PLAY on the recorder below:


Glenn Greenwald : My guest today is Jonathan Hafetz, who's with the ACLU's National Security Project, and is a lawyer who has been involved directly in some of the most important cases involving Guantanamo detainees. Jonathan, thanks so much for joining me this morning.

Jonathan Hafetz : Thank you.

GG : So I want to begin by talking to you about what I think was an extremely significant development in the Guantanamo detainee cases, and that was the order from a federal district judge, last week, regarding the status of 17 Guantanamo detainees who have been held for many years, despite the fact that the DC circuit Court of Appeals has ruled that there is no evidence to believe that they're justifiably classified as enemy combatants, and even the Bush administration no longer contests that ruling.

Can you talk about, first, what the background of these detention cases is, how these detainees came to be detained, and what they've gone through, and where we are in terms of their efforts to be released from their unjustified detention?

JH : Sure. The case involves 17 members of the Uighurs - it's an ethnic group from China - who were basically picked up in Afghanistan, in the chaos. Like all others at Guantanamo, there was no military screening process in play to determine who should be detained, who shouldn't be detained, because the U.S. abandoned its commitment to the Geneva Conventions, and to its own military regulations. They were taken to Guantanamo in 2002, the Uighurs, and they were held in abusive conditions, mistreated, and have been there for more than six years. Somewhere along the way, around 2004, I believe, the government, the United States realized they shouldn't be at Guantanamo. And they classified some of them as, in the language they used, "no longer enemy combatants."

The government doesn't admit it made a mistake, that is that they're innocent, just that they're no longer enemy combatants, and they shouldn't be there. They didn't initially tell the Uighurs' lawyers until it was forced out of the government at court in 2005, and since then, there's been a battle over... GG : Let me just interrupt you there, because that's one of the more extraordinary aspects of this. So, the Uighurs, these 17 detainees are in Guantanamo for more than two years, and at some point the government decides, secretly, to no longer classify them as enemy combatants, and despite that decision, within the Bush administration, they don't release them, nor do they even notify the Uighurs' attorneys, or the Uighurs themselves, that this determination has been made. They just continue to detain them as though nothing had changed, even while the government itself has decided that they're not enemy combatants.

JH : That's right. They continue to detain them even though they admit that there is no basis to hold them there, in government-speak, in this administration's language, "no longer enemy combatants." Now, some of them, they continue to classify as enemy combatants, some of the Uighurs, although they acknowledge that they had been cleared for release, which means they had abandoned the enemy combatant designation, but admitted they should be transferred to another country. Now, the predicament arises from this fact: the government did not, whatever they call them, the government did not believe the Uighurs should be held at Guantanamo. They couldn't return them to China because it was well acknowledged that China would... they were a persecuted group, they would be tortured if not killed in China - and no other country was willing to take them. Not because they are bad people, but because no one wanted to anger China. So, the...

GG : At some point, they were able to place a few of them, right? In Albania?

JH : Yeah. This is another striking thing. The issue initially arose with the first group of Uighurs who were classified as no longer enemy combatants. Their lawyers sought their release into the United States; not as a permanent form of admission to the country, or immigration status, but just temporarily, the argument being that, look, there's no basis to hold them, and you can't return them, you can't keep them locked up in the meantime, and they should be free under some kind of supervised release or parole. The district judge, denied the application to release them into the country. The case went to the DC Circuit in I believe spring of 2006.

While the case was before the DC Circuit, and on the Friday afternoon before a Monday morning hearing, before the appeals court, the government whisked them off to Albania, because it feared the court was not going to accept its position, and they sent them to essentially this refugee camp in Albania. They didn't know anyone; they didn't speak the language; they had no connection to the country. They were living under squalid conditions, and they were confined to this fate in Albania. And I think that those Uighurs remain there - remain there for a considerable period of time.

So this came up again now, this issue of what to do when you have no basis to hold the person, but you can't return them to their home country, and the government continues to fight, continues to say, year after year, that they continue to lock up the Uighurs. And finally, last week, or this week, rather, the district judge, Judge Urbina, in Washington said, enough is enough, and you just can't continue to imprison people who you admit are effectively innocent. And he ordered the detainees released into the United States under a supervised form of release - he was going to work out the conditions to ensure that it was done in an orderly fashion. But, bottom line, he said, this is the United States; indefinite detention of innocent people is unconstitutional, and it's against American values, and I'm not going to stand for it anymore. These people have been locked up for, now, over six years, and enough is enough.

GG : Right. Now, let me ask you this question. The Uighurs obviously have, as a group collectively, not necessarily these specific detainees, although them too, but the Uighurs generally have significant hostility intentioned between themselves and the central Chinese government. Has there ever been any suggestion or indication that Uighurs are devoted in any way to waging war against the United States or the West?

JH : No, there's been no evidence of that. In some of the Uighur cases, the government refused to abandon the enemy combatant definition. In a recent decision the DC Circuit, in a case called Parhat, rejected the government's evidence as incredibly thin, and having a Alice in Wonderland like quality, the evidence that the Uighurs presented any kind of threat to the US, and ordered them to be released. If the government continues to hold them, saying, we're happy to release them to another country, but we're not going to release them into the United States - and that's what the current fight is about.

GG : Right. Now, I want to get to the decision by Judge Urbina in a moment, ordering the government to release them into the United States, but before we talk about the rationale, describe what the Bush administration's arguments were, or are, as to why they have the authority to lock up what everybody acknowledges are people who aren't waging war against the United States, and aren't legitimately classified as enemy combatants for what essentially is an indefinite period of time. They've been held at Guantanamo for six years now, because the government can't say whether anyone will ever accept them, the detention is essentially indefinite, potentially permanent. It's an extraordinary proposition for the government to argue, let alone for us to have accepted up to this point, that we can actually lock away people in a camp forever, without any end in sight, who we acknowledge aren't guilty of anything.

What has the administration's legal arguments been as to why they have the authority to do that?

JH : Well, essentially, it's really two different things. The first is this idea of what the government describes as a winding up power, when, after a war like World War II, for example, after the peace treaty is signed and the shooting ends, some winding down power, or winding up power, where the government needs to return and repatriate the prisoners in an orderly way. You just don't open the doors and all the prisoners of war leave immediately. But what they've done is they've distorted this idea into something completely unrecognizable. It's the idea that, well, we continue to hold these people for years after we realize there's no basis to hold them. And it's both in terms of the length of how long these people can be held, and it's also the fact that there was never any basis to hold them - the detention was mistaken from the beginning.

These were not people who were confirmed enemy combatants, or prisoners of war, and the war is over and we need to return them. These were people who never should have been picked up in the first place, and then the argument is kind of, winding up or winding down power, we can hold on to them for year after year after year. Basically what it comes down to is the idea that we can continue to lock people up simply because it's politically expedient, or because we don't want to allow them into the country because we're ashamed to admit we made a mistake.

GG : Beyond this winding down power, is there also some form of claim on the part of the Bush administration, that decisions about who can enter the country, and whether someone is sufficiently a threat to be excluded and barred is a power that rests exclusively with the president, and that his decisions are unreviewable and irreversible? Is it sort of an expression of the standard Bush worldview that the president has absolute authority and that no other branches can review it? Is that part of the argument here as well?

JH : Yeah, absolutely. That's a very important point: a key aspect of the argument is that it's yet another version of the idea of unfettered, unchecked, unreviewable executive power. It's the same type of argument we've seen in other contexts, the ability to engage in torture, and other abusive interrogation tactics, that no other branch of government can check the executive's authority to do what's necessary for national security. It's the same argument that we've also seen in the context of access to the courts, access to lawyers, where the government fought tooth and nail to try to prevent the Guantanamo detainees from going to court. Lawyers which took more than two and half years 'til they were first able to get access to counsel. And what's striking about this is the courts have rejected this argument time and again, that the executive's power is unfettered, that the detainees are unprotected by Geneva Conventions, and most recently that the detainees are outside the Constitution.

In June, the Supreme Court ruled in a case called Boumediene v. Bush, that the detainees have a constitutional right to habeas corpus. And what the latest maneuver by the administration is doing is seeking to effectively render habeas corpus a dead letter. Habeas corpus has two main components: one, the test whether there's a basis to hold you, and two, if there's no basis, to order your release. Well, here we're at step two; the government, because it can't defend it, because it lost in the appeals court, agrees now that there's no basis to hold any of the 17 Uighurs as enemy combatants. They're not enemies; they pose no threat to the United States. So there the government tries to effectively win and render the habeas corpus remedy a nullity, by saying, well, fine, there's no basis to detain them, but you, judge, don't have the power to release them.

So, you have a judge saying, the detention is unlawful, but I'm powerless to do something as to order of release or a remedy because the executive says we can't do it. Again, it effectively means that habeas corpus is a dead letter; if a court cannot order the release of an innocent person, what is a court there to do, if not to provide a remedy for someone who's been wrongly locked up for six years?

GG : Right. Now, the district judge who is presiding over this case made that argument that you just made, as forcefully and eloquently in an oral ruling delivered in court, and ordered that these detainees, who everyone agrees should not be detained, be released into the United States. And, he imposed, or said that he would impose all sorts of conditions similar to parole to make sure that they were living lawfully and peacefully and would have to come to court every several months, and there would be all kinds of conditions imposed on them to make sure that they're not doing anything wrong. Now, finally after six years being imprisoned without any process of any kind, they were ordered released, and then the government appealed that decision to the DC Circuit Court of Appeal, which ordered the ruling stayed, meaning frozen or ineffective until they could review it, so what seemed like a victory, as always, is now turned into yet more delay, on the part of the efforts of these detainees to be free. Talk about where things are, and what's likely to happen from here.

JH : Yeah, I think what happened was, as you say, the government was able to get a stay of the judge's order from the DC Circuit, but at this point, the stay is only an administrative stay, which means that the DC Circuit doesn't agree that it should be stayed in a permanent stay pending the full appeal, it's just entered a temporary stay until it can resolve, or it can take a closer look, and so it's ordered expedited consideration I think, that all the briefs will be in by next week, and the court presumably will enter a decision at that point, whether to deny the stay request, or whether to grant it pending a full appeal of Judge Urbina's order, which would take months, and then there's of course the appeal to the Supreme Court. People can get years more of detention.

It's striking that the point that was made at the hearing before Judge Urbina this week by Sabin Willett, one of the counsel for the Uighurs. He said, you know, Judge, if after you said thirty more days, you said to me and to my opposing counsel and the government's attorney, you go to Guantanamo and you wait for 30 more days while we resolve these issues. That would be a tremendous hardship, right? We'd all agree that if I were detained, the government lawyer had to go to Guantanamo and be locked up for 30 days, that would impose a tremendous hardship on us and our families. We don't think twice about imposing these hardships on the Uighurs. They're innocent men and they've been through years and years of detention, and there's a callousness that's been exhibited up to this point by the courts, and continuing to be exhibited by the government, in just basically treating these people as political pawns, and that the executive can do whatever the executive pleases, and even if it means locking up innocent people for years on end.

GG : Yeah, I thought that was a powerful argument that you made. You're absolutely right that he essentially said that, if you ordered me and my opposing counsel from the Justice Department to wait in Guantanamo for 30 days while you issued your ruling, there'd be shock and horror at how extraordinarily unjust that was, and yet these detainees have exactly the same claim to freedom, given that they are innocent as everyone agrees, and I think that underscores a really important point.

I've been reading things like Washington Post editorials on this case that say, well, of course, the Uighurs ought to be released but we can't be precipitous about it; we shouldn't release them into the United States because, for some ill-defined reason. And yet the alternative is to continue to keep innocent people in cages as we've kept them for years, and there's no sense whatsoever at how really nauseatingly unjust that is. It's because these people have been rendered invisible, and their unjust imprisonment completely abstract so that we can talk about these delays.

The other aspect of it, too, and it's probably more difficult for you to comment on this than me because you still appear before judges and in courts, but it's extraordinary how, when you're talking about people who are claiming to be unjustly imprisoned, that motions that they file to be released, and appeals of those decisions when they win, sit there month after month, year after year after year after year, so that even when they win - and I think actually Hamdi (sic), who won in the Supreme Court in a landmark ruling, actually pointed this out - that winning in our court system is actually meaningless because all it means is that you wait another year, two years just to have a decision ever matter, and it never really does. Has there been any - it's nice to see that Judge Urbina has finally said enough is enough - but it's still a decision that isn't going to go anywhere, and that has been a long time in coming.

Have you been surprised or frustrated by the complete lack of expeditiousness that these judges seem to think they ought to have when deciding cases of this sort?

JH : Yeah, I think it is, it's been something that I've experienced, my colleagues in the litigation in it at Guantanamo detainee litigation have experienced, is the delays. One just put it well: justice delayed is justice denied. I think that's most true when you're locked up in a place like Guantanamo. And there's been a sense that the system, although there have been these landmark legal rulings in the Guantanamo cases and other case, affirming broad brush great principles, there's a sense that on the ground, they often don't have a lot of meaning.

They haven't really led yet to any kind of hearings; there haven't been any kind of real hearings, even months after the Supreme Court affirmed in no uncertain terms, that the detainees have a right to full habeas corpus review. And the Bush administration has in some sense succeeded in dragging out all these cases and preventing any kind of real relief for the entirety of the president's two terms. I want to add one other thing, though. I think another reason the government resists brining the Uighurs or allowing the Uighurs to come into the United States, is there's been since the beginning this myth perpetuated by the President, by Vice President Cheney, David Addington and others in the administration, that the Guantanamo are the worst of the worst. And certainly there are some, some group of them are, or appear to be dangerous terrorists, but by and large, that's not the case, and many of them are completely innocent.

The Uighurs are a clear example. And if they're released into the United States, they are free, able to go about their lives, while they're here may end up doing good, productive things, people could see them, talk to them, journalists, members of the public. I think it will puncture one of the central myths of Guantanamo, that is that it's a place of the worst of the worst, and show that it's really not. It's human beings and while some may be bad, many others aren't, and I think in a very very human tangible way, it will undercut the idea behind Guantanamo and the way Guantanamo as a package has been sold to the American public.

GG : Yeah, extraordinary that that motive, to essentially prevent the truth from getting out, the ability to humanize the people that we've locked up in cages with no recourse can actually lead people to try and keep innocent in prison for years and years and years, and continue to do that. I want to shift gears for a moment or two, to talk about a case which you have been directly involved with because you represent the person who's at the center of it, and that is the case of Salim al-Marri who was in the United States legally on a student visa, living with his wife and five children in Illinois when he was arrested, and charged with several crimes relating to false statements and the like, and was scheduled to be put on trial where he was contesting the charges vigorously in 2003, when a month before the trial George Bush declared him an enemy combatant and ordered him transferred to the custody of the United States military where he's remained imprisoned ever since as an enemy combatant, without any charges, opportunity to contest his guilt in a court of law.

Can you give a little background about that case, and what has happened legally, and where we are with that, and what the status of it is at the moment?

JH : This is an incredibly important case. It involves, as you indicated, an individual who was lawfully in this country, and was detained by the military for more than five years without charge. It effectively raises the question of whether the president can order the military to seize and detain indefinitely without charge or trial, an individual lawfully in the country, including US citizens, based on the president's assertion that he is an enemy combatant. Al-Marri was, after he was declared an enemy combatant, he's been at the brig in South Carolina, near Charleston for the last five years. For the first sixteen months of his detention, he was held completely incommunicado, and subjected to abuse that bordered on if not amounts to torture - things like sleep deprivation, extreme sensory deprivation, painful stress positions - all done in secret, no access to the court, no access to the outside world, even the Red Cross was refused entry.

This was an effort to create a mini-Guantanamo right in the United States. He eventually, after the Supreme Court decision in Hamdi, another detainee case in 2004, where the court held that the Constitution required that those alleged to be enemy combatants have access to a lawyer, al-Marri got access to counsel, we were able to see him again. And now we've been challenging his detention in the federal courts for the last four plus years. The district court rejected our arguments and ruled that the president had authority to detain Mr. al-Marri as an enemy combatant based solely on the government allegations that he was alleged to be involved in terrorist activity. Effectively what the court ruled was that the so-called "war on terror" extends to the United States and that the president has the same power to pluck a person off the streets of this country or from their home as he does to seize a soldier on a battlefield in Afghanistan. It's the most extreme form of the idea of a global war on terror that's been asserted so far.

The Court of Appeals then, in an important ruling in June of 2007, ruled that the president did not have authority to seize individuals in the United States with no connection to anything we recognize as a war. Never was on a battlefield, not a member of a army, does not have power to lock people up without charge indefinitely, that those individuals must be given - they may be bad individuals, they may have done bad things, but in America, the military doesn't imprison people forever with charge - and they must be given criminal trials. And they're found guilty, punished, but you just can't lock people up in a stockade forever. The government then petitioned the full court, this is the appeals court in Virginia, the Fourth Circuit, for what's called en banc review, so it asked the full court to hear Mr. al-Marri's case, and the court agreed to re-hear it, and in July, this past July, the court ruled in a 5-4 decision, that the president had the power to seize and imprison, indefinitely, individuals including, US citizens, without charge, and hold them for the duration of the so-called war on terror, even though that might be generations.

Now, the court also rejected the idea that people like Mr. al-Marri and others in these situations should not have process or proceedings to contest the allegations, so it sent the case down to the district court for further proceedings to kind of determine what additional process Mr. al-Marri should be afforded. But that's a small side issue in the case. The big issue and the question is whether, again, the president can order the military to go into someone's home, or place of work, or even just on the street, pick someone up if the president thinks that person is affiliated with terrorists, to hold indefinitely in a military jail without charge. It is the most radical idea, and the greatest affront, I think, to the basic protections in the Bill of Rights that we've seen in the war on terror - this extension of the idea of the enemy combatant paradigm to the United States. It is something that is vastly beyond anything we've ever seen before in the entire history of the United States.

GG : Let me underscore something there, too, that I think doesn't get nearly enough attention, and you can say it, and it's so extraordinary a proposition that people have a hard time ingesting it, but the reason why a lot of these cases don't strike people as horrifying is because the people who are being targeted with these sorts of tyrannical power - and that's what they are, without hyperbole: the ability to order someone arrested and held incommunicado and indefinitely with no charges is definitively tyrannical power while they're sitting in their home, not on the battlefield - is because they have names like al-Marri and they're from Qatar and they not US citizens, but in this decision, that you just described from the Fourth Circuit, both sides of the court, the one that ruled in favor of this power, and the one that said the president doesn't have it, agreed - there was no distinction legally or constitutionally - between the ruling as it applies to people like al-Marri, who were in the United States legally, and United States citizens.

And in fact, Judge Traxler, who was the judge who ended up being in the majority of both sides of the decision that you just described - namely that the president can detain people as enemy combatants, but cannot hold them with no process, that some process needs to be afforded - said in the opinion, quote "under the current state of our precedents, it is likely that the Constitutional rights our Court determines exist or do not exist for al-Marri, will apply equally to our own citizens under like circumstances. This means simply that protections that we declare to be unavailable under the Constitution to al-Marri, might likewise be unavailable to American citizens."

Similarly, Judge Gregory, who was in the majority in part of the ruling said, "while al-Marri is not an American citizen, that distinction is insignificant under the AUMF, the Authorization for Use of Military Force, and the rights al-Marri receives will no doubt be the standard by which we measure the due process rights of all enemy combatants, detained in the United States" -- meaning United States citizens as well.

So the court has essentially ruled that the president has the authority to detain, as enemy combatants, people not on the battlefield, inside the United States, whether a US citizen or someone here who's not a U.S. citizen but is here legally. That really is explicitly what this ruling held. It's as extraordinary of a ruling as you can imagine having for the reasons you suggested.

So, where are we in terms of the appeal? Obviously the appeal would be to the United States Supreme Court; that's the only place there is to go once you have an en banc ruling. What is the status of that, and what do you expect to happen?

JH : Well, we filed a petition for certiorari in the Supreme Court last month seeking review by the court. The government's response is de October 23rd - we expect that there'll be a decision this Supreme Court term whether or not it will take the case, and if so, to hear the case. So, certainly without question, this is a case the Supreme Court should take; this is a case of exceptional national importance, it's a case that the government itself admits is extraordinarily important, which is why they were able to get the full Fourth Circuit to hear the case. And it's a case, of course, that really came up in a slightly different but essentially the same guise to the Supreme Court before, through José Padilla, who was...

GG : Who was a United States citizen, exactly right.

JH : Right, who's an American citizen, who was picked up in the US. The allegation was he planned to explode a dirty bomb in the United States, and he was held for years as an enemy combatant. The first time the case went to the Supreme Court, it was effectively decided on technical grounds; the court didn't get to the issue, but said, well, Padilla filed his case in the wrong court, he should have brought his case in the district he was detained in, the Fourth Circuit, and not the district were he was seized and declared an enemy combatant, which was the New York course. But the case went up again; by the way, that first time around, it was a dissent, there were four of the justices signed indicating that the detention was illegal, and if you actually do a close analysis of that decision and of the Hamdi decision, decided the same day, it was fairly clear there were five justices who did not think that Padilla's detention was valid, that is, a majority of the court. When the case came up again to the Supreme Court in 2005, two days before the government's opposition to the Supreme Court certiorari review was due, the government suddenly, without explanation, charged him criminally.

Effectively, it folded up its tent and said, we're not going to hold him as an enemy combatant anymore, and sent him to the civilian system, where he was subsequently prosecuted and convicted. But the government dodged the Supreme Court review, I think, recognizing that its policy of picking people up in the U.S., and detaining them indefinitely was about to be struck down. As it's done on a number of occasions, short-circuited the judicial process, to avoid a bad ruling. In any event, it's fairly clear what the stakes are in this case, the al-Marri case, how important it is, and why the Supreme Court, should be granting review and hearing the case.

GG : There's an example of, that is, when the court refused to hear the Padilla case, and there were several justices on the court who said that they should hear the Padilla case, even though the government had at the last moment shifted to a civilian court system, and argued that the case was moot, precisely because what it did was just delayed by several years the need to adjudicate a vital question, which is, can the president detain people as enemy combatants who are inside the United States legally, and your client and several other people are suffering as a result. The other thing I would note, is that, most of these executive power case decisions, including Hamdan and Hamdi and the cases here earlier this year that said that Guantanamo detainees have the right of habeas corpus review, have been 5-4 decisions, and several of the justices in the majority, who have composed the five, are almost certainly by all accounts leaving the court within the next several years, including Justice Stevens, Justice Ginsberg and perhaps Justice Breyer.

So it just means that the next election, even if you believe there's no other reason why it's important, will certainly have lots of consequences on some of the most vital constitutional questions that we face.

JH : Absolutely, although, we don't know what the vote on al-Marri would be, but on this case, on this question, this is something should be abhorrent to both the liberal and conservative wings of the court. Particularly the conservative wing. This case is essentially, the idea about the military picking people up in the United States and imprisoning them without trial - it defies the cornerstone principles on which the country was founded. It's the reason the United States declared independence from England, it's one of the central reasons we established a constitution and a bill of rights. The Constitution was certainly not perfect, and there were obviously many things along the way that have, we've progressed in a number of areas, obviously - we could talk about slavery, and women's rights and a million other things - but on this issue, this is something at the founding of this country, and even if you believe in the original interpretation of the Constitution, this was a no-no. You cannot lock people up in the United States using the military and not give them a trial. So, whatever your judicial philosophy is, it's really hard to square a case like al-Marri with that philosophy.

GG : Right. Just to underscore that point, in the Hamdi case, there was a 7-2 ruling back in I think 2003, or 2004, actually, where Justice O'Connor wrote for the court and found this middle ground and two justices objected and said that the president can't possibly have the authority to detain American citizens as enemy combatants and those two justices were Justice Scalia and Justice Stevens, sort of underscoring the idea that that power, especially several years removed from the 9/11 attacks, ought to offend justices regardless of where they on fall on the ideological spectrum.

Well, Jonathan, thanks so much for providing the background to these critically important cases, and definitely as the al-Marri case in particular progresses, we'd love to talk to you again and find out what's going on with that.

JH : Great. Well, thanks for having me on.

GG : My pleasure. Thank you.

[Transcript courtesy of Thames Valley Transcribe]

By Glenn Greenwald

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